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Two Georgia judges recuse themselves from challenge to Atlanta mask mandate

Two Georgia judges recuse themselves from challenge to Atlanta mask mandate
Activists hold signs during a protest against Ohio's mandatory order requiring face coverings during the coronavirus pandemic, at Edgewater Park in Cleveland, Ohio, on July 11. Similar orders have been enacted nationwide, but some areas are challenging the mandates in court. Photo by Aaron Josefczyk/UPI | License Photo

July 21 (UPI) -- Two judges in Georgia on Tuesday recused themselves form a legal battle between Gov. Brian Kemp and Atlanta Mayor Keisha Lance Bottoms over a mask mandate in the city and other restrictions to prevent the spread of COVID-19.

Kemp sued Bottoms to block an order requiring masks for all persons in public places. He filed the suit last week opposing Bottoms' order, which includes guidelines to return the city to the first stage of its re-opening plan. The order closes restaurant dining rooms and urges residents to leave their homes only for essential activities.

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Fulton County Superior Court Judge Kelly Ellerbe was set to hold the first hearing in the case on Tuesday but voluntarily recused herself from the case 2 hours before it was scheduled to start, following a request from the state's deputy attorney general, Julie Jacobs.

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"After consultation with our client, the state would respectfully request that you recuse yourself from this matter," Jacobs wrote in an 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."

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The Georgia attorney general's office issued a statement saying that Ellerbe had notified involved parties about a prior opinion she felt "may have some bearing on the issues" in the case and expressed concern about her involvement.

The case was then reassigned to Judge Shawn Ellen LaGrua, who swiftly recused herself as she had worked as an inspector general for Kemp when he served as Georgia's secretary of state.

Jane C. Barwick was selected to preside over the case and will reschedule the hearing for a later date.

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Prior to the lawsuit, Kemp signed an executive order that overrules local ordinances requiring face coverings and bars similar orders in the future. He says the state has the right to impose a less-stringent guideline that only "strongly urged" the use of masks.

The governor's lawsuit argues that Georgia law prohibits Bottoms from giving orders that are inconsistent and more restrictive than Kemp's.

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"Governor Kemp must be allowed, as the chief executive of this state, to manage the public health emergency without Mayor Bottoms issuing void and unenforceable orders which only serve to confuse the public," the suit states.

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"3,104 Georgians have died and I and my family are amongst the [106,000] who have tested positive for COVID-19," Bottoms tweeted in response to the suit. "Meanwhile, I have been sued by Gov. Kemp for a mask mandate.

"A better use of tax payer money would be to expand testing and contact tracing."

In Palm Beach County, Fla., a similar court hearing was held on Tuesday to weigh a lawsuit filed by residents upset with the county's public requirement for face coverings.

The state -- particularly the Miami metropolitan area, which includes Palm Beach County -- has been the new U.S. epicenter of the outbreak in recent weeks. The state has reported more than 10,000 new cases for a number of days and has seen more than 350,000 cases of COVID-19 to date.

The county commission voted last month to approve the mask policy, but attorney Cory Strolla is representing several Palm Beach County residents in the suit and argues that the commissioners overstepped their "constitutional boundaries."

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"A medical face mask used for medical purposes is a medical device," he said. "Under Florida constitutional case and law, a government entity cannot force you into a medical treatment."

Louis Leo IV, another attorney representing residents, presented Judge John Kastrenakes with a video of Surgeon General Jerome Adams advising against wearing masks, saying they were ineffective and potentially increased the possibility for people to get sick.

Kastrenekas however, pointed out that recommendations of medical professionals have changed since Adams made the statements included in the video.

Rachel Fahey, an attorney for the county, said the motion lacks merit as residents retain choices to avoid situations where masks are required.

"There is nobody forcing the plaintiffs to ride a Palm Beach County bus, go to a government building, be in public in less than 6 feet away from somebody or go to business establishments in person," Fahey said. "They retain choices about where they can be and not wear facial coverings if that is their choice."

Before the 37-page complaint was filed on June 30, some angry residents showed up at a meeting of the commission to voice their opposition to a mandatory mask policy.

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"I hope everyone of you gets voted out who votes for a mask here today! Shame on you for voting for a mask," said one woman.

"All of you are practicing the Devil's law," said another, who condemned any ruling that goes against "freedom of choice."

"I'm asking you to cease-and-desist from the political agendas that you're being 'propaganded' to stand with and try to hold us hostage as American citizens," said another.

The fiery remarks were featured in news reports nationwide and have been the subject of some ridicule.

The commission has responded to the suit by saying the U.S. Supreme Court has "upheld the government's authority to protect the people during a public health crisis" -- and that the order does not violate individual rights.

"The county's action in requiring face coverings to be worn in public places is directly and substantially related to the public health and is not an invasion of constitutional rights," they said.

The ultimate outcomes of the cases may influence opposition to mask policies in other states, including Ohio and New York.

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