Court Hears Arguments on College Suit

By A. S. Erickson | Tuesday, April 10, 2007

Yet another kerfuffle has enveloped the Association of Alumni of Dartmouth College. The Association recently found themselves defending their decision on October 23, 2005: a decision not to allow proxy voting in the election of their Executive Committee.

At the meeting some 420 proxy votes were submitted by John MacGovern ’80 for the election of the new Executive Committee. Proxy voting is a method of voting in absentia. If a registered voter is unable to attend the place of election he sends his vote to someone who can attend and identifies that person as his proxy—in this case MacGovern.

As President of the Association at the time, John Walters ‘62 noted, however, that, “the guidelines of the meeting do not permit proxy voting. It’s very clear that you have to be here in person to vote…the proxies have not been recognized in meetings previously and it would be out of order to do so today.” After further protestations by MacGovern, he went on to say, “it would be fundamentally unfair to allow someone to come in here with a handful, or indeed an attaché case-full, of proxies, which would effectively disenfranchise everyone else who was here at the meeting, expecting to vote in person.” “Those were handpicked proxies,” said Merle Adelman ’80, taking the claims of impropriety a step further in an interview with The Dartmouth Review. As the current Vice-President of the Association, she believed the votes were gathered with the sole purpose of unseating the nominated slate of candidates for the Executive Committee in favor of the petition candidates.

Following Walters’ decision not to accept the proxy votes in his care, MacGovern filed a lawsuit against the Association on November 30. If granted by the court, the petition would have forced the Association to accept the votes collected via mail by MacGovern prior to the election. In addition, he filed a temporary restraining order against the Association to force them to allow proxy votes during their February 12, 2006, meeting. The Superior Court denied MacGovern’s request for the restraining order on February 8, and then dismissed his lawsuit on August 4, 2006.

An appeal was then made to the New Hampshire Supreme Court. The case was heard before a short bank of four justices (the NH Supreme Court is composed of five justices) on March 22, 2007; Chief Justice John Broderick Jr. disqualified himself for unknown reasons, and, according to NH law, he is not required to give a reason for his disqualification. There has been some speculation that the Chief Justice, who is also an adjunct professor at the Tuck School of Business, might have felt a conflict of interest existed—though Tuck’s only connection with the Association is its graduates, all of whom receive voting rights in the Association upon graduation from the school.

The attorney for MacGovern, William Clauson, presented his case before the court. Clauson countered Walters’ and Adelman’s position on the unfairness of allowing the proxy votes to count, stating that the association’s decision “was self-serving for the purpose of electing its own candidates and not allowing the election of independent candidates.” This claim may sound familiar, and it should, as it mirrors the recent argument over trustee elections.

New Hampshire Supreme Court Chief Justice John T. Broderick, Jr.

Steven L. Winer ’77 represented the Association—he and his law firm have represented the Association in several cases over the last decade. Among other things, he focused on the policy of “abstention.” The Association of Alumni of Dartmouth College is an unincorporated entity, and thus, internal disputes are not a matter for the court. Justice Richard Galway agreed: “Without some state action…why are we involved in this? If a private association agrees that they are going to freeze out other people, what does the state of New Hampshire have to do with that?”

Senior Associate Justice Linda Dalianis was more skeptical about ‘freezing people out.’ “Well, has anybody other than someone selected by the Executive Committee ever been voted in?” she asked.

“The answer is no,” was Winer’s reply.

The issue at stake for MacGovern is the dangerous precedent that refusing to hear his case would set. The Association’s argument is dangerous according to MacGovern because if the court declines to hear the case the Association “can do whatever it pleases, including barring people from voting.”

In an interview with The Dartmouth Review MacGovern stated the “fundamental issue” at stake was that the Superior Court had dismissed the case even before it could be brought before them. When asked how he thought the Supreme Court would rule, MacGovern felt his chances were “50/50, maybe slightly less. In a state like New Hampshire, everyone knows everyone.” Hinting at a lightweight conspiracy theory of sorts he went on to point out the considerable amount of power the College, and those associated with it (i.e. the Association of Alumni), wields at the state level.

In the wake of MacGovern’s petition to the court, the Executive Committee rewrote their guidelines to include all-media voting for their elections—thereby making the issue of proxy voting irrelevant. “In a sense, we’ve won the argument,” said MacGovern as he alluded to this change in the guidelines.

Despite his being at odds with the Association, MacGovern made it clear that “the Association should be strengthened and not weakened.” When asked what changes should be made to the current constitution, he was quick to point out that “the current constitution is less than two pages. It’s a very simple document and I like it that way.”

Nonetheless, he proposed three amendments. The first would be to ensure that all-media voting for the Executive Committee would continue, and the only way to ensure that is to put it into the constitution. The former rule allowing only votes from people who were physically present at the meeting was also just a guideline. “The problem with guidelines is that they can be changed in a five minute conference call by the Executive Committee.” It is therefore essential, he argues, that the right to vote, no matter where the voter is, be put into the constitution. Adelman agreed with this position, saying, “the intent is to have all-media voting; that’s what the alumni want.” She was quick to point out that the defeated alumni constitution of last fall included a provision for all-media voting.

MacGovern, who is the President of the Hanover Institute, opposed the constitution. The Institute was set up to focus the vision of disgruntled alumni on change. In recent years they have focused on electing petition trustee candidates to the Board of Trustees, in the words of their website: “The Institute will educate alumni about petition candidates for Dartmouth’s Board of Trustees and make sure that those candidates who are not anointed by the Council have the chance to get their message to all alumni.” The website also claimed to have been instrumental in voting down last fall’s constitution. The Institute’s, and thus MacGovern’s, qualms with the constitution were, however, the raised barriers to petition trustee candidates and the “special voting rights [created] for certain classes of people based on race and sexual orientation.”

Despite MacGovern’s fears about the fickleness of the Executive Committee, Adelman made it clear in our interview that in the future she would be in favor of a new constitutional amendment, one that would give all-media voting the permanence it now lacks.

Second, it is important to have a standard set of rules for meetings of the Association. Without rules, the President of the Association is able to cut off debate or amendment proposals according to his whim. Past President Murray Bowden ’71 used to declare that, “there are no rules but Murray’s rules.”

MacGovern stated that the way meetings are run is more like a dictatorship than a democracy. He advocates the adoption of Robert’s Rules of Order or some equivalent so that the Committee is unable to shut down debate by its own caprice. He pointed out that the rules would not only protect the minority from the majority but also make sure “the majority was not stymied by a minority.”

The third and final thing MacGovern would like changed regards the election of trustees. As it stands now, the alumni body elects trustees to their first term. The sitting trustees then reappoint the trustees once their terms expire. Before 1990, however, second term trustees were put up for reelection before the whole body of alumni. MacGovern thought it vital that alumni have a chance to reaffirm or replace, at least once, the trustees already on the board.

Notwithstanding MacGovern’s critiques, Adelman made it clear that it is the Executive Committee’s intention to “keep moving forward in a positive direction.” She drew specific attention to the new slate of incoming candidates. The candidates, she said, were picked with the express purpose of unifying the alumni body.

These issues go beyond what was brought before the court on March 22. The New Hampsire Supreme Court will not even touch on the appropriateness of the proxy votes in its decision; but, rather, simply decide whether or not the Superior Court made the correct decision in dismissing MacGovern’s case. According to Mr. Winer, the Association’s lawyer, opinions from the Supreme Court are generally handed down anywhere from two to four months after being heard.

Court Hears Arguments on College Suit

Article Tools

Related Articles