'Kemp v. Bottoms' Mask Lawsuit Heads to Mediation
"We are in agreement that masks save lives," Mayor Keisha Lance Bottoms said after a chat with Gov. Brian Kemp. "We will see if we can work out some terms that we can share publicly and not have this play out in court."
July 23, 2020 at 08:39 PM
4 minute read
The original version of this story was published on Daily Report
Mediation will be the next chapter in the mask drama between Georgia Gov. Brian Kemp and Atlanta Mayor Keisha Lance Bottoms.
"It appears that the interests of the parties and the orderly management of this Court's business would be served by forwarding this matter to mediation," Fulton County Superior Court Judge Jane Barwick said in an order stamped in the clerk's office at 4:02 p.m. Thursday.
"The Court ORDERS that the parties attend mediation with the Honorable Cynthia D. Wright, Senior Judge," Barwick said. "All counsel must be present with access to the parties at the mediation, must be vested with full settlement authority, and must make a good faith effort to resolve the issues involved in this case."
At about the same time the judge was signing the order, the mayor was sounding a conciliatory tone in a "virtual press conference" broadcast live on her social media platforms.
"As a lawyer and a former judge, I know it's always better to give parties an opportunity to talk to resolve their differences before you put it in the hands of others," Bottoms said. She said that's why she reached out to the governor yesterday to talk about where they can find common ground.
"We are in agreement that masks save lives," she said. She also emphasized the voluntary nature of her request that businesses move back to stricter guidelines for controlling the spread of the virus.
Though the governor has said he feared moving back to phase one would put small business owners into financial ruin, the mayor said she was never ordering businesses to close.
"It was a very pleasant and cordial conversation," Bottoms said of her chat with Kemp — which she first mentioned to Jimmy Fallon on the "Tonight Show," saying they had just finished talking.
"We will see if we can work out some terms that we can share publicly and not have this play out in court," Bottoms said at the press conference. "It's always better if when we can get along —as a city and as a state."
The AG declined to comment on the mediation order.
Barwick did not set a time for the mediation, except that it must be before the hearing on the governor's motion for emergency interlocutory injunction against the mayor and the Atlanta City Council to block them from enforcing a mask mandate or other guidelines that are more or less restrictive than his orders for managing the coronavirus disease crisis.
That hearing is still set for Tuesday at 10 a.m.—one week after the first hearing didn't happen because the governor's lawyers asked the judge to recuse.
That was one day and three judges ago.
Judge Kelly Lee Ellerbe abruptly canceled a hearing that was set for 11 a.m. Tuesday and signed an emergency recusal order removing herself from the case by request from the office of Attorney General Chris Carr, the governor's top lawyer.
"Judge Ellerbe notified all of the parties that she spoke with an appellate judge to talk about a prior opinion that she felt may have some bearing on the issues in this case. Judge Ellerbe became concerned about having had this discussion, and she immediately notified the parties. Our office appreciates Judge Ellerbe's transparency and professionalism," Carr's communications director said Tuesday.
The mayor's counsel, Michael Terry of Bondurant Mixson & Elmore, did not have a problem with the judge continuing. But Deputy Attorney General Julie Adams Jacobs asked the judge to recuse in an email. "This particular case has drawn significant attention at the state and national level, and therefore, we believe for all parties concerned, that even any potential perception of impropriety could be problematic," Jacobs said. "Accordingly, we would request your recusal. We would also ask that this case be assigned to the presiding judge to maintain the emergency status of the pending motions."
The case was reassigned to Judge Shawn Ellen LaGrua. But then LaGrua recused, too—mainly because she's up for a promotion from the governor. LaGrua is on the shortlist the Judicial Nominating Commission has sent Kemp for filling the vacancy on the Georgia Supreme Court created by the upcoming resignation of Justice Keith Blackwell, who has said he will leave in November.
"The mediation can take place via videoconference," Barwick said. That will allow the lawyers for the governor and the mayor to avoid having to wear masks—which are required for entrance into the courthouse.
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