Kemp Withdraws Request For Hearing In Atlanta Mask Order Lawsuit

The two sides met for court-ordered mediation Monday. Kemp spokesman Cody Hall announced Monday night that the governor wanted “to continue productive, good faith negotiations.” In a court filing Tuesday morning, lawyers for the state withdrew the request for an emergency order that was to be the subject of a hearing that day.

In response, Fulton County Superior Court Judge Jane Barwick canceled the hearing but ordered the two sides to continue mediation.

Hall claimed a partial victory Monday as part of the justification for standing down from the emergency hearing, saying Bottoms had clarified previous confusing statements.

“The mayor retreated from misleading claims that the city was reverting to phase one by shuttering specific businesses and penalizing law-abiding business owners,” Hall said in a statement. “From the beginning, this overstep by the mayor was our foremost concern and the primary impetus behind the litigation, given the threat of economic harm and immediate backlash from Atlanta’s business community.”

Bottoms, a Democrat, has said those statements are recommendations, not legal orders, and that Kemp did not understand what she was doing.

Bottoms’ office did not comment on the governor’s plan to withdraw the request for a hearing.

Atlanta is one of more than a dozen local jurisdictions in the state that has ordered people to wear face coverings in some public places in an effort to halt the spread of the coronavirus.

In an executive order earlier this month, Kemp strongly encouraged people to wear face coverings to stem the spread of the coronavirus, but he did not mandate the wearing of masks. The order also suspends any local laws or rules that are more restrictive than his order, including local rules or ordinances requiring people to wear masks, even on public property or in public buildings.

Barwick last week ordered the two sides to attend mediation overseen by Senior Judge Cynthia Wright to try to resolve the issues in the case before the hearing that had been scheduled for Tuesday.

The lawsuit filed July 16 asks the judge to overturn Bottoms’ orders that are more restrictive than Kemp’s, block her from issuing any more such orders, instruct the City Council not to ratify Bottoms’ actions or adopt any ordinances inconsistent with Kemp’s orders, to prohibit Bottoms from making public statements asserting she has authority that exceeds Kemp’s, and to require city officials to enforce “all provisions” of Kemp’s existing orders.

The governor filed a motion for emergency interlocutory injunction the following day, essentially asking the judge to order that all those requests take immediate effect while the lawsuit is pending. Tuesday’s hearing was scheduled for her to hear arguments on that motion.

In a court filing Monday, lawyers for the city argued that the lawsuit is barred by sovereign immunity, which says state and local governments can’t be sued without their consent. The city has the right to take action to protect the public, and its mask mandate is not inconsistent with or preempted by the governor’s order, the city’s filing argues.

“In the absence of state leadership on this issue, local governments have stepped in to protect their citizens,” the city’s filing says.

The Georgia Municipal Association, which represents municipal governments throughout the state, as well as Democratic state lawmakers and several labor unions have filed briefs saying the governor has overstepped his authority by trying to limit additional measures taken by local governments to fight the spread of the coronavirus.