Hearing Off, Drama On for Governor's Mask Lawsuit Against Mayor
"After consultation with our client, the State would respectfully request that you recuse from this matter," Deputy Attorney General Julie Adams Jacobs said to Judge Kelly Lee Ellerbe.
July 21, 2020 at 01:45 PM
8 minute read
Here's the shorthand on the mask case: The hearing is off. The judge is out. Things got awkward over her chatting with an appellate judge about what could be a controlling opinion. A new judge was in. Now she's out. Another new judge is in. The drama continues.
An 11 a.m. Zoom hearing was abruptly canceled Tuesday morning for Georgia Gov. Brian Kemp's motion for an emergency injunction to stop Atlanta Mayor Keisha Lance Bottoms from mandating the wearing of masks, or otherwise contradicting his orders for the public health emergency.
Fulton County Superior Court Judge Kelly Lee Ellerbe signed an emergency recusal order Tuesday morning removing herself from the case. The order cited Uniform Superior Court Rule 25.7 for voluntary recusal, which says the judge's action "shall not be construed as either an admission or denial to any allegations which have been set out in the motion."
The request for the judge to recuse came from the office of Attorney General Chris Carr, the governor's top lawyer.
"After consultation with our client, the State would respectfully request that you recuse from this matter," Deputy Attorney General Julie Adams Jacobs said in an email to the judge's staff attorney, Jennifer Ventry, at 8:39 a.m. Tuesday.
"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."
Just two minutes earlier, at 8:37 a.m. Tuesday, an attorney for the mayor and the Atlanta City Council said they had no problem with Ellerbe continuing with the case.
"Please inform the Court that the Defendants' counsel have discussed with the client the Court's disclosure made on the record yesterday afternoon, and Defendants have no objection to the Court proceeding to hear this matter," Michael Terry of Bondurant Mixson & Elmore said to the judge's staff attorney.
The emails are part of the record — at Terry's request. "Although I am sure that it is an unnecessary reminder, please recall that the email correspondence on this specific matter was going to be made a part of the record, as discussed in the phone conference yesterday," Terry said in an email to the judge's staff attorney.
Neither the order nor the emails gave the basis of the judge's recusal. The transcript of the conversation between the judge and counsel was not available as of Tuesday.
But the attorney general solved the mystery by providing an explanation.
"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.
The mayor's counsel did object to the state's request to reassign the case to the presiding judge.
"The Court must make its own judgment on recusal," Terry said in an email responding to the attorney general's request for recusal. "However, it would be improper for a recused judge to refer a matter to the Presiding Judge. The recused Judge may take no action except recusing and putting the case back on the wheel. It would then be up to the assigned judge to decide whether to hear the case or refer it to the presiding judge. Any other action taken by a recusing judge is void."
The case was reassigned to Judge Shawn Ellen LaGrua. But then LaGrua recused, too.
"The basis for the Court's recusal is as follows: (1) Judge LaGrua formerly worked as Inspector General for Governor Brian P. Kemp in his capacity as Georgia Secretary of State; and (2) Judge LaGrua has been and remains under consideration for Gubernatorial appointments by Governor Brian P. Kemp," LaGrua said in her recusal order Tuesday. "Thus, to avoid any appearance of impropriety or bias on the part of this Court, the Court hereby directs that this matter be removed from the docket of Judge Shawn Ellen LaGrua and reassigned to another Judge."
LaGrua is on the short list 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 case has been reassigned — again — to Judge Jane Barwick.
The Attorney General's Office said the state still plans to seek another emergency hearing with the new new judge.
The governor has sued the mayor to stop her from enforcing a mask requirement in the city. The members of the Atlanta City Council are included as defendants as the governor seeks to enjoin them from approving the mayor's mask mandate, or any others that are more or less stricter than Kemp's for the public health emergency.
Both the governor and the mayor have accused each other of playing "pandemic politics." They do seem to agree that the mask lawsuit isn't really about masks.
"The State of Georgia continues to urge citizens to wear masks," Carr said in a statement posted on Twitter. "This lawsuit is about the rule of law."
It's not that Kemp is against wearing masks. He said he's all for it. He just doesn't want to mandate it. He said he wants individuals to take responsibility for defeating the virus and not depend on the government. And he's asking the court to enjoin the mayor from issuing press releases or giving media interviews that suggest she has the authority to issue orders that are either more or less restrictive than his related to the public health emergency.
"In addition to being sued over a mask mandate and voluntary advisory guidelines on COVID-19, @GovKemp has asked for an emergency injunction to 'restrain' me from issuing press statements and speaking to the press," Bottoms said in a tweet that included a photo of a page from the complaint listing Kemp's demands. "Far more have sacrificed too much more for me to be silent."
All the emails included in the record for the judge's chambers included this notation after the signature: "Reminder: Face Masks or Facial Coverings Required for Entry into the Fulton County Courthouse and Justice Center."
Meanwhile, in other mask news, the neighboring DeKalb County Commission passed its own mandate for wearing face coverings to stop the spread of the coronavirus, matching one already on the books in Savannah on the Georgia coast.
And amicus briefs have been filed on both sides in Kemp v. Bottoms.
Matthew Charles Cardinale, "as a citizen and taxpayer," is speaking out in favor of the governor and voicing concern that the mayor is violating the "basic principles of state preemption."
"I am particularly troubled by Mayor Keisha Lance Bottoms' purported efforts to limit gatherings to 10 people, in violation of Kemp's June 29, 2020, Executive Order limiting gatherings to 50 people (with which I am already not keen)," said Cardinale, who identified himself as a frequent protester.
The Georgia Municipal Association and the International Municipal Lawyers Association are speaking up for the city on behalf of their members, who "have a significant interest in this action."
"The usurpation of local control through Executive Order has the potential to diminish the powers of self-government of municipalities, as expressly granted by the Georgia Constitution," the municipal association and lawyers said. "That usurpation is particularly damaging in this context, where its consequences are to deny local governments their authority to take precautionary measures in the face of a deadly and accelerating virus that has already claimed the lives of nearly 3,200 Georgians."
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