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 -- including Brooks, John Steel'54, Kenneth Clark, Jr. '67, 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.
"Our decision to appeal is one which we have made with greatreluctance," 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, 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, "thatessentially means the end of any effort to restore parity to alumni's representation on the Board of Trustees."
Van Loan added that if the appeal fails, the case's end 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. "Certainly they have not indicated in any way, shape or form any willingness or desire to do that, and it appears that the only way that they respond to pleas for restoration of parity is when they feel themselves in legal jeopardy."
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 The first lawsuit, filed by the Association in October 2007, was withdrawn by the Association's executive committee in June 2008 and dismissed with prejudice after the alumni body elected a new executive board to the Association that opposed the lawsuit.
An independent group of alumni subsequently filed the second lawsuit arguing the same point in November 2008. College counselors 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 January2010.
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 that requires the Board to maintain parity.
Because alumni were not notified in advance that the first lawsuitwould 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 the plaintiffs' lawyers remain "optimistic" thatthe state Supreme Court will reverse the suit's 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 prolonglitigation when it was so clear from Judge Vaughan's decision that there is no basis for the suit," Donin said. "It's especially unfortunate that they would do this at a time when the College is addressing some serious financial challenges."
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 of the Hanover Institute said that his organization would continue to fund the plaintiffs' lawsuit if they decided to appeal.
Macgovern could not be reached for comment by press time.
