ST. ALBANS – Efforts to halt state-ordered school mergers under Act 46 through the courts have failed at the superior court level, setting the stage for an expected appeal to the Vermont Supreme Court.

Franklin County Superior Court Judge Robert A. Mello issued a 25-page decision late Tuesday afternoon granting summary judgement in the state’s favor on two of the three remaining counts and partially siding with the state on the third and final claim in Athens et al. v. State Board of Education et al.

Several Franklin County school boards as well as the selectboards of Franklin and Montgomery are listed among the suit’s several dozen plaintiffs from across the state.

Mello previously denied plaintiffs request for a temporary injunction halting state-ordered school mergers while the case proceeded, finding that plaintiffs were unlikely to win their case on the merits. And in a previous summary judgement ruling in April he dismissed three of the six claims raised by the plaintiffs, finding that the legislature had legally delegated its authority to the Vermont School Board, which made the merger decisions, and that the plaintiffs had not been denied due process by the state board.

Tuesday’s decision cited those rulings, along with a previous ruling in a case challenging the ordered merger of the Elmore – Morristown Unified Union School District and the Stowe school district, where Mello again sided with the state over its implementation of Act 46.

Mello’s decision Tuesday afternoon specifically answers the questions of whether the State Board of Education was “arbitrary and capricious” in deciding what districts to merge and had acted unconstitutionally when merging districts with differing levels of debt.

Regarding the claim the state board was “arbitrary and capricious” in its decisions when drafting a state merger plan, Mello wrote “a review of the Board’s Final Report indicates that it accepted and considered a variety of evidence in light of statutory guidelines.”

Plaintiffs had argued the state education board had been “arbitrary and capricious” due to its failure to approve proposed alternatives to possible mergers and due to what the plaintiffs charged was an inconsistent application of the standards governing merger decisions under Act 46.

Mello dismissed the notion that Act 46 and its amending Act 49 had any language requiring the State Board of Education to approve any alternative governance structures, explicitly citing his decision over the Elmore-Morristown suit at length.

“[T]he Plaintiffs have presented no material facts which show that the board either misinterpreted or misapplied Acts 46 and 49,” Mello wrote, before later adding, “the Court has already determined… ‘that the Legislation, as supplemented by the board’s regulations, supplies sufficient, statute-consistent standards to guild its decisions.’”

Mello also cited his own previous ruling that the legislature had placed the burden for demonstrating that a merger alternative was the best way to meet both the efficiency and educational quality goals lay with the districts. Acts 46 and 49 created a presumption that merger is the appropriate way to achieve those goals, and districts wanting to avoid merger had to prove their alternative was the superior approach, Mello determined.

On the question of transferring debt between municipalities, Mello found that the plaintiffs’ argument that a forced merger unconstitutionally shifts debt from one municipality to another without the receiving municipality’s approval “mischaracterizes the merger transaction.”

Instead, Mello affirmed the state’s argument that, because school district assets are considered state property under Vermont law, “these assets and debts are not transferred from one municipality to another… but instead are transferred from one extinguished state trustee to a newly created trustee.”

In a factual dispute over the denial of a small schools grant to the Peacham school district Mello concluded that the legislature did not violate the Common Benefits Clause of the Vermont Constitution when it used small school grants as a merger incentive. However, he did set an evidentiary hearing to examine the Peacham case specifically, since the school narrowly missed the threshold for receiving a small schools grant under the new standards.

Mello upheld the state’s use of a small schools grant as a merger support grant, stating consolidation presents a “rational way to address issues such as dwindling student populations and uneven statewide access to educational opportunities.”

“Encouraging such consolidation through merger grants, even if imperfect, is nevertheless a rational way to achieve that goal,” Mello wrote.

Merger opponents had viewed litigation against Act 46 as one of the last opportunities to defeat their respective state-ordered mergers.

Attempts by the legislature to delay at least some mergers ordered under Act 46 broke down earlier this year when the Vermont House of Representatives and Vermont Senate failed to compromise on competing delay bills.

Mello, presiding over three separate suits against Act 46, has uniformly ruled in the state’s favor in each of those suits.

The last of those suits was settled Wednesday afternoon, with Mello upholding the State Board of Education’s plan to merge the Huntington school district into the Mount Mansfield Modified Union School District pending the approval of Mount Mansfield’s electorate.

Huntington had individually sued the State Board of Education, as well as the Mount Mansfield district, over its possible merger with the Chittenden County school district.

Earlier this month, Mount Mansfield’s voters overwhelmingly approved incorporating Huntington into their district.

Unless an appeal to the Vermont Supreme Court results in any delays to merger activity, districts merged under Act 46 are required to become operational come July 1, 2019.

VTDigger reported Wednesday night that the plaintiffs’ attorneys have already filed a motion to the Supreme Court calling for an injunction to delay merger activity while Mello’s decision is appealed.