Judge orders mediation in Georgia’s mask mandate lawsuit

Atlanta Mayor Keisha Lance Bottoms speaks Thursday during an online update of the city.

Credit: City of Atlanta Twitter

Credit: City of Atlanta Twitter

Move comes after mayor reached out to governor amid legal dispute

A Fulton County Superior Court judge on Thursday ordered Gov. Brian Kemp and Atlanta Mayor Keisha Lance Bottoms into mediation over their legal dispute about how to best respond to the coronavirus pandemic.

Judge Jane Barwick’s order came hours after Bottoms disclosed she and Kemp discussed a possible settlement to avoid a contentious court battle over his lawsuit challenging the city’s mask mandate and other restrictions.

It was a notable de-escalation of a recent war of words between the two politicians, who have assailed each other over the past two weeks as their public relationship, functional if not warm, steadily disintegrated into bitter fighting over how to handle the pandemic and public safety.

A compromise is far from certain, and it will be a scramble for both sides since Barwick still plans to hold a 10 a.m. hearing Tuesday to weigh the merits of the case. Senior Judge Cynthia Wright, a veteran Fulton jurist, was tapped as the mediator.

Bottoms first revealed during a taping of “The Tonight Show” that she and Kemp talked Wednesday about a way to “agree to disagree” without a courtroom showdown.

During an online briefing Thursday, Bottoms said she had a “very good conversation” with Kemp over the litigation that seeks to block her restrictions because they are more restrictive than his statewide order.

The mayor said the two agree “masks save lives” and that they both have the interests of public health at heart.

“We will continue to work together to try to iron out those things that we disagree on and hopefully we can move past it,” she said. “It is not my desire as mayor of this city to have a very public fight with the governor of this state.”

She added that she ”would much rather spend my energy focusing on leading our city through COVID-19 and many other challenges that we are now facing and I trust that the governor would like to do the same on behalf of the state.”

Kemp’s office said Thursday that the conversation was “productive” and indicated that the mayor initiated the discussion, but it declined to comment further. The Georgia Attorney General’s Office is representing the state.

Other Republicans welcomed the prospect of a deal.

Lt. Gov. Geoff Duncan, a Kemp ally who nonetheless has distanced himself from the legal complaint, said the negotiations were a “positive development” and that he hoped “their differences can be resolved outside of a courtroom.”

‘Usurp?'

Kemp filed the lawsuit last week amid escalating tensions with the mayor that were inflamed by a dispute over his decision to deploy Georgia National Guard troops to protect the Capitol and other state buildings in Atlanta despite Bottoms’ opposition.

The suit targeted Bottoms’ July 10 decision to revert to “phase one” guidelines that encouraged new limits on restaurants and other businesses to contain the disease, and it cast the city’s mask requirements as “void and unenforceable.”

Bottoms had previously said she was prepared for a lengthy legal battle to defend the city’s order, pointing out that she and two family members are among the more than 100,000 Georgians who have tested positive for the disease.

And this week, the city was joined by the Georgia Municipal Association, which filed court papers that accused Kemp of attempting to “usurp local control and Home Rule authority” by seeking to block cities from taking additional steps. Atlanta is among more than a dozen Georgia cities with mask mandates, but the only one to also institute “phase one” restrictions.

A settlement would end the nasty legal feud between the governor and the mayor of Georgia’s capital city that was slated to land in a courtroom this week but was abruptly postponed until Tuesday after two judges recused themselves.

It also could remove a potential distraction for Bottoms, who is considered a top contender to be Democrat Joe Biden’s vice presidential running mate. The lawsuit has helped further elevate her national profile, but the consequences of a legal defeat could fuel Republican attacks.

‘Home rule’

Bottoms is among several mayors who, frustrated by Kemp’s rollback of restrictions, have defied his order and imposed their own limits. After Savannah became the first Georgia city to require masks, a string of other local governments quickly followed suit.

“It is time for us to reframe this conversation. This is really Kemp versus Georgia cities. And we represent citizens all across this state,” said Augusta Mayor Hardie Davis, a member of the Georgia Municipal Association’s executive committee.

“This is about home rule. This is not about politics. This is not about liberal versus conservative,” Davis said. “This is about how do we best take care of our citizens.”

Though several of the state’s biggest cities have adopted mask mandates, many other cities, suburbs and small towns have tried to avoid a legal confrontation. The DeKalb County Commission on Tuesday approved its own masking ordinance but added an exemption for “conscientious objectors” and others to avoid the courtroom fight.

Columbus Mayor Skip Henderson said city attorneys warned him that “enforcement would be nearly impossible” under the governor’s order. He also worried about the “practical perspective in trying to get our understaffed Police Department” to try to carry out the mandate.

“We also have had a good bit of success with just urging people to wear masks when they can’t socially distance from one another,” he said.

Still, some cities could get dragged into the litigation. The Georgia Municipal Association said roughly 100 of the 537 cities that belong to the organization have adopted requirements that staffers and visitors in public buildings must wear masks. Those regulations, too, are imperiled by Kemp’s order.

“Our position is in support of home rule, local control and the rights of local governments to adopt policies for their own buildings,” GMA Executive Director Larry Hanson said, “and the right of local governments to adopt ordinances that supplement the governor’s orders.”

Though Bottoms sounded an optimistic note about a settlement, the negotiations could get tangled in politics and policy.

Clark D. Cunningham, a law professor at Georgia State University, said the mayor‘s comments Thursday that the city’s “phase one” plan was only voluntary ”sounded like they might have been negotiated in her conversation with the governor.”

But he said other parts of the lawsuit, such as the city’s mask requirements and limits on public gatherings, ”still seem to be at issue between the governor and mayor.”

About the Authors

In Other News