Judge Cancels Mask Hearing, but Not Mediation
"Despite the rapidly growing threat to Georgians from COVID-19, Governor Brian Kemp sued Mayor Keisha Lance Bottoms to prevent her from implementing critical life-saving measures in Atlanta. Nevertheless, she persisted," the mayor's response brief said.
July 28, 2020 at 03:58 PM
5 minute read
The hearing is off. The lawsuit is still on. And the judge is doubling down on her order to try and work this out.
That's the latest on the complaint Georgia Gov. Brian Kemp filed against Atlanta Mayor Keisha Lance Bottoms over her mask mandate and other precautions against the spread of COVID-19 that were more restrictive than his.
"Plaintiff having withdrawn his Emergency Motion for Interlocutory Injunction without prejudice, that matter is removed from today's calendar and will be rescheduled as necessary," Fulton County Superior Court Judge Jane Barwick said in an order Tuesday. "The parties and counsel remain subject to the order to mediate this Case with the Honorable Cynthia D. Wright."
The order followed the governor's written withdrawal of his motion for an emergency hearing, filed Tuesday by his counsel, Attorney General Chris Carr, along with Deputy Attorney General Julie Adams Jacobs, Senior AAG Logan Winkles and AAG Ronald Stay.
When asked why the governor withdrew, Kemp spokesman Cody Hall provided a written statement:
"Shortly after we filed suit, Mayor Bottoms retreated from misleading claims that the city was reverting to Phase One, which would have shuttered specific businesses, impacted local workers, and penalized law-abiding business owners.
"Given the threat of economic harm and immediate backlash from Atlanta's business community, this overreach by the Mayor was our top concern and the primary reason behind the litigation.
"Now, Mayor Bottoms has taken several opportunities to publicly explain that the Phase One rollback is purely voluntary, and we appreciate this concession.
"To continue productive, good faith negotiations with city officials and prepare for a future hearing on the merits of our legal position, we will withdraw our motion for the emergency hearing tomorrow. Our priority remains the same: to protect the lives and livelihoods of all Georgians. We will continue to put people over politics and use data, science, and the advice of public health officials to chart our path forward."
The mayor did not have an immediate response Tuesday to the governor's characterization of her as having "retreated."
However, she did file a 254-page response to his lawsuit late Monday, signed by her lawyers at Bondurant Mixson & Elmore: Michael Terry, Robert Ashe III, Manoj Varghese and Jane Vincent.
"Despite the rapidly growing threat to Georgians from COVID-19, Governor Brian Kemp sued Mayor Keisha Lance Bottoms to prevent her from implementing critical life-saving measures in Atlanta. Nevertheless, she persisted," the mayor's response brief said.
"The Governor's suit fails for several reasons," she continued. "First, his suit is barred by sovereign immunity. Second, he cannot prevail on his motion for an interlocutory injunction because he fails to satisfy any of the four elements for granting such relief. Importantly, the Governor has no likelihood of success on the merits of his claims."
The mayor said the governor was relying on authority provided by the Georgia Emergency Management Act "to exercise powers to promote the safety and protection of the public." Such authority "cannot be used to nullify the City's valid exercise of its powers to protect its citizens' health and safety. His attempt is antithetical to the purpose of that Act and exceeds the power granted to him by the Act. Further, granting the relief he seeks disserves the public interest by increasing the spread of COVID-19 and the number of lives damaged and lost to it."
Plus, she said, his complaint is unconstitutional.
"Finally, even assuming he had asserted any viable claims, the Governor seeks relief prohibited by the U.S. and Georgia Constitutions, several Georgia statutes, and equitable doctrines adopted by our Supreme Court. The Governor's motion must be denied."
In her statement of facts, the mayor gave some grim statistics.
"COVID-19—the disease caused by the novel coronavirus SARS-Cov-2—is currently spreading in a dramatic and uncontrolled manner in Georgia," she said. "More than 165,000 Georgians have been infected with COVID-19, and nearly 3,500 Georgians have died as a result. The spread of the disease in Georgia is getting worse. In light of the alarming expansion of this public health crisis in Georgia, Keisha Lance Bottoms, Mayor of the City of Atlanta, has exercised the City's police powers and the authority granted to the City by the legislature to issue Executive Orders 'to protect the health, safety, and general welfare of the public'."
Also, she said, his demand that she be enjoined from speaking to the press about the issues at hand is unconstitutional as well.
Bottoms revealed late last Thursday—on "Jimmy Fallon's Tonight Show"—that she had reached out to Kemp to try and come to an agreement to resolve the lawsuit out of court. "It was a very pleasant and cordial conversation," Bottoms said in a virtual press conference the next day.
"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 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 of the coronavirus shutdown would put small business owners into financial ruin, the mayor said she was never ordering businesses to close.
She said she sought to find common ground with the governor and came away with this: "We are in agreement that masks save lives."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All'Fulfilled Her Purpose on the Court': Presiding Judge M. Yvette Miller Is 'Ready for a New Challenge'
8 minute readOn the Move: Hunton Andrews Kurth Practice Leader Named Charlotte Managing Partner
6 minute readPaul Weiss’ Shanmugam Joins 11th Circuit Fight Over False Claims Act’s Constitutionality
Law Firms Mentioned
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250