ST. ALBANS – Judge Robert A. Mello has denied a motion for a preliminary injunction against mergers ordered under Act 46, the state’s consolidation law.

Mello, the superior court judge currently presiding over a trio of suits challenging Acts 46 and 49 as unconstitutional, issued his decision Monday, declaring the irreparable harm posited by plaintiffs from the largest of those suits was only speculative.

Mello, in his decision, suggested further that delaying consolidation while those suits are argued in court could actually harm merging districts that weren’t party to the lawsuits in question.

“The Plaintiffs have not shown a substantial likelihood that they will prevail on the merits of their claim that the Board’s actions in implementing Acts 46 and 49 are unconstitutional, and their claims of irreparable harm are speculative,” Mello said in his decision.

“The factors of potential harm to others and public interest appear at best neutral,” Mello continued. “Even assuming the plaintiffs will suffer some relevant harm in the absence of preliminary injunction, the current record suggests that the issuance of a preliminary injunction also may adversely affect others who are not party to the suit.”

The injunction was previously heralded by opponents to Act 46 as the best means for delaying unwanted consolidations enforced under Act 46. Without an injunction in place and with a Vermont House of Representatives-passed partial delay remaining in the Senate’s education committee, consolidated districts formed under Act 46 are still under orders to be operational by July 1.

In Franklin County, organizational meetings for two school consolidations ordered by the State Board of Education were delayed in light of ongoing litigation.

One of those delays – the organization of the Franklin Northwest Unified Union District encompassing Franklin, Highgate and Swanton – was explicitly delayed a month in order to allow Mello to decide on an injunction.

Mello’s decision also wrestled with the core questions of the largest Act 46 lawsuit: that the legislation’s delegation of authority to enforce Act 46 to the State Board of Education was unconstitutional and that the state education board was “arbitrary and capricious” in its enacting of Act 46.

To the former, Mello turned to precedent cited by the plaintiffs – In re Municipal Charters, a 1913 advisory opinion from the Vermont Supreme Court that declared the legislature’s delegation of authority to a public service commission unconstitutional, and Thompson v. Smith, a 1957 case.

Mello’s decision quotes In re Municipal Charters at length, noting that “the legislative, executive and judicial departments of government are separate from each other, and therefore such functions of the Legislature as are purely and strictly legislative cannot be delegated… but the doctrine of separation of governmental departments does not mean an absolute or entire separation.”

Per Mello’s interpretation, the precedents cited by the plaintiffs arguably defend the legislature’s delegation of Acts 46 and 49 to the State Board of Education.

According to Mello, Municipal Charters argues the legislature may allow the legislature to allow certain bodies – in this case the State Board of Education – the authority to make rules as long as those rules exist within “prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply.”

“Accordingly, it is difficult to see how either In re Municipal Charters or Thompson v. Smith support the Plaintiffs’ argument that the delegation here to the State Board of Education is patently unconstitutional,” Mello wrote.

Additionally, Mello concluded that the standards outlined by Acts 46 and 49, which are explicitly referenced at length in the statewide merger plan drafted by the State Board of Education, were clear enough to find the legislature’s delegation of school consolidations to the state education board constitutional.

“The delegation under Acts 46 and 49 is constitutional,” Mello wrote. “The Legislation, as supplemented by the Board’s regulations, supplies sufficient, statute-consistent standards to guide its decisions.”

Attorney Ines McGillion presents arguments on behalf of school dsitricts suing the state over being forcibly merged under Act 46. (Michael Frett, MESSENGER STAFF)

As to whether or not the plaintiffs’ accusation that the state education board’s application of Act 46 – the board’s final report issued last November – was “arbitrary and capricious,” Mello ultimately decided in favor of the state, writing that the plaintiffs’ “suggestion that the Board did not read or sufficiently consider its proffered evidence on issues such as geographic distance before issuing its Final Report is not supported by the current record.”

On the question of transferring property between districts, a factor of Act 46 the suits argue violates both the federal and state constitutions’ Takings Clauses, Mello concluded that “as a matter of law, school district assets lawfully belong to the State; therefore, the State… can require transfer of these assets.”

Where Mello did appear undecided was on the question of debt sharing among the forming communities, writing “the parties have not sufficiently briefed the issue, and the Court renders no final decision on the merits of claims related to alleged unfair effects on school-tax liability.”

That argument had been especially pertinent in regards to the consolidation of the Enosburg Falls and Richford school districts, explicitly cited by the plaintiffs’ attorneys during an initial injunction hearing held on Feb. 15.

Critics of that merger have argued that, through debt sharing in a merged district, Richford would have to contribute to paying off a bond incurred by the Enosburg Falls district.

The Richford school district is among the plaintiffs on the statewide Act 46 suit.

The Default Articles of Agreement, rules passed by the State Board of Education to guide mergers ordered under Act 46, do include language allowing a merging district to rewrite how debt is shared between forming towns, a fact noted by Mello later in his decision.

The key argument behind the plaintiffs’ call for a preliminary injunction was the presumption that, by allowing merger activity to continue as the merits of a suit are argued in court, forming districts would become too intertwined administratively and financially to be pulled apart should Mello side with the plaintiffs.

Further damage would be incurred through the costs of warning transitional meetings, the plaintiffs’ lawyers argued during February’s hearing.

On this argument, Mello sided with the state, stating that the damage in question was “speculative.”

Conversely, Mello argued that delaying Act 46’s implementation further could arguably impair those districts not suing for a stay on Act 46 activity.

“Therefore, these factors do not unequivocally support the granting of a preliminary injunction,” Mello wrote.

As an injunction was not ordered by Mello, consolidations ordered under Act 46 are still required to be operational by July 1 unless Mello ultimately sides with the plaintiffs on three ongoing Act 46 lawsuits or a delay bill is formally passed into law.

While three suits were filed against Act 46 and echoed one another’s arguments for doing so, only the largest called for an injunction to merger activity. Among the plaintiffs on that suit are several Franklin County school boards and selectboards from Franklin and Montgomery.

The Stowe and Elmore-Morristown school districts filed an individual suit against the State Board of Education, as did the Huntington school district.

Secretary of Education Daniel French, in response to Mello’s denial of a requested injunction, promised to “continue to work with school boards and local school officials to provide them the supports they need to implement the State Board of Education’s merger order that was issued in November 2018.”

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