Thursday, January 10, 2008
Judge Declines to Make a Ruling Today
Joe Malchow reports on the goings on in Haverhill, where earlier today the first hearing of The Association of Alumni of Dartmouth College versus the Trustees of Dartmouth College was held:
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. UPDATE: Here is the D's article.
Posted by A.S. Erickson at 2:28 PM
Comments
Joe Malchow did not report from Haverhill, he added spin to somebody's less-than-accurate account of the hearing. Joe has absolutely no idea what he's talking about.
Posted by — January 10, 2008 8:43 PM
Now there's a fine comment from a knowing writer - or should I say Wrighter!
I am still looking for any of the elements of a finished argument: beyond assertion, there needs to be evidence and analysis.
Posted by — January 10, 2008 10:06 PM
TBT, from the linked Malchow post:
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.
There would be the evidence. I assume you can get from there to the conclusion without any further help.
Posted by — January 11, 2008 1:28 AM
Anon wrote: "Joe has absolutely no idea what he's talking about."
Perhaps you could share a detail or two to support this bald assertion. Where was Malchow inaccurate?
Were you there?
Posted by — January 11, 2008 7:13 AM
"Perhaps you could share a detail or two to support this bald assertion. Where was Malchow inaccurate"
???? This is Joe Malchow we're talking about -- where was he accurate?
Inaccuracies:
"(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.)"
"Board-packing" is inaccurate because it implies that some outside authority is illegitimately trying to alter Dartmouth's board for his benefit, as FDR did. But Dartmouth's board has expanded twice in the past and may expand any time it likes on its own authority.
"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,"
No, one may not. What the hell are "equitable Trustee elections"?
"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—"
More claptrap from Joe. There is no "board-packing plan." Nobody cares whether the lawsuit seeks no damages when it seeks a permanent injunction in which the power of the state is brought to bear to enforce an order that the board do something against its will. There have never been "regular democratic elections for half" the board or any portion of the board, and Joe is lying when he says there were -- the only "democracy" is the rule that the majority of the board elect every single new elected trustee. (He's intentionally confusing the regular alumni ballot contests by which the Association selects its nominee.)
"(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.)"
Of course he doesn't mention that those four have violated their fiduciary and loyalty duties to the board and are in jeopardy of being expelled from the board. And what believer in "democracy" would care what a minority of any board voted for, anyway?
"Implicit in the Trustees’ Motion to Dismiss is, of course, that there is no such issue."
No, that's not implicit or explicit. Explicit in the motion is the idea that the alumni have failed to state any claim for which the court may grant relief. Nobody cares whether some legal issue exists if the alumni have failed to think it up.
"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."
How could anyone think Joe is being accurate here? This is stupid. And technically, the board has never argued that anyone can "abrogate" a contract -- it argues that the alumni still have not shown that there ever was a contract that is valid and enforceable and binding on the board.
"In contracts, consideration is the idea that each party agrees to do something for the other party."
This is not accurate. Consideration is the actual bargained-for benefit itself. A non-vague promise that the parties actually bargain for can be valid consideration.
"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."
This is totally false. Nobody would argue that the alumni were not in a position to offer consideration -- they had plenty of cash.
"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."
This statement shows Joe's utter ignorance or his desire to mislead. Why does Joe think historical documents, none of which is a written contract, can establish a contract? Or even valid consideration? Joe should know that people doing things for each other is not consideration.
"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."
Joe is wrong again here. Consideration is a question of law. If Pepperman can show that, assuming all facts in favor of the alumni (i.e. assuming they really did promise to raise money, as they now claim), no valid consideration existed (because a vague promise to raise some unstated amount of money, not bargained for, will never be consideration as a matter of law in any case, for example). Saying you promised something is a matter of fact; saying that promise should be counted by the court as legally sufficient consideration is a matter of law and is precisely what summary judgment is for. There will be no need to prove facts at trial if doing so could never mean that consideration existed.
"An argument that there exists no consideration is not a valid argument for dismissal"
False.
"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."
Again not true, and Joe ignores the many other failures of the alumni even if the court finds that a contract exists. The alumni have not shown that the contract is valid (if it exists, it was made in violation of the charter and state corporate law, so it was invalid from the moment it was created) or what the terms of the contract were (the only written document signed by the trustees says the alumni "may nominate" eight trustees for the board to elect -- only Joe would be foolish enough to interpret that as a right to "elect" trustees in place of the board's own election) and so on.
"Which is just where the Trustees and Administration may soon find themselves, all credit to their unfortunate desperation."
Joe's willfully ignorant here. It's the association that is acting in desperation. Hasn't he read their briefs? It gives one weak fallback argument after another. "There's a contract! Okay, maybe not, but they kept electing people! Okay, they don't have to, but we think democracy is good!"
"(Or to whichever high flying donor threatened to withhold unless “those damned elections” were quieted.)"
Joe can't source this quote or prove this apocryphal occurrence, of course. And he can't say how keeping the same number of elections would "quiet" the elections. But let's say it happened: an alumnus offers to pay the board if it does something, or threatens to withhold if it does not. How is that different from the "contract" Joe imagines was created in 1891?
Posted by — January 11, 2008 8:38 AM
Look, we should not be expecting undergraduates to know anything about the law. The point is that we also should not allow Joe Malchow to fudge his account in favor of the plaintiff in order to set up a shock or drum up outrage when the plaintiff loses. The plaintiff is expected to lose, and it will be unsurprising and unspectacular when it does. It won't be because of some imagined influence of the college on the state judiciary, or a mistake by the judge, or a snowstorm, or some invented or imagined unfairness. It will be because there really never was any contract giving alumni the right to elect any portion of the elected board.
Posted by — January 11, 2008 9:21 AM
"If Pepperman can show that, assuming all facts in favor of the alumni, no valid consideration existed," then summary judgment is required.
Posted by — January 11, 2008 9:26 AM
The point is that we also should not allow Joe Malchow to fudge his account in favor of the plaintiff in order to set up a shock or drum up outrage when the plaintiff loses. The plaintiff is expected to lose, and it will be unsurprising and unspectacular when it does.
Malchow's entitled to his opinion. To his credit, he gets more information than the D does half of the time. If the alumni become shocked and outraged because a judge's ruling conflicts with an undergrad's armchair legal analysis, then those alumni are idiots. If they're shocked and outraged because they've done some research and still think that Malchow's right, then all Malchow's really done is point them in the direction of some information, and I wouldn't fault him for that.
It looks like all of the D-bags are back from vacation and ready to jump on every Dartlog post they can find. Get a life, folks. Dartlog, Dartblog, and the D were all nice enough to report that there was a hearsing yesterday on the lawsuit against the College. I'm happy to say thanks for the information and then get back to my job...
Posted by — January 11, 2008 9:33 AM
"If the alumni become shocked and outraged because a judge's ruling conflicts with an undergrad's armchair legal analysis, then those alumni are idiots."
Hear hear. But do you realize how big that list of idiots will be? Stephen Smith, who invented the "board-packing" idea and whose brief's legal analysis is even weaker than an undergrad's, must be at the top of the list.
Posted by — January 11, 2008 11:34 AM
If John MacGovern is employed by the Hanover Institute full time or nearly so, why is he listing his employer as the "Windsor Development Review Board"? Windsor doesn't list him in that capacity, and it's extremely doubtful that the board pays anyway.
Posted by — January 11, 2008 1:21 PM
The undergrads should ask McGovern to sponsor Tubestock.
Posted by — January 11, 2008 2:34 PM
Thanks to the D and Dartlog for covering the hearing.
Posted by — January 13, 2008 1:06 PM
Funny how Dr. Health Care Renewal blogs about Dartmouth's board (which seems out of his league, but oh well) and calls it "Orwellian" but then censors the anonymous comments on his own blog. Check it out. Try submitting something with a pseudonym -- he won't put it up unless it praises him and his fantastic insight.
Posted by — January 13, 2008 5:53 PM
Comment spam is the worst
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Posted by — December 15, 2008 9:56 AM
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