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Law360 (February 4, 2021, 6:49 PM EST ) A group of Georgia residents and small-business owners have lobbed a host of constitutional violation claims against Gov. Brian Kemp, arguing his statewide emergency orders over the coronavirus pandemic are illegally curtailing commerce and separating families.
The 11 Georgians and a newly-formed nonprofit, I Do Not Comply Inc., asked a state court on Tuesday to declare Kemp's emergency orders unconstitutional and award unspecified damages for their loss of livelihood and inability to see vulnerable loved ones who are in quarantine. Two plaintiffs' relatives have died in isolation since Kemp's first order in March limited visitation at assisted living facilities, and three others still can't see loved ones under his ongoing restrictions, per the complaint.
Other plaintiffs said they lost their income as a barber, dance schools operator, "pedicab" business owner, wedding band leader and martial arts business manager because Kemp's orders required them and many others in commerce to only perform the minimal necessary activities. They said this constituted the taking of their property without just cause or compensation, and that the statewide orders unfairly allowed some businesses to operate unrestricted, while also encouraging would-be customers to stay home.
"The COVID orders issued by defendant interfered with and harmed plaintiffs' lives and businesses, in comparison to other citizens and business owners in selected industries deemed 'essential services' or 'critical infrastructure' in the COVID orders, by failing to have even a rational basis as to why plaintiffs' lives were deserving of interference and control by the COVID orders, despite the COVID-19 virus potentially being spread by any person, not just those people working in certain industries or without certain regulations," the plaintiffs said in their complaint.
I Do Not Comply said it was formed in 2020 to monitor "unconstitutional overreach" and that Kemp's orders prevented its members from assembling in large groups in violation of the First Amendment of the U.S. Constitution.
Together, the plaintiffs claimed a variety of violations of the Georgia constitution and U.S. Constitution regarding their rights to not be deprived of life, liberty or property, nor equal protection or privacy.
They claimed Kemp's November emergency order allowed the state government to share Georgians' private health details with the U.S. Department of Health and Human Services, including "individually identifiable COVID-19 vaccination information."
Plaintiffs said Kemp has no authority under Georgia law to decide what is legal or not, and no power to discriminate against interstate commerce under the dormant commerce clause of the U.S. Constitution.
"Plaintiffs seek to vindicate their rights to safely operate their businesses, travel freely, and conduct their lives safely without unlawful obstacles or obstructions instituted by the state of Georgia due to actions of defendant Brian Kemp," they said. "The complete control asserted over Georgia citizens and their businesses by the governor directly violates the basic human rights and freedoms to not be infringed by any government."
Kemp's orders only apply to Georgia citizens, so they unfairly favor out-of-state businesses with staff in Georgia who are able to work remotely from home, the plaintiffs said.
They argued the statewide restrictions had an "obvious chilling effect" on speech and assembly because they "explicitly shut down and openly discouraged socialization, gathering, association, and in-person communication at any public location or at private businesses or even homes."
Jordan "Alex" Johnson of Bernard & Johnson LLC, representing the plaintiffs, told Law360 he believes the case is the first of its kind in Georgia.
Johnson said the case is not about money but seeks to have the emergency orders struck down. He said due to the doctrines of sovereign, official and qualified immunity, it is an "uphill battle" for the government to be held financially accountable for those whose rights may be violated by executive orders.
"While it would be ideal if government entities could be financially accountable to citizens for injuries suffered when their rights are violated, there are legal barriers to doing so that politicians have not addressed," Johnson said.
Kemp's office told Law360 it does not comment on pending litigation.
The plaintiffs are represented by Jordan "Alex" Johnson of Bernard & Johnson LLC.
Counsel information for Kemp was not immediately available Thursday.
The case is Smart et al. v. Kemp, case number 2021CV345317, in the Superior Court of Fulton County, Georgia.
--Editing by Ellen Johnson.
For a reprint of this article, please contact reprints@law360.com.
