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Fulton County Superior Court
***EFILED***MH
Date: 2/24/2023 12:09 PM
Cathelene Robinson, Clerk
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
The CITY OF ATLANTA, a
municipal corporation and political
subdivision of the State of Georgia,
acting by and through its Mayor and Case No. 2022CV373394
City Council,
and
LUKE PILATO and ASHLEY
MCCULLOUGH
Petitioners,
v.
DEKALB COUNTY SCHOOL
DISTRICT, a political subdivision of
the State of Georgia acting by and
through its duly elected Board,
and
ATLANTA INDEPENDENT
SCHOOL SYSTEM, a political
subdivision of the State of Georgia
acting by and through its duly elected
Board,
Respondents.
PETITIONERS’ OPPOSITION TO DEKALB COUNTY SCHOOL
DISTRICT’S MOTION TO TRANSFER VENUE AND MOTION TO
DISMISS
Page 141
Historically, Petitioner City of Atlanta (“Atlanta”) has consistently directed
that its annexations in DeKalb County also expand Respondent the Atlanta
Independent School System’s (“APS”) boundaries, so that APS’s boundaries and
Atlanta’s remain conterminous in DeKalb County. In conformity with that
practice, in June 2022, Atlanta expressly directed that APS’s boundaries would
expand to take in the territory encompassed by the Cavanaugh Annexation, thereby
making that territory part of APS for all purposes including school attendance,
taxation, and elected representation. Despite that express command in Atlanta’s
Cavanaugh Annexation ordinance, APS enforced Senate Bill (“SB”) 209 against
Petitioners Luke Pilato and Ashley McCullough (“Parent Petitioners”), blocking
them from sending their child to APS’s schools or otherwise being treated as being
within APS’s boundaries.
Thus, contrary to Respondent the DeKalb County School District’s
(“DCSD”) assertions, at the time this suit was filed, APS was adverse to both
Atlanta and Parent Petitioners due to its enforcement of SB 209. This fact is fatal
to DCSD’s venue challenge. Moreover, DCSD has not met its burden to
demonstrate that transfer of venue under the forum non conveniens doctrine is
appropriate, nor could it for several reasons, not least of which is the multiple suits
DCSD has brought against Atlanta in Fulton County regarding annexation issues.
Finally, DCSD’s motion in the alternative to dismiss for lack of standing should
2
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also be denied because both Atlanta and the Parent Petitioners have demonstrated
cognizable legal harms that satisfy the prerequisite for challenging the
constitutionality of SB 209.
I. FACTUAL BACKGROUND
In April 2021, Parent Petitioners applied to Atlanta for annexation of their
privately-owned property in DeKalb County located at 2083 Cavanaugh Ave,
Atlanta, GA 30316. Parent Petitioners filed for this voluntary annexation with the
“main goal” of “access[ing] . . . local Atlanta Public Schools.” See Cavanaugh
Annexation Email Thread, at 3 (attached as Exhibit A). Specifically, Parent
Petitioners wished for their “daughter to start kindergarten at Burgess Peterson
Academy.” Id.
While that annexation process was ongoing, on May 10, 2021, the Georgia
General Assembly passed a local act, SB 209, which became effective on July 1,
2021. See 2021 Ga. Laws 4256 (attached as Exhibit B). SB 209 purports to
restrict Respondent APS’s charter and block APS’s boundaries from expanding
conterminously with an annexation by Atlanta in DeKalb County, except under
contingent circumstances at some indefinite point after the annexation.
Specifically, SB 209 provides that “[w]hen the corporate limits of the City of
Atlanta are extended by annexation into the boundaries of the DeKalb County
school district, regardless of the method of annexation, the boundaries of the City
3
Page 143
of Atlanta independent school system operating in said municipality shall not be
extended to be coextensive therewith except as authorized by this section.” See SB
209 §§ (a, b). Put another way, SB 209 only permits APS’s boundaries to expand
months or years after an annexation, and if and only if the General Assembly
passes a new local Act or there is “adoption of an intergovernmental agreement
between the DeKalb County school district and the City of Atlanta independent
school system approving such changes.” Id.
Neither of these exceptions can be utilized, however, “if the number of
students in the annexed area who are enrolled in the DeKalb County school system
does not exceed 2 percent of the total number of students enrolled in the entire
DeKalb County school system.” Id. § (f). Given that approximately 92,672
students are currently enrolled in the DeKalb County school system,1 practically-
speaking, SB 209 categorically blocks any annexation involving fewer than 1,853
students from expanding APS’s boundaries. Lastly, SB 209 also purports to
change the statewide school funding and school attendance laws, but only as to
portions of DeKalb County, a clear violation of the Uniformity Clause. Id. § (c).
In June 2022, Atlanta adopted and approved the Parent Petitioners’
voluntary annexation petition. See CITY COUNCIL, ATLANTA, GA., 22-O-1157
1
See DeKalb County School District Facts Sheet 2022-2023, available at:
https://www.dekalbschoolsga.org/documents/facts-2023.pdf (last accessed Feb. 23, 2023).
4
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(2022) (“Cavanaugh Annexation Ordinance”) (attached as Exhibit C). Consistent
with its past annexations in DeKalb County, Atlanta directed that APS’s
boundaries expand conterminously with the new annexation. Id. at 2 n.3. Upon
notification of the successful annexation, Parent Petitioners attempted to enroll
their daughter at Burgess-Peterson Academy but was informed by APS that their
property remained within DCSD, not APS. See Ex. A, at 9. Specifically, in a July
21, 2022 email, an attorney for APS—explicitly citing SB 209—clearly stated
APS’s position by explaining that despite the Cavanaugh Annexation Ordinance,
Parent Petitioners’ daughter “is and remains a student” in DCSD because SB 209
did not “permit[]” a “change in school system boundaries.” Id. at 4.
Subsequently, on October 24, 2022, DCSD’s counsel sent a letter to Atlanta
asserting that SB 209 is valid and enforceable, and blocks Atlanta’s annexations
from expanding APS’s boundaries in DeKalb County. See October 24 Letter from
DCSD (attached as Exhibit D). DCSD insisted that Atlanta contact the Parent
Petitioners and other newly annexed residents to “provide clarification that the
[recently] annexed citizens still remain within the DeKalb County School District
attendance zone, and not the Atlanta Public Schools attendance zone.” Id.
Based on DCSD’s and APS’s clear representations about the validity and
enforceability of SB 209, Petitioners promptly brought suit seeking a judgment
declaring that Atlanta may expand the boundaries of APS within DeKalb County
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by annexing territory within DeKalb County, and did in fact expand the boundaries
of APS in connection with the Cavanaugh Annexation, because SB 209 is void and
unenforceable. Rather than make any effort whatsoever to defend the merits of SB
209, DCSD has now moved to transfer venue to DeKalb County or alternatively, to
dismiss the Complaint for lack of standing. Both motions are meritless.
II. ANALYSIS OF THE LAW AND FACTS
A. Venue is Proper in Fulton County and Transfer Under the Forum Non
Conveniens Doctrine is Not Appropriate.
1. Venue is Proper in Fulton County.
Georgia’s Constitution provides that venue is proper “in the county where
the defendant resides.” GA. CONST. ART. VI, § II, ¶ VI. O.C.G.A. § 9-10-30
further provides that “[a]ll actions seeking equitable relief shall be filed in the
county of the residence of one of the defendants against whom substantial relief is
prayed.” See also GA. CONST. ART. VI, § II, ¶ III (“Equity cases shall be tried in
the county where a defendant resides against whom substantial relief is prayed.”).
“If substantial relief prayed is against two or more defendants residing in different
counties, the suit may be brought in the county of the residence of either.” O’Hara
v. Jacobs, 191 Ga. 5, 6 (1940).2
2
DCSD incorrectly presumes that the basis for venue is Article 6, Section II, ¶ IV, which relates
to suits against joint tortfeasors, obligors, or copartners. DCSD Br. at 14. Because Atlanta is
seeking both declaratory and equitable relief against DCSD and APS, the appropriate basis for
venue is Article 6, Section II, ¶ III, which governs equitable proceedings.
6
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Given APS’s clear representations made to the Parent Petitioners as to SB
209’s enforceability and the effect those representations had on Parent Petitioners,
their child, and the enforcement of Atlanta’s ordinance, Atlanta and the Parent
Petitioners seek substantial relief against APS in this action. As set out above,
following the annexation, APS’s attorney told the Parent Petitioners that “[d]espite
the [Cavanaugh] annexation,” the Parent Petitioners’ child could not attend APS’s
schools because their child “is and remains a student of the [DCSD],” and directed
APS staff not to admit her into her school of choice. Ex. A at 4. APS explicitly
cited SB 209 as the basis for its decision, concluding that “no change in school
system boundaries will be permitted.” Id.
Thus, because Atlanta and the Parent Petitioners challenge the validity of SB
209—and SB 209 is the obstacle preventing the Parent Petitioners’ child from
attending APS’s schools—APS’s enforcement of SB 209 against the Parent
Petitioners and Atlanta made it “an indispensable party whose presence before the
court is essential to an adjudication of the right of recovery prayed.” Warr v.
Miller, 218 Ga. 691, 694 (1963). Indeed, had Atlanta not named APS as a
respondent in this action seeking to establish APS’s boundaries vis-à-vis DCSD, its
Petition would be subject to dismissal. See id. (“[T]he omission to name an
essential, indispensable party results in the failure of the petition to set forth a
cause of action and subjects it to a general demurrer.”); Smyly v. Smith, 216 Ga.
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Page 147
529, 529 (1961) (upholding the dismissal of a suit seeking equitable relief because
the suit failed to name the corporation, which was “an essential, indispensable
party,” as a defendant and therefore left the plaintiff “without a cause of action and
the court without jurisdiction”).
Despite knowing that APS refused to admit the Parent Petitioners’ child into
their school system of choice, thereby honoring and enforcing DCSD’s position on
SB 209, DCSD nonetheless alleges that Atlanta’s and APS’s interests are fully
aligned, pointing to excerpts of APS’s previous litigation positions in prior
annexation suits. Even setting aside DCSD’s continued failure to account for the
Parent Petitioners’ interests adverse to both APS and DCSD, “[t]he determination
of venue must be based upon the facts as they exist at the time that suit is initiated,
not as the facts may have existed at some previous point in time.” Savannah
Laundry & Machinery Co., Inc. v. Owenby, 186 Ga. App. 130, 131 (1988)
(emphasis added); see also Rock v. Ready Trucking, Inc., 218 Ga. App. 774, 774
(1995) (“Venue is determined on the date the suit is filed.”); Perry v. Perry, 245
Ga. 298, 298 (1980) (“Venue will be determined as of the date of filing.”). APS’s
prior litigation positions in unrelated annexation proceedings are thus irrelevant to
this Court’s venue analysis and do not negate APS’s position on SB 209—which
was clearly adverse to both Atlanta and the Parent Petitioners’ interests—at the
time this suit was filed.
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Further, even if APS’s prior litigation positions were relevant as to venue,
they demonstrate actual adversity as well. Specifically, Atlanta also seeks a
declaration that it may, “through its statutory home rule power,” “direct that
annexation by Atlanta within DeKalb County extends APS’s boundaries.”
Complaint at 13. As DCSD has already conceded, APS’s historical position is that
Atlanta lacks such power to choose whether to expand APS’s boundaries, and that
instead, APS’s boundaries automatically expand conterminously with annexation.3
In sum, both APS’s historical litigation positions and its enforcement of SB 209
prior to and at the time of the suit demonstrate its adverse interests to both Atlanta
and the Parent Petitioners.
DCSD’s reliance on the seventy-year-old holding in Maryland Casualty Co.
v. City of Adel, 87 Ga. App. 138 (1952) does not change this result, as that holding
was unique to its facts. There, the plaintiff was a surety on a performance bond
that a contracting company had issued to the city under a construction contract. Id.
at 138. The plaintiff, based on its status as a surety, sued the contracting company
and the city seeking to determine its rights and liability under the construction
contract. Id. at 138–39. The court held that the plaintiff’s interests were identical
to the construction company’s because the plaintiff was not a party to the
construction contract that it was suing on. Id. at 140. Thus, as its surety, the
3
See, e.g., DCSD Br. at 17 nn. 7–8.
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plaintiff in fact stood in the same shoes as the construction company and would not
be liable to the city under the performance bond if the construction company was
not liable to the city under the construction contract. Id. at 140–41. The
controversy, therefore, was solely between the construction company and the city.
Id. at 141. As outlined above, Atlanta has a justiciable controversy with APS, as
do the Parent Petitioners.
In sum, the facts do not support a realignment of the parties. Tellingly,
DCSD hyper-focuses solely on Atlanta and does not assert that APS’s interests are
aligned with the Parent Petitioners, who were explicitly advised by APS that their
child could not attend APS’s schools. Regardless of APS’s as-yet unknown future
position on the constitutionality of SB 209, its contemporaneous actions prior to
and at the time of suit remain adverse to both Atlanta and the Parent Petitioners.4
Accordingly, APS is a bona fide respondent and venue is proper in Fulton County.
4
Were APS to change its position as to the constitutionality of SB 209 at some point in the
instant action or in subsequent litigation, that would not change the fact that APS is currently
enforcing SB 209 against the Parent Petitioners. Nor is any subsequent change in litigation
position relevant to this venue analysis. Pursuant to O.C.G.A § 9-10-31(d), the only post-filing
event that would require a change of venue is when the resident defendant is discharged from
liability before or upon the return of a verdict by the jury or the court. See also Rock, 218 Ga.
App. at 774 (“Venue is determined on the date the suit is filed.”); Perry, 245 Ga. at 298 (“Venue
will be determined as of the date of filing,” such that subsequent acts do not alter it);
Westmoreland v. Westmoreland, 243 Ga. 77, 78 (1979) (venue determined as of suit’s filing,
such that subsequent actions by defendant did not deprive the plaintiff of its venue choice).
Accord HD Supply, Inc. v. Garger, 299 Ga. App. 751, 754-55 (2009) (venue over added
defendant determined as of original filing date, not amendment date, so that events occurring
after the original filing did not dictate or control venue, only facts at time of original filing did).
No discharge of liability or return of a verdict has happened here, so venue is established as of
the time the suit was filed. In any event, regardless of APS’s possible post-suit litigation
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2. Transfer under Forum Non Conveniens is Not Warranted or
Appropriate.
A court has the authority to transfer venue to the appropriate county if it
“finds that in the interest of justice and for the convenience of the parties and
witnesses a claim or action would be more properly heard” in that county.
O.C.G.A. § 9-10-31.1(a). But those tests are not remotely met here. In
determining whether a transfer is warranted, a court must consider seven factors:
(1) Relative ease of access to sources of proof; (2) Availability and cost of
compulsory process for attendance of unwilling witnesses; (3) Possibility of
viewing of the premises, if viewing would be appropriate to the action; (4)
Unnecessary expense or trouble to the defendant not necessary to the plaintiff's
own right to pursue his or her remedy; (5) Administrative difficulties for the forum
courts; (6) Existence of local interests in deciding the case locally; and (7) The
traditional deference given to a plaintiff's choice of forum. Id. “[A]s movant to
transfer venue of the case,” DCSD bears “the burden to show that the factors . . .
support the transfer.” R.J. Taylor Mem’l Hosp., Inc. v. Beck, 280 Ga. 660, 662
(2006).
DCSD failed to even try to meet its burden, instead merely pointing to a
single factor that arguably supports its position: the existence of local interests.
position(s) on SB 209, APS has a current, adverse interest against Atlanta as to whether Atlanta
has statutory home rule power to direct APS’s expansion.
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DCSD Br. at 23. The remaining factors, however, overwhelmingly demonstrate
that Fulton County remains the proper forum. First, just as DCSD claims “a
constitutional right to have cases against it litigated in its home county,” id. at 14,
APS enjoys an equally valid constitutional right to have this action litigated in
APS’s home county, which is Fulton County. Deference to Atlanta’s and the
Parent Petitioners’ choice of forum also favors retaining venue in this Court.
Tellingly, DCSD does not contend it would be subject to unnecessary expense,
trouble, or inconvenience to litigate this action in Fulton County. Nor could it. As
a practical matter, the DeKalb County Superior Court is located approximately 6.3
miles from this Court. So DCSD would not be unnecessarily inconvenienced
litigating in this Court. Indeed, the robust history of prior annexation proceedings
outlined in DCSD’s brief demonstrates that DCSD can—and has—consistently
litigated and even initiated annexation-related lawsuits in Fulton County since
2015.5 Thus, the factors do not warrant transfer under this doctrine.6
B. Both Atlanta and the Parent Petitioners have Standing to Sue.
In a last-ditch effort, DCSD asserts that neither Atlanta nor the Parent
Petitioners have standing to challenge SB 209 because SB 209 purportedly only
5
For completeness, we note that DCSD Motion’s litigation history curiously omits a prior 2016
annexation suit DCSD filed against Atlanta in Fulton County. See DeKalb County School
District v. City of Atlanta, Case No. 2016CV284278 (Fulton Super. filed Dec. 29, 2016).
6
Because the Court can quickly conclude DCSD’s venue motion is without merit, a stay is
unnecessary and would be prejudicial to the Parent Petitioners, along with Atlanta.
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deals with school system boundaries. As such, DCSD reasons, APS is the only
proper entity with standing. This argument quickly falls flat. As explained above,
SB 209 expressly prohibits Atlanta’s use of its statutory home rule power to direct
the expansion of APS’s boundaries conterminously with annexations that occur in
DeKalb County.7 Notably, the City of Decatur also has an independent school
system with territory within DeKalb County. Yet SB 209 does not purport to
restrict or otherwise affect the City of Decatur’s annexations or the effect of those
annexations on the City of Decatur School System’s boundaries. Thus, SB 209
inflicts specific and tangible legal harm solely upon Atlanta by destroying its
delegated authority to expand APS’s boundaries.
DCSD’s arguments about the Parent Petitioners are even more frivolous.
DCSD claims that there is no “direct allegation” in the Complaint that
demonstrates the Parent Petitioners have a concrete interest in the constitutionality
of SB 209. DCSD Br. at 27. Yet the Complaint expressly states that in enforcing
SB 209, “Respondents refused to permit the Parent Petitioners to send their child to
the district APS school.” Complaint at 2; see also id. ¶ 29 (noting that “counsel for
APS sent an email asserting that, because of SB 209, the Parent Petitioners’ newly-
annexed home was not within APS’s boundaries”). These allegations are specific
7
Even if APS was correct that Atlanta lacks a choice as to whether to expand APS’s boundaries
in connection with an annexation, SB 209 would still strip all power to do so from Atlanta,
which would itself be an injury sufficient to create standing.
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enough for DCSD to ascertain the factual basis that gives the Parent Petitioners
standing to bring this challenge.8
Further, DCSD imposes a higher rate of school property taxes than APS
does. In 2022, DCSD’s property tax rate was 23.08 mils, and APS’s rate was 20.5
mills. See 2022 DeKalb County Millage Rates (attached as Exhibit E); 2022
Georgia County Ad Valorem Tax Digest Millage Rates at 12 and13 (excerpt
attached as Exhibit F). Therefore, this means that the Parent Petitioners would pay
less in property taxes if their home is included in APS’s boundaries (as they wish it
to be)—as opposed to being involuntarily kept within DCSD’s boundaries.
Lastly, DCSD argues that SB 209 permits the Parent Petitioners to seek an
intergovernmental agreement between DCSD and APS that would allow them to
send their child to APS schools. As such, DCSD reasons, the Parent Petitioners
lack standing because they have not availed themselves of this “meaningful
avenue[ ]” to achieve relief. DCSD Br. at 28. Not so. First, SB 209 does not
provide a meaningful avenue to achieve relief. SB 209 Section (f) prohibits a
change in “school system boundaries” where the annexation involves less than 2
percent of the total number of students enrolled in the entire DeKalb County school
system. SB 209 § (f) (emphasis added). Subsection (f) only allows
8
While Ms. McCullough may not be listed as a homeowner on official tax records, she lives in
the 2083 Cavanaugh Avenue home with Mr. Pilato, with whom she shares a school-age child
that she wishes to send to APS schools. DCSD presents no evidence to the contrary.
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intergovernmental agreements “regarding school governance”—a term that is not
defined in the Act.9 Id. (emphasis added). Thus, SB 209 does not “chart[] a clear
course to the outcome” that the Parent Petitioners seek as DCSD claims. DCSD
Br. at 29.
Further, even if an intergovernmental agreement between the two
antagonistic school systems could help address the Parent Petitioners’ actual
problem regarding their daughter’s school attendance, no authority imposes an
obligation upon the Parent Petitioners to first seek relief under an unconstitutional
act before challenging its constitutionality in court. Instead, DCSD points to a
cherry-picked quote from Hinson v. First National Bank, where the Georgia
Supreme Court “held that it will not render advisory opinions or pass upon the
constitutionality of a statute unless it deprives a party of substantial rights.” 221
Ga. 408, 410 (1965). In the very next sentence, the Hinson Court explained:
9
This change of terms cannot be deemed insignificant. Courts have a “duty to refrain from
reading a [word] into [a] statute when [the legislature] has left it out.” Keene Corp v. United
States, 508 U.S. 200, 208 (1993). Indeed, “where [the legislature] includes particular language
in one section of a statute but omits it in another, it is generally presumed that [the legislature]
acts intentionally and purposely in the disparate inclusion or exclusion.” Id. (cleaned up); see
also Pollitzer v. Gebhardt, 860 F.3d 1334, 1340 (11th Cir. 2017) (“We have been clear that when
. . . [the legislature] includes particular language in one section of a statute but omits it in another
section of the same act, it is presumed that [the legislature] did so intentionally.”). Thus,
adopting a construction that reads these two terms to have the same meaning would violate “the
settled rule that a statute must, if possible, be construed in such fashion that every word has some
operative effect.” United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); see also Dole
Food Co. v. Patrickson, 538 U.S. 468, 476–77 (2003) (noting that courts “should not construe
the statute in a manner that is strained and, at the same time, would render a statutory term
superfluous”).
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“Before a statute can be attacked by anyone on the ground of its
unconstitutionality, he must show that its enforcement is an infringement upon his
right of person or property, and that such infringement results from the
unconstitutional feature of the statute upon which he bases his attack.” Id. Thus,
the only “prerequisite to attacking the constitutionality of a statute” is that “the
complaining party must show that it is hurtful to the attacker.” Parker v.
Leeuwenburg, 300 Ga. 789, 790 (2017).
That prerequisite has been met here. Atlanta and the Parent Petitioners
contend that the enforcement of SB 209 infringes upon, inter alia, Atlanta’s
delegated authority to expand APS’s boundaries within DeKalb County and the
Parent Petitioners’ right to send their child to their desired school in accordance
with the Cavanaugh Annexation Ordinance. Even if DCSD were to consent to the
Parent Petitioners’ child attending an APS school while remaining in DCSD’s
jurisdiction, SB 209 also injures the Parent Petitioners by keeping them in a higher
tax jurisdiction and preventing them from being able to vote on the relevant school
board members. These infringements result from the feature of SB 209 that
expressly prohibits Atlanta from exercising its statutory home rule power to direct
the expansion of APS’s boundaries conterminously with newly annexed property
within DeKalb County. Accordingly, Petitioners each have standing to challenge
the constitutionality of SB 209. Parker, 300 Ga. at 790 (“As a general rule, a
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litigant has standing to challenge the constitutionality of a law only if the law has
an adverse impact on that litigant’s own rights.” (internal quotation marks and
citation omitted)). DCSD’s motion to dismiss should therefore be denied.
III. CONCLUSION
For the reasons above, this Court should deny DCSD’s venue and standing
motions.
Respectfully submitted this 24th day of February, 2023
/s/ Robert L. Ashe III
Robert L. Ashe III
Georgia Bar No. 208077
J. Danny Vincent
Georgia Bar No. 380850
Amber D. Greenaway
Georgia Bar No. 401191
BONDURANT, MIXSON &
ELMORE, LLP
1201 W. Peachtree Street, NW
Suite 3900
Atlanta, GA 30309
Phone (404) 881-4100
Facsimile (404) 881-4111
Ashe@bmelaw.com
Vincent@bmelaw.com
Greenaway@bmelaw.com
Counsel for Petitioners
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CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2023, the foregoing PETITIONERS’
OPPOSITION TO DEKALB COUNTY SCHOOL DISTRICT’S MOTION
TO TRANSFER VENUE AND MOTION TO DISMISS was electronically filed
and served with the Clerk of Court via the Odyssey eFileGA and Serve, which will
automatically send email notification of such filing to the following attorneys:
Jennifer K. Coalson
A. Lee Parks, Jr.
M. Travis Foust
PARKS, CHESIN & WALBERT, PC
75 14th St. NE, Suite 2600
Atlanta, GA 30309
lparks@pcwlawfirm.com
tfoust@pcwlawfirm.com
jcoalson@pcwlawfirm.com
Richard H. Sinkfield
Michael L. Eber
SMITH, GAMBRELL & RUSSELL,
LLP
1105 W. Peachtree Street NE
Suite 1000
Atlanta, GA 30309
rsinkfield@sgrlaw.com
meber@sgrlaw.com
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This 24th day of February, 2023. /s/ Robert L. Ashe III
Robert L. Ashe III
Georgia Bar No. 208077
J. Danny Vincent
Georgia Bar No. 380850
Amber D. Greenaway
Georgia Bar No. 401191
BONDURANT, MIXSON &
ELMORE, LLP
1201 W. Peachtree Street, NW
Suite 3900
Atlanta, GA 30309
Phone (404) 881-4100
Facsimile (404) 881-4111
Ashe@bmelaw.com
Vincent@bmelaw.com
greenaway@bmelaw.com
Counsel for Petitioners
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Robinson, Amber
Subject: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22-O-1159 (5) - CDP 22-006
From: Luke Pilato
Date: Thu, Jul 28, 2022 at 6:36 PM
Subject: Re: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006
To: Karla Lightfoot Causey
Cc: Bakhtiari, Liliana , Ashley McCullough ,
, , ,
, Shaw, Cheryl V. , White, David
, Long, Erica , Gupta, Nina ,
Maddula, Kavi , Goodwine, Kala , Husbands, Patrick
S. , Webb, Foris , Marshall, Patricia ,
Skyler Lansford Hassan , Waldon, Vanessa , Brown, Shawn
, Islam, Mu'min , Myron Polster
Thank you so much Councilmember Bakhtiari for your reply and apology, it really means a lot to us.
I'll say this for all on cc:
We remain in shock and honestly have not received a lot of guidance on next steps to resolve
this. Think we can all agree this is just the beginning of an avalanche of issues this is going to cause
for us and the other families involved. Voting for education officials who don't represent us? How will
the taxes work? Without the access to the schools it's an incomplete picture and one we would have
had no interest in participating in had we known.
The obvious answer here is to let small annexed parcels choose the school system they want to be a
part of. It's also obvious that an exception needs to be made here for the June 2022 annexed parcels
until the City of Atlanta has fixed its messaging and its roadmap of how annexations work under this
law. Maybe this could have been in writing somewhere beside the AJC or decaturish? The petition
myself and my neighbors signed clearly states the schools would change. (it's referenced in the
previous email).
I would love to hop on a call with you or a member of your team (or anyone that can offer some
guidance- thank you to those you have already) to talk about a path forward. Again, we can't thank
you enough for the assistance you have given us so far and your continued care and concern for your
constituents.
Best,
Luke and Ashley
1
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On Thu, Jul 28, 2022 at 5:31 PM Karla Lightfoot Causey wrote:
Thank you Councilmember Bakhtiari,
I have looped in EACA contact person for this matter, Myron Polster.
Sincere regards,
Karla Lightfoot Causey, Chair
East Atlanta Community Association Land Use and Zoning
landuse@eaca.net
On Thu, Jul 28, 2022, 4:33 PM Bakhtiari, Liliana wrote:
Hi Luke,
First I want to apologize, I also was completely unaware of this state law and its implications. The law in question, SB
209, appears to be the redistricting bill for the DeKalb County School Board. Such bills are required every 10 years
after the census. Upon reading the bill, I am unclear if this is a permanent conflict or if this may be a technicality.
There is a chance that it may be because redistricting has not yet been finalized at the local level for the Atlanta Public
Schools Board of Education districts, and the state has to confirm those districts in their next legislative session before
they can go into effect.
I have looped in your state representative Bee Nguyen and your state senator Gail Davenport to see if they can weigh
in on this situation and provide some clarity.
Above all, I just want to apologize to you Luke, and to your family. I know that this is very important to you, and I will
do my best to help find answers. I am just as confused and blindsided by this as you are, and as a new council
member, I am also still learning about this process. I will note that all city annexation guidelines are governed by the
state, so I’m hopeful that maybe some of these state level elected officials or their staff might have some insight on
where to go from here.
Thank you,
M (404) 274-8115
E lbakhtiari@atlantaga.gov
City of Atlanta
Liliana 55 Trinity Ave SW
Bakhtiari they/she Atlanta, GA 30303
Atlanta City Councilmember,
District 5
From: Luke Pilato
Sent: Monday, July 25, 2022 3:41 PM
To: Ashley McCullough
Cc: Shaw, Cheryl V. ; White, David ; Long, Erica
; Gupta, Nina ; Maddula, Kavi
; Goodwine, Kala ; Bakhtiari, Liliana
2
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; Husbands, Patrick S. ; Karla Lightfoot Causey
; Webb, Foris ; Marshall, Patricia ;
skyler@victorialansford.com ; Waldon, Vanessa ; Brown,
Shawn ; Islam, Mu'min
Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006
If I may direct you to the City of Atlanta documentation.
Annexation Summary (atlantaga.gov)
On Mon, Jul 25, 2022 at 11:33 AM Luke Pilato wrote:
Good morning,
I wanted to add to my wife’s email and add a few other players to the thread that have been
involved in this process throughout its near 18-month journey. I have been a resident of the city
of Atlanta and its counties since 1989. I went to Dekalb County schools and graduated from
Georgia State University in 1997. This is my home and I don't plan on moving anytime soon.
That being said, it's hard not feel like we've been completely duped by our city.
This petition has been through ZRB, NPU, EACA, City Council, City of Atlanta and Dekalb County
over the last 18 month and as Ashley stated, there has not been one mention of Senate bill
209. Even a Google search turns up less than ten articles, many of them in local blogs. I have
every piece of e-mail correspondence and all of the Zoom meetings to discuss our annexation
were recorded. If you went back to review and/or listen, you would see that there was not ONE
single mention of Senate Bill 209.
This is a voluntary annexation, filed in April 2021(before the law was passed) Our petition to
annex included our family and three others who live within 100 feet or less of the C of A border.
Our main goal in annexing was access to our local Atlanta Public Schools. I even learned about
this annexation process on the city website! Now, after 18 months and with the valiant assistance
of Councilperson Liliana Bahktiari, we were able to push this through JUST in time for our first
daughter to start kindergarten at Burgess Peterson Academy, where all her neighborhood friends
will be going. We then immediately contacted Mr. David White at BPA to inquire how to navigate
our daughter’s enrollment given that the new zoning likely would not show up in their system right
away. He responded immediately and was so helpful in getting us in touch with the right people.
Then, after a week of celebration and relief, we learn of Senate Bill 209? This was completely
shocking to us and initially we thought that it would not impact us. Unfortunately, we were wrong.
Here we are now. A week from what should be Jane’s first day of kindergarten at BPA and we are
so, so frustrated and disappointed and sad. The City of Atlanta gets four prime pieces of real
estate in an area that should be annexed anyway. Dekalb gets to keep the tax money and what do
we get? Higher taxes? Higher water bill? Those were completely fine options with the
understanding that our children would be able to enjoy an excellent public-school experience. But
now? NOTHING! There are many reasons people want to annex with the two main ones being
schools and services. Schools equate greatly to property values, so now Atlanta gets the property,
but I lose property value because of the schools we are forced to STAY in because of a law written
for the other side of the county. I call that a bait and switch and I feel blindsided and will not
stand for it.
3
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Obviously, we weren't the only people unfamiliar with this recent law, as many of those in service
to guide citizens through the legislative process failed to mention it as well. A call to Dekalb
County schools this morning also ended with the we have no idea about the law, let me look into it
and get back to you. Here we are now, and we are begging for one last push to make this
right. Will anyone included here to help us fix this? We have played by the rules and followed
the law to the best of our ability, intently listening to advice and instruction from countless public
officials. Surely you understand how frustrated you would be in a similar situation. Especially
after what we have gone through with the guiding hand of the government. Citizens deserve
transparency and we surely have not experienced that with this debacle. Surely, this is not the
end of this issue as there were many other annexations that went through legislation with ours.
Thank you for reading and looking forward to hearing from someone soon.
Luke Pilato
(404) 307-0505
On Thu, Jul 21, 2022 at 3:10 PM Ashley McCullough wrote:
Hi Everyone,
Thank you for your response. I'm writing to provide some additional information about our circumstances. I am also
Cc'ing Liliana Bakhtiari (and Patrick Husbands) as she assisted us with getting our annexation approved and want her
to be aware of our situation.
Our petition for annexation was submitted and accepted prior to this law being passed. The process took much
longer than expected due to delays caused by COVID.
In January 2022, as I was looking into the school choice program as an option, I received information from the
School Choice Office that stated: "If you are within the BPA School Zone (contingent on your annexation), you can
register your daughter at any time because school zones permit zoned students to attend regardless of capacity."
This correspondence (which is after the law was passed) from an APS staff member in the school choice office
indicated to me that eligibility for Burgess Peterson Academy was contingent on annexation which was
subsequently approved. This is and always has been our understanding as well as many others we have spoken to
about this matter.
During this entire process, not one person in city government, or APS, cited this law as being a barrier to enrollment
in APS schools. We worked diligently on this annexation approval for a long time with the primary goal of being able
to enroll in APS schools. Additionally, I have a daughter who is expecting to start Kindergarten at BPA on 8/1 with all
of her buddies. She has never been enrolled in a Dekalb County school.
Please advise as to next steps and other avenues of getting my child into Burgess. We appreciate any further
guidance or suggestions you have.
Thank you,
Ashley
On Thu, Jul 21, 2022 at 12:56 PM Shaw, Cheryl V. wrote:
Dear Mr. White,
Despite the annexation, the student is and remains a student of the DeKalb County School District. In 2021 Local
Law (i.e., it only affects DeKalb County) SB 209, was passed by the General Assembly, signed by the Governor and
became effective May 10, 2021. SB 209 states (among other provisions) that when the City of Atlanta annexes
territory in DeKalb County that is within the boundaries of the DeKalb County School District if the number of
students residing in the annexed area does not exceed 2% of the total students enrolled in the DeKalb County
School District, then no change in school system boundaries will be permitted.
4
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Best regards,
_________________________________________________
Cheryl Shaw
Partner
1075 Peachtree Street N.E. | Suite 1500 | Atlanta, Georgia 30309
Office: 470.240.3043 | Mobile: 404.644.1709 | Fax: 404.869.6972 | map
Email: cherylshaw@parkerpoe.com
Visit our website at
www.parkerpoe.com
From: White, David
Sent: Thursday, July 21, 2022 10:26 AM
To: Long, Erica ; Gupta, Nina ; Maddula, Kavi
; Shaw, Cheryl V.
Cc: Ashley McCullough ; White, David ; Goodwine,
Kala
Subject: FW: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006
***Caution: External email***
Hi again, all.
Just circling back to see if there’s any traction on resolving this concern?
If so, great! Just let us know what the answer is.
5
Page 165
If not, may I provide a 30 day provisional enrollment so the student isn’t in jeopardy of missing the first days of
school?
David
David White
Principal
Burgess‐Peterson Academy ‐ An IB PYP World School since 2020
480 Clifton Street SE, Atlanta, GA 30316
404‐802‐3400
My Pronouns are; He/Him
My Gallup Strengths are;
Intellection, Individualization, Input, Learner, Arranger
What makes you strong?
From: Ashley McCullough
Sent: Thursday, July 21, 2022 10:14 AM
To: White, David
Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006
EXTERNAL MAIL
6
Page 166
Good morning David,
Hope you're doing well. We wanted to touch base to see if there were any updates on the issue regarding our
eligibility for BPA?
As you can imagine, Luke and I were completely shocked to learn about this issue/law on Tuesday. For
some background, we worked to get our property annexed into the city for two years, primarily so our
kids could have access to an excellent school. We have attended countless meetings and spoken to
people throughout city government during this process and no one ever mentioned it to us. After some
review on our end, we are sincerely hoping this law will not affect our ability to enroll in the school we
are zoned for. It would be a colossal disappointment to say the least.
If there is anyone at APS you would like to connect us to or anything you can think of that we can do to
expedite an answer on this please let us know. Thank you so much for your continued assistance and
advocacy ‐ we know this has to be a very busy time of year for you.
Regards,
Ashley
On Tue, Jul 19, 2022 at 10:37 AM White, David wrote:
I hope so too!
From: Ashley McCullough
Sent: Tuesday, July 19, 2022 10:35 AM
To: White, David
Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006
EXTERNAL MAIL
7
Page 167
I always appreciate being in the loop. I just read up on that Emory annexation and feel better as it seems that
stipulation should only impact those students from that 744 acre annexation around Emory (or at least that's
what i'm hoping).
Thanks again,
Ashley
On Tue, Jul 19, 2022 at 10:31 AM White, David wrote:
Hi there – I’m certain that it will land in favor of Jane coming to BPA.
Sorry for the random CC. Didn’t want you to be outside the loop, though, once I had additional context.
All will be well!
david
From: Ashley McCullough
Sent: Tuesday, July 19, 2022 10:11 AM
To: White, David ; Luke Pilato
Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006
EXTERNAL MAIL
Hi Mr. White,
Thank you for this email and your advocacy for Jane getting into Kindergarten at BPA. I'm very concerned about
this and hoping that we get good news.
Looking forward to hearing back from the group on next steps,
Ashley & Luke
8
Page 168
On Tue, Jul 19, 2022 at 10:01 AM White, David wrote:
Hello Ms. Gupta, Ms. Long, Ms. Shaw,
After speaking with Kavi briefly this morning, I wanted to push this information to you and ask that you guide
our next steps at the school level.
The McCullough family, residing at 2083 Cavanaugh Ave SE, Atlanta, GA 30316, has worked with the City to
have their property annexed into the COA. An email noticing them of the approval of this annexation is
embedded below.
I presumed that the family was thereby automatically part of Atlanta Public Schools and, given their proximity
to our school, would be able to enroll their child here for the fall.
I now understand that there was a state law passed subsequent to the annexation debacle with Dekalb/Emory a
couple years ago and the approved annexation may not mean automatic access to Atlanta Public Schools.
I’d like your help with understanding more fully whether/when I may enroll the student at Burgess‐Peterson
Academy. We are happy to have them, we are not over‐crowded, etc. Just didn’t want to misstep now that I’m
aware of the additional context.
Please consider this information and my request as soon as you’re able.
David
David White
Principal
Burgess‐Peterson Academy ‐ An IB PYP World School since 2020
9
Page 169
480 Clifton Street SE, Atlanta, GA 30316
404‐802‐3400
My Pronouns are; He/Him
My Gallup Strengths are;
Intellection, Individualization, Input, Learner, Arranger
What makes you strong?
From: Ashley McCullough
Sent: Wednesday, July 6, 2022 9:15 AM
To: White, David ; Luke Pilato
Subject: Fwd: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006
You don't often get email from mccullough.ashley@gmail.com. Learn why this is important
EXTERNAL MAIL
Hi Mr. White,
I know you are on vacation, so thank you so much for responding to my email.
As requested, I'm forwarding you the email confirmation from Patricia Marshall (Municipal Clerk) stating that
the annexation went into effect on July 1, 2022.
Our address is 2083 Cavanaugh Ave SE, Atlanta, GA 30316. I'm also attaching a GA Power bill to show that this is
our residence where Jane Pilato resides full time. I'm Cc'ing my husband (Luke Pilato) on this email as well.
10
Page 170
If you need addi
Preview
Fulton County Superior Court ***EFILED***MH Date: 2/24/2023 12:09 PM Cathelene Robinson, Clerk IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA The CITY OF ATLANTA, a municipal corporation and political subdivision of the State of Georgia, acting by and through its Mayor and Case No. 2022CV373394 City Council, and LUKE PILATO and ASHLEY MCCULLOUGH Petitioners, v. DEKALB COUNTY SCHOOL DISTRICT, a political subdivision of the State of Georgia acting by and through its duly elected Board, and ATLANTA INDEPENDENT SCHOOL SYSTEM, a political subdivision of the State of Georgia acting by and through its duly elected Board, Respondents. PETITIONERS’ OPPOSITION TO DEKALB COUNTY SCHOOL DISTRICT’S MOTION TO TRANSFER VENUE AND MOTION TO DISMISS Page 141 Historically, Petitioner City of Atlanta (“Atlanta”) has consistently directed that its annexations in DeKalb County also expand Respondent the Atlanta Independent School System’s (“APS”) boundaries, so that APS’s boundaries and Atlanta’s remain conterminous in DeKalb County. In conformity with that practice, in June 2022, Atlanta expressly directed that APS’s boundaries would expand to take in the territory encompassed by the Cavanaugh Annexation, thereby making that territory part of APS for all purposes including school attendance, taxation, and elected representation. Despite that express command in Atlanta’s Cavanaugh Annexation ordinance, APS enforced Senate Bill (“SB”) 209 against Petitioners Luke Pilato and Ashley McCullough (“Parent Petitioners”), blocking them from sending their child to APS’s schools or otherwise being treated as being within APS’s boundaries. Thus, contrary to Respondent the DeKalb County School District’s (“DCSD”) assertions, at the time this suit was filed, APS was adverse to both Atlanta and Parent Petitioners due to its enforcement of SB 209. This fact is fatal to DCSD’s venue challenge. Moreover, DCSD has not met its burden to demonstrate that transfer of venue under the forum non conveniens doctrine is appropriate, nor could it for several reasons, not least of which is the multiple suits DCSD has brought against Atlanta in Fulton County regarding annexation issues. Finally, DCSD’s motion in the alternative to dismiss for lack of standing should 2 Page 142 also be denied because both Atlanta and the Parent Petitioners have demonstrated cognizable legal harms that satisfy the prerequisite for challenging the constitutionality of SB 209. I. FACTUAL BACKGROUND In April 2021, Parent Petitioners applied to Atlanta for annexation of their privately-owned property in DeKalb County located at 2083 Cavanaugh Ave, Atlanta, GA 30316. Parent Petitioners filed for this voluntary annexation with the “main goal” of “access[ing] . . . local Atlanta Public Schools.” See Cavanaugh Annexation Email Thread, at 3 (attached as Exhibit A). Specifically, Parent Petitioners wished for their “daughter to start kindergarten at Burgess Peterson Academy.” Id. While that annexation process was ongoing, on May 10, 2021, the Georgia General Assembly passed a local act, SB 209, which became effective on July 1, 2021. See 2021 Ga. Laws 4256 (attached as Exhibit B). SB 209 purports to restrict Respondent APS’s charter and block APS’s boundaries from expanding conterminously with an annexation by Atlanta in DeKalb County, except under contingent circumstances at some indefinite point after the annexation. Specifically, SB 209 provides that “[w]hen the corporate limits of the City of Atlanta are extended by annexation into the boundaries of the DeKalb County school district, regardless of the method of annexation, the boundaries of the City 3 Page 143 of Atlanta independent school system operating in said municipality shall not be extended to be coextensive therewith except as authorized by this section.” See SB 209 §§ (a, b). Put another way, SB 209 only permits APS’s boundaries to expand months or years after an annexation, and if and only if the General Assembly passes a new local Act or there is “adoption of an intergovernmental agreement between the DeKalb County school district and the City of Atlanta independent school system approving such changes.” Id. Neither of these exceptions can be utilized, however, “if the number of students in the annexed area who are enrolled in the DeKalb County school system does not exceed 2 percent of the total number of students enrolled in the entire DeKalb County school system.” Id. § (f). Given that approximately 92,672 students are currently enrolled in the DeKalb County school system,1 practically- speaking, SB 209 categorically blocks any annexation involving fewer than 1,853 students from expanding APS’s boundaries. Lastly, SB 209 also purports to change the statewide school funding and school attendance laws, but only as to portions of DeKalb County, a clear violation of the Uniformity Clause. Id. § (c). In June 2022, Atlanta adopted and approved the Parent Petitioners’ voluntary annexation petition. See CITY COUNCIL, ATLANTA, GA., 22-O-1157 1 See DeKalb County School District Facts Sheet 2022-2023, available at: https://www.dekalbschoolsga.org/documents/facts-2023.pdf (last accessed Feb. 23, 2023). 4 Page 144 (2022) (“Cavanaugh Annexation Ordinance”) (attached as Exhibit C). Consistent with its past annexations in DeKalb County, Atlanta directed that APS’s boundaries expand conterminously with the new annexation. Id. at 2 n.3. Upon notification of the successful annexation, Parent Petitioners attempted to enroll their daughter at Burgess-Peterson Academy but was informed by APS that their property remained within DCSD, not APS. See Ex. A, at 9. Specifically, in a July 21, 2022 email, an attorney for APS—explicitly citing SB 209—clearly stated APS’s position by explaining that despite the Cavanaugh Annexation Ordinance, Parent Petitioners’ daughter “is and remains a student” in DCSD because SB 209 did not “permit[]” a “change in school system boundaries.” Id. at 4. Subsequently, on October 24, 2022, DCSD’s counsel sent a letter to Atlanta asserting that SB 209 is valid and enforceable, and blocks Atlanta’s annexations from expanding APS’s boundaries in DeKalb County. See October 24 Letter from DCSD (attached as Exhibit D). DCSD insisted that Atlanta contact the Parent Petitioners and other newly annexed residents to “provide clarification that the [recently] annexed citizens still remain within the DeKalb County School District attendance zone, and not the Atlanta Public Schools attendance zone.” Id. Based on DCSD’s and APS’s clear representations about the validity and enforceability of SB 209, Petitioners promptly brought suit seeking a judgment declaring that Atlanta may expand the boundaries of APS within DeKalb County 5 Page 145 by annexing territory within DeKalb County, and did in fact expand the boundaries of APS in connection with the Cavanaugh Annexation, because SB 209 is void and unenforceable. Rather than make any effort whatsoever to defend the merits of SB 209, DCSD has now moved to transfer venue to DeKalb County or alternatively, to dismiss the Complaint for lack of standing. Both motions are meritless. II. ANALYSIS OF THE LAW AND FACTS A. Venue is Proper in Fulton County and Transfer Under the Forum Non Conveniens Doctrine is Not Appropriate. 1. Venue is Proper in Fulton County. Georgia’s Constitution provides that venue is proper “in the county where the defendant resides.” GA. CONST. ART. VI, § II, ¶ VI. O.C.G.A. § 9-10-30 further provides that “[a]ll actions seeking equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed.” See also GA. CONST. ART. VI, § II, ¶ III (“Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.”). “If substantial relief prayed is against two or more defendants residing in different counties, the suit may be brought in the county of the residence of either.” O’Hara v. Jacobs, 191 Ga. 5, 6 (1940).2 2 DCSD incorrectly presumes that the basis for venue is Article 6, Section II, ¶ IV, which relates to suits against joint tortfeasors, obligors, or copartners. DCSD Br. at 14. Because Atlanta is seeking both declaratory and equitable relief against DCSD and APS, the appropriate basis for venue is Article 6, Section II, ¶ III, which governs equitable proceedings. 6 Page 146 Given APS’s clear representations made to the Parent Petitioners as to SB 209’s enforceability and the effect those representations had on Parent Petitioners, their child, and the enforcement of Atlanta’s ordinance, Atlanta and the Parent Petitioners seek substantial relief against APS in this action. As set out above, following the annexation, APS’s attorney told the Parent Petitioners that “[d]espite the [Cavanaugh] annexation,” the Parent Petitioners’ child could not attend APS’s schools because their child “is and remains a student of the [DCSD],” and directed APS staff not to admit her into her school of choice. Ex. A at 4. APS explicitly cited SB 209 as the basis for its decision, concluding that “no change in school system boundaries will be permitted.” Id. Thus, because Atlanta and the Parent Petitioners challenge the validity of SB 209—and SB 209 is the obstacle preventing the Parent Petitioners’ child from attending APS’s schools—APS’s enforcement of SB 209 against the Parent Petitioners and Atlanta made it “an indispensable party whose presence before the court is essential to an adjudication of the right of recovery prayed.” Warr v. Miller, 218 Ga. 691, 694 (1963). Indeed, had Atlanta not named APS as a respondent in this action seeking to establish APS’s boundaries vis-à-vis DCSD, its Petition would be subject to dismissal. See id. (“[T]he omission to name an essential, indispensable party results in the failure of the petition to set forth a cause of action and subjects it to a general demurrer.”); Smyly v. Smith, 216 Ga. 7 Page 147 529, 529 (1961) (upholding the dismissal of a suit seeking equitable relief because the suit failed to name the corporation, which was “an essential, indispensable party,” as a defendant and therefore left the plaintiff “without a cause of action and the court without jurisdiction”). Despite knowing that APS refused to admit the Parent Petitioners’ child into their school system of choice, thereby honoring and enforcing DCSD’s position on SB 209, DCSD nonetheless alleges that Atlanta’s and APS’s interests are fully aligned, pointing to excerpts of APS’s previous litigation positions in prior annexation suits. Even setting aside DCSD’s continued failure to account for the Parent Petitioners’ interests adverse to both APS and DCSD, “[t]he determination of venue must be based upon the facts as they exist at the time that suit is initiated, not as the facts may have existed at some previous point in time.” Savannah Laundry & Machinery Co., Inc. v. Owenby, 186 Ga. App. 130, 131 (1988) (emphasis added); see also Rock v. Ready Trucking, Inc., 218 Ga. App. 774, 774 (1995) (“Venue is determined on the date the suit is filed.”); Perry v. Perry, 245 Ga. 298, 298 (1980) (“Venue will be determined as of the date of filing.”). APS’s prior litigation positions in unrelated annexation proceedings are thus irrelevant to this Court’s venue analysis and do not negate APS’s position on SB 209—which was clearly adverse to both Atlanta and the Parent Petitioners’ interests—at the time this suit was filed. 8 Page 148 Further, even if APS’s prior litigation positions were relevant as to venue, they demonstrate actual adversity as well. Specifically, Atlanta also seeks a declaration that it may, “through its statutory home rule power,” “direct that annexation by Atlanta within DeKalb County extends APS’s boundaries.” Complaint at 13. As DCSD has already conceded, APS’s historical position is that Atlanta lacks such power to choose whether to expand APS’s boundaries, and that instead, APS’s boundaries automatically expand conterminously with annexation.3 In sum, both APS’s historical litigation positions and its enforcement of SB 209 prior to and at the time of the suit demonstrate its adverse interests to both Atlanta and the Parent Petitioners. DCSD’s reliance on the seventy-year-old holding in Maryland Casualty Co. v. City of Adel, 87 Ga. App. 138 (1952) does not change this result, as that holding was unique to its facts. There, the plaintiff was a surety on a performance bond that a contracting company had issued to the city under a construction contract. Id. at 138. The plaintiff, based on its status as a surety, sued the contracting company and the city seeking to determine its rights and liability under the construction contract. Id. at 138–39. The court held that the plaintiff’s interests were identical to the construction company’s because the plaintiff was not a party to the construction contract that it was suing on. Id. at 140. Thus, as its surety, the 3 See, e.g., DCSD Br. at 17 nn. 7–8. 9 Page 149 plaintiff in fact stood in the same shoes as the construction company and would not be liable to the city under the performance bond if the construction company was not liable to the city under the construction contract. Id. at 140–41. The controversy, therefore, was solely between the construction company and the city. Id. at 141. As outlined above, Atlanta has a justiciable controversy with APS, as do the Parent Petitioners. In sum, the facts do not support a realignment of the parties. Tellingly, DCSD hyper-focuses solely on Atlanta and does not assert that APS’s interests are aligned with the Parent Petitioners, who were explicitly advised by APS that their child could not attend APS’s schools. Regardless of APS’s as-yet unknown future position on the constitutionality of SB 209, its contemporaneous actions prior to and at the time of suit remain adverse to both Atlanta and the Parent Petitioners.4 Accordingly, APS is a bona fide respondent and venue is proper in Fulton County. 4 Were APS to change its position as to the constitutionality of SB 209 at some point in the instant action or in subsequent litigation, that would not change the fact that APS is currently enforcing SB 209 against the Parent Petitioners. Nor is any subsequent change in litigation position relevant to this venue analysis. Pursuant to O.C.G.A § 9-10-31(d), the only post-filing event that would require a change of venue is when the resident defendant is discharged from liability before or upon the return of a verdict by the jury or the court. See also Rock, 218 Ga. App. at 774 (“Venue is determined on the date the suit is filed.”); Perry, 245 Ga. at 298 (“Venue will be determined as of the date of filing,” such that subsequent acts do not alter it); Westmoreland v. Westmoreland, 243 Ga. 77, 78 (1979) (venue determined as of suit’s filing, such that subsequent actions by defendant did not deprive the plaintiff of its venue choice). Accord HD Supply, Inc. v. Garger, 299 Ga. App. 751, 754-55 (2009) (venue over added defendant determined as of original filing date, not amendment date, so that events occurring after the original filing did not dictate or control venue, only facts at time of original filing did). No discharge of liability or return of a verdict has happened here, so venue is established as of the time the suit was filed. In any event, regardless of APS’s possible post-suit litigation 10 Page 150 2. Transfer under Forum Non Conveniens is Not Warranted or Appropriate. A court has the authority to transfer venue to the appropriate county if it “finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard” in that county. O.C.G.A. § 9-10-31.1(a). But those tests are not remotely met here. In determining whether a transfer is warranted, a court must consider seven factors: (1) Relative ease of access to sources of proof; (2) Availability and cost of compulsory process for attendance of unwilling witnesses; (3) Possibility of viewing of the premises, if viewing would be appropriate to the action; (4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his or her remedy; (5) Administrative difficulties for the forum courts; (6) Existence of local interests in deciding the case locally; and (7) The traditional deference given to a plaintiff's choice of forum. Id. “[A]s movant to transfer venue of the case,” DCSD bears “the burden to show that the factors . . . support the transfer.” R.J. Taylor Mem’l Hosp., Inc. v. Beck, 280 Ga. 660, 662 (2006). DCSD failed to even try to meet its burden, instead merely pointing to a single factor that arguably supports its position: the existence of local interests. position(s) on SB 209, APS has a current, adverse interest against Atlanta as to whether Atlanta has statutory home rule power to direct APS’s expansion. 11 Page 151 DCSD Br. at 23. The remaining factors, however, overwhelmingly demonstrate that Fulton County remains the proper forum. First, just as DCSD claims “a constitutional right to have cases against it litigated in its home county,” id. at 14, APS enjoys an equally valid constitutional right to have this action litigated in APS’s home county, which is Fulton County. Deference to Atlanta’s and the Parent Petitioners’ choice of forum also favors retaining venue in this Court. Tellingly, DCSD does not contend it would be subject to unnecessary expense, trouble, or inconvenience to litigate this action in Fulton County. Nor could it. As a practical matter, the DeKalb County Superior Court is located approximately 6.3 miles from this Court. So DCSD would not be unnecessarily inconvenienced litigating in this Court. Indeed, the robust history of prior annexation proceedings outlined in DCSD’s brief demonstrates that DCSD can—and has—consistently litigated and even initiated annexation-related lawsuits in Fulton County since 2015.5 Thus, the factors do not warrant transfer under this doctrine.6 B. Both Atlanta and the Parent Petitioners have Standing to Sue. In a last-ditch effort, DCSD asserts that neither Atlanta nor the Parent Petitioners have standing to challenge SB 209 because SB 209 purportedly only 5 For completeness, we note that DCSD Motion’s litigation history curiously omits a prior 2016 annexation suit DCSD filed against Atlanta in Fulton County. See DeKalb County School District v. City of Atlanta, Case No. 2016CV284278 (Fulton Super. filed Dec. 29, 2016). 6 Because the Court can quickly conclude DCSD’s venue motion is without merit, a stay is unnecessary and would be prejudicial to the Parent Petitioners, along with Atlanta. 12 Page 152 deals with school system boundaries. As such, DCSD reasons, APS is the only proper entity with standing. This argument quickly falls flat. As explained above, SB 209 expressly prohibits Atlanta’s use of its statutory home rule power to direct the expansion of APS’s boundaries conterminously with annexations that occur in DeKalb County.7 Notably, the City of Decatur also has an independent school system with territory within DeKalb County. Yet SB 209 does not purport to restrict or otherwise affect the City of Decatur’s annexations or the effect of those annexations on the City of Decatur School System’s boundaries. Thus, SB 209 inflicts specific and tangible legal harm solely upon Atlanta by destroying its delegated authority to expand APS’s boundaries. DCSD’s arguments about the Parent Petitioners are even more frivolous. DCSD claims that there is no “direct allegation” in the Complaint that demonstrates the Parent Petitioners have a concrete interest in the constitutionality of SB 209. DCSD Br. at 27. Yet the Complaint expressly states that in enforcing SB 209, “Respondents refused to permit the Parent Petitioners to send their child to the district APS school.” Complaint at 2; see also id. ¶ 29 (noting that “counsel for APS sent an email asserting that, because of SB 209, the Parent Petitioners’ newly- annexed home was not within APS’s boundaries”). These allegations are specific 7 Even if APS was correct that Atlanta lacks a choice as to whether to expand APS’s boundaries in connection with an annexation, SB 209 would still strip all power to do so from Atlanta, which would itself be an injury sufficient to create standing. 13 Page 153 enough for DCSD to ascertain the factual basis that gives the Parent Petitioners standing to bring this challenge.8 Further, DCSD imposes a higher rate of school property taxes than APS does. In 2022, DCSD’s property tax rate was 23.08 mils, and APS’s rate was 20.5 mills. See 2022 DeKalb County Millage Rates (attached as Exhibit E); 2022 Georgia County Ad Valorem Tax Digest Millage Rates at 12 and13 (excerpt attached as Exhibit F). Therefore, this means that the Parent Petitioners would pay less in property taxes if their home is included in APS’s boundaries (as they wish it to be)—as opposed to being involuntarily kept within DCSD’s boundaries. Lastly, DCSD argues that SB 209 permits the Parent Petitioners to seek an intergovernmental agreement between DCSD and APS that would allow them to send their child to APS schools. As such, DCSD reasons, the Parent Petitioners lack standing because they have not availed themselves of this “meaningful avenue[ ]” to achieve relief. DCSD Br. at 28. Not so. First, SB 209 does not provide a meaningful avenue to achieve relief. SB 209 Section (f) prohibits a change in “school system boundaries” where the annexation involves less than 2 percent of the total number of students enrolled in the entire DeKalb County school system. SB 209 § (f) (emphasis added). Subsection (f) only allows 8 While Ms. McCullough may not be listed as a homeowner on official tax records, she lives in the 2083 Cavanaugh Avenue home with Mr. Pilato, with whom she shares a school-age child that she wishes to send to APS schools. DCSD presents no evidence to the contrary. 14 Page 154 intergovernmental agreements “regarding school governance”—a term that is not defined in the Act.9 Id. (emphasis added). Thus, SB 209 does not “chart[] a clear course to the outcome” that the Parent Petitioners seek as DCSD claims. DCSD Br. at 29. Further, even if an intergovernmental agreement between the two antagonistic school systems could help address the Parent Petitioners’ actual problem regarding their daughter’s school attendance, no authority imposes an obligation upon the Parent Petitioners to first seek relief under an unconstitutional act before challenging its constitutionality in court. Instead, DCSD points to a cherry-picked quote from Hinson v. First National Bank, where the Georgia Supreme Court “held that it will not render advisory opinions or pass upon the constitutionality of a statute unless it deprives a party of substantial rights.” 221 Ga. 408, 410 (1965). In the very next sentence, the Hinson Court explained: 9 This change of terms cannot be deemed insignificant. Courts have a “duty to refrain from reading a [word] into [a] statute when [the legislature] has left it out.” Keene Corp v. United States, 508 U.S. 200, 208 (1993). Indeed, “where [the legislature] includes particular language in one section of a statute but omits it in another, it is generally presumed that [the legislature] acts intentionally and purposely in the disparate inclusion or exclusion.” Id. (cleaned up); see also Pollitzer v. Gebhardt, 860 F.3d 1334, 1340 (11th Cir. 2017) (“We have been clear that when . . . [the legislature] includes particular language in one section of a statute but omits it in another section of the same act, it is presumed that [the legislature] did so intentionally.”). Thus, adopting a construction that reads these two terms to have the same meaning would violate “the settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect.” United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); see also Dole Food Co. v. Patrickson, 538 U.S. 468, 476–77 (2003) (noting that courts “should not construe the statute in a manner that is strained and, at the same time, would render a statutory term superfluous”). 15 Page 155 “Before a statute can be attacked by anyone on the ground of its unconstitutionality, he must show that its enforcement is an infringement upon his right of person or property, and that such infringement results from the unconstitutional feature of the statute upon which he bases his attack.” Id. Thus, the only “prerequisite to attacking the constitutionality of a statute” is that “the complaining party must show that it is hurtful to the attacker.” Parker v. Leeuwenburg, 300 Ga. 789, 790 (2017). That prerequisite has been met here. Atlanta and the Parent Petitioners contend that the enforcement of SB 209 infringes upon, inter alia, Atlanta’s delegated authority to expand APS’s boundaries within DeKalb County and the Parent Petitioners’ right to send their child to their desired school in accordance with the Cavanaugh Annexation Ordinance. Even if DCSD were to consent to the Parent Petitioners’ child attending an APS school while remaining in DCSD’s jurisdiction, SB 209 also injures the Parent Petitioners by keeping them in a higher tax jurisdiction and preventing them from being able to vote on the relevant school board members. These infringements result from the feature of SB 209 that expressly prohibits Atlanta from exercising its statutory home rule power to direct the expansion of APS’s boundaries conterminously with newly annexed property within DeKalb County. Accordingly, Petitioners each have standing to challenge the constitutionality of SB 209. Parker, 300 Ga. at 790 (“As a general rule, a 16 Page 156 litigant has standing to challenge the constitutionality of a law only if the law has an adverse impact on that litigant’s own rights.” (internal quotation marks and citation omitted)). DCSD’s motion to dismiss should therefore be denied. III. CONCLUSION For the reasons above, this Court should deny DCSD’s venue and standing motions. Respectfully submitted this 24th day of February, 2023 /s/ Robert L. Ashe III Robert L. Ashe III Georgia Bar No. 208077 J. Danny Vincent Georgia Bar No. 380850 Amber D. Greenaway Georgia Bar No. 401191 BONDURANT, MIXSON & ELMORE, LLP 1201 W. Peachtree Street, NW Suite 3900 Atlanta, GA 30309 Phone (404) 881-4100 Facsimile (404) 881-4111 Ashe@bmelaw.com Vincent@bmelaw.com Greenaway@bmelaw.com Counsel for Petitioners 17 Page 157 CERTIFICATE OF SERVICE I hereby certify that on February 24, 2023, the foregoing PETITIONERS’ OPPOSITION TO DEKALB COUNTY SCHOOL DISTRICT’S MOTION TO TRANSFER VENUE AND MOTION TO DISMISS was electronically filed and served with the Clerk of Court via the Odyssey eFileGA and Serve, which will automatically send email notification of such filing to the following attorneys: Jennifer K. Coalson A. Lee Parks, Jr. M. Travis Foust PARKS, CHESIN & WALBERT, PC 75 14th St. NE, Suite 2600 Atlanta, GA 30309 lparks@pcwlawfirm.com tfoust@pcwlawfirm.com jcoalson@pcwlawfirm.com Richard H. Sinkfield Michael L. Eber SMITH, GAMBRELL & RUSSELL, LLP 1105 W. Peachtree Street NE Suite 1000 Atlanta, GA 30309 rsinkfield@sgrlaw.com meber@sgrlaw.com 18 Page 158 This 24th day of February, 2023. /s/ Robert L. Ashe III Robert L. Ashe III Georgia Bar No. 208077 J. Danny Vincent Georgia Bar No. 380850 Amber D. Greenaway Georgia Bar No. 401191 BONDURANT, MIXSON & ELMORE, LLP 1201 W. Peachtree Street, NW Suite 3900 Atlanta, GA 30309 Phone (404) 881-4100 Facsimile (404) 881-4111 Ashe@bmelaw.com Vincent@bmelaw.com greenaway@bmelaw.com Counsel for Petitioners 19 Page 159 E X H I B I T A Page 160 Robinson, Amber Subject: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22-O-1159 (5) - CDP 22-006 From: Luke Pilato Date: Thu, Jul 28, 2022 at 6:36 PM Subject: Re: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006 To: Karla Lightfoot Causey Cc: Bakhtiari, Liliana , Ashley McCullough , , , , , Shaw, Cheryl V. , White, David , Long, Erica , Gupta, Nina , Maddula, Kavi , Goodwine, Kala , Husbands, Patrick S. , Webb, Foris , Marshall, Patricia , Skyler Lansford Hassan , Waldon, Vanessa , Brown, Shawn , Islam, Mu'min , Myron Polster Thank you so much Councilmember Bakhtiari for your reply and apology, it really means a lot to us. I'll say this for all on cc: We remain in shock and honestly have not received a lot of guidance on next steps to resolve this. Think we can all agree this is just the beginning of an avalanche of issues this is going to cause for us and the other families involved. Voting for education officials who don't represent us? How will the taxes work? Without the access to the schools it's an incomplete picture and one we would have had no interest in participating in had we known. The obvious answer here is to let small annexed parcels choose the school system they want to be a part of. It's also obvious that an exception needs to be made here for the June 2022 annexed parcels until the City of Atlanta has fixed its messaging and its roadmap of how annexations work under this law. Maybe this could have been in writing somewhere beside the AJC or decaturish? The petition myself and my neighbors signed clearly states the schools would change. (it's referenced in the previous email). I would love to hop on a call with you or a member of your team (or anyone that can offer some guidance- thank you to those you have already) to talk about a path forward. Again, we can't thank you enough for the assistance you have given us so far and your continued care and concern for your constituents. Best, Luke and Ashley 1 Page 161 On Thu, Jul 28, 2022 at 5:31 PM Karla Lightfoot Causey wrote: Thank you Councilmember Bakhtiari, I have looped in EACA contact person for this matter, Myron Polster. Sincere regards, Karla Lightfoot Causey, Chair East Atlanta Community Association Land Use and Zoning landuse@eaca.net On Thu, Jul 28, 2022, 4:33 PM Bakhtiari, Liliana wrote: Hi Luke, First I want to apologize, I also was completely unaware of this state law and its implications. The law in question, SB 209, appears to be the redistricting bill for the DeKalb County School Board. Such bills are required every 10 years after the census. Upon reading the bill, I am unclear if this is a permanent conflict or if this may be a technicality. There is a chance that it may be because redistricting has not yet been finalized at the local level for the Atlanta Public Schools Board of Education districts, and the state has to confirm those districts in their next legislative session before they can go into effect. I have looped in your state representative Bee Nguyen and your state senator Gail Davenport to see if they can weigh in on this situation and provide some clarity. Above all, I just want to apologize to you Luke, and to your family. I know that this is very important to you, and I will do my best to help find answers. I am just as confused and blindsided by this as you are, and as a new council member, I am also still learning about this process. I will note that all city annexation guidelines are governed by the state, so I’m hopeful that maybe some of these state level elected officials or their staff might have some insight on where to go from here. Thank you, M (404) 274-8115 E lbakhtiari@atlantaga.gov City of Atlanta Liliana 55 Trinity Ave SW Bakhtiari they/she Atlanta, GA 30303 Atlanta City Councilmember, District 5 From: Luke Pilato Sent: Monday, July 25, 2022 3:41 PM To: Ashley McCullough Cc: Shaw, Cheryl V. ; White, David ; Long, Erica ; Gupta, Nina ; Maddula, Kavi ; Goodwine, Kala ; Bakhtiari, Liliana 2 Page 162 ; Husbands, Patrick S. ; Karla Lightfoot Causey ; Webb, Foris ; Marshall, Patricia ; skyler@victorialansford.com ; Waldon, Vanessa ; Brown, Shawn ; Islam, Mu'min Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006 If I may direct you to the City of Atlanta documentation. Annexation Summary (atlantaga.gov) On Mon, Jul 25, 2022 at 11:33 AM Luke Pilato wrote: Good morning, I wanted to add to my wife’s email and add a few other players to the thread that have been involved in this process throughout its near 18-month journey. I have been a resident of the city of Atlanta and its counties since 1989. I went to Dekalb County schools and graduated from Georgia State University in 1997. This is my home and I don't plan on moving anytime soon. That being said, it's hard not feel like we've been completely duped by our city. This petition has been through ZRB, NPU, EACA, City Council, City of Atlanta and Dekalb County over the last 18 month and as Ashley stated, there has not been one mention of Senate bill 209. Even a Google search turns up less than ten articles, many of them in local blogs. I have every piece of e-mail correspondence and all of the Zoom meetings to discuss our annexation were recorded. If you went back to review and/or listen, you would see that there was not ONE single mention of Senate Bill 209. This is a voluntary annexation, filed in April 2021(before the law was passed) Our petition to annex included our family and three others who live within 100 feet or less of the C of A border. Our main goal in annexing was access to our local Atlanta Public Schools. I even learned about this annexation process on the city website! Now, after 18 months and with the valiant assistance of Councilperson Liliana Bahktiari, we were able to push this through JUST in time for our first daughter to start kindergarten at Burgess Peterson Academy, where all her neighborhood friends will be going. We then immediately contacted Mr. David White at BPA to inquire how to navigate our daughter’s enrollment given that the new zoning likely would not show up in their system right away. He responded immediately and was so helpful in getting us in touch with the right people. Then, after a week of celebration and relief, we learn of Senate Bill 209? This was completely shocking to us and initially we thought that it would not impact us. Unfortunately, we were wrong. Here we are now. A week from what should be Jane’s first day of kindergarten at BPA and we are so, so frustrated and disappointed and sad. The City of Atlanta gets four prime pieces of real estate in an area that should be annexed anyway. Dekalb gets to keep the tax money and what do we get? Higher taxes? Higher water bill? Those were completely fine options with the understanding that our children would be able to enjoy an excellent public-school experience. But now? NOTHING! There are many reasons people want to annex with the two main ones being schools and services. Schools equate greatly to property values, so now Atlanta gets the property, but I lose property value because of the schools we are forced to STAY in because of a law written for the other side of the county. I call that a bait and switch and I feel blindsided and will not stand for it. 3 Page 163 Obviously, we weren't the only people unfamiliar with this recent law, as many of those in service to guide citizens through the legislative process failed to mention it as well. A call to Dekalb County schools this morning also ended with the we have no idea about the law, let me look into it and get back to you. Here we are now, and we are begging for one last push to make this right. Will anyone included here to help us fix this? We have played by the rules and followed the law to the best of our ability, intently listening to advice and instruction from countless public officials. Surely you understand how frustrated you would be in a similar situation. Especially after what we have gone through with the guiding hand of the government. Citizens deserve transparency and we surely have not experienced that with this debacle. Surely, this is not the end of this issue as there were many other annexations that went through legislation with ours. Thank you for reading and looking forward to hearing from someone soon. Luke Pilato (404) 307-0505 On Thu, Jul 21, 2022 at 3:10 PM Ashley McCullough wrote: Hi Everyone, Thank you for your response. I'm writing to provide some additional information about our circumstances. I am also Cc'ing Liliana Bakhtiari (and Patrick Husbands) as she assisted us with getting our annexation approved and want her to be aware of our situation. Our petition for annexation was submitted and accepted prior to this law being passed. The process took much longer than expected due to delays caused by COVID. In January 2022, as I was looking into the school choice program as an option, I received information from the School Choice Office that stated: "If you are within the BPA School Zone (contingent on your annexation), you can register your daughter at any time because school zones permit zoned students to attend regardless of capacity." This correspondence (which is after the law was passed) from an APS staff member in the school choice office indicated to me that eligibility for Burgess Peterson Academy was contingent on annexation which was subsequently approved. This is and always has been our understanding as well as many others we have spoken to about this matter. During this entire process, not one person in city government, or APS, cited this law as being a barrier to enrollment in APS schools. We worked diligently on this annexation approval for a long time with the primary goal of being able to enroll in APS schools. Additionally, I have a daughter who is expecting to start Kindergarten at BPA on 8/1 with all of her buddies. She has never been enrolled in a Dekalb County school. Please advise as to next steps and other avenues of getting my child into Burgess. We appreciate any further guidance or suggestions you have. Thank you, Ashley On Thu, Jul 21, 2022 at 12:56 PM Shaw, Cheryl V. wrote: Dear Mr. White, Despite the annexation, the student is and remains a student of the DeKalb County School District. In 2021 Local Law (i.e., it only affects DeKalb County) SB 209, was passed by the General Assembly, signed by the Governor and became effective May 10, 2021. SB 209 states (among other provisions) that when the City of Atlanta annexes territory in DeKalb County that is within the boundaries of the DeKalb County School District if the number of students residing in the annexed area does not exceed 2% of the total students enrolled in the DeKalb County School District, then no change in school system boundaries will be permitted. 4 Page 164 Best regards, _________________________________________________ Cheryl Shaw Partner 1075 Peachtree Street N.E. | Suite 1500 | Atlanta, Georgia 30309 Office: 470.240.3043 | Mobile: 404.644.1709 | Fax: 404.869.6972 | map Email: cherylshaw@parkerpoe.com Visit our website at www.parkerpoe.com From: White, David Sent: Thursday, July 21, 2022 10:26 AM To: Long, Erica ; Gupta, Nina ; Maddula, Kavi ; Shaw, Cheryl V. Cc: Ashley McCullough ; White, David ; Goodwine, Kala Subject: FW: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006 ***Caution: External email*** Hi again, all. Just circling back to see if there’s any traction on resolving this concern? If so, great! Just let us know what the answer is. 5 Page 165 If not, may I provide a 30 day provisional enrollment so the student isn’t in jeopardy of missing the first days of school? David David White Principal Burgess‐Peterson Academy ‐ An IB PYP World School since 2020 480 Clifton Street SE, Atlanta, GA 30316 404‐802‐3400 My Pronouns are; He/Him My Gallup Strengths are; Intellection, Individualization, Input, Learner, Arranger What makes you strong? From: Ashley McCullough Sent: Thursday, July 21, 2022 10:14 AM To: White, David Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006 EXTERNAL MAIL 6 Page 166 Good morning David, Hope you're doing well. We wanted to touch base to see if there were any updates on the issue regarding our eligibility for BPA? As you can imagine, Luke and I were completely shocked to learn about this issue/law on Tuesday. For some background, we worked to get our property annexed into the city for two years, primarily so our kids could have access to an excellent school. We have attended countless meetings and spoken to people throughout city government during this process and no one ever mentioned it to us. After some review on our end, we are sincerely hoping this law will not affect our ability to enroll in the school we are zoned for. It would be a colossal disappointment to say the least. If there is anyone at APS you would like to connect us to or anything you can think of that we can do to expedite an answer on this please let us know. Thank you so much for your continued assistance and advocacy ‐ we know this has to be a very busy time of year for you. Regards, Ashley On Tue, Jul 19, 2022 at 10:37 AM White, David wrote: I hope so too! From: Ashley McCullough Sent: Tuesday, July 19, 2022 10:35 AM To: White, David Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006 EXTERNAL MAIL 7 Page 167 I always appreciate being in the loop. I just read up on that Emory annexation and feel better as it seems that stipulation should only impact those students from that 744 acre annexation around Emory (or at least that's what i'm hoping). Thanks again, Ashley On Tue, Jul 19, 2022 at 10:31 AM White, David wrote: Hi there – I’m certain that it will land in favor of Jane coming to BPA. Sorry for the random CC. Didn’t want you to be outside the loop, though, once I had additional context. All will be well! david From: Ashley McCullough Sent: Tuesday, July 19, 2022 10:11 AM To: White, David ; Luke Pilato Subject: Re: FW: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006 EXTERNAL MAIL Hi Mr. White, Thank you for this email and your advocacy for Jane getting into Kindergarten at BPA. I'm very concerned about this and hoping that we get good news. Looking forward to hearing back from the group on next steps, Ashley & Luke 8 Page 168 On Tue, Jul 19, 2022 at 10:01 AM White, David wrote: Hello Ms. Gupta, Ms. Long, Ms. Shaw, After speaking with Kavi briefly this morning, I wanted to push this information to you and ask that you guide our next steps at the school level. The McCullough family, residing at 2083 Cavanaugh Ave SE, Atlanta, GA 30316, has worked with the City to have their property annexed into the COA. An email noticing them of the approval of this annexation is embedded below. I presumed that the family was thereby automatically part of Atlanta Public Schools and, given their proximity to our school, would be able to enroll their child here for the fall. I now understand that there was a state law passed subsequent to the annexation debacle with Dekalb/Emory a couple years ago and the approved annexation may not mean automatic access to Atlanta Public Schools. I’d like your help with understanding more fully whether/when I may enroll the student at Burgess‐Peterson Academy. We are happy to have them, we are not over‐crowded, etc. Just didn’t want to misstep now that I’m aware of the additional context. Please consider this information and my request as soon as you’re able. David David White Principal Burgess‐Peterson Academy ‐ An IB PYP World School since 2020 9 Page 169 480 Clifton Street SE, Atlanta, GA 30316 404‐802‐3400 My Pronouns are; He/Him My Gallup Strengths are; Intellection, Individualization, Input, Learner, Arranger What makes you strong? From: Ashley McCullough Sent: Wednesday, July 6, 2022 9:15 AM To: White, David ; Luke Pilato Subject: Fwd: [EXTERNAL] Fwd: Cavanaugh ave annexation 22‐O‐1159 (5) ‐ CDP 22‐006 You don't often get email from mccullough.ashley@gmail.com. Learn why this is important EXTERNAL MAIL Hi Mr. White, I know you are on vacation, so thank you so much for responding to my email. As requested, I'm forwarding you the email confirmation from Patricia Marshall (Municipal Clerk) stating that the annexation went into effect on July 1, 2022. Our address is 2083 Cavanaugh Ave SE, Atlanta, GA 30316. I'm also attaching a GA Power bill to show that this is our residence where Jane Pilato resides full time. I'm Cc'ing my husband (Luke Pilato) on this email as well. 10 Page 170 If you need addi