Correction Appended
The College, the Association of Alumni and former member of the College Board of Trustees Todd Zywicki '88 have each filed briefs with the New Hampshire Supreme Court, following the filing of an appeal by a group of seven alumni that brought suit against the Board. The College's appellate brief, which was filed on Sept. 1, requests that the state supreme court uphold Grafton County Superior Court Judge Timothy Vaughan's January dismissal of the lawsuit, according to Bob Donin, the College's general counsel.
The lawsuit is the second legal challenge to the Board's September 2007 decision to increase the size of the Board by adding eight Board-selected trustees without increasing the number of alumni-elected trustees, which the plaintiffs argue is a violation of an 1891 agreement that allegedly requires the Board to maintain parity between the two types of trustees. The plaintiffs argue that the 1891 agreement is legally binding.
Following the September 2007 decision, the Association of Alumni filed the first lawsuit in October 2007 arguing that parity was legally established by the 1891 agreement. In June 2008, however, the alumni body elected a new Association executive committee which had run on a platform of ending the lawsuit that subsequently withdrew the lawsuit with prejudice, thus preventing the Association from bringing up another lawsuit filing the same claims.
An independent group of alumni B.V. Brooks '47, John Steel '54, Kenneth F. Clark, Jr. '50 Tu'51, Marisa DeAngelis Kane '83, John Plunkett '57, Douglas Raichle '66 and Robert G. Reed III '49 subsequently filed a second lawsuit in November 2008 putting forth the same argument about the Board's expansion.
Vaughan dismissed the suit in January on the basis of "res judicata," which states that legal claims cannot be filed in a case for which a judgment has already been passed or that entails the re-litigation of a settled matter between the same two parties, The Dartmouth previously reported. Vaughan's ruling stated that the Association is a representative organization for the entire alumni body, and its withdrawal of the first lawsuit prevents any group of individual alumni from re-filing the case.
In the College's brief, College attorneys argue that Vaughan's dismissal of the case was justified due to the legal doctrine of res judicata. College attorneys also argue that the seven individual alumni do not have the legal right to file the lawsuit as "third party beneficiaries" to the 1891 agreement.
"Third parties lack standing to enforce a contract unless the parties to the contract here, the College and the Association intended to confer on those third parties the right to sue on the contract," the brief said. "Judge Vaughan found that there is no evidence that the College and the Association intended in 1891 to give each and every individual Dartmouth alumnus the right in perpetuity to sue to enforce the alleged contract."
Although the College has now filed its response to the appeal brief, it is unclear when the New Hampshire Supreme Court will rule on the case, Donin said.
"Dartmouth's brief demonstrates that Judge Vaughan was right on the facts and the law in dismissing the plaintiffs' complaint," Donin said in a statement on the College's website. "It is disappointing that the plaintiffs have chosen to pursue further litigation when the Superior Court has made so clear that there is no basis for another lawsuit."
Zywicki an alumni-elected trustee who was denied reelection to a second term on the College's Board, a process that is typically routine filed an amicus brief in the lawsuit "around the same time that the plaintiffs submitted their appeal brief," Donin said. An amicus brief is filed by an amicus curae, or "friend of the court," who offers a legal opinion that they believe is valuable to the court's decision.
In his brief, Zywicki who is also a law professor at George Mason University School of Law asks the New Hampshire Supreme Court to reverse Vaughan's dismissal of the case because. Zywicki said he believes individual alumni have the legal right to file the suit as "third party beneficiaries" to the 1891 agreement.
"The circumstances indicate that the promisee the Association intended to give the alumni the benefit of the promised performance, in the form of a vote and a voice in the future of their College," the brief said. "A finding that the appellants are third-party beneficiaries of the 1891 Agreement will prevent harm to Dartmouth, advance good governance, and is appropriate to effectuate the intentions of the parties that entered into the Agreement."
Zywicki's brief ends by stating that he is not asking that the state Supreme Court to take sides in the dispute, but only to "restore the mechanism" for "good governance" established by the 1891 agreement.
The present brief is not Zywicki's first in the case, as he submitted another amicus brief in September 2009 arguing that the Grafton County Superior Court should deny the College's request for a summary judgment. The judgment was ultimately granted, resulting in the case's dismissal.
"I understand that the main issues in this current case are res judicata and whether the alumni plaintiffs have third party standing, and I think the plaintiffs and their attorney address those issues in a very compelling manner," Zywicki said about his original brief in a 2009 interview with The Dartmouth. "I decided to prepare [an amicus brief] because I thought I had a unique perspective on why enforcing the contract is good for Dartmouth, and why breaching it has destroyed a model of good nonprofit governance and replaced it with a bad one."
The Board reprimanded Zywicki in January 2008 after he called former College President James Freedman "truly evil" and made other controversial statements in an Oct. 27, 2007 address at the John William Pope Center, a higher education think tank.
On Sept. 1, the Association also filed an amicus brief in the suit. In the brief, the Association states its support for the Board in this lawsuit and asks the New Hampshire Supreme Court to affirm Vaughan's summary judgment on the case.
The Association's amicus brief written by Association President John Mathias '69, an attorney with Chicago law firm Jenner and Block also upholds Vaughan's ruling that the Bricker Doctrine prevents the court from intervening in Association affairs. According to the Bricker doctrine, courts will not interfere in the internal affairs of unincorporated associations, like the Association of Alumni, except in cases involving injustice or illegal action.
The plaintiffs' attorney, Eugene Van Loan, could not be reached for comment by press time.
