The Jolt: Governor Kemp’s lawsuit would overturn mask requirements in 100 Georgia cities, brief says

07/16/2020 - Marietta, Georgia - Gov. Brian Kemp gives a thumbs-up as he avoids answering questions about his new decision to spell out that cities and counties canÕt mandate the use of masks following the ribbon cutting ceremony for the new Wellstar Kennestone Hospital Emergency Department building in Marietta, Thursday, July 16, 2020. (ALYSSA POINTER / ALYSSA.POINTER@AJC.COM)

Credit: ALYSSA.POINTER@AJC.COM

Credit: ALYSSA.POINTER@AJC.COM

Georgia is in the midst of a full-fledged policy revolt when it comes to the requiring of masks during the current pandemic.

Last night, the Macon-Bibb County Board of Commissioners approved a resolution that requires all residents and visitors to wear a “face covering.”

Failure to comply could result in a fine of as much as $25 on the first offense, and no more than $50 and $100 for second and third offenses. Earlier this month, Macon Mayor Robert Reichert declared that he had gone as far as he could by issuing an executive order “urging and pleading” residents to wear a face mask.

Earlier Tuesday, the DeKalb County Commission gave final approval to its own masking ordinance. From our AJC colleague Tyler Estep:

DeKalb County commissioners have tweaked their ordinance that requires people to wear masks in public, adding a potential exemption for “conscientious objectors” and updating other language in hopes of avoiding a legal confrontation with the state.

DeKalb CEO Michael Thurmond proposed the changes. The county commission approved its original ordinance last week, but Thurmond had not signed it into law before Georgia Gov. Brian Kemp issued a new executive order explicitly banning local governments from requiring the use of face coverings.

Thurmond said he took the opportunity to gather fresh legal advice, and that the revised ordinance recognizes the governor’s authority while simultaneously asserting the powers afforded to local governments under the Home Rule Act of the Georgia Constitution.

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That last paragraph is an important one. Also on Tuesday, the legal battle between Gov. Brian Kemp and Atlanta Mayor Keisha Lance Bottoms over how to respond to the coronavirus pandemic was to have its first hearing In Fulton County Superior Court.

Then the original judge recused herself. A second did likewise, and the case is now in the hands of a third, with a new hearing date yet to be set.

So the day’s top news became an amicus brief filed in opposition to the governor’s lawsuit by the Georgia Municipal Association (and less important politically, the International Municipal Lawyers Association).

ExploreNew hearing date set in governor's lawsuit over Atlanta face-mask mandate

The Kemp lawsuit focuses solely on the city of Atlanta.

However, roughly 100 of the 537 municipalities with membership in the GMA “have already adopted a policy regarding the wearing of masks in their own public buildings in order to protect their own employees and local citizens,” stated GMA Executive Director Larry Hanson.

Those local regulations, too, are jeopardized by Kemp’s lawsuit, Hanson argued, adding: “Our position is in support of home rule, local control and the rights of local governments to adopt policies for their own buildings and the right of local governments to adopt ordinances that supplement the governor’s orders.”

The GMA brief amounts to the first look at the defense that Bottoms and the city are likely to make against the governor's lawsuit. You can read it here, but we have pulled out some of the more interesting passages.

At the heart of the dispute is this passage In Governor Kemp's latest executive order:

“[O]rders, rules, and regulations that are promulgated by county and municipal governments that are more or less restrictive than the terms of this Order shall be considered inconsistent with this Order.”

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That includes the wearing of masks. The GMA argues that under the state Constitution, the government Is usurping power is given to local governments by the Legislature:

“The Georgia General Assembly…intended for local governments to have the ability to enhance guidance from the Governor through supplementation, so long as the supplementation by the local governments is consistent with the Governor’s executive orders.”

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The GMA contends that cities enacting mask requirements are doing just that:

“In addition to the clear strong encouragement the Plaintiff has displayed in his executive orders he has also made numerous public statements, social media posts, and even embarked on a “Wear a Mask” tour of Georgia, all seeking to encourage the usage of masks in the State of Georgia.

“Interestingly, while the Plaintiff began urging the wearing of masks as early as the late April and early May and the first executive order strongly encouraging mask usage was promulgated on May 12, 2020, the first day of the “Wear a Mask” tour was not until July 1, 2020.

The lag time between the Plaintiff’s initial strong encouragement and the commencement of the tour and launch of the “Safety Promise” Campaign indicate that the Plaintiff felt the need to do something more than just trust people on their own to wear masks.

On this, it seems that a number of municipalities and the Plaintiff agreed that more needed to be done to increase mask usage. In an effort to meet the intent of the Plaintiff’s executive orders and public statements to increase mask usage in Georgia, and to follow current public health guidance, a number of local municipalities, utilizing the powers granted to them by the Georgia General Assembly…, sought to supplement the Governor’s orders in a manner consistent with the intent of the Governor’s orders to “promote and secure the safety and protection of the civilian population.”

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This passage cuts to the heart of the GMA argument:

“If the goal of the Plaintiff’s repeated executive orders strongly encouraging the usage of masks was to increase the usage of such, then it is a reasonable reading that mandating usage of such would help achieve that goal.

“The Plaintiff’s own statement indicates that that “right thing” was for all Georgians to wear a mask while outside of their homes. While the Plaintiff expects Georgians do to the right thing voluntarily in the wearing of masks, the same logic apparently does not apply to social distancing, practicing sanitation in accordance with the guidelines published by the Centers for Disease Control and Prevention, and refraining from gathering in groups of more than fifty people, all of which are mandated by executive order, and subject to criminal penalty for violations.

“As described above, it is logical and reasonable for local governments to view a consistent supplementation of the Governor’s executive orders strongly encouraging masks to include mandating the usage of masks within their jurisdictions.”

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Then there’s this:

“Moreover, when the Georgia legislature wants to authorize the suspension of the laws of political subdivisions, it knows how to be explicit about that….”

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And this:

“The purported preemption in Executive Order…applies not only to local mask mandates for the general public in the local jurisdiction; rather, it also seeks to prevent local governments from mandating masks ‘on public property.’

“The plain meaning of such a prohibition is that municipalities are prohibited from requiring masks in their own city halls, police departments, senior buildings, community centers, jails, health departments, recreation and youth centers, and a host of other buildings owned or leased by the municipality itself.”

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The University System of Georgia, incidentally, is requiring masks on its campuses. And Kemp’s executive order permits local school systems to mask or not -- as they see fit.

Even so, the GMA stunned many Republicans — and delighted Democrats— by siding with Mayor Bottoms and against Governor Kemp in his effort to ban the city’s coronavirus restrictions.

There’s already buzz about retribution -- a veto or two of legislation sought by the GMA this year, and a cold shoulder during next year’s session.

Atlanta City Councilman Dustin Hillis quickly detected some pushback on Tuesday. From his Twitter account:

“@GaDPH also conveniently cancelled the standing weekly update between @gacities and Dr. Toomey following the filing of the amicus brief. Politics over public health…”

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We told you yesterday how New York Gov. Andrew Cuomo riled up Georgia Republicans with his maskless embrace of Mayor Van Johnson during his visit to Savannah.

Throughout the day, Gov. Brian Kemp’s aides and supporters posted jabs and memes mocking the mayor of the coastal city — the first in Georgia to impose a mask mandate — for not wearing one as he greeted Cuomo.

“Lead by example,” read one tweet from Kemp spokeswoman Candice Broce, above a picture of a masked Kemp with Surgeon General Jerome Adams, juxtaposed with the bare faces of Cuomo and Johnson.

Soon, she and other Kemp allies were bombarded with pictures of Kemp in recent appearances without wearing a mask. Broce responded to some saying that the governor was still socially-distanced.

Fair Fight, the voting rights group launched by Kemp arch-rival Stacey Abrams, joined the fray. The group sent a picture of a maskless Kemp in close, far-less-than-six-feet quarters with Vice President Mike Pence during his May visit to Atlanta.

“Mandates work, but as Brian Kemp has shown, recommendations do not,” spokesman Seth Bringman wrote.

Asked for a response, Broce countered: “Governor Cuomo and Mayor Johnson mandate masks. They are failing to lead by example.”

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One reader called this morning with a legitimate question. New York now requires visitors from Georgia (and many other states) to quarantine themselves for 14 days. Did Governor Cuomo do so when he arrived back home?

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Opposition to renaming military bases named after Confederate generals, among other provisions, caused U.S. Rep. Doug Collins to vote “no” Tuesday night on a massive military funding bill.

“Congressman Collins believes that erasing our nation’s history by renaming military bases, monuments and statues is a slippery slope, and we have to draw the line somewhere,” a spokeswoman said.

Collins, R-Gainesville, was among seven Georgia U.S. House members who voted “no” on the National Defense Authorization Act. U.S. Rep. Buddy Carter, R-Pooler, joined Collins in also citing concerns that the bill goes too far in limiting President Donald Trump’s power to respond to security threats -- but did not say the base renaming was a factor.

The other members from Georgia voting “no” were U.S. Reps. Jody Hice, R-Monroe; Rick Allen, R-Evans; Barry Loudermilk, R-Cassville; Drew Ferguson-R-West Point; and Hank Johnson, of Lithonia and the only Democrat.

More here.

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U.S. Sen. Kelly Loeffler’s facing fallout for her ad last week slamming U.S. Rep. Doug Collins’ legal record.

In a lengthy open letter, Hall County Solicitor General Stephanie Woodard wrote that the ad blasting Collins’ record as a criminal defense attorney to indigent defendants was “simply wrong.” Wrote Woodard (emphasis hers):

“Ms. Loeffler’s ad contains misinformation and uses insinuation in a highly produced media piece. The most inflammatory insinuation is that Doug Collins belies his beliefs by representing people accused of crimes. This is a VERY wrong conclusion. Our RIGHT to a trial, with an attorney to represent us is a fundamental aspect of our American Constitution and criminal justice system - that men and women of honor have been building on for over 390 years. Defense attorneys stand in the gap between accusation and conviction - requiring the government to do its job, and do it by the law. Defense attorneys , and citizens serving as jurors, hold law enforcement, prosecutors, legislators, and yes, even judges, to the limit and requirements of their power.”

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U.S. Sen. Kamala Harris of California endorsed Jon Ossoff’s campaign for U.S. Senate today - and sent out a fundraising email that called the Democrat a “champion of the people who will stand up to corruption and the abuse of power.”

He’s running against Republican incumbent David Perdue.

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The Republican Jewish Coalition has made a rare primary endorsement, backing Dr. John Cowan in the 14th District congressional runoff over Marjorie Taylor Greene.

“The importance of the outcome of this run-off is too great for us to stay on the sidelines,” Executive Director Matt Brooks said in a news release. More:

“Dr. Cowan’s opponent, Marjorie Taylor Greene, would take our party in the wrong direction. Greene came to national attention for all the wrong reasons: repeatedly using offensive language in long online video diatribes, promoting bizarre political conspiracy theories, and refusing to admit a mistake after posing for photos smiling side by side with a long-time white supremacist leader.”

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The RJC did not endorse any candidate in the Ninth District congressional race, but it previously distanced itself from state Rep. Matt Gurtler, one of two candidates now in the August runoff. Brooks told the Jewish Insider website that his organization would not back Gurtler or Greene if they advanced to the general election.

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Big tech isn’t necessarily bad tech. That’s the message today from a new digital ad campaign from the National Taxpayers Union that opposes spending public money investigating American tech firms.

The ad targeting Georgia voters coincides with a pending congressional subcommittee hearing with executives from four major firms. Watch it here.

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U.S. Rep. Jody Hice, R-Monroe, wants Twitter to provide more details about the widespread outage earlier this month that blocked some of the most prominent users from access to the site for over an hour.

Twitter reported that hackers targeted 130 accounts, attempting to change their passwords and posting Bitcoin solicitations. In a letter to CEO Jack Dorsey, Hice asked for written answers about the scope of the breach and internal tools that may have been exploited or compromised. Eighteen other members, none from Georgia, also signed the letter.

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Joe Biden will hold a virtual fundraiser on Monday — and his featured guest will be Atlanta Mayor Keisha Lance Bottoms, his potential running mate. The invite is here.

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The Washington Post reports that the Democratic Party has produced a 2020 platform draft that opposes “regime change,” proposes “less” spending on national defense and remains silent on former vice president Joe Biden’s proposal to ban new fracking leases on public lands. From the article:

The drafting committee was chaired by Atlanta Mayor Keisha Lance Bottoms (D), who was joined by longtime party stalwarts including Richard Trumka, the president of the AFL-CIO, and Sen. Tammy Duckworth (D-Ill.).

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