Second judge recuses herself from Kemp, Bottoms mask mandate case

A court hearing over an emergency request by Georgia Gov. Brian Kemp to stop Atlanta from enforcing a mask mandate has been canceled after the judge recued herself.

Fulton County Superior Court Judge Kelly Ellerbe had planned for a hearing for Tuesday morning on Gov. Brian Kemp’s motion. 

"It is our understanding that the hearing is no longer happening," a spokesperson for Attorney General Chris Carr said. "Judge Ellerbe has recused herself."

The spokesperson said that Kemp and Carr would seek another emergency hearing to stop Atlanta's COVID-19 restrictions while the lawsuit remains pending.

Fulton County officials confirmed with FOX 5 that the case had been reassigned to Judge Shawn LaGrua. However, Judge LaGrua announced Tuesday afternoon that she had recused herself, citing her previous role as Inspector General for Gov. Kemp, among others. 

Fulton County officials tell FOX 5 Superior Court Judge Jane Barwick has now been assigned to the legal showdown. 

In the lawsuit filed Thursday against Atlanta Mayor Keisha Lance Bottoms and the members of the City Council, Kemp argues that local leaders don’t have the legal authority to change or ignore his executive orders.

“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 lawsuit states.

Bottoms, who has said she and members of her family have tested positive for COVID-19, tweeted in response to the lawsuit that, “A better use of tax payer money would be to expand testing and contact tracing.” She also accused the governor of suing over recommended guidelines.

MORE: Bottoms: Kemp trying to 'restrain' her from talking to press about mask mandate

A pandemic-related executive order issued last Wednesday strongly encourages but does not require the wearing of face coverings, and suspends any local laws or rules that are more restrictive, the lawsuit says. Bottoms and some other mayors responded by saying they would continue to enforce local mask mandates.

Bottoms’ orders and statements to the press have created uncertainty and confusion, the lawsuit says, asserting that some restaurant owners believed they had to close their doors to avoid running afoul of city rules.

“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,” the suit says.

Know how the COVID-19 outbreak is impacting Georgia

The lawsuit asks a judge to overturn Bottoms’ orders that are more restrictive than Kemp’s, block her from issuing any more such orders, instruct the City Council not to ratify Bottoms’ actions or adopt any ordinances inconsistent with Kemp’s orders, to force Bottoms not to make any public statements claiming she has authority that exceeds Kemp’s, and to require city officials to enforce “all provisions” of Kemp’s existing orders.

The governor filed a motion for emergency interlocutory injunction the following day, essentially asking the judge to order that all those requests take immediate effect while the lawsuit is pending. Tuesday’s hearing is to focus on arguments on that motion.

National health officials have called for the use of masks, though President Donald Trump has not issued nationwide guidance.

MORE: Georgia governor sues Atlanta mayor, city council over mask mandate

Kemp’s decision not to issue a statewide mask mandate and also to try to block local mandates separates him even from other Republican governors who have either issued statewide mask requirements or left the decision up to local jurisdictions.

As of Monday afternoon, Georgia has tallied 145,575 total confirmed cases of COVID-19 and 3,176 deaths, with 3,183 people currently hospitalized.

Download the FOX 5 Atlanta app for breaking news and weather alerts.

The Associated Press contributed to this report.