Split ruling in Act 46 case

Sunday, April 14, 2019

A Vermont superior court judge has dismissed three of six claims brought forward by 33 school boards challenging forced mergers under Act 46, setting the stage for an appeal to the state’s Supreme Court.

In a 13-page ruling issued on Friday, Judge Robert Mello issued final rulings in the state’s favor on key constitutional arguments at the heart of the case. But on half of the claims brought by plaintiffs, the judge held off on dismissal, saying he needed the “presentation of facts that have yet to be established.”

Mello’s ruling on the “Athens” case — named for the first school district listed alphabetically on the lawsuit — is not entirely surprising. It echoed much of his reasoning from a ruling in March, when he denied a request from school boards to impose a moratorium on mergers while the court case was pending. But it paves the way for a speedy appeal to the state’s high court, which plaintiffs are expected to pursue.

The plaintiff school boards argue the Legislature violated the Vermont constitution when it gave the State Board of Education the final say on mergers under the law. Only lawmakers can create or dissolve municipalities, they argue, and that power cannot be delegated away.

But Mello disagreed, arguing that the Legislature had not handed over a “whole-cloth delegation” of its powers.

“While the General Assembly cannot delegate its legislative functions, it nevertheless may delegate to administrative agencies, such as the Board of Education, the power to apply general provisions of the law to particular circumstances,” Mello wrote.

The plaintiffs also argued the State Board’s process violated their due process rights under both the state and U.S. constitutions.

Mello wrote in his ruling that plaintiffs must first establish which “constitutionally protected interest in life, liberty or property” they were deprived off when arguing a due process claim. The school districts, he said, “do not have a fundamental right to any particular form of school governance.”

Vermont Deputy State’s Attorney Josh Diamond said the state was pleased with the decision. “We appreciate the court’s desire to obtain additional facts for a more complete record for the remaining claims, and we feel confident that the state will prevail,” he added.

Lawyers for the plaintiff school districts were not available for comment on Friday.

Mello’s ruling, however, was essentially silent on three arguments brought forward by plaintiffs — that the State Board of Education’s process was “arbitrary and capricious,” that its final order distributes debts and assets in a way violates the Vermont Constitution and that it constitutes “disparate financial treatment of schools, taxpayers, and students.”

Mello’s split ruling means that the lawsuit could be heard concurrently in two courtrooms — his, where the counts he did not dismiss will be litigated, and the Supreme Court, where plaintiffs are expected to appeal their due process and delegation claims.

Mello acknowledged that this was an unusual arrangement, and could see the case heard twice in the Supreme Court, which has a “well-established policy of avoiding piecemeal appeals.”

“However, the issues in this case are of unusually great statewide importance, and the time available to review and decide them is very limited,” he wrote.

According to the timelines set out in Act 46, state-imposed mergers are supposed to go into effect July 1. The Legislature is considering delaying implementation by one year in certain circumstances, but the House and Senate have competing proposals to do so and have yet to hash out a compromise plan.

The Athens lawsuit is one of three currently contesting the law. The Stowe and Elmore-Morristown districts, which the State Board has ordered to merge together, are suing the state jointly, and the Huntington school district is suing both the state and the Mount Mansfield Unified Union School District.

In the Stowe and Elmore-Morristown case, both the state and the school boards have agreed to an accelerated briefing schedule in hopes of receiving a final ruling before July 1. Oral arguments are scheduled for April 22, also in Mello’s court.

And while the Stowe and Elmore-Morristown case raises many of the same constitutional issues as the other Act 46 lawsuits, Robert Luce, an attorney at the Burlington firm Downs Rachlin & Martin said the bulk of the case “has to do the unique set of facts” surrounding the two districts and their proposal the State Board to remain independent.

Litigation, meanwhile, is on hold in the Huntington case. That’s because a merger there is contingent on the Mount Mansfield district, which is not subject to the consolidation law, voting to absorb Huntington before July 1.

Nicholas Low, an attorney with the Montpelier-based firm Tarrant, Gillies & Richardson, which represents Huntington, said any action in the case is stayed “unless and until” Mount Mansfield warns such a vote. (They have not yet.)