Athens School District et al. v. Vermont State Board of Education et al.
Nos. 2019-185 & 2019-241
Supreme Court of Vermont
January Term, 2020
2020 VT 52
Robert A. Mello, J.
David F. Kelley, Craftsbury Common, Stephen F. Coteus and Nicholas A.E. Low of Tarrant, Gillies & Richardson, Montpelier, and Ines McGillion of Ines McGillion Law Offices, PLLC, Putney, for Plaintiffs-Appellants.
Thomas J. Donovan, Jr., Attorney General, and David Boyd and Eleanor L.P. Spottswood, Assistant Attorneys General, Montpelier, for Defendants-Appellees.
NOTICE: This opinion is subject to motions for reargument under
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
I. The Law
¶ 2. Before addressing plaintiffs’ arguments, we review the relevant law. In response to declining student enrollment and a large number of independent school districts, the Legislature passed acts in 2010 and in 2012 to incentivize voluntary mergers of school districts. See
¶ 3. In 2015, the Legislature passed Act 46. See
¶ 4. In light of these findings, the Legislature stated that, by enacting Act 46, it intended “to move the State toward sustainable models of education governance.” Id. § 2. It further stated that Act 46 was designed to encourage local decisions and actions that: (1) “provide substantial equity in the quality and variety of educational opportunities statewide“; (2) help students to achieve or exceed state education quality standards; (3) “maximize operational efficiencies through increased flexibility to manage, share, and transfer resources, with a goal of increasing the district-level ratio of students to full-time equivalent staff“; (4) “promote transparency and accountability“; and (5) “are delivered at a cost that parents, voters, and taxpayers value.” Id.
¶ 5. We now turn to the relevant substantive sections of Act 46. Under § 5, by July 2019, the State was to “provide educational opportunities through sustainable governance structures designed to meet the goals set forth in Sec. 2 of this act pursuant to one of the models described in this section.” Id. § 5(a). The section then defines what is a “[p]referred structure” and indicates when an “[a]lternative structure“—defined as “a supervisory union with member districts“—may meet the State‘s goals. Id. § 5(b)-(c). The preferred educational governance structure is a school district that: “(1) is responsible for the education of all resident prekindergarten through grade 12 students; (2) is its own supervisory district; (3) has a minimum average daily membership [defined, in relevant part, by
¶ 6. Where the preferred structure is not “possible or not the best model to achieve Vermont‘s education goals in all regions of the State,” an alternative structure—“a supervisory union composed of multiple member districts, each with its separate school board“—“can meet the State‘s goals, particularly if” (1) the member districts are collectively responsible for educating all resident pre-K-12 students; (2) “the supervisory union operates in a manner that maximizes efficiencies through economies of scale and the flexible . . . sharing of nonfinancial resources among the member districts“; (3) “the supervisory union has the smallest number of member school districts practicable . . .“; and (4) “the combined average daily membership of all member districts is not less than 1,100.” Id. § 5(c).
¶ 7. Section 6(a) of Act 46 sets forth the conditions that a newly formed district had to meet on or before July 1, 2017, to receive the enhanced tax incentives in § 6(b). Section 7(a) sets forth the conditions that a newly formed district had to satisfy on or before July 1, 2019, to receive the tax incentives in § 7(b). Section 8 concerns the Board of Education‘s evaluation of proposals, including those submitted under §§ 6-7, to create a newly formed union school district, to determine if the proposal is designed to create a sustainable governance structure that meets the goals set forth in § 2. Under § 8(b), the Board may
¶ 8. Section 9 requires a district school board that has a governance structure different from the preferred structure identified in § 5(b) or that did not expect to have such a structure in place before July 1, 2019, to take the following actions on or before November 30, 2017: (1) evaluate its current ability to meet or exceed the § 2 goals; (2) meet with the boards of one or more other districts to discuss ways to promote the § 2 goals throughout the region; and (3) submit a proposal on behalf of itself or jointly with other boards both indicating whether it intends to retain its current governance structure or form a different governance structure and demonstrating that its chosen governance structure meets or exceeds § 2 goals.
¶ 9. In order to provide educational opportunities through sustainable governance structures set forth in § 5(b), § 10(a) requires the Secretary of Education (1) to review the governance structures of the school districts and supervisory unions as they would exist on July 1, 2019, and consider any § 9 proposals; and (2) develop on or before June 1, 2018, “and present to the State Board of Education a proposed plan that, to the extent necessary to promote the purpose stated [therein] would move districts into the more sustainable, preferred model of governance set forth in Sec. 5(b).” That subsection further provides, in relevant part, that if it is “not possible or practicable” to realign some districts, “where necessary,” into a preferred structure, “then the proposal may also include alternative governance structures as necessary” as long as the proposed alternative governance structure is designed to promote the purpose stated therein. Id. § 10(a)(2). Under § 10(b), on or before November 30, 2018, the Board was required to review and analyze the Secretary‘s plan and, after taking any testimony or asking for any additional information, approve the proposed plan in its original or an amended form and publish “its order merging and realigning districts and supervisory unions where necessary.” Section 10 is not applicable to districts that began to operate as a unified union school district between June 2013 and July 2019 and that either voluntarily merged into a preferred education governance structure as identified in § 5(b) or were eligible to receive incentives under Act 153 or Act 156. Id. § 10(c).
¶ 10. In sum, Act 46 established a multi-year, two-phased process to provide school districts multiple opportunities “to unify existing governance units into more ‘sustainable governance structures.‘”
¶ 11. In 2017, in response to some districts resisting merger or experiencing difficulties satisfying Act 46‘s requirements, the Legislature passed Act 49, which provided more flexibility in adopting alternative governance structures by offering additional incentives and exemptions if newly created districts received voter approval on or before November 30, 2017.
¶ 12. In Act 49, the Legislature found that 105 Vermont towns had “voted to merge 113 school districts into slightly larger, more sustainable governance structures,” thereby creating twenty-three new unified school districts and resulting in approximately sixty percent of Vermont children living in school districts satisfying Act 46‘s goals. Id. § 1(c). While lauding the fact that these larger, more flexible union districts had “begun to realize distinct benefits“—including the ability to offer choice among elementary schools within a district, greater flexibility in sharing staff and resources, the elimination of bureaucratic redundancies, and flexibility to create magnet schools offering a particular area of specialization—the Legislature expressed concern that, due to complications ranging from geographic isolation to differing operational models or levels of debt, significant areas of the state had experienced difficulty satisfying Act 46‘s goals. Id. § 1(d)-(e). The Legislature forewarned, however, that nothing in Act 49 “should be interpreted to suggest that it is acceptable for a school district to fail to take reasonable and robust action to seek to meet the goals of Act 46.” Id. § 1(f). The Legislature pronounced that Act 49 was “designed to make useful changes to the merger time lines and allowable governance structures under Act 46 without weakening or eliminating the Act‘s fundamental phased merger and incentive structures and requirements.” Id.
II. The Administrative and Judicial Proceedings
¶ 13. In June 2018, following the deadline for § 9 proposals by school districts that had not merged—and were not planning to merge—into preferred governance structures by the statutory deadlines, the Secretary submitted to the Board a 189-page proposed statewide plan for the merger of school districts. The proposed plan addressed in detail the forty-three § 9 proposals it had received from districts and groups of districts and included a 201-page analysis of common data points for those districts that had submitted proposals.
¶ 14. Beginning in September 2018, the Board held five public meetings to review the Secretary‘s proposed plan and provided districts that had submitted § 9 proposals an opportunity to identify any claimed errors in the Secretary‘s report. In November 2018, the Board issued its Final Report of Decisions and Order, in which it merged forty-two districts located in thirty-six towns to form eleven new union school districts, enlarged an existing union
¶ 15. In January 2019, plaintiffs filed a lawsuit in the civil division, pursuant to
III. Plaintiffs’ Appeal
¶ 16. On appeal to this Court, plaintiffs argue that: (1) the Secretary and the Board failed to implement the plain language of Act 46; (2) the Board‘s final order is based on a flawed interpretation of Act 46 that violates provisions of Vermont statutory law and the Vermont Constitution; and (3) the order contravenes this Court‘s decision in Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997) (per curiam), construing the Vermont Constitution‘s Common Benefits Clause.
A. Standard of Review
¶ 17. There are no material facts in dispute, but the parties disagree about the appropriate standard of review for this Court to apply. In their principal brief, plaintiffs state simply that they are raising purely legal issues for this Court‘s nondeferential review. See Hallsmith v. City of Montpelier, 2015 VT 83, ¶ 9, 199 Vt. 488, 125 A.3d 882 (“We review questions of law, including whether the requirements of due process have been satisfied, de novo.” (quotation omitted)). Defendants contend that this Court should apply a highly deferential standard in reviewing the Board‘s actions because this is a quasi-legislative process set forth in Act 46 that required the Board to engage in a generalized rather than an individualized implementation of legislative policy. See In re Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶ 20, 207 Vt. 274, 187 A.3d 1125 (“Even when conducting an
¶ 18. Plaintiffs’ primary claims of error in this appeal are that the Board‘s interpretation of the enabling statute exceeded the legislative delegation set forth therein and that, if it did not, the delegation constituted an unconstitutional delegation of legislative authority. Regarding the Board‘s implementation of Acts 46 and 49, this Court has “long extended [the] principle of deference to agency interpretations of statutes which the Legislature has entrusted to their administration.” Williston Inn Grp., 2008 VT 47, ¶¶ 12-13 (noting that this principle arises out of separation-of-powers concerns in addition to consideration of agency expertise); accord C&S Wholesale Grocers, Inc. v. Dep‘t of Taxes, 2016 VT 77A, ¶ 10, 203 Vt. 183, 155 A.3d 169; see Gasoline Marketers of Vt., Inc. v. Agency of Nat. Res., 169 Vt. 504, 508, 739 A.2d 1230, 1233 (1999) (“[A]bsent a clear and convincing showing to the contrary, decisions made within the expertise of administrative agencies are presumed to be correct, valid, and reasonable . . . .“). Accordingly, to the extent the language of the enabling statute is ambiguous or subject to multiple reasonable interpretations, we will not substitute our judgment for the Board‘s reasonable interpretation of its authority pursuant to that statutory language.
¶ 19. We recognize, of course, that our ultimate goal in interpreting a statute “is to effectuate the Legislature‘s intent.” Negotiations Comm. of Caledonia Cent. Supervisory Union v. Caledonia Cent. Educ. Ass’n, 2018 VT 18, ¶ 14, 206 Vt. 636, 184 A.3d 236. If the statutory language is clear, we will enforce the statute according to the plain meaning of its terms. Id. If the statutory language is not clear, “we seek to determine legislative intent by considering the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law.” Id. (quotation and alteration omitted). “Provisions that are part of the same statutory scheme must be read in context and the entire statutory scheme read together to ascertain legislative intention from the whole of the enactments.” Id. (quotation omitted).
¶ 20. In this case, our analysis of plaintiffs’ challenge to the Agency‘s and Board‘s implementation of the statute does not rest upon deference to the Agency or Board because, as we explain below, the statute plainly does not require the necessity finding for which plaintiffs advocate. With respect to plaintiffs’ constitutional challenges, we give no deference when “reviewing a constitutional challenge to the application of a statute.” State v. Roya, 167 Vt. 594, 595, 708 A.2d 908, 909 (1998) (mem.).
B. Statutory Challenges
¶ 21. In this section, we address plaintiffs’ arguments that: (1) the enabling statute requires a threshold finding of necessity that the Board did not make; (2) the Board failed to discharge its responsibility to conduct a fair review of § 9 proposals;
¶ 22. Plaintiffs first argue that the Agency and the Board erroneously interpreted Act 46 as establishing a two-phase process that incentivizes voluntary mergers in phase one and then, for those districts that did not merge, forces involuntary mergers into preferred structures whenever possible or practicable, without determining if the forced mergers are “necessary.” In making this argument, plaintiffs focus on § 10(a)-(b) of Act 46. In plaintiffs’ view, § 10(a)(2) permits the Secretary to propose involuntary mergers in its statewide plan, but §10(b) allows the Board‘s final order to call for involuntary mergers only when possible, practicable, and necessary. According to plaintiffs, both the Secretary and the Board called for involuntary mergers whenever possible and practicable, without analyzing whether the mergers were necessary. In particular, plaintiffs cite to the Board‘s statement in its overview of its final order that it had “chosen to hew as closely to the intent of the Act as that authority will allow, creating preferred structures wherever possible, and in all other cases, creating sustainable governance structures with the fewest number of districts possible and practicable.” Plaintiffs also argue that the Secretary and the Board disregarded their statutory duty to review § 9 proposals and give districts an opportunity to amend those proposals, thereby effectively repealing that section. Specifically, plaintiffs point to the Agency‘s comment with respect to one particular § 9 proposal that the proposal was not strong enough to overcome the Legislature‘s stated preference for larger governance structures.
¶ 23. Plaintiffs’ arguments are inconsistent with the legislative intent underlying Acts 46 and 49 and cannot be reconciled with the various sections in those acts considered together. As noted, the Legislature enacted Act 46 after its attempts in previous laws to incentivize only voluntary mergers failed to significantly reduce the number of districts by merging them into larger, more sustainable, preferred governance structures. The Legislature documented in the Act‘s legislative findings the negative statewide impact on K-12 education resulting from schools not being in sustainable governance structures. It determined that merging districts into sustainable governance structures was necessary to achieve the goals stated, including economies of scale and greater educational opportunities. Essentially, Act 46 established the presumption that preferred structures are the best means of satisfying the Act‘s goals, and it placed on those districts objecting to merger into possible and practicable preferred structures the burden of establishing that their proposed alternative structures provided a superior means of meeting those goals. In short, where merger into a preferred governance structure was possible and practicable, the Legislature presumed that merger was the best means of achieving Act 46‘s goals, unless shown otherwise.
¶ 24. An examination of the interplay among Act 46‘s provisions supports this construction of Act 46 and demonstrates that the Legislature did not create a “necessity” threshold for the Board to force mergers. Section 5 provides that “the State shall provide educational opportunities through sustainable governance structures designed to meet” the § 2 goals “pursuant to” either a preferred structure
¶ 25. Plaintiffs’ attempt to convert the last two words of § 10(b) into a mandate preventing the Board from merging school districts into sustainable governance structures, without local approval, absent a finding of necessity, is inconsistent with these provisions when read together. The term “where necessary” in § 10(b) means nothing more than requiring the Board to merge and realign districts according to the mandates of Act 46, which presumes the necessity of merging districts into preferred or alternative governance structures to achieve its stated goals. More specifically, viewed in the context of the relevant provisions, those two words indicate only that the Board was required to take action by merging schools into either a preferred governance structure or, if an objecting district established that the preferred structure is not the best means of promoting § 2 goals in that region, an alternative structure that meets specific criteria. There is no mandatory threshold necessity finding separate from Act 46‘s directive that the Board take all feasible actions, whenever possible and practicable, to merge schools into preferred or alternative governance structures within each region.
¶ 26. In Act 46, the Legislature intended to require the establishment of preferred or approved alternative governance structures to achieve its stated goals, even if that meant forcing involuntary mergers. Considered in this context, the word “necessary” in § 10(b) reflects the Legislature‘s recognition that the Board will have to take certain merger actions to achieve Act 46‘s goals. As with plaintiffs, the dissent‘s focus on the term “where necessary” in § 10 essentially eliminates the presumption in § 5 that preferred structures further the statute‘s goals and that alternative structures are permitted only when certain requirements are met, which was not the case here.
¶ 27. Plaintiffs’ suggestion that § 9 proposals were not properly considered is without merit. The Secretary‘s proposed plan included several hundred pages of appendices discussing the § 9 proposals. Moreover, the Board gave every district that submitted an alternative proposal the opportunity to identify any errors that the Secretary made, to discuss any alternative proposal with the Board, or to amend any
¶ 28. We also reject plaintiffs’ assertion that § 40 of Act 46, which amended
¶ 29. This argument is untenable because these laws address distinct matters. As discussed above, the second phase of Act 46, at the heart of which is § 10, required the Board to adopt a regionally focused statewide plan by November 2018 pursuant to the policy goals stated in the Act. Under that phase of the Act, alternative structures for individual districts are permitted only if they are found to be the best means of meeting those goals in a particular region. In contrast, § 40 of Act 46, which is not set to take effect until July 2020, addresses the specific situation when the Secretary determines that an individual school is not meeting statutory performance standards. There is nothing illogical, as plaintiffs suggest, about addressing the failure of a specific school to meet performance standards differently than the process for altering statewide education governance structures on a regional basis to better meet explicitly stated legislative goals.
¶ 30. For similar reasons, we do not find persuasive any of plaintiffs’ arguments suggesting that the Board‘s implementation of Act 46 conflicted with other sections of Title 16. In construing statutes to give effect to legislative intent, we seek “to harmonize statutes and not find conflict if possible.” Gallipo v. City of Rutland, 173 Vt. 223, 235, 789 A.2d 942, 951 (2001). If that is not possible, specific and more recent statutes regarding the same subject matter control over more general and older statutes. State of Vt. Agency of Nat. Res. v. Parkway Cleaners, 2019 VT 21, ¶ 40, 210 A.3d 445; State v. Lynch, 137 Vt. 607, 610, 409 A.2d 1001, 1003 (1979).
¶ 31. Plaintiffs argue that specific provisions of Chapter 11 of Title 16 unambiguously require reciprocal votes from each involved district before any merger of districts or transfer of the districts’ debts and assets. According to plaintiffs, the Legislature intended Acts 46 and 49 to encourage more-consolidated school districts but to leave intact the voting rights of individual communities on whether to merge their school districts with neighboring ones. Essentially, plaintiffs are arguing that Acts 46 and 49 did not in fact provide for involuntary mergers but rather anticipated giving individual communities a veto
¶ 32. In support of their argument, plaintiffs point to
¶ 33. Section 721 neither addresses nor prohibits involuntary mergers, as contemplated by Act 46. Further, the fact that some longstanding provisions in Title 16 require local approval for mergers under certain circumstances does not demonstrate they are applicable under Acts 46 and 49 or that local approval is a necessary element of legislatively authorized mergers. See Opinion of the Justices, 246 A.2d 90, 93 (Del. 1968) (“The fact that, heretofore, no consolidating of districts or imposition of taxes could be made without an affirmative vote of the residents of the particular district, does not mean that ever thereafter the General Assembly is bound to preserve that practice.“).
¶ 34. In short, none of the provisions that plaintiffs rely on are applicable in situations involving involuntary state-initiated mergers into preferred governance structures pursuant to the second phase of Act 46. See
¶ 35. Nor have plaintiffs demonstrated that the Board misinterpreted the provisions set forth in Act 46, as amended by Act 49, or exceeded its authority in implementing those laws. The Board‘s interpretation of those Acts is entirely reasonable and supported by the plain language of the provisions contained therein, as well as the underlying purposes and spirit of those laws. To the extent that any of the provisions in those Acts may be considered ambiguous with respect to the Agency‘s or
C. Constitutional Challenges
¶ 36. In this section, we consider plaintiffs’ arguments invoking the unlawful-delegation doctrine and the Vermont Constitution‘s Education and Common Benefits clauses. Plaintiffs first argue that even if the Agency and the Board in fact acted within the authority delegated to them in Acts 46 and 49, then that delegation—which plaintiffs characterize as giving those executive entities the “sole discretion” to dissolve and form school districts—violated the separation-of-powers principle established in the Vermont Constitution. Noting that school districts are considered municipalities in Vermont, plaintiffs assert that the Legislature has the exclusive prerogative under the Vermont Constitution to dissolve and create school districts. They contend that the delegation in this case violates the Constitution and this Court‘s precedent by giving the Board the authority to: (1) create new school districts and decide what territory—composed of existing smaller school districts—will be included within their limits; and (2) create articles of agreement by which the Board established the size, composition, and powers of the new districts’ governing boards. As explained below, we conclude that the Legislature provided in Acts 46 and 49 more than sufficient guidance to the Agency and Board to avoid an unconstitutional delegation of its legislative power concerning the creation, dissolution, and reorganization of school districts in the state.
¶ 37. In responding to plaintiffs’ unlawful-delegation argument, we first examine some basic principles. To avoid an unconstitutional reach of the judiciary‘s own powers as a co-equal branch of government, this Court “presume[s] a statute is constitutional absent clear and irrefragable evidence to the contrary.” State v. Curley-Egan, 2006 VT 95, ¶ 27, 180 Vt. 305, 910 A.2d 200 (quotation omitted) (concluding that Legislature did not unconstitutionally delegate its police power in giving University of Vermont police statewide jurisdiction).
a broad grant of authority to a subordinate agency in intricate matters affecting the general welfare in natural resources, health, education and economics“).
¶ 39. The oft-stated distinction with respect to the unlawful-delegation doctrine is “between ‘a delegation of the power to make the law which necessarily includes a discretion as to what it shall be and the conferring authority or discretion as to its execution.’ ” Hunter, 2004 VT 108, ¶ 27 (quoting Vill. of Waterbury v. Melendy, 109 Vt. 441, 451, 199 A. 236, 241 (1938)).6 “The first cannot be done; to the latter no valid objection can be made.” Marshall Field & Co. v. Clark, 143 U.S. 649, 694 (1892) (quotation omitted). “The discretion conferred can be ‘wide ... in the manner and method for the execution of statutes validly adopted.’ ” Hunter, 2004 VT 108, ¶ 27 (quoting Vt. Educ. Bldgs. Fin. Agency v. Mann, 127 Vt. 262, 267, 247 A.2d 68, 72 (1968)). The U.S. Supreme Court has recognized that as long as a legislative body “provides an administrative agency with standards guiding its actions such that a court could ascertain whether the will of [that body] had been obeyed, no delegation of legislative authority trenching on the principle of separation of powers has occurred.” Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218 (1989) (quotations omitted); see Whitman v. Am. Trucking Ass‘n, 531 U.S. 457, 472 (2001) (noting its repeated admonition that legislative body “must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform” (quotation and alteration omitted)).
¶ 40. Accordingly, the legislative body “may not only give such authorizations to determine specific facts, but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy.” Melendy, 109 Vt. at 451, 199 A. at 241; see also Cty. Bd. of Educ. v. Goodpaster, 84 S.W.2d 55, 58 (Ky. 1935) (stating that unconstitutional delegation of legislative power “means delegation of discretion as to what the law shall be, and does not mean that the Legislature may not confer discretion in the administration of the law itself“); Carolina-Virginia Coastal Highway, 74 S.E.2d at 316 (stating that “the legislative body must declare the policy of the law, fix legal principles which are to control in given cases, and provide adequate standards for the guidance of the administrative body or officer empowered to execute the law,” and it “may delegate the power to find facts or determine the existence or nonexistence of a factual situation or condition on which the operation of a law is made to depend, or another agency of the government is to come into existence,” but “it cannot vest in a subordinate agency the power to apply or withhold the application of the law in its absolute or unguided discretion“). As this Court explained long ago:
Since legislation must often be adapted to complex conditions involving a host of details, with which the lawmaking body cannot deal directly, the Legislature may, without abdication of its essential functions, lay down policies and establish standards while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.
State v. Auclair, 110 Vt. 147, 163, 4 A.2d 107, 114 (1939) (quotation omitted) (stating that Legislature may vest agency with “wide discretion” as long as discretion is not “unrestrained and arbitrary” in furtherance of fixed legislative policy).
¶ 41. Specifically, with respect to the delegation of legislative authority over the creation, merger, or dissolution of school districts, courts overwhelmingly agree that such delegation, especially when accompanied by extensive guidance such as in the instant case, does not violate the separation-of-powers principle. See Annotation, Discretion of Administrative Officers as toChanging Boundaries of School District, 135 A.L.R. 1096, § 2 (originally published in 1941 and supplementing 65 A.L.R. 1523) (listing cases supporting proposition that state legislatures have “almost unlimited power to abolish, divide, or alter” school districts and that “this broad discretionary power to change the boundaries of school districts may be delegated by the legislature to administrative bodies, to be exercised under certain conditions“); 16B McQuillan, The Law of Municipal Corporations § 46:2 (3d. ed. 2019) (stating
¶ 42. Legislative action to “create and abolish school districts and change the boundaries thereof ... is usually provided for by general laws in which the Legislature formulated the policy broadly, leaving the working out of the details to designated officers.” Berthot v. Gallatin Cty. High Sch. Dist., 58 P.2d 264, 266 (Mont. 1936). Such laws “do not violate the provision against delegating legislative power to administrative officers.” Id.; see also Schaefer v. Tea Area Sch. Dist. 41-5, 2015 S.D. 87, ¶ 8, 871 N.W.2d 838 (stating that “creation, enlargement, consolidation, alteration and dissolution of school districts is a legislative function” that legislature may delegate to boards of education (quotation and alterations omitted)); Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995) (rejecting argument that bill giving commissioner of education extensive power to create rules and consolidate school districts was unconstitutional delegation of legislative power, and noting that legislature “may delegate its powers to agencies established tocarry out legislative purposes, as long as it establishes reasonable standards to guide the entity to which the powers are delegated” (quotation omitted)); Sch. Dist. No. 3 v. Callahan, 297 N.W. 407, 411 (Wis. 1941) (stating that “the formation of school districts and the power to exercise discretion in determining whether such districts shall be altered by consolidation or otherwise is not such an exclusive function as may not be delegated to the state superintendent“).
¶ 43. Vermont is no exception to these general principles. See Town of Barre v. Sch. Dist. No. 13, 67 Vt. 108, 112-13, 30 A. 807, 808 (1894) (stating that “education of its youth is a state work, created, controlled, and enforced by public laws” and thus Legislature “has the right and power to determine when, how, and by whom its work shall be carried on“); see also Pierce v. Whitman, 23 Vt. 626, 628 (1851) (citing eighteenth-century acts empowering towns to divide their territories into school districts). Moreover, for more than fifty years, the Legislature has delegated to the Board the power to approve or reject certain school district changes. See Appelget v. Baird, 126 Vt. 503, 504, 236 A.2d 671, 672 (1967) (relying on statute giving Board authority to determine whether proposed union school district was in state‘s best interests).
¶ 44. In this case, Acts 46 and 49 provide more than sufficient guidance to satisfy the lawful-delegation standard examined above. See B & M Realty, LLC, 2016 VT 114, ¶ 28 (finding no unlawful delegation of legislative authority in planning and development act that identified legislative purpose for planning generally, listed specific goals that regional plans must meet, identified duties of regional planning commissions and established required elements of regional plans, and specified procedural requirements for adopting plans, including opportunity for public hearing and comment);
¶ 45. Acts 46 and 49 set forth detailed legislative findings and explicit policy goals. Further, the laws specify preferred and alternative school district governance structures for the Board to approve based on explicit conditions and criteria. Further still, the laws set forth detailed processes and procedures by which the Agency and the Board must consider the state‘s various proposed school districts, all within the confines of the laws’ policies, goals, and criteria. Indeed, it is difficult to imagine more specific guidance for the Board to apply its discretion within the bounds of the authority delegated to it by the Legislature.
¶ 46. Faced with this sea of case law and legal authority contrary to their unlawful-delegation position, plaintiffs cling to a thin reed—this Court‘s five-paragraph 1913 advisory opinion in In re Municipal Charters, 86 Vt. 562, 86 A. 307 (1913). In that case, the governor asked this Court to advise him on the constitutionality of a 1910 law allowing villages to be chartered, and village charters to be amended, on petition to the Public Service Commission “without resorting to the General Assembly.” Id. at 563, 86 A. at 307. Relying on the constitutional clause giving the Legislature the power “to ‘constitute towns, boroughs, cities, and counties,’ ” id. (quoting
¶ 47. Recognizing that Municipal Charters dealt with a specific constitutional clause not at issue here, plaintiffs point out that another clause in the same constitutional provision empowers the Legislature to “grant charters of incorporations, subject to the provisions of section 69,”
¶ 48. For several reasons, Municipal Charters does not control the outcome in this case. As noted, the Court in Municipal Charters considered an act that empowered the Public Service Commission “to determine the plan and frame of government of the proposed village, what powers
¶ 49. In any event, as the trial court noted, Municipal Charters concerned the incorporation of municipalities, which the constitutional clause at issue expressly reserved to the Legislature—not the reorganization of school districts. Notwithstanding that school districts are treated as municipalities in some respects, the two have not always been treated the same under the nondelegation doctrine. As noted above, the Vermont Legislature has a long history of permitting the creation or merger of school districts without legislative approval, but it has neverdone so with respect to the incorporation of municipalities. Moreover, state courts have generally given state legislatures more leeway in delegating legislative power over the creation, dissolution, or consolidation of school districts, as opposed to the incorporation of municipalities. Compare 16B McQuillan, supra, § 46:2 (stating that power to establish school districts is vested in state legislature, but “is frequently delegated to some extent to quasi-corporations,” including boards of education), with 1 McQuillan, supra, § 3:10 (stating that state legislatures “cannot delegate to courts or other bodies ... the power to create municipal corporations,” although legislatures may pass general laws for incorporation of municipalities with fixed conditions on which they may be created). For the above reasons, our advisory opinion in Municipal Charters does not control the outcome of this case.
¶ 50. Nor do we find any merit to plaintiffs’ suggestion that the legislation authorizing the Board to promulgate default articles of agreement constituted an unlawful delegation of legislative power. The Board has a long history of reviewing articles of agreement. See, e.g.,
¶ 51. Plaintiffs also argue that the Board‘s implementation of Act 46 violates the Vermont Constitution‘s Education and Common Benefits clauses. Neither argument withstandsscrutiny. In relevant part, the Education Clause provides that “a competent number of schools ought to be maintained in each town unless the general assembly permits other provisions for the convenient instruction of youth.”
¶ 52. Finally, plaintiffs argue that the Board‘s final order contravenes Brigham‘s mandate, pursuant to the Common Benefits Clause, that all students “be afforded a substantially equal opportunity to have access to similar educational revenues.” 166 Vt. at 268, 692 A.2d at 397; see
¶ 53. As with their previous constitutional argument, plaintiffs’ hypothetical argument—that students in unspecified school districts at some point in the future might not obtain equal educational opportunities due to unequal levels of funding that could result from not obtaining tax incentives or qualifying for small-school grants—is purely speculative and cannot be the basis for this Court to declare Act 46 unconstitutional under the Common Benefits Clause.7 No plaintiff has demonstrated that they did not receive a grant previously available
violation arising from the differential incentives would be to unwind the Board‘s final order pursuant to § 10, rather than to require redress for the unequal incentives.
¶ 54. As for the dissent‘s homage to local control, the dissent itself acknowledges that the state is and always has been responsible for determining that level of control and that it is within the province of the Legislature, not this Court, to make policy determinations in that regard. See Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (stating that courts “are vested with the authority to interpret the law” but “possess neither the expertise nor the prerogative to make policy judgments” entrusted to members of legislative branch, “who can be thrown out of office if the people disagree with them“).
Affirmed.
FOR THE COURT:
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Chief Justice
¶ 55. EATON, J., dissenting. At its heart, this is a case of statutory interpretation. Did the Legislature give the Board of Education the authority to direct school districts to involuntarily change their structures and, if so, under what conditions? The Board and the majority interpret the authorizing legislation to allow forced mergers when possible or practicable. To reach this interpretation the majority ignores critical language in the statute that authorizes involuntary changes to district structure only “where necessary” to achieve the goals of the statute. Because the language of Act 46 is plain in requiring the Board to find that merger of particular school districts is necessary, not just possible and practicable, I would remand to the Board to reconsider the Secretary‘s proposal in light of that standard. To allow involuntary mergers to proceed for towns where it is not necessary violates the intent of the statute and puts at risk the voices of small towns in the future education of their children.
¶ 56. I agree with the majority that the Legislature has the authority under the Vermont Constitution to delegate to the Agency and the Board the power to create, merge, or dissolve school districts as long as that delegation is accompanied by “reasonable standards to govern the achievement of [the] purpose and the execution of the power which it confers.” In re B & M Realty, LLC, 2016 VT 114, ¶ 28, 203 Vt. 438, 158 A.3d 754 (quotation omitted); see Stowe Citizens for Responsible Gov‘t v. State, 169 Vt. 559, 561, 730 A.2d 573, 575 (1999) (mem.) (explaining that Legislature can delegate decisionmaking to municipality, but delegation is unconstitutional if it “is so vague and uncertain that, in exercising its discretion, the municipality must, in effect, make the law“). Therefore, the scope of the authority that the Legislature gave to the Board is important to answering the constitutional delegation question.8 Here, the plain language of Act 46 requires that the Secretary and the Board recommend and adopt changes in school
¶ 57. As detailed by the majority, the Legislature enacted Act 469 to address a statewide decline in student enrollment and parallel increase in education costs.
maximized efficiencies, promoted transparency, and delivered education at a good cost value.
¶ 58. Under the statute, districts that did not enter voluntary mergers and did not have a preferred structure were required to submit a proposal (either individually or jointly with other districts), explaining the district‘s plan to meet the goals of the statute.
develop, publish on the Agency of Education‘s website, and present to the State Board of Education a proposed plan that, to the extent necessary to promote the purpose stated at the beginning of this subsection (a), would move districts into the more sustainable, preferred model of governance set forth in Sec. 5(b) of this act (Education District).
¶ 59. The statute then directed the State Board of Education to review the Secretary‘s plan and “approve the proposal either in its original form or in an amended form that adheres to the provisions of subsection (a) of this section and ... publish on the Agency‘s website its order merging and realigning districts and supervisory unions where necessary.”
¶ 60. It is the import of the word “necessary” in § 10 that is the subject of this dissent. As is often repeated, this Court‘s primary goal in interpreting a statute is “to implement the intentof the Legislature by giving effect to the plain language of the statute.” State v. Reed, 2017 VT 28, ¶ 20, 204 Vt. 399, 169 A.3d 1278. Only when the meaning of a statute is ambiguous does the Court look elsewhere to determine intent. Id. Here, the language of
¶ 61. The majority‘s interpretation that the Legislature did not create a “necessary” threshold fails for several reasons. First, to reach this conclusion the majority essentially reads the word “necessary” out of the statute. In construing language in a statute, “[t]his Court must presume that all language in a statute was drafted advisedly, and that the plain ordinary meaning of the language used was intended.” Comm. to Save the Bishop‘s House, Inc. v. Med. Ctr. Hosp. of Vermont, Inc., 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (citation omitted). In total, the word “necessary” appears four times in § 10, and each time in reference to deciding whether to alter the existing structure of districts and supervisory unions. To reach its result, the majority must conclude that the Legislature inserted the word necessary in four different locations wholly unnecessarily and superfluously. I cannot make such a presumption.
¶ 62. Second, the language of the statute, and in particular the purpose statement, does not support the majority‘s conclusion that incorporating a necessary requirement would be at odds with the Legislature‘s overall intent underlying Act 46. The majority deems that the goal of the Act was to merge school districts, but the language of the statute reveals a much broader and more nuanced purpose. The Legislature indicated that its goal was to create “sustainable models ofeducation governance.”
¶ 63. The statute strikes a balance between encouraging changes where it would help attain the goals of the statute, and allowing alternative approaches where changes in structure would not help
¶ 64. Moreover, giving full effect to the word “necessary” in the statute is also consistent with the history in this state of local control over school governance. Certainly, as this Court has held, the obligation for providing public education belongs to the state. Brigham v. State, 166 Vt. 246, 259, 692 A.2d 384, 392 (1997) (per curiam). The state is ultimately responsible for education but can delegate to local towns and cities “the authority to finance and administer the schools within their borders.” Id. at 264, 692 A.2d at 395. The Legislature has recognized through other statutes the importance of local control and decisionmaking over a district‘s governance structure. For example, in Act 46, before resorting to involuntary mergers, the statute first encourages voluntary ones and these all involve a town-wide vote.
¶ 65. This Court must enforce statutes as the Legislature has written them, not as it would have been more expedient or straightforward in hindsight to have written them. Given the Legislature‘s clear directive that involuntary changes to school district structure should be made only “where necessary,” I would reverse the Board‘s decision and remand for findings of necessity. To condone mergers and redistricting without such a finding violates the plain meaning of the statute and diminishes the voices of small towns in how their districts will be run in the future without any finding that such a result is necessary. The Board reasoned that mergers should go forward when possible and practical without examining whether those districts were already meeting the goals of the statute and therefore merger was unnecessary.
¶ 66. Our Constitution provides that “a competent number of schools ought to be maintained in each town unless the general assembly permits other provisions for the convenient instruction of youth.”
¶ 67. I realize the need for efficiencies of scale underlying Act 46, but the Legislature did not seek efficiency at any cost.
Don‘t it always seem to go
That you don‘t know what you‘ve got
‘Til it‘s gone
Joni Mitchell, Big Yellow Taxi
¶ 68. For the foregoing reasons, I dissent.
¶ 69. I am authorized to state that Justice Cohen joins in this dissent.
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Associate Justice