Case: Kemp v. Bottoms

COVID-19 Summary: This is a case where the governor of Georgia sued the mayor of Atlanta over passing COVID-19 orders (related to masks and social gatherings) that were more or less restrictive than the governor's own orders. The governor sought to enjoin the mayor from passing such orders and filed a motion for an injunction on July 17, 2020. The parties engaged in mediation and settlement discussions, at the request of the court. However, after not being able to achieve a full resolution, the governor withdrew the lawsuit and resolved to add relevant language allowing local jurisdictions to impose mask mandates into a new executive order on August 15, 2020. The case is now closed.

On July 16, 2020, Brian Kemp, the governor of Georgia, filed this lawsuit against the mayor and city council members of Atlanta in the Superior Court of Fulton County, Georgia. The governor brought the suit under Article V, sec. II, Para. II of the Georgia Constitution and the emergency powers granted to the governor to protect the public health under O.G.G.A. § 38-3-51, claiming that recent executive orders issued by the mayor related to mask mandates imposed more restrictive terms than the Governor's order. Specifically, the mayor's Phase One Rollback Plan had ordered the use of mandatory face masks in Atlanta and restricted the number of individuals who could gather on City of Atlanta property (like parks) to no more than 10 people. The governor requested the court issue a declaratory judgment that the mayor's executive orders were more restrictive and contradictory to the governor's orders, an interlocutory and permanent injunction against the mayor from making future COVID-related executive orders.

The next day, the governor filed a motion for emergency interlocutory injunction, requesting the court formally to enjoin the mayor's past executive orders, to keep the mayor from issuing further press releases or executive orders, and to keep the city council from ratifying any of the mayor's orders or passing their own independently.

On July 21 the Georgia Municipal Association (a nonprofit for improving municipal government in Georgia) filed an amicus brief in opposition to the governor's request for an injunction, claiming that the governor's lawsuit was an attempt to inappropriately usurp local control by using emergency powers which did not exist either in the Georgia constitution or statutory law.

That same day, two judges recused themselves from the case -- Judge Kelly Ellerbe recused herself because she had consulted with city council about the case and Judge Shawn LaGrua recused herself because she had worked as inspector general for Governor Kemp while he was secretary of state. For more details, see this news article. Following these recusals, the case was assigned to Judge Jane Barwick, who ordered the parties to participate in mediation with Senior Judge Cynthia D. Wright on July 23.

In a statement regarding the litigation and mediation proceedings, Governor Kemp said: In a statement regarding the litigation, the governor said: "I sued the City of Atlanta to immediately stop the shuttering of local businesses and protect local workers from economic instability. For weeks, we have worked in good faith with Mayor Bottoms, and she agreed to abandon the city’s Phase One roll-back plan, which included business closures and a shelter in place order. Unfortunately, the Mayor has made it clear that she will not agree to a settlement that safeguards the rights of private property owners in Georgia. Given this stalemate in negotiations, we will address this very issue in the next Executive Order"

The defendants responded to the motion for an emergency interlocutory injunction on July 27, arguing against the governor's contentions. The same day, the Georgia Senate and House Democratic Caucuses, as well as 6 labor unions, filed amicus briefs in opposition to the governor's request for an injunction. The latter brief argued that the mayor's mask mandate was necessary to ensure that workers across Atlanta and their families were not needlessly exposed to the virus.

On July 28, 2020, the plaintiffs filed a motion to withdraw their motion for an emergency interlocutory injunction. Citing to the mayor's unwillingness to further negotiate a compromise, the governor decided it was best to withdraw the lawsuit and issue a new executive order (Executive Order 08.15.20.01) with relevant language expressly permitting local jurisdictions to require masks in public on August 15 when the most recent executive order expired. On August 13, the case was dismissed without prejudice and the case is now closed.