The New Hampshire Supreme Court will likely decide whether to dismiss the alumni lawsuit filed against the College in November 2008 within six to 10 weeks, following a summary hearing held Thursday morning, according to Eugene Van Loan, an attorney who represents the plaintiffs in the lawsuit.
The Court will choose either to affirm dismissal effectively ending the case or to reverse the decision of the New Hampshire Superior Court and proceed with a trial to decide "whether or not there really is a right to parity," Van Loan, who works at Wadleigh, Starr & Peters, P.L.L.C., said in an interview with The Dartmouth.
The Supreme Court has no precise deadline for issuing an opinion, but is expected to do so "within the early spring," Van Loan said.
The lawsuit filed by B.V. Brooks '47, John Steel '54, Kenneth Clark, Jr. '67, Marisa DeAngelis Kane '83, John Plunkett '57, Douglas Raichle '66 and Robert Reed '49 is the second legal challenge to the Board of Trustee's September 2007 decision to end parity between alumni-elected and Board-selected trustees, The Dartmouth previously reported. The lawsuit was brought to the New Hampshire Supreme Court after being dismissed by the Grafton Country Superior Court in January 2010.
The first lawsuit, filed by the Association of Alumni in October 2007, was withdrawn by a newly-elected Association executive committee and dismissed with prejudice, barring any rehearing on the matter.
"By dismissing it with prejudice, the College has never had to defend the position," Van Loan said. "As a result, all of the alumni have lost their opportunity to enforce this contract if they need to. If they don't have the right to litigate it, the College has no incentive to restore parity."
A decision to end the ongoing lawsuit would eliminate the alumni's right to parity, according to Van Loan.
"We are giving away the alumni's right to have alumni trustees in an equal number with the so-called charter trustees," Van Loan said. "That is essentially giving away everything that the Association owns."
The College requested a summary judgment in the case, which resulted in Thursday's oral argument "because it was clear based on undisputed facts that the plaintiffs' claims should be dismissed," College General Counsel Bob Donin said in an interview with The Dartmouth.
The plaintiffs alleged that the Board's decision to increase the number of charter trustee seats violates an 1891 Board resolution that legally requires parity, The Dartmouth previously reported.
Van Loan said the defense's resistance to proceed to trial and the Association's dismissal of the original lawsuit with prejudice is evidence of the College's unwillingness to admit that the 1891 resolution serves as a legitimate contract.
The College has based its defense on two primary arguments, according to Donin. Under the doctrine of res judicata, the seven plaintiffs in the current lawsuit cannot sue again on the same claims presented in the previous lawsuit even if the individuals were not party to this lawsuit because "a person who is represented by a party is bound by the judgment," Donin said.
"Each individual alumnus was not intended to be a third party beneficiary," he said. "The alleged agreement of 1891 involved the Association as a single collective entity, it did not give each of the 70,000 Dartmouth alumni the right to sue."
Van Loan said, however, that the decision of the Association's executive committee headed by Association President John Mathias '69 to dismiss the initial lawsuit with prejudice was unauthorized and has violated the rights of the alumni body.
"Not all judgments are created equal," Van Loan said in the hearing. "The primary difference between a judgment on the merits [of the case] and a judgment by consent is the problem in the latter case of whether the individuals giving consent have the right to give consent."
While Van Loan agreed the Association has certain privileges in conducting general proceedings on a day-to-day basis, he said the organization cannot "give away the store" without the entire alumni body's approval.
Questioning whether the "elected management" of the Association had the power to dismiss the case would require the Court to "second-guess" the very structure of the organization, Richard Pepperman '87, a partner in the New York law firm Sullivan and Cromwell who argued on behalf of the College, said at the hearing.
"It would be an odd world where the executive committee of the Association had the authority to bring a lawsuit but then didn't have an authority to resolve the lawsuit through a voluntary dismissal with prejudice," Pepperman said.
Pepperman said the Association's executive committee had the support of the alumni body in its dismissal, because the slate of nominees ran on a platform based on its intention to end the litigation.
"The executive committee that dismissed the lawsuit ran an election which was a single-issue election [devoted to parity]," Pepperman said. "There was a record turnout in that election."
This campaign may have been misleading, Van Loan said.
"Prior to the old executive committee bringing the lawsuit for the Association, they conducted a poll of the alumni," he said. "The vote on that poll was overwhelmingly in favor of retaining parity."
Van Loan said the "Unity" slate of executive committee nominees would not have won the spring 2008 election if they had "informed everybody that it was their intention to dismiss the lawsuit with prejudice and assuming that people were told what this means."
The same slate was reelected in subsequent years, which may reflect alumni satisfaction with the committee's actions, even though the candidates did not explicitly include their intention to dismiss with prejudice, Pepperman said.
