NORTH HAVERHILL, N.H. -- Grafton County Superior Court Judge Timothy Vaughn declined to announce a decision on the College's motion to dismiss the Association of Alumni's lawsuit following Thursday's hearing, opting instead to take the matter "under consideration," .
The hearing, which was attended by College President James Wright, other College administrators and alumni, considered the extent to which the 1891 Board of Trustees resolution is a legally binding contractual agreement that the College must uphold. This has been a central component of the various briefs filed in this case.
The resolution specified that the next five trustees appointed to the Board in 1891 should be elected by alumni. At the time, the resolution created parity between the number of alumni-elected and "charter" trustees, who are selected by the Board itself. The key issue is whether this stipulation, and the subsequent tradition of parity on the Board, legally bind the College to continue this even split. The 1891 resolution was at the forefront of the debate this fall, after the Board decided to add eight charter trustees, ending the existing balance.
Under the usual precedent in rulings on motions to dismiss, all allegations are considered to be true. As a result, the question of whether the 1891 resolution is a binding contract will not be reviewed by the court. Richard Pepperman '87, a partner at the New York law firm Sullivan and Cromwell who argued the case for the College, questioned this precedent in this specific case. Pepperman cited a 1986 New Hampshire Supreme Court case that resolved that the court "need not accept statements in the complaint which are merely "conclusions of law," when examining motions to dismiss.
The question of whether the 1891 resolution is a contract is a "conclusion of law," Pepperman said, meaning that it does not need to be accepted as fact in the judge's analysis of the motion. This makes the 1891 resolution relevant not only to the case's ultimate decision, but to the motion to dismiss as well.
Pepperman contended that the 1891 resolution is not a contract because it does not meet the legal threshold for a contractual agreement. He argued that the Association did not provide "legal consideration," meaning that after the College added the five alumni-elected trustees, what the Association would provide in return was not explicitly stated. He also maintained that the terms of the alleged contract are unenforceable and that the Association, as an unincorporated organization, cannot enter into a contract under New Hampshire law.
Robert Cary '86, a partner at Williams and Connolly, presented the case for the Association. Cary countered that the 1891 resolution is a contract because, after it was passed, the Association withdrew an ultimatum to withhold donations to the College. In addition, Cary said the Association agreed to solicit donations from alumni and table pending litigation on the Board's decision to make structural changes. These actions, Cary argued, constitute legal consideration by the Association in exchange for alumni representation on the Board.
A potentially more significant issue relevant to the motion, Cary said, is that the Association's lawyers see a need for a "process of discovery." Through this process, information obtained by the College's counsel would be shared with the Association's lawyers, and vice-versa. The Association's lawyers alleged that while they had access to the historical records available in the Rauner Special Collections library, the file is incomplete. Cary said that more thorough research, including analysis by an expert historian, is necessary and that the motion to dismiss should be denied to allow this to occur.
Robert Donin, Dartmouth's general counsel, deemed discovery unnecessary in an interview with The Dartmouth after the hearing, claiming that the Association has had complete access to the relevant files.
"All of the historical documents that bear on this case have always been available to both sides -- they are publicly available in the College archives," Donin said. "I don't think [discovery] is necessary because the Association has had an opportunity to review all of the relevant documents."
As the hearing drew to a close, Pepperman said that to the best of his knowledge, the Board would proceed with the planned appointment of several of the eight new trustees on Feb. 1.
The Association may re-file a preliminary injunction against the College to bar it from taking this action if a legal remedy is not found soon, Cary said later.
Despite threats of continuing legal salvos, the hearing prompted the occasional lighthearted comment.
"Dartmouth is still a small College, but perhaps what this case shows is that there are some who love it too much," Pepperman said as he closed his court address, invoking the famous line by Daniel Webster, Class of 1801.
