Alumni file new brief in suit against the College
By Anya Perret, The Dartmouth Staff
Published on Friday, September 4, 2009
A group of alumni on Wednesday filed its response to a July 17 motion by the College, the latest step in the continuing legal saga surrounding the Dartmouth Board of Trustees’ September 2007 decision to increase its size by adding Board-appointed members.
The filing was a response to the College’s motion for summary judgment, effectively a request for the suit to be dismissed. In their brief, the alumni reassert that they are not barred from litigating the issues that were at hand in the similar suit filed by the Association of Alumni in October 2007. That lawsuit was dismissed in June 2008.
In the current 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 ’59 allege that the College violated what they believe to be a legally binding agreement made in 1891 guaranteeing parity between the number of alumni-elected and Board-appointed trustees.
Bob Donin, the College’s general counsel, said in an interview on Friday that he expects the next step in the case will involve a hearing on the motion for summary judgment, and the plaintiff’s response. He said he did not know when that hearing would be. Eugene Van Loan, the attorney for the plaintiffs, could not be reached for comment.
In the motion for summary judgment, the College’s lawyers make two main arguments.
First, the College maintains that the principle of res judicata bars the plaintiffs from pursuing the lawsuit, contending that the legal action is based on claims that were already settled in the agreement to dismiss the previous suit brought by the Association of Alumni.
The alumni, in their response on Wednesday, argue that res judicata is irrelevant because the parties to the current lawsuit were not party to the prior suit.
In the motion for summary judgment, the College also asserts that the seven alumni plaintiffs in the suit lack the standing to sue, as the Association of Alumni has not authorized them to litigate on its behalf. The plaintiffs contend, however, that they have standing to sue as members of the Association because they are third-party beneficiaries of the 1891 agreement.
“The plaintiffs take the position that, under New Hampshire law, both the unincorporated Association and its members may sue to enforce the Association’s contracts,” the brief states. “This is especially true as to individual members who have personally assented to and ratified those contracts by acting in reliance thereon — which the plaintiffs have done.”
Donin, in the interview on Friday, declined to respond to the content of the brief, but said, as he has previously, that he believes the views of the alumni behind the legal action are not representative of general alumni sentiment on the matter, and that the suit is a waste of College resources.
“It is clear that John MacGovern [’80] and the Hanover Institute are driving this litigation, just as they drove the earlier lawsuit by the Association of Alumni, which was dismissed with prejudice,” Donin said “This should not be allowed. It is very costly to the College to keep defending against these actions, which drain resources that should be devoted to education.”
MacGovern did not respond to requests for comment on Friday.
Summary judgment sought in alumni suit (July 21, 2009)
Summary judgment may be sought in suit (April 22, 2009)
College responds to alumni lawsuit (Feb. 4, 2009)
Alum org. suspected in funding of lawsuit (Jan. 9, 2009)
Alumni launch new suit against College (Nov. 25, 2009)