Dartblog

Grafton County Superior Court Judge Timothy Vaughan, sitting at the Haverhill Court, has just concluded the first public hearing in the matter of the Association of Alumni of Dartmouth College versus the Trustees of Dartmouth College. (The alumni are not, as you have perhaps been given to understand, suing the “College” but rather the Trustees, as it was the latter that enacted the infamous Board-packing plan after pro-oversight candidates began winning elections via petition.)

The Association’s attorney and the Trustees’ three attorneys were present, as were College President Jim Wright, his outgoing publicity chief and speechwriter Sheila Culbert, and Vice President for Alumni Relations David Spalding.

Judge Vaughan did not issue a ruling on the Trustees’ motion to dismiss the case but promised to rule just as soon as possible.

The affair, by reports—I had an engagement elsewhere at the time—was not exciting, with both sides rehashing arguments made in their written briefs, which are available at Dartblog. If this is the case, one may safely assume that the hearing consisted of the attorney for the Association of Alumni presenting his argument for the obligatory nature of equitable Trustee elections, and the Trustees’ representation responding swiftly with something like, “Pish-tosh.”

The gentleman representing the College, Richard Pepperman, spoke for roughly forty minutes. His address centered primarily on the idea that the lawsuit—which seeks no damages but rather simply the repeal of the Trustees’ September 2007 Board-packing plan and the reinstitution of regular democratic elections for half of the Board—is invalid because it is thwarts the will of a majority of the Board, who voted in favor of the plan. (The lawsuit is precisely within the will of four other Trustees—those four most recently elected—who recently filed as amici in the matter on the behalf of the alumni.) There can therefore be no judicial intercession, Mr. Pepperman would have us believe.

I am not an attorney, and my shoes are not white, but I think Mr. Pepperman’s argument rather facile. The lawsuit does indeed seek to thwart of the will of the governing body of a corporation chartered by the State of New Hampshire. It does not veil this; rather it insists that such relief is necessary and proper because the “will” of the Trustees runs counter to an agreement they acceded to in 1891 and upheld for more than a century thereafter. As it seems to this layman, this is precisely the sort of question courts are equipped to resolve.

Robert Carey spoke in reply to Mr. Pepperman. Representing the alumni, Mr. Carey simply defended the merits of the lawsuit as such. In other words, Mr. Carey reiterated precisely why, as a matter of law, there exists an important legal issue to be resolved in the case. Implicit in the Trustees’ Motion to Dismiss is, of course, that there is no such issue. By accounts Mr. Pepperman did not expend much effort shunting the specific legal claims of the Association, but instead focused on the argument, mentioned above, that the Board of Trustees is sovereign in all things under God’s firmament, and that this sovereignty reaches to and past the abrogation of contracts.

More to come as news breaks.

MORE: Considerable time was spend on the question of consideration. In contracts, consideration is the idea that each party agrees to do something for the other party. Mr. Pepperman made the argument that the alumni were not in a position to offer consideration when elections for half of Dartmouth’s Board were instituted. The Board simply granted a temporary gift to the College’s alumni as a mother grants her child a cookie. This, Mr. Pepperman says, could not possibly be a contract. Mr. Carey’s response is perhaps best demonstrated by the package of historical documents he filed with the Court, establishing a two-way contract whereby the alumni pledged to provide funds and to conduct regular democratic elections in such-and-such a way, and the Board in turn promised dutifully to appoint any Trustee chosen by the alumni to a seat on the Board. It is, as they say, in black and white.

But if I have the legal rules proper, the lawsuit cannot be dismissed even if Mr. Pepperman today demonstrated conclusively a lack of consideration on the part of the party of the second part; consideration is established (or not established) through discovery and then at trial. An argument that there exists no consideration is not a valid argument for dismissal; indeed it concedes that dismissal ought not be granted because it concedes that there is a resolvable question concerning consideration; resolved one way, and there exists a contract; resolved another way and there is no contract. But that is emphatically a question for trial. Which is just where the Trustees and Administration may soon find themselves, all credit to their unfortunate desperation. (Or to whichever high flying donor threatened to withhold unless “those damned elections” were quieted.)