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Law360 (August 13, 2020, 7:30 PM EDT ) Georgia Gov. Brian Kemp on Thursday withdrew his state court lawsuit against Atlanta's mayor and city council over their coronavirus pandemic restrictions, saying that mediation has resolved one issue and that he'll address another point of contention with a statewide executive order.
Kemp sued Atlanta Mayor Keisha Lance Bottoms and the city's 16 council members in Fulton County Superior Court last month, saying they implemented virus protections far more restrictive than those he imposed statewide via executive order. Kemp's July 16 complaint argued that Bottoms did not have the authority to modify, change or ignore his statewide executive orders, but that he had the power to suspend any municipal orders in contradiction to his own.
The governor also said Atlanta's face mask mandate and potential plan to reintroduce phase one restrictions caused local restaurants and other businesses to needlessly close their doors, to the detriment of the economy and workers' livelihoods. The governor asked the court to bar Bottoms and the city's council from implementing and enforcing any orders that don't mirror his.
The court sent Kemp and Bottoms into mediation, and on Thursday Kemp said that after weeks of good-faith negotiations Bottoms had agreed to abandon a plan to roll back city restrictions to phase one, which included business closures and a shelter-in-place order. But the governor said Bottoms wouldn't settle a disagreement over the rights of private property owners in respect to pandemic restrictions.
"Given this stalemate in negotiations, we will address this very issue in the next executive order," Kemp said in a public statement. "We will continue to protect the lives and livelihoods of all Georgians."
Kemp did not explain Thursday what he and the mayor disagree on regarding private property rights, stating only that when his July 15 executive order in response to the pandemic expires Saturday, he'll issue a new order with "relevant language" to address the issue.
In a statement Thursday afternoon, Bottoms said the governor misrepresented their negotiations, but she is glad he withdrew his suit and that her goal from the start of the pandemic has been to save lives.
"While it is unfortunate that the governor seeks to intentionally mislead the people of our state by issuing a woefully inaccurate statement regarding our good-faith negotiations and the city's reopening recommendations, I am grateful that this lawsuit has been withdrawn and the time and resources of our city and state can be better used to combat COVID-19," Bottoms said in a statement supplied to Law360.
Hours later, Bottoms posted a tweet indicating the two still don't see eye to eye.
"In no uncertain terms have I or the city abandoned any part of our roll back to phase one," the mayor said on Twitter. "The advisory recommendations have always been voluntary. The intentional misrepresentation of this fact is shameful."
Bottoms issued 72-hour emergency orders on July 8, 10 and 13 mandating face masks and banning groups of people on city property, saying her restrictions were necessary because of the extreme likelihood of destruction of life or property due to the unusual conditions brought about by the pandemic.
While Kemp says he strongly encourages people to wear face masks in public, he won't make it mandatory, saying in his suit that such a measure would be unenforceable. The governor's July 15 executive order urges high-risk Georgians to shelter in place and prohibits gatherings of more than 50 people. It also expressly suspends any rule or regulation that mandates the wearing of face coverings in public.
Bottoms said in her July orders that the governor's June executive order in force at the time did not contain a requirement or prohibition concerning the use of face masks and therefore the city's orders were not in conflict.
Kemp claimed Bottoms created ambiguity and uncertainty for citizens when she issued her orders in early July and spoke publicly about the potential to roll back Atlanta's phase two restrictions to phase one.
"Relying on Bottoms' assertions, some restaurant owners have closed their doors believing that closure of their business is required to avoid enforcement action by the city," Kemp said in his complaint. "Mayor Bottoms' orders and actions present a high potential for irreparable harm to the citizenry, including but not limited to lost wages and livelihood, business closures and the opportunity for economic growth."
Briefs opposing the governor's suit were filed in the court by the Georgia Municipal Association, Georgia Senate Democratic Caucus and Georgia House Democratic Caucus. An Atlanta resident also filed a brief in support of the suit.
Kemp was represented by Christopher M. Carr, Julie A. Jacobs, Logan B. Winkles and Ron J. Stay of the Georgia Attorney General's Office.
Bottoms and the council members were represented by Michael B. Terry and Robert L. Ashe of Bondurant Mixson & Elmore LLP.
The case was Kemp v. Bottoms et al., case number 2020-cv-338387, in the Superior Court of Fulton County, Georgia.
--Editing by Alanna Weissman.
For a reprint of this article, please contact reprints@law360.com.
