Petition for Writ of Certiorari — York Rite Bodies of Freemasonry v. Board of Equalization

Supreme Court, U.

FILED

(') 9314238 JAN 141994

NO. OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1993

j

ef

YORK RITE BODIES OF FREEMASONRY OF

SAVANNAH, ET AL.

PETITIONERS

vs.

BOARD OF EQUALIZATION OF CHATHAM COUNTY,

ET AL.

RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA AND THE

COURT OF APPEALS OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

J. Walter Cowart

Counsel of Record

State Bar No. 191500

7220 Waters Road

Savannah, GA 31406

(912) 355-Siil

QUESTIONS PRESENTED

I. IS IT CONSTITUTIONALLY PERMISSIBLE FOR

A STATE APPELLATE COURT r0 GERRYMANDER OR

ARRANGE ITS MEMBERS, EXCLUDING BY

DISQUALIFICATION MEMBERS OF AN IDENTIFIABLE

CLASS OR GROUP (AS A FRATERNAL ORDER) IN

ORDER TO INSURE OR MAKE MORE PROBABLE A

DESIRED JUDGMENT?

Il. DID THE RECENT RASH OF ANTI-MASONIC

SENTIMENT, FUELED IN LARGE PART BY THE

HIGHLY PUBLICIZED SOUTHERN BAPTIST

CONVENTION DEBATE, WHICH WAS BASED UPON A

FALSE PREMISE AS TO THE MASONS, UNFAIRLY

INFLUENCE THE "ARRANGEMENT" OF THE APPEALS

COURT, AND ADVERSELY EFFECT THE JUDGMENT OF

THE COURT OF APPEALS AND DEN IAL OF

CERTIORARI BY THE SUPREME COURT?

III. DID THE COURT OF APPEALS OF GEORGIA,

AND SUBSEQUENTLY THE SUPREME COURT OF

GEORGIA EXCEED ITS AUTHORITY AND

LIMITATIONS UNDER 0O.C.G.A. SECTION 15-1-8

IN ITS DISQUALIFICATION OF REGULAR JUSTICES

AND JUDGES AND SUBSTITUTION OF SUPERIOR

COURT JUDGES AND A_ SENIOR JUDGE UNDER

O.C.G.A. SECTION 15-1-9.1?

IV. DID THIS ACTION BY THE GEORGIA APPEALS

COURTS CAUSE HARMFUL ERROR OF

CONSTITUTIONAL PROPORTIONS TO PETITIONERS?

Pee

Oi iden otntreinaates

LIST OF ALL PARTIES TO THE PROCEEDING IN

THE COURT BELOW

Parties:

Thunderbolt Lodge No. 693, F&AM of

Georgia, and York Rite Bodies of

Freemasonry of Savannah, Georgia,

Petitioners; \

Board of Equalization of Chatham

County, Georgia, and Chatham County

Board of Tax Assessors, Respondents

Attorneys:

Counsel for Petitioners:

J. Walter Cowart

7220 Waters Avenue

Savannah, Georgia 31406

State Bar No. 191500

Gordon B. Smith

1820 Abercorn Street

P.O. Box 10041

Savannah, Georgia 31412

State Bar No. 658200

Counsel for Respondents:

R. Stephen Sims

Barrow, Sims, Morrow & Lee P.C.

P.O. Box 8185

Savannah, Georgia 31412

State Bar No. 64855

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... ...cccccccvccvccseces i

LIST OF ALL PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW... cccccccvccsceces iii

TABLE OF CONTENTS... .ccccccccccccsccccsecves iv

TABLE OF AUTHORITIES... ..cccccccccccccces iv

OPINIONS BELOW... ccc cccccccccccvcesccveces 1

STATEMENT OFJURISDICTION.. .....2eeeeeeees 1

CONSTITUTIONAL PROVISIONS AND

STATUES INVOLVED... .. cc ccccsccccccccvcvece 4

STATEMENT OF THE CASE... ccccccccccvescves +

REASONS FOR GRANTING THE WRIT......--++ee- 18

CONCLUSION... cc cccccccsvcccccsecccescecsces 37

APPENDIX... ccccccccvcccce ATTACHED SEPARATELY

TABLE OF AUTHORITIES

CASES:

Blakeman vs. Harwell, Executor, et

al., 198 Ga. 165, 31 SE2d 50 (1944)

Daniel vs. Yow, 226 Ga. 544, 176 SE2d

67 (1970)

Dominguez vs. Enterprise Leasing

Company, 197 Ga.App. 664, 399 SE2d 269

(1990)

Mapp vs. State, 204 Ga.App. 647, 420

SE2d 615 (1992)

iv

Massenburg vs. Grand Lodge of Georgia,

81 Ga. 212, 7 SE 636 (1888)

Mu Beta Chapter and House Corp vs.

Davison, 192 Ga. 124, 14 SE2d 744

(1941)

Odom et al. vs. Langston, et al., 356

Mo. 1140, 205 SW2d 518 (1947)

Robinson vs. The State, 86 Ga.App.

375, 71 SE2d 677 (1952)

State vs. Sams, 210 SE2d 916, 75

A.L.R. 3rd 1017 (W.Va. 1975)

Thomas et al. vs. Northeast Georgia

Council, Inc., Boy Scouts Of America,

241 Ga. 291, 244 SE2d 842 (1978)

Thompson, Lt. Gov. et al. vs.

Talmadge, 201 Ga. 867, 41 SE2d 883

(1947)

York Rite Bodies of Freemasonry of

Savannah et al. vs. Board of

Equalization, 261 Ga. 558, 408 SE2d

699 (1991)

York Rite Bodies of Freemasonry of

Savannah et al. vs. Board of

Equalization, 198 Ga.App. 147, 401

SE2d 30 (1991)

York Rite Bodies of Freemasonry of

Savannah et al. vs. Board of A

Equalization, 209 Ga.App. 359 (1993)

CONSTITUTIONAL PROVISIONS:

Constitution of the United States.

Amendment XIV, Section I. (Appx. X)

Constitution of Georgia

Article I, Section I, Paragraph I.

(Appx. X) |

Constitution of Georgia

Article I, Section I, Paragraph II. |

\ (Appx X)

STATUTES:

0O.C.G.A., Section 15-1-8. (Appx. P)

O.C.G.A., Section 15-1-9.1. (Appx. O)

O.C.G.A., Section 48-5-41 (a)(4).

(Appx. N)

OTHER AUTHORITIES:

Rule 18(c) of Court of Appeals of

Georgia. (Appx. Q)

Rule 61 of the Supreme Court of the

State of Georgia. (Appx. J)

OPINIONS BELOW

October 28, 1993, Denial of Motion for

Reconsideration of Denial of Application

for Certiorari (Appx. M)

York Rite Bodies of Freemasonry of Savannah

et al. vs. Board of Equalization, 198

Ga.App. 147, 401 SE2d 30 (1990) (Appx. B)

York Rite Bodies of Freemasonry of Savannah

et al. vs. Board of Equalization, 261 Ga.

558, 408 SE2d 699 (1991) (Appx. W)

York Rite Bodies of Freemasonry of Savannah

et al. vs. Board of Equalization, 209

Ga.App. 359, 433 SE2d 299 (1993) (Appx. A)

STATEMENT OF JURISDICTION

To the Honorables the Chief Justice

and Associate Justices of the Supreme Court

of the United States.

This Court's jurisdiction is invoked

under 28 U.S.C.A. Section 1257.

The Judgment of the Supreme Court of

Georgia dated October 28, 1993, denied

Petitioners' Motion for Reconsideration of

the Court's denial of Application for

Certiorari from the Court of Appeals of

Georgia entered June 1, 1993, and this

Petition for Certiorari to the U. S&S.

Supreme Court was filed within 90 days of

that date, October 28, 1993.

York Rite Bodies of Freemasonry of

Savannah, et al., Petitioners, herein pray

that the Writ of Certiorari issue to review

the Judgments of the Supreme Court of

Georgia dated October 28, 1993, and

September 20, 1991, as well as_- the

Judgments of the Court of Appeals of

Georgia dated November 27, 1990, and June

1, 1993. Review of the Judgments of both

Courts is essential to show the apparently

intentional arranging of the Judges and

Justices of the Georgia Appellate Courts to

insure Petitioners’ loss of the case. This

re-arrangment disqualified and excluded the

regular Court members who were or had been

members of Freemasonry.

This is an Application for’ the

correction of errors arising out of the

See

official conduct of both Appellate Courts

of Georgia, such conduct being the

Systematic disqualification of all regular

Court members who were or had been members

of Freemasonry, and substituting those

disqualified with known non-Masons. This

conduct was in excess of the authority

allowed under 0.C.G.A. Sec. 15-1-8, and was

error of Constitutional proportions and

fatal to Petitioners' cause. That these

Judges and Justices disqualified were

Masonically connected was not known by the

Petitioners until after the denial of

Motion of October 28, 1993, but the

irregularity of the disqualifications was

Clearly raised on four subsequent occasions

during the appeals process as being harmful

error. Given the nature and content of the

errors here alleged, all Petitioners’

remedies in the Georgia Appellate Courts

are exhausted.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

The United States Constitution.

Amendment XIV, Section I.

(Appx. X)

The Georgia Constitution.

Article I, Section I, Paragraph I.

(Appx. X)

The Georgia Constitution.

Article I, Section I, Paragraph II

(Appx X)

0O.C.G.A., Section 15-1-8. (Appx. P)

O.C.G.A., Section 15-1-9.1. (Appx. O)

O.C.G.A., Section 48-5-41 (a)(4).

(Appx. N)

STATEMENT OF THE CASE

This latter denial of Equal Protection

and due process became known for a

certainty only after the denial by the

Supreme Court of Georgia of the Application

for Certiorari (October 5, 1993) and denial

of Motion to Reconsider of October 28,

1993, although the irregularity of the

Court's disqualifications and composition

for review of this case was raised clearly

on four occasions, and shown verbatim in

the Appendix hereto.

In order to show the systematic

disqualification of the Masons from the

panel of both Appellate Courts and their

replacements by non-masons, the affidavit

of the Grand Secretary of the Grand Lodge

of Georgia, F&AM, and of Counsel of Record

hereof, is necessary to positively show

that covert prejudice-bias occasioned the

disqualification of the Masonically

connected members of the Courts and their

replacement by Non-masons. This we assert,

when known, is the unconstitutional

activity complained of, even if the Judges

and Justices of the Courts are permitted

under Georgia law to recuse or disqualify

without limitation under 0.C.G.A. Sec. 15-

1-8 and O.C.G.A. Sec. 15-1-9.1.

This question is not raised here for

the first time; it was first raised in the

Motion for Rehearing dated December 6,

1990, (See Appx. D) following transfer from

the Supreme Court of Georgia to the Georgia

Court of Appeals on January 11, 1990, in

which case six of the nine regular judges

of the Court of Appeals were

"disqualified," and replaced by five

Superior Court Judges and one _ Senior

Appeals Court Judge, where a majcrity of

that Court, consisting of two regular Court

judges and four of the Superior Court

judges affirmed the trial judge in his

judgment against these Appellants, after a

delay in the Court of about ten and one-

half months. A strong and factually

accurate dissenting opinion was written.

Se ee ee

Satie Nika end

CDE Ae tee tt VE APICES her heaity hi rain sett eet

It was again raised in the January

1991, Application for Certiorari in the

Supreme Court of Georgia (See Appx. E)

following a denial by the Court of Appeals

of the Motion for Rehearing. The Writ of

Certiorari was granted and two Justices

disqualified, (Appx. R) (substituted by

Superior Court Judges (Appx. S). The

Supreme Court reversed the Court of Appeals

on other grounds, and remanded the case for

a more thorough evidentiary hearing. The

question of "irregularity" of the Court's

composition was not addressed by the

Supreme Court.

After completion of the evidence,

following the remand, the trial judge

(same trial judge) rendered judgment in

favor of Appellants on October 2, 1992

(Appx. T). The Tax Assessor appealed to

the Court of Appeals of Georgia; these

Appellants (Appellees there) filed their

response brief, making motion to transfer,

or to certify the case to the Supreme Court

of Georgia for review, due to the denial of

equal protection of the law, that of

unequal treatment by the Assessor, of which

the trial judge obviously took notice,

based upon the evidence. This Motion and

Prayer was avoided or denied by the Court

of Appeals.

On June 1, 1993, the trial court was

reversed by a three judge panel of the

Court of Appeals of Georgia, in the face of

the well established rule of law in Georgia

that "findings of trial courts in non-jury

trials shall not be set aside unless

clearly erroneous" and then finding as a

basis for its judgment stated; "these

findings are not supported by any evidence

and are therefore clearly erroneous."

(Emph. ours) York Rite et al. v. Board of

Equalization, 209 Ga. App. 359, 433 SE2d

299 (1993). (Appx. A)

On June 7, 1993, these Appellants

filed their Motion for Rehearing

(Reconsideration) and for full bench

review to the Court of Appeals, which was

avoided or denied by the Court, in its

denial of the Motion to Reconsider dated

July 8, 1993 (Appx. F).

The question of possible bias or

prejudice in the composition of the Court

which we asserted was at a minimum

irregular, was again raised in the

Appellants Application for Certiorari to

the Supreme Court of Georgia of July 29,

1993 (Appx. G). Without comment the

Supreme Court denied the Application for

Certiorari. "All the Justice concur except

Benham and Carley J.J. disqualified."

The question of the Court's

composition was for the fourth time clearly

raised in the Motion for Reconsideration of

Denial Petition for Certiorari and Full

Bench Decision (Appx. H). The Supreme Court

of Georgia was again asked to review this

question. The Court again denied the

Motion, with Benham and Carley being again

disqualified.

Also, filed along with the Application

for Certiorari was a Motion to Stay

Remittitur (Appx. I), Not‘ *e of Intent to

Petition the Supreme Cour. of the United

States for Writ of Certiorari, pursuant to

Rule 61 of the Supreme Court of Georgia,

(Appx. J) in which we charge violation of

certain constitutional guarantees

involving the large number of judicial

disqualifications as adversely affecting

those guarantees.

Thus, the Court of Appeals of Georgia

and the Supreme Court of Georgia had an

abundance of notice of the seriousness and

10.

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3

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4

3

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importance of the question of judicial

qualifications, and ample. opportunity to

address the question, but did not do so, to

the detriment of these Movants and the

fraternal class of which they are a part.

At the outset, when the irregularity

of the Court's composition was first

questioned, it was necessarily based on

assumption and speculation, and it was

suggested by Appellants that even the

"appearance" of irregularity on the Court

was to be avoided so that confidence in our

judiciary would not be eroded. At no time

did the Court address that issue or make

any comment about it.

However, what happened is no longer

speculation or assumption; the why it was

systematically done through the October 28,

1993, Denial of Motion for Reconsideration,

is still unanswered, but we think the

inescapable conclusion is that the

disqualifications were engineered; that it

was done with prejudice or extreme anti-

masonic sentiment which is the same thing,

intended to essentially guarantee a

decision by the Court against the

freemasons. It cannot be reasonably

considered that the arrangement of the

Court was mere coincidence or happenstance.

On January 11, 1990, the Supreme

Court, without comment, transferred this

case to the Court of Appeals of Georgia;

five days less than ten months later, the

Court issued its order designating five

Superior Court Judges and a Senior Appeals

Court Judge, Arnold Shulman, to replace the

six regular judges who were disqualified,

and announced the Court's composition. Copy

of the Court's order of October 22, 1990,

referred to above, was not sent to the

parties and did not mention

"“disqualifications" in that instrument or

12.

or Liki ibeadancctim ts eliad es

eet b

give any reason for the action (Appx. C),

or that six of the regular Court members

had been disqualified. This was not

disclosed or known until the judgment of

the Court of Appeals of November 27, 1990,

was entered (198 Ga.App. 147). Oral

argument was denied although timely

requested. Motion for Rehearing was denied

(Appx. K).

THESE SIX DISQUALIFIED JUDGES WERE, OR

HAD PREVIOUSLY BEEN MEMBERS OF MASONIC

LODGES IN GEORGIA.

THE FIVE SUPERIOR COURT JUDGES AND THE

SENIOR APPEALS COURT JUDGE APPOINTED TO SIT

IN THE PLACE OF THOSE DISQUALIFIED WERE ALL

NON-MASONS.

During the year 1990 when this case

was transferred by the Supreme Court to the

Court of Appeals of Georgia, the duly

elected and serving Judges of the Court of

Appeals of Georgia were:

13.

GEORGE H. CARLEY (Master Mason,

Pythagorus Lodge No. 41, Decatur)

DISQUALIFIED

BRASWELL D. DEEN JR. (Master Mason,

Bacon Lodge No. 56, Alma, demit, 1978)

DISQUALIFIED

WILLIAM LEROY MCMURRAY JR.

(Fellowcraft Mason, Washington

Lodge No. 19, Cuthbert, demit,

1964) DISQUALIFIED

HAROLD R. BANKE (Fellowcraft Mason,

Forest Park Lodge No. 399, Atlanta)

DISQUALIFIED

*A. W. BIRDSONG (Entered

Apprentice Mason, Union Lodge No. 28,

LaGrange)

JOHN W. SOGNIER (Master Mason,

Landrum Lodge No. 48, Savannah)

DISQUALIFIED

MARION T. POPE JR. (Master Mason,

Canton Lodge No. 77, demit, 1989)

DISQUALIFIED

DOROTHY TOTH BEASLEY (Non-Mason)

CLARENCE COOPER (Non-Mason)

Judges who sat in place of those

disqualified were:

WILLIAM J. SMITH (Non-Mason) Superior

Ct., Chattahoochee

14.

a. ut ite Se ) eee

Rene TO MRE I oe a

K. DAWSON JACKSON (Non-Mason)

Superior Ct., Gwinnett

THOMAS DAY WILCOX (Non-Mason)

Superior Ct., Macon

ROBERT G. WALTHER (Non-Mason)

Superior Ct., Rome

DANIEL M. COURSEY JR. (Non-Mason)

Superior Court, Stone Mountain

ARNOLD SHULMAN (Non-Mason), Sr.

Judge Ct. of App.)

*Please note that Judge A. W.

Birdsong, a regular member of the Court,

and who wrote the dissenting opinion joined

Masonry (many years ago), was initiated as

an Entered Apprentice but proceeded no

further in the Order. If he were asked,

"Are you a Mason?", his answer "No" would

be truthful but he obviously knew enough

about Masonary and its quiet benevolent

works to write the dissenting opinion which

more accurately states the truth of the

matter than that of the majority. The

majority opinion in that judgment was based

upon inaccuracies of fact not’ stated

15.

anywhere in the evidence before that Court,

the basis jof the majority opinion was

obviously /grounded upon = an erroneous

predispositiion or prejudgment of the facts.

It cannot be stated for a certainty

why "Bell and Benham, J. J. disqualified"

(Richard Bell and Robert Benham) on the

grant of the Application of Certiorari in

April of 1991, the data being unavailable

to us. However, it is known that in the

denial of Certiorari and the Motion for

Reconsideration of October 5, (Appx. L) and

October 28, 1993 (Appx. M), Justice Benham

was again disqualified along with Justice

Carley, a known Mason, who had moved up

from the Court of Appeals to the Supreme

Court of Georgia in March of 1993. It is

fair to assume Justice Benham is in some

way masonically connected.

The sitting members of the Supreme

Court of Georgia when the Application for

16.

tial

=) wed

ae ee ee ee BO i ALN ce Sah An a lai ot Sale

Sa ee ee

Writ of Certiorari of July 29, 1993, and

its denial of October 8, 1993, and denial

of Motion to Reconsider of October 28,

1993, were all non-masons with the known

exception of Justice George H. Carley, and

the possible exception of Justice Robert

Benham, both of whom were disqualified in

those decisions (Appx. L and Appx. M).

The three Judge panel of the Court of

Appeals of Georgia which reversed the trial

court's judgment of October 2, 1993, (Appx.

A) are al” known to be non-masons (Appx.

B). They were: Edward H. Johnson, G. Alan

Blackburn, and J. D. Smith. Judge Frank M.

Hull, Atlanta Judicial Circuit, and Judge

Michael Stoddard, Cobb Judicial Circuit,

who were substituted for "Benham and Carley

disqualified" in denial of the Certiorari

and Motion to Reconsider in October 1993,

are known non-masons (Appx. U).

The cases arose 0O.C.G.A. Sec. 48-5-

41(a)(4) (Appx. N).

17.

REASONS FOR GRANTING THE WRIT

Can there be any legal or ethical

grounds, or reasons sufficient to justify

the exclusion or disqualification of all

the known Masons on an Appeals Court Panel

where the case involves taxability of

Masonic property under a valid state

statute?

We strongly assert there is not. Nor

would it be valid or reasonable or

constitutionally permissible if it involved

the person of an individual Mason, or his

reputation, or that of the Masonic Order

itself.

There is no bond or covenant between

Masons whether commoner or a Judge, which

would cause them to favor another Mason, or

to protect or cover him in wrong doing, but

to the contrary; there is no bond or

covenant between Masons whether commoner or

a Judge, which would encourage bias in the

18.

Aa a Aas al ae i ai a aE aN Ae aa as ee Sinan tale tals he

individual on behalf of a masonic lodge, an

individual, or the entire body of Masonry,

if the act or goal of the Movant was

immoral or unethical, wrong or unjust. The

principals taught and insisted upon in

Masonry do not condone lack of integrity,

deception or dishonesty of any sort, in

fact it condemns and sanctions it. Only a

very small fraction of the Masonic

membership in Georgia (and elsewhere) are

ever subjected to disciplinary action for

wrong doing; if all the groups or classes

of people in the country were as law

abiding or caring as the Masons, crime

would not be a problem in America. But

being a Mason does not cause this

phenomena, but rather the sincere belief in

the principles it (also) teaches, is the

cause, whether Mason or not.

And, having reached the pinnacle of

the law profession as a Judge, and how much

19.

less-so an Appellate Judge or Justice, can

it be credibly asserted -that such Judge

brings along a bias in favor of Masonry,

because he is or has been one; or a bias in

favor of the Baptist Church because he is a

Baptist or his mother was; or the Boy

Scouts because he was one, or was a Scout

Master for them. (Thomas vs. Northeast

Georgia Council Inc., Boy Scouts of

America, 241 Ga. 291) or a bias in favor

otf a sorority because she was a member, or

has a daughter who is or was in a sorority?

Mu Beta Chapter and House Corp. vs.

Davison, 192 Ga. 124). It is not a valid

argument. There were no mass

disqualifications in those cases. A Judge

or Justice who also happens to be a Mason

is less likely to err in favor of

Freemasonry, than one, although sincerely,

errs against Freemasonry out of lack of

knowledge or ignorance of Masonry's purpose

20.

and good works. Masonry has seldom sought

publicity as to its work, and less so has

; it vocally responded to its critics and

enemies. This silence now works against

the Masonic order. Whether the

disqualifications in this case were thought

to be "politically appropriate" at this

EST RRR Ge persis ae

ie ic emre AE

time, or due to some anti-masonic sentiment

in keeping with the recent Southern Baptist

Pte Rea eoTS

Convention Resolution (and prior one) is

not known for a certainty but given the

Tk EO Bie

Courts’ "in house" policy of nondisclosure,

and what appears to be a systematic

exclusion of the known Masons in the

decisions of the York Rite cases 198 Ga.

App. 147 (Appx. B) and 209 Ga. App. 359

DA el ant ERI OAS rte et Re RR at SUPE ANS

(Appx. A) with no non-masons being excluded

SRN. Veh eA ONE

and no other Masons being included in the

Beto ae cs

panel of nine, gives good

reason to conclude that irregularity of

} constitutional magnitude occurred in the

21.

Court's composition, and was repeated

thereafter, that it was no-coincidence, but

was planned and executed, and because those

regular Court members were or had been

Masons. We assert this conclusion is in

fact inescapable.

When this sort of conduct is engaged

in, can it ever be said with certainty that

it is "harmless error" and _ therefore

constitutionally permissible? We say it

cannot. Whatever the outcome of a case for

or against either party, any tampering with

the procedural aspects of a case denies at

least one of those parties the equal

protection of the law and due process, if

due process, also encompasses "proper"

process. When the legal process is

tampered with or is covertly altered or

arranged to bring about, or make more

likely, a desired result we find the

glaring example of "rule by men and not by

22.

% eee ewe ee

laws," against which mankind has struggled

at least since the year 1066, and which

the architects of the United States

Constitution strove to proscribe and which

was adopted in principle by the State of

Georgia. The guarantees built into this

sublime instrument are not less viable or

enforceable merely because they have been

many times successfully circumvented,

especially in our elections process by men

whose mania for success and approval so

greatly outweighed the virtue or integrity

that they were willing to yield at the

alter of pragmatism any remaining sense of

right and wrong they possessed.

The social contract forged by our

Constitution is the basis of law today as

it was in 1787 and its too-often

circumvention does not make that contract

unenforceable or inappropriate; it should

make those vigilant guardians of those

23.

ideals even more vigilant, and when

discovered, or made so glaringly apparent

as in this case, the illicit conduct should

be disapproved or admonished and the error

corrected.

Would it ordinarily be expected that

two thirds of the panel of nine Judges of

the Court of Appeals would voluntarily

recuse themselves from considering this

case? We say not. If part, or all of them

had done this then the word "recuse" does

not appear in the judgments. That masonry

does not counsel or require any special

bias or prejudice of its members would be

well known to those judges. We assert that

in the ten and one-half months the case was

docketed and lodged in the Court of Appeals

there were discussions and disagreements on

the question of disqualifications. We

think the lapse of time from docketing to

date of Judgment indicates the

24.

reasonableness of this assertion. This

writer knows of no case in-the Georgia Case

Law where so many Judges and Justices were

disqualified. Probably the most hotly

contested, highly punlicized case in the

State of Georgia, was the "Two Governors of

Georgia" incident of 1946, Thompson Lt.

Gov. et al. vs. Talmadge, 201 Ga. 867, 41

SE2d 883 (1947), in which Herman Talmadge

(son of Eugene) was "elected" Governor by

the Georgia General Assembly after Eugene

Talmadge had died following his election by

the people but before his inauguration.

M.E. Thompson had been elected Lt. Governor

in 1946. Some of the Supreme Court

Justices had been appointed by Eugene

Talmadge, who had been Governor of Georgia

On more than one occasion prior to his last

election and death, as had Ellis Arnall who

succeeded Talmadge as Governor. Because of

the prominence of the parties involved it

25.

became a media circus of that day and a

large majority of the citizens of Georgia

became emotionally involved and vocal. If

ever the question cf bias or prejudice

among the court members could be reasonably

suspected, it should be in Thompson vs.

Talmadge, infra.

Yet, no disqualifications took place

on that Court although there were two

dissents. There have been other less

volatile cases in Georgia, but none with

such a large number of disqualifications as

in this case.

Also, we think the unprecedented

action of the llth Circuit Court of Appeals

is clearly distinguished from this case.

The Atlanta "Constitution" of February 27,

1991, Sec. D, pg. 4, stated that "all

Federal Judges in the llth Circuit

voluntarily removed themselves from hearing

the case." This is understandable since

26.

the victim of the alleged crime was a Judge

on the llth Circuit, kmown and perhaps

loved or venerated by his fellow Judges,

but we assert that also present was the

question of possible “appearance of

irregularity" in the Court reviewing Walter

Leroy Moody Jr's. appeal.

We can conceive no compelling or even

reasonable ground for the disqualifications

in this case other than a design to

engineer the judgment however well meaning

the "engineer" might have been. Actually,

all of our prejudices are without sound

reasoning although all of us indulge in

this fallacy to some extent about some

group or premise and without bothering to

inquire as to the truth. In America we are

not unique in possessing this fault.

Historically in this country, at

least since the 1830's, there have been

from time to time anti-masonic movements

27.

such as in the "Morgan Affair" and the

National "Anti-Masonic (Political) Party";

no other fraternal order has been so

maligned. A small minority of individuals

in the recent Southern Baptist Convention

(alleged 8,000,000 members) again took up

the hue and cry against Masonry creating

widespread discussion and controversy,

fueling anew the anti-masonic sentiments

among a great many people, this time based

upon the erroneous premise that freemasonry

was incompatible with Christianity. The

fact that the Resolution failed was not

widely publicized, it not being

"sensational" news anymore.

We think freemasonry, its works, its

ideals, and its presence in Georgia and the

United States is not disapproved by a

majority of our citizens nor by any of

those who benefit from its various

charities. The 85,000 masons in Georgia

—_——

together with wives and children number not

less than a quarter-million people directly

effected by this case. But let us assume

the masons were disapproved by the

majority. Would they be less entitled to

equal protection and due process than the

Abraham Lincoln Brigade or the Nazi Party?

We say not.

Is it constitutionally permissible to

cast aside the case because it is

unimportant, involving taxability - "only

money"? We say not.

Can we say it is ethically appropriate

because it is or may be politically

expedient? We say not.

Prior to the York Rite cases, the

Georgia Appeals Courts have interpreted

0O.C.G.A. Sec. 15-1-9.1 and 0O.C.G.A. 15-1-8

(Appx. P) (formerly Ga. Code Sec. 24-102)

setting forth grounds for disqualification,

which we contend the Appeals Courts did not

follow in the York Rite cases.

In Blakeman vs. Harwell, 198 Ga. 165,

31 SE2d 50 (1944), the Court said "l (a)

No justice of the Supreme Court, merely

because he is a member of the Masonic

Order, is disqualified in participating in

the decision of a cause where an interested

party is the Scottish Rite Hospital for

Crippled Children..."

The Court further said (p. 173) "In

order to disqualify a Judge, there must

exist a ground authorized by law_ to

disqualify him; it is not for the Courts to

add other grounds of disqualification (Emp.

ours).

"There is a Georgia statute which

declares where a Judge or Justice is

disqualified, Code Sec. 24-102 (now

O.C.G.A. 15-1-8). The interest which by

our Code will disqualify is a pecuniary

interest... "Both the Court of Appeals

of this State and this Court have held that

the statutory grounds of disqualification

contained in this section are exhaustive."

And in Robinson vs. State, 86 Ga.App.

375 (1952), 71 SE2d 677, (1952), the Court

said (p. 377) "Code Sec. 24-102, providing

under what circumstances Judges shall be

disqualified, specifies only matters in

which they have a pecuniary interest or are

related within the sixth degree to any

party interested in the result of the

matter. The statutory grounds named in

this section are exhaustive."

In Mapp vs. The State, 204 Ga.App.

647, 420 SE2d 615 (1992), the Court dealt

with the limitations of 0.C.G.A. Sec. 15-1-

8. The Court said "The grounds for recusal

in Section 15-1-8 are exclusive and

exhaustive, and Courts may not add other

grounds of disqualification to those stated

31.

in the statute. (With citations.)" See

also Daniel vs. Yow, 226 Ga. 544, 176 SE2d

67 (1970), where the Court said, "Bias or

prejudice of a judge, which is not based on

interest either pecuniary or relationship

to party within prohibited degree, affords

no legal ground for disqualification."

In Dominguez vs. Enterprise Leasing

Company, 197 Ga.App. 664, 399 SE2d 269

(1990), the Court dealt with 0O.C.G.A. Sec.

15-1-9.1, the authority under which the

Georgia Court of Appeals selected the

Judges to replace those disqualified in

York Rite, as cited in its order of

November 6, 1990, (Appx. CS). Judge

Birdsong, who wrote the opinion, appears

critical of the use or application of

O.C.G.A. Sec. 15-1-9.1. He says "this

statute permits the mutual appointment of

Judges by Judges to sit in every judicial

office in this State, without apparent

32.

limitation. (Emph. ours) It thus seems

that if we had not enacted Rule 18(c) to

prevent it, the Georgia Court of Appeals

could request a Municipal Court Judge to

appoint some physically qualified person to

‘assist’ us in the business of this Court,

without regard to the Constitutional

provisions for a public election of Court

of Appeals Judges and for appointment by

the Governor to fill vacancies... This

unreigned method of administering’ the

judicial business of a Court, and its

disaffection of the electors or of parties

proceeding in the Court, do not seem to be

a sagacious result of the desire for

judicial 'flexibility'." (See Appx. Q) It

does not appear that the Georgia Supreme

Court has addressed or interpreted 0.C.G.A.

Sec. 15-1-9.1, but it has addressed the

limitations of 0O.C.G.A. Sec. 15-1-8, the

33.

_ grounds for judicial disqualification, and

has not expanded those limitations.

We assert the grounds for

disqualification are exhaustive and

exclusive; the grounds limitations are as

incumbent upon the Court members, as it is

that "Courts may not add other grounds of

disqualification". A Justice or Judge

should not ask to be recused unless the

"ground" is clearly within the parameters

of 0.C.G.A. Sec. 15-1-8. This should not

be done for political or other reason

outside that statute.

It appears other jurisdictions follow

the rule as to fraternal orders. Odom et

al. vs. Langston et al., 205 SW2d 518

(Supreme Court of Missouri 1947), says:

"The fact that some Judges were Masons did

not disqualify them from passing ' on

construction of a trust naming Masonic Home

as one of the beneficiaries".

34.

In State vs. Sams, 210 SE2d 916, 75

A.L.R.3d 1017 (W.Va. 1975). The Defendant

allegedly committed burglary of the Elks

Club, the Court stated the Judge was not

disqualified by reason of his membership in

the Elks Club.

We know of no good, valid or legal

reason for the disqualifications, which

began in the Judgment of the Georgia Court

of Appeals of November 27, 1990, (198

Ga.App. 147) and continued through the

Supreme Court's denial of Reconsideration

of Denial of Certiorari of October 28,

1993, in excluding the known Masons and

including only (now) known non-Masons to

review the case. It resulted in Judgment

against these Petitioners. The (now)

obvious arrangement of both Georgia

Appellate Courts in this case cannot be

said to be harmless error, or

Constitutionally permissible.

35.

The question of denial of equal

protection of the law under the State and

Federal Constitutions has been alleged

throughout the course of this case, in that

the Tax Assessor, based on his own personal

agenda, placed these Masonically owned

properties on the tax rolls after over one

hundred years of exemption, while still

allowing the exemption to like

organizations, some of them clearly being

non-charitable entities, and these

organizations are still being so favored to

date hereof. However, we are not actively

pursuing that feature in this Application

for Certiorari.

36.

CONCLUSION

We close by’ saying that equal

treatment under the law should never be

consciously denied by our judiciary because

the litigant is one of an identifiable

class or group whether it be racial,

religious, fraternal or other such class.

The Petitioners here were clearly

identifiable from the outset hy the case

caption as a part of the Masonic Order.

However well intentioned the

disqualifications by the Court may have

been, the effect of it worked a

denial of equal protection of the law and

loss of Petitioners' case. To argue that

disqualification of all Masons on the Court

and replacing them solely with non-masons

was mere coincidence is beyond belief.

We pray that the judgment of the Court

of Appeals of Georgia in its decision, York

Rite Bodies of Freemasonry of Savannah et

37.

al. vs. Board of Equalization, 198 Ga.App.

147, 401 SE2d 30 (1991), and in York Rite

Bodies of Freemasonry of Savannah et al.

vs. Board of Equalization, 209 Ga.App. 359,

433 SE2d 299 (1993), and denial of

Certiorari by the Georgia Supreme Court

dated October 5, 1993, be reversed as being

null and void and the findings and judgment

of the trial court in its Order dated

October 2, 1992, be affirmed.

(Appx. T)

In the first alternative, that the

case be reviewed on its merits and be

reversed;

In the second alternative, that the

case be reversed and remanded for proper

handling by the Appellate Courts of

Georgia;

And such other relief as in this

Honorable Court's judgment is just and

proper.

38.

Tio ee 7 al |

Mat fe (AD NOA

14 sara “Cowart

Counsel of Record for

Petitioners

7220 Waters Road

Savannah, Georg

(912) 355-5111.

Gordon B. Smith

Counsel for Petitioners

1820 Abercorn Street

P.O. Box 10041

Savannah, Georgia 31406

(912) 233-8003

39.