Past legal decisions haunt new alumni suit

by William Schpero | 11/30/07 3:12am

In 1995, a New Hampshire court threw out a lawsuit that attempted to block the College from moving forward with proposed changes to its governance system. This judicial history has come to rear its head again in the current lawsuit filed by the Association of Alumni against the College -- this time, being used in support of the Association's argument.

This judicial history stems from a situation similar to the one confronted by the Board of Trustees this past summer, which led to the governance changes that prompted the Association's lawsuit. In 1989, the board initiated a review of the College's system of governance in response to the high costs of running elections for the alumni-elected trustees. The review was a response to the nomination of a large number of alumni by petition, rather than through the traditional process of being selected by the Alumni Council, one of the College's two alumni representative bodies.

This past summer, just as in 1990, the board initiated a review of the governance structure following the consecutive election of four alumni candidates elected by petition. Candidates in recent elections have spent over $75,000 on their campaigns and have advertised on the level of some politicians.

These petition candidates have often been openly critical of College policies in their campaigns.

In September, the board increased its size with the addition of eight trustees not elected by alumni, after a summer-long analysis by its governance committee.

The 1990 board, in comparison, following a review by a Committee on Board Organization, approved the re-election of alumni-elected trustees for a second term without an electoral process. The CBO, unlike the governance committee, included non-trustee alumni. (The governance committee did seek opinions from alumni.) The board also called for the Alumni Council to nominate three, rather than one, candidate for each board seat, as it had done in the past, a policy that was reversed by the board's action this summer.

In March 1995, William Tell '56 and six other alumni filed suit against the College in Merrimack County Superior Court. Tell requested that the court annul the Association's decision to accept the board's 1990 recommendations and also asked the court to grant an injunction that would bar the board from re-seating Trustee Richard Page '54 for a second term.

Finding in the College's favor, the court ruled that Tell did not demonstrate how he was damaged by the College's action. As a result, judicial interference was not warranted, according to the court's decision.

"The court finds that this case involves the internal affairs of an association and that petitioners [Tell et al.] have not alleged sufficient facts, even looking at their allegations in the light most favorable to them, to overcome the presumption of judicial abstinence in such a situation," the Tell decision said.

The Tell case, in a slightly different iteration, was presented to the U.S. District Court in 1998. It was dismissed by the court and on appeal.

The Tell decision has come to the forefront of College politics now, over a decade after it was decided, as the Association is currently using it to provide precedent for its objection to the board's governance reforms. The Association primarily uses the Tell decision to argue that an 1891 board resolution at the center of the case is a legal contract and requires that the board not add the eight new trustees.

In its Oct. 3 brief that set the stage for the suit, the Association argued that the Tell decision "... found that the 1891 agreement existed; that a pledge of 'financial support' was part of its consideration; that the College 'until 1891, was entitled to select ... the successor of any Trustee'; that 'it was agreed [in 1891] that the person nominated by the alumni would be elected by the Board'; that the College 'must act to ... seat ... the alumni's nominees'; and that in 1990, when the College and the Association negotiated changes to the alumni trustee selection process, the 'contract was thus modified by the parties [the Association and the College].'"

The Association's argument relies on the legal principles of "collateral and judicial estoppel." Collateral estoppel prohibits the re-litigation of a case that has already been decided, while judicial estoppel relies on the use of past statements to show that a party is taking a position that conflicts with past positions.

"What we are saying is that the College seems to be trying to shift its ground depending on what the matter in litigation is," said Frank Gado '58, a member of the Association Executive Committee that voted in favor of the lawsuit. "What they had acceded to in the past now is something they are rejecting."

In countering the Association's claims, the College contended in its Oct. 26 motion to dismiss that collateral estoppel is not relevant because the issues litigated in Tell are not identical to the issues currently before the judiciary.

"More fundamentally, the issue here -- whether the board entered into a legally binding contract with the Association in 1891 that guarantees the Association a perpetual right to select one-half of Dartmouth's elected trustees -- is not identical to any issue in Tell," the College's motion said. "Nor was that issue actually litigated or essential to the judgement in Tell."

Of note, the judge presiding over the Tell case explained in his decision that his ruling was based on the assumption that Tell's relation of the "facts" of the case was correct. The College, in several of its briefs for the current lawsuit, has insisted that this information not be taken as fact because it has not been litigated specifically.

For example, the judge in the Tell decision, while providing background on the case, included an assertion in his opinion that "... the board must act to elect, or seat, the alumni's nominees."

This statement, originally included in the College's brief, was not litigated in the case and therefore is not representative of a decision by the court, Robert Donin, the College's general counsel, contended, adding, "What it really was saying is that these names are sent to the board for action."

"I don't think anybody disputes that the College was financially strapped, that alumni demanded representation, and that the board at the time decided it was best to have some alumni representation," Robert Donin, Dartmouth's general counsel, said in an interview with The Dartmouth. "The question is whether that was a decision the board made in the exercise of its governance responsibilities or was that a legal contract supported by bargained for legal consideration."

The hearing date for the case has yet to be set. The next filing, a response to the Association by the College, is scheduled for next week.

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