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.”

Attorney Ines McGillion presents arguments on behalf of school dsitricts suing the state over being forcibly merged under Act 46.

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.

For more details on Judge Mello’s decision against issuing an injunction, read today’s Messenger or subscribe to our online edition.