BARRE — Greasing the skids for a potential Supreme Court appeal, a superior court judge has dismissed three key constitutional claims raised in one of three lawsuits challenging state-ordered school district mergers.

In a 13-page ruling released Friday Judge Robert Mello dismissed claims raised on behalf of 33 school districts that the Legislature violated provisions of the Vermont Constitution by delegating the authority to merge some school districts to the state Board of Education.

Mello also dismissed a separate claim that the due process rights of the school districts were violated during the process that played out under a law — Act 46 — that encouraged, incentivized and ultimately imposed mergers in some cases.

In arriving at his decision, Mello indicated he wasn’t prepared to dismiss, or decide three other claims — a fact he acknowledged could eventually lead to a second Supreme Court appeal at some later date.

However, with several contested state-ordered mergers set to launch July 1, Mello indicated time was short and the “unusually great statewide importance” of the issues argued in favor of deciding them quickly.

“… Under these circumstances, this 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,” Mello wrote, noting the counts he dismissed for failure to state a claim on which relief could be granted.

Mello noted the claims he was dismissing involved “pure questions of law,” that once answered by the Supreme Court could affect the rest of the pending lawsuit.

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

“In other words, ‘allowing an appeal at this stage will most likely expedite the ultimate termination of the litigation’ thereby protecting the interests of parties and non-parties alike,” he added.

Though Mello acknowledged his may not be the last word with respect to the dismissed claims, he reiterated his belief they were without merit. Mello, who signaled his skepticism when denying a motion for a preliminary injunction requested by school districts earlier this year indicated with respect to the constitutional claims his mind hadn’t changed.

Notwithstanding arguments to the contrary, Mello concluded the Legislature didn’t violate any of the provisions of the Vermont Constitution cited by lawyers representing the school districts when it delegated the authority to merge districts to the state Board of Education.

“… While the General Assembly cannot delegate it’s 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,” he wrote, rejecting the contention that the merger process outlined in Act 46 amounted to a “whole-cloth delegation” on the part of the Legislature.

“… It is explicitly within the Legislature’s constitutional authority to pass laws like Act 46 and Act 49, and, with sufficient guidance and direction, authorize the Board to implement ‘other provisions’ to provide Vermont students instruction,” he concluded.

Mello also dismissed a due process claim he indicated was without merit for a variety of reasons.

“‘… Plaintiffs do not have a fundamental right to any particular form of school governance, and it is well within the state’s legislative authority to oversee statewide education administration,’” he wrote, borrowing from his earlier ruling denying the preliminary injunction.

“… Although they obtained a result they believe to be unsatisfactory, the Plaintiffs in this case had notice and the opportunity to have their positions heard and considered,” he added.

Mello indicated he could not yet rule on the three remaining claims contained in the lawsuit.

“… Resolution of some or all of the claims remaining … may require the presentation of facts that have yet to be established, and therefore do not present questions which are subject to dismissal at this time,” he wrote.


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