concurring in part and dissenting in part.
I respectfully dissent from Division 1 of the majority opinion because I believe the Recall Act unconstitutionally deprives an elected official of the official’s property right in the office without due process of law.
I concur fully in the majority’s statements that an elected official has a property interest in the office that can be taken away only by procedures meeting the requirements of due process, that an elected official takes office subject to the possibility of being recalled by the electorate in the future, and that an elected official is statutorily entitled to judicial scrutiny only of the legal sufficiency of the recall application. See OCGA § 21-4-6 (f).1 I also agree with the majority’s im*739plicit assertion that due process does not entitle an elected official to a judicial hearing on the veracity of the allegations set forth in the recall application.2 However, contrary to the majority’s conclusion, the sum of these principles does not equal the adequate due process protection to which the public official is entitled.
The requirements of due process are satisfied if a citizen has reasonable notice and opportunity to be heard to present a claim or defense. Hancock v. Bd. of Tax Assessors, 226 Ga. 570 (176 SE2d 102) (1970); Murphy v. Murphy, 214 Ga. 602 (2) (106 SE2d 280) (1958); City of Macon v. Benson, 175 Ga. 502, 508 (166 SE 26) (1932). See also Nix v. Long Mtn. Resources, 262 Ga. 506 (3) (422 SE2d 195) (1992); Keenan v. Hardison, 245 Ga. 599 (2) (266 SE2d 205) (1980). The Georgia Recall Act provides an elected official with adequate notice of the transpiring events by requiring the election superintendent to notify the targeted elected official that an application for recall has been officially issued for circulation (OCGA § 21-4-5 (b) (2)); that a completed application for a recall petition has been filed with the election superintendent (OCGA § 21-4-5 (b) (3)); that a recall petition has been officially issued for circulation (OCGA § 21-4-5 (i)); and that the legal sufficiency or insufficiency of the recall petition has been certified (OCGA § 21-4-11 (e)). The official has notice of the allegations asserted against him since both the application for recall petition filed with the election superintendent and the recall petition circulated among the electorate contain “a brief statement of the fact or facts upon which the ground or grounds [of recall] are based,” written by the recall proponents. OCGA §§ 21-4-5 (b) (D); 21-4-7 (c).
The grounds for recall are statutorily required to be repeatedly put before the electorate: the “brief statement” of the facts upon which the recall is based must be read by or to each signer of the recall petition. OCGA § 21-4-7 (c). Should the proceedings reach the point that a recall election is conducted, the ground or grounds for recall must be printed on the ballot. OCGA § 21-4-13 (e). Yet nowhere does the statute give the elected official an opportunity to be heard on the matter. Compare the recall election provisions in other states: Alaska (ASA § 15.45.680) and Kansas (KSA § 4329) (each gives the elected official subject to recall the right to present a 200-*740word statement justifying his conduct in office to the election director, who is required to provide copies of the 200-word statement of grounds for recall and the official’s statement in justification to each election board, which is required to post the copies in three conspicuous places at each polling place); Arizona (ARSA § 19-207, 213); Idaho (Idaho Code § 34-1708); Michigan (MSA § 6.1966); Montana (MCA § 2-16-601 et seq.); Nevada (NRSA § 306.060(1)); Oregon (Oregon Constitution Art. II, Sec. 18); and Washington (RCWA § 29.82.105, 130) (each gives the elected official the right to submit a 200-word justification of his conduct which is printed on the recall election ballot (along with a 200-word statement of grounds for recall));3 California (West’s ACA Elections §§ 27023, 27316) (gives the elected official the right to file a 200-word answer to the grounds for recall, and both the grounds and the answer and a sample ballot are mailed to every registered voter); Washington, D.C. (D.C. Code § 1-1321 (d) (2), (e) (2)) and Florida (FSA § 100.361) (official entitled to give a 200-word response to the 200-word statement of grounds for recall, and both 200-word statements are printed on the recall petitions circulated to the electorate); Minnesota (MSA § 351.16 -.22) (elected official entitled to a public hearing presided over by a judge before a removal election may be held); Mississippi (MCA § 25-5-7 elected official entitled to a hearing before a three-judge panel to determine whether there is a substantial basis for a removal election).4
None of the above States which provide for recall elections requires a judicial determination of the truth of the allegations contained in the application for recall. But each State does extend to the beleaguered elected official an opportunity to be heard — the opportunity to present his side of the story to the electorate and justify the conduct which is serving as the basis for taking his office from him. Georgia’s statute does not provide the means by which an official may be heard on the issue.
I recognize that we have adopted the U. S. Supreme Court’s statement that “due process is flexible and calls for such procedural protections as the particular situation demands.” Matthews v. Eldridge, 424 U. S. 319, 334-335 (96 SC 893, 47 LE2d 18) (1976), cited in Eaves v. Harris, 258 Ga. 1 (2) (b) (364 SE2d 854) (1988). In Eaves, we endorsed a flexible standard of due process after emphasizing that a suspension from office pursuant to OCGA § 45-5-6 entailed only a *741temporary loss of official authority with no loss of pay, and had as its “triggering device” an indictment based upon a finding of probable cause that the elected official committed a crime. Due process cannot bend so far where the Recall Act is concerned, as recall has at stake the very permanent taking of an office with the concomitant permanent loss of pay, and is not the product of any official finding of probable cause.
Decided January 24, 1994. James R. Crawford, Michael D. McRae, for appellants. Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Gammon & Anderson, Joseph N. Anderson, for appellees.It is the responsibility of the judiciary, under our system of “checks and balances,” to ensure that the procedure of recall enacted by the General Assembly affords the elected official due process of law. See City of Ludowici v. Stapleton, 258 Ga. 868 (375 SE2d 855) (1989). After examining our statutory scheme, I find it sadly lacking a fundamental ingredient — due process of law. On that basis, I conclude that the statute is unconstitutional and that the judgment of the trial court finding it constitutional (Case No. S93A1341) should be reversed.
I am authorized to state that Justice Hunstein joins in this opinion.
In a previous version of the Recall Act, judicial review was not so limited. The 1990 amendment to the Act provided for an evidentiary hearing at which the chairperson of the *739recall proponents had the burden of
demonstrating by a preponderance of the evidence that the ground or grounds upon which the application for a recall petition and the fact or facts upon which the ground or grounds are based, as set forth in the application for a recall petition, are legally sufficient.
Ga. L. 1990, p. 1939, § 6.
As a result, I would affirm the trial court’s refusal to allow the Aragon elected officials to present evidence challenging the truthfulness of the allegations of misconduct set forth by the recall proponents.
Nevada does not statutorily limit the length of the official’s response, and Washington permits an elected official to respond in 250 words rather than 200.
Several states employ procedures other than recall or removal election to take an office from the elected official. New York, New Hampshire, Oklahoma, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, and West Virginia, for example, have statutes authorizing removal of the official.