Correction Appended
A group of alumni, led by B.V. Brooks '47, is planning to file an appeal with the New Hampshire Supreme Court that seeks to reverse the January dismissal of the group's lawsuit against the College Board of Trustees by the Grafton County Superior Court, according to the group's lawyer, Eugene Van Loan.
The plaintiffs in the previous case Brooks, John Steel '54, Kenneth F. Clark, Jr. '50Tu'51, Marisa DeAngelis Kane '83, John Plunkett '57, Douglas Raichle '66 and Robert Reed '49 will ask the state Supreme Court to reverse the lower court's dismissal, in order to have the case tried on its merits, according to a press release published by the group.
The lawsuit targets the Board's 2007 decision to increase the number of Board-selected trustees from eight to 16, contending that the expansion violated an 1891 Board resolution, which they say legally requires parity between the Board-selected and alumni-elected trustees.
"Our decision to appeal is one which we have made with great reluctance," the release read. "We would have much preferred if the executive committee of the Association [of Alumni] had honored its pledge to attempt to preserve parity through negotiation. However, if there have been any negotiations on the subject, they must be taking place in secret because we have seen no public announcements about them and, in any case, they obviously have not borne fruit."
The primary reason behind the plaintiffs' decision to appeal was that they "felt they essentially had no choice" if they wanted to continue efforts to restore parity between Board-selected and alumni-elected trustees, Van Loan said. Van Loan is a lawyer with Wadleigh, Starr & Peters, P.L.L.C.
"If the ruling by the trial court stands," Van Loan said, "that essentially means the end of any effort to restore parity to alumni's representation on the Board of Trustees."
Van Loan added that the appeal's failure would signify a "failure in all forums" to restore parity on the Board.
"Without the backup of having a legal right to parity, it appears that the Board of Trustees has absolutely no incentive to voluntarily restore parity," Van Loan said.
The lawsuit dismissed in January was the second legal challenge to the Board's September 2007 decision to end parity between alumni-elected and Board-selected trustees. The first lawsuit, filed by the Association in October 2007, was withdrawn by the Association's executive committee in June 2008 and dismissed with prejudice after the alumni body elected a new Association executive board that opposed the lawsuit.
An independent group of alumni subsequently filed the second lawsuit arguing the same point in November 2008. College attorneys requested a summary judgment on this lawsuit, arguing that the case was already settled by the first legal proceeding in which the lawsuit was withdrawn with prejudice, The Dartmouth previously reported. Judge Timothy Vaughan granted the request for summary judgment in January 2010.
In the second lawsuit, the group argues that individual alumni not just the Association, which ended the first lawsuit are granted rights by an 1891 agreement that established parity between the two types of trustees on the Board. According to the group, the agreement is also a binding contract with alumni that requires the Board to maintain parity.
Because alumni were not notified in advance that the first lawsuit would be withdrawn with prejudice, and because the second lawsuit was denied a rehearing as a result, the state Supreme Court should remand the case to the lower court so that the status of the 1891 agreement can be determined by a court, according to the release.
"The Board of Trustees says the 1891 Agreement was not a contract; they claim it was a mere gratuity," the release read. "If they are right, they are right. We believe otherwise and we should be permitted to test this in court."
Van Loan said he remains "optimistic" that the state Supreme Court will reverse the dismissal.
"We felt the motion for summary judgment filed by the College was not going to be upheld and we were surprised by Judge Vaughan's ruling," Van Loan said. "The law clearly favored the plaintiffs' ability to continue the suit, and I think that position will be vindicated in the Supreme Court."
Once the appeal is filed, the plaintiffs will prepare a brief to which the College will prepare a response brief. Once the briefing schedule is completed, the state Supreme Court will then hear oral arguments. The plaintiffs must file the appeal before March 22.
Bob Donin, the College's general council, expressed dismay at the appeal in an interview with The Dartmouth.
"It's disappointing that the plaintiffs have decided to prolong litigation when it was so clear from Judge Vaughan's decision that there is no basis for the suit," Donin said.
Both lawyers estimated that the state Supreme Court would issue a decision on the appeal in approximately nine months. In a previous interview with The Dartmouth, John MacGovern '80, founder of the Hanover Institute, said that his organization would pay for the plaintiffs' legal fees if they decided to appeal.
However, in an e-mail to The Dartmouth on Thursday, MacGovern declined to answer whether he would continue to fund the suit, saying that he "does not go into operational details" of the Hanover Institute.
