ST. ALBANS – Judge Robert A. Mello has dismissed three of the six claims in a class action lawsuit against Vermont’s merger law, setting up a likely appeal to the Vermont Supreme Court.

Mello issued his 13-page decision Friday afternoon in response to the state’s motion to dismiss the suit.

The state argued late last month for dismissal after Mello’s initial denial of an injunction to halt school consolidations ordered under Act 46.

The plaintiffs, which include roughly half of the Franklin County school boards currently involved in a state-ordered consolidation, the selectboards of Franklin and Montgomery, and several individuals also from Montgomery, will have the option of appealing his decision to the Vermont Supreme Court while Mello continues to try the remaining claims.

However, the supreme court may opt not to take up such an appeal until Mello issues his final ruling.

Mello’s ruling indicated he expects a challenge to his partial dismissal decision and expects the supreme court to accept that appeal.

“This Court is mindful of the Supreme Court’s well-established policy of avoiding piecemeal appeals,” Mello wrote. “However, the issues in this case are of unusually great statewide importance, and the time available to review and decide them is very limited… Under these circumstances, the Court would be remiss were it not to afford the Supreme Court an opportunity to consider these weighty issues as much in advance of that deadline as possible.”

Of the six counts brought against the State Board of Education and Agency of Education over its implementation of Act 46, Mello dismissed two charges arguing the legislature illegally delegated its authority to organize municipalities to the State Board of Education through Act 46.

Echoing sentiments from his denial of the plaintiffs’ requested injunction to halt Act 46 merger activity, Mello concluded it was within the legislature’s authority to “delegate to administrative agencies, such as the Board of Education, the power to apply general provisions of the law to particular circumstances.”

Mello also dismissed the charge that merging districts had been denied due process by the education board’s denial of their alternative governance proposals, arguing that, as a “legislative function,” the education board’s final statewide merger plan wasn’t subject to due process protections.

Members of the Montgomery school board appeal their Section 9 proposal and protest their ultimately ordered merger with Northern Mountain Valley during a State Board of Education meeting in Newark last summer. (Michael Frett, MESSENGER STAFF)

Even if due process protections were allowed in this case, however, Mello wrote “the fact that the Plaintiffs were provided notice of proceedings and opportunities to be heard in a meaningful time and manner provided them with the process they were due.”

His decision remained silent on whether the decisions made in drafting the State Board of Education’s merger plan were “arbitrary and capricious.”

Likewise, Mello also avoided making any conclusions as to whether the education board’s merger plan violated both the Vermont and U.S. Constitution in its reallocation of debt between merging school districts and whether that imparted an unequal financial treatment of taxpayers.

One of the loudest criticisms of Act 46 comes from the reassignment of debt in a forcibly merged district, something the plaintiffs argue is unconstitutional without a positive vote from residents in those districts.

Those charges, according to Mello, “may require the presentation of facts that have yet to be established.”

In his conclusion, Mello suggested that, in dismissing only certain charges and allowing the Supreme Court to take up their likely appeal early, it could pave the way for a quicker decision overall on the suit in question.

“Consideration of these issues by the Supreme Court may result in final resolution of some or all Plaintiffs’ claims in this action, without the need for further delay or discovery,” Mello wrote. “Alternatively, the Supreme Court’s consideration may narrow remaining issues and avoid protracted proceedings.”

Mello’s latest decision comes as the legislature wrestles with reconciling its two houses’ diverging drafts of H. 39, a bill allowing for some consolidated districts to postpone their operational deadline until 2020.

Originally drafted in the House of Representatives as a partial delay, H. 39 was extended by the Senate to include most districts merged under Act 46, so long as those districts took the initial steps toward organizing their merger and elected a consolidated school board.

Absent a decision from the courts or any pending legislation, all districts ordered to merge under Act 46 are still required to become operational on July 1, 2019.

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