The New Hampshire Supreme Court affirmed a January 2010 decision by the Grafton County Superior Court to dismiss the 2008 alumni lawsuit against the Board of Trustees on Tuesday. In their decision, Chief Justice Linda Dalianis and Senior Justices James Duggan and Gary Hicks ruled that a previous lawsuit filed by the Association of Alumni and then dismissed by the Association prevented the plaintiffs from suing again with the same claims.
The lawsuit 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 The first lawsuit, filed by the Association in October 2007, was withdrawn by the Association's executive committee in June 2008 and dismissed with prejudice after the alumni body elected a new executive board to the Association, The Dartmouth previously reported.
A second lawsuit arguing the same point was subsequently filed by a group of independent alumni in November 2008. College counselors moved for a summary judgment on the second lawsuit in December 2009 in a hearing, arguing that the case was already settled by the first legal proceeding, The Dartmouth previously reported.
The new executive committee elected to the Association in the spring of 2008 ran on a platform opposing the lawsuit. This "unity" slate was elected by a 60 percent majority of voting alumni.
Like in the first lawsuit, the plaintiffs in the second lawsuit 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 alleged that the Board's decision to increase the number of Board-selected members violated an 1891 Board resolution, which they allege legally requires parity between the number of Board-selected and alumni-elected trustees.
Eugene Van Loan, the plaintiffs' attorney, did not respond to requests for comment by press time.
The Superior Court decision was based on the legal doctrine of res judicata, under which legal claims cannot be filed in a case for which a judgment has already been passed or that entails the re-litigation of a matter between the same two parties.
The Supreme Court decision rejected the petitioner's claims in their appeal that several aspects of the lawsuit should not be covered by res judicata. The Court argued that because the Association's constitution does not mention the 1891 agreement, the executive committee could legally dismiss the first lawsuit.
"The Association's constitution is silent as to the 1891 agreement, and we disagree with the petitioners that it presupposes' the agreement's existence," the Court said in its decision. "Accordingly, we do not construe it to preclude the executive committee from agreeing to release its claims against the Trustees based upon the 1891 agreement."
The Court also found that the first lawsuit did not demonstrate "collusion," which would have consisted of cooperation between the counsel for the Trustees and counsel for the Association that "justifies barring enforcement of a judgment against a nonparty," according to the ruling.
Harvey Silverglate, an attorney who filed a brief in support of the appeal on behalf of the plaintiffs, said he disagrees with the Court's ruling on the question of collusion, as he believes it was obvious that the Board and Association worked together to defeat the lawsuit.
"[That] is what the administration wanted because it didn't want to be questioned in how it ran the college."
The Court also maintained that the petitioners did not have standing to sue to enforce the 1891 agreement because the Association already represents the alumni and the agreement did not explicitly give standing to the entire body of Dartmouth alumni.
"The petitioners do not point to anything in the record demonstrating that the parties to the 1891 agreement intended to confer upon each individual alumnus the right to enforce it," the Court said.
According to Rule 22 of the New Hampshire Supreme Court, a motion for re-hearing may be filed within 10 days of the decision.
"We are pleased that the New Hampshire Supreme Court has decided to bring this long and costly litigation to an end," Bob Donin, the College's general counsel, said in a statement to The Dartmouth.
John Daukas '84, the recently-elected president of the Association, said the decision was "good news" and that he hoped to resolve future disputes through discussion rather than lawsuits.
"We can fight among ourselves if we need to, we can negotiate and have vigorous discussions, but I think most alumni don't like the idea of running off to court or to the state legislature to settle things," Daukas said. "We want to keep it within the Dartmouth family."
Daukas said he supported discussions to add more alumni-elected trustees to the Board, but added that the low alumni participation in trustee elections was a "roadblock."
"I know seven out of 10 alumni don't vote and what that says to [the Board] is that alumni really do not want to elect their own trustees or certainly elect more trustees, and that's too bad," Daukas said. "And so, if alumni want to have more alumni-elected trustees, they're going to have to start voting and getting involved."
Former President of the Association John Mathias '69, who was involved in the 2008 dismissal of the first lawsuit, also said he opposes more litigation.
"I always run on the platform and have said many times that litigation is not an appropriate means for alumni to express their disagreement with one another or the College," Mathias said. "So I would certainly hope there would be no more litigation on this issue and I would also believe that the Supreme Court decision on these points should, as a matter of law and judicial decision, end the matter and there should be closure."
Mathias said he supported the "ongoing" discussions about increasing the number of alumni-elected trustees.
"I would expect that's a process that could and should continue," he said.
Silverglate, however, expressed disappointment with the ruling.
"Dartmouth is now in the same position as every other hapless college in the country being run at the whim of professional administrators," he said.
