Despite a string of rulings in the state’s favor — including two this week — and the deadline for consolidated Vermont school districts to begin operations fast approaching, most legal challenges to Act 46 are marching on.
“We’re focusing on getting our filings to the (Vermont) Supreme Court,” said Ines McGillion, a Putney, Vt.-based attorney volunteering on the lawsuit brought by over 30 school boards against the state. The suit is often referred to as the “Athens” case, for the first district named as a plaintiff.
The three lawsuits challenging forced school district mergers have thus far all been heard in St. Albans by Superior Court Judge Robert Mello, who has yet to issue a single ruling in favor of the school boards fighting consolidation. He issued two new rulings this week — one, in the Athens case, on Tuesday — and another, on Wednesday, in the suit brought by the Huntington school board.
Mello had, in early April, already dismissed half of the counts in the Athens case, hoping to give the school boards enough time to ask the state’s Supreme Court to weigh in on key constitutional claims. At the time, Mello said he needed more time to consider certain claims made by the school boards, including an argument that the mergers violated a state law that won’t allow municipalities to incur bonded debt without the consent of local voters.
In his latest 25-page ruling in that case, settling nearly all remaining claims, Mello wrote that the plaintiff school districts “mischaracterized the merger transaction” in making the debt argument. That’s because school district property and debt do not actually belong to the school district — they belong to the state.
“After merger, these assets and debts are not transferred from one municipality to another, as the Plaintiffs maintain, but instead are transferred from one extinguished state trustee to a newly created one,” the judge wrote.
Assistant Attorney General David Boyd, who is representing the state in all Act 46 lawsuits, said his office was pleased with Mello’s order.
“It was thoughtful, well-reasoned and thorough. We will be asking the Supreme Court to affirm it,” he said.
The school boards’ attorneys in the Athens case on Wednesday delivered a motion to the state’s Supreme Court asking its judges to stay mergers, which are set to take effect July 1, while they consider the merits of the suit. They had unsuccessfully put a similar request before Mello; he ruled against them on that matter in March.
Boyd said the state would file a motion in opposition to the plaintiffs’ stay request this week. The state, he said, would largely expand on arguments it made at the lower court level.
Meanwhile, Mello ruled on Wednesday to dismiss the Huntington case. Huntington had made many of the same arguments put forward by other school districts fighting the mergers — including around debt, whether the Legislature unconstitutionally delegated its powers by giving the State Board of Education the final say over mergers and due process. In his eight-page ruling on Wednesday, Mello largely invoked his findings in earlier orders.
In an interview before the ruling came out, Huntington School Board Chairman Paul Susen said the board had already committed to taking the case to the state Supreme Court if Mello ultimately sided with the state.
Only one of the merger lawsuits has wrapped up. The Stowe and Elmore-Morristown school boards, which were fighting their state-mandated consolidation together in court, have opted not to appeal to the Supreme Court. Mello had dismissed their case on all counts in late April.