UPDATE: 2nd Fulton judge recuses herself from Kemp-Bottoms case

First judge was set to hold a hearing today after the governor sued Atlanta's mayor over the city's coronavirus restrictions
Gov. Brian Kemp’s lawsuit accuses Atlanta Mayor Keisha Lance Bottoms of violating his executive orders by banning gatherings of more than 10 people on city property and requiring people to wear masks in Atlanta.

Credit: BOB ANDRES / ROBERT.ANDRES@AJC.COM

Credit: BOB ANDRES / ROBERT.ANDRES@AJC.COM

Gov. Brian Kemp’s lawsuit accuses Atlanta Mayor Keisha Lance Bottoms of violating his executive orders by banning gatherings of more than 10 people on city property and requiring people to wear masks in Atlanta.

Two Fulton County Superior Court judges on Tuesday recused themselves from a legal battle between Gov. Brian Kemp and Atlanta Mayor Keisha Lance Bottoms over how to respond to the coronavirus pandemic.

Judge Kelly Ellerbe was set to hold the first hearing in the matter at 11 a.m., but the proceeding was canceled less than two hours before its scheduled start. Ellerbe voluntarily recused herself from the case. Attached to her order is a series of emails, including one from Deputy Georgia Attorney General Julie Jacobs that asks Ellerbe to recuse herself.

“After consultation with our client, the State would respectfully request that you recuse yourself from this matter,” Jacobs wrote in the 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.”

Addressing the judge’s decision, the Georgia Attorney General’s Office issued a statement saying Ellerbe “notified all of the parties that she spoke with an Appellate Judge ... 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.”

The case was reassigned to Judge Shawn Ellen LaGrua, who quickly and voluntarily recused herself. In an order she filed Tuesday, LaGrua pointed out she worked as an inspector general for Kemp when he served as Georgia’s secretary of state. She added that she “has been and remains under consideration for gubernatorial appointments” by Kemp.

The new judge in the case, Jane C. Barwick, will have to reschedule the hearing for another date.

Meanwhile, the Georgia Municipal Association filed court papers siding with Atlanta, saying the governor “has attempted to usurp local control and Home Rule authority by using emergency powers which do not exist in the Georgia Constitution or in statutory law. There is no indication in Georgia law that the Governor has the power to suspend Home Rule, even in times of an emergency.”

“It should not be within the power of the Governor, emergency or not, to wield legislative and judicial powers to determine by fiat what statutory language adopted by the Georgia General Assembly should be amended to say or what it should be interpreted to say,” the association continued. “As provided for in the Georgia Constitution it is vital that the ‘legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.‘”

Kemp’s lawsuit accuses Bottoms of violating his executive orders by banning gatherings of more than 10 people on city property and requiring people to wear masks in Atlanta.

Kemp, who has encouraged but not mandated masks in Georgia and who has restricted gatherings of more than 50 people, says cities and counties are barred from enforcing rules that are more or less restrictive than his own. Saying Bottoms has sown confusion among Georgians, Kemp is asking the judge to suspend the mayor’s executive orders and prevent her from “issuing press releases, or making statements to the press, that she has the authority to impose more or less restrictive measures” than him.

Bottoms, who is being considered as a potential vice presidential running mate for Joe Biden, is not backing down. She has accused the Republican governor of playing politics amid the outbreak, pointing out the governor is not suing several other Georgia municipalities that have adopted mask requirements. Athens, Augusta and Savannah are among them.

On Fox News Tuesday, Kemp said Atlanta’s mask requirement is “not the point” but rather it’s the city’s push to reinstate Phase 1 of its pandemic guidelines that urge restaurants to stop in-person dining and encourage residents to stay home for all but essential reasons.

”When we have local mayors that start going either above or beyond the executive orders that I have in place, and try to pull back on our economy and start shutting our economy and shutting our businesses down, with really a knee-jerk reaction, I can’t allow that.”

— Staff writer Greg Bluestein contributed to this article.

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