I am happy to report that Judge Farley ruled on December 15 that Don Glascoff '67 and I have standing to challenge Yale's ill advised and sudden decision to abolish the Alumni petition process to nominate persons for the Yale Corporation. He heard the case September 19.

We anticipate a trial will be set in the spring and I will let you know when I know so you can watch it if you wish to do so. This is a very significant development as it is the first time Yale has to explain and defend its action in a court of law. This is a good result at this Holiday season.

There continue to be ongoing legal costs and if you would like to help offset them, please consider writing a check payable to "Restore Yale Vote" and mail it to me:

Feel free to email me at vhashe@aol.com or call me at +1 865 712-5933 if you want to discuss or share ideas.

A copy of the three page decision is in this email for you to read.

Happy Holidays and have a great 2023.

Victor

Notice Issued: 12/15/2022

Court Address: CLERK, SUPERIOR COURT JUDICIAL DISTRICT OF HARTFORD 95 WASHINGTON STREET HARTFORD, CT 06106

Notice Content: Notice Issued: 12/15/2022 Docket Number: HHD-CV-22-6155042-S Case Caption: ASHE, VICTOR H. Et Al v. YALE UNIVERSITY Notice Sequence #: 1

JDNO NOTICE

ORDER REGARDING: 06/03/2022 108.00 MOTION TO DISMISS PB 10-30

The foregoing, having been heard by the Court, is hereby: ORDER:

The plaintiffs, Victor H. Ashe and Donald G. Glascoff, are Yale College alumni seeking declaratory and injunctive relief against the defendant, Yale University, concerning restrictions the defendant has placed on the election of alumni trustees. The defendant has moved to dismiss the case, arguing that the plaintiffs lack standing to bring such an action. The plaintiffs claim statutory standing under the Connecticut Revised Nonstock Corporation Act, General Statutes § 33-1000 et seq., and common law standing under the defendant’s charter from the state of Connecticut. The plaintiffs’ statutory standing claim depends on whether they are members of the defendant corporation and their common law standing claim depends on whether the charter establishes a contractual relationship between them and the defendant, either as direct parties or third-party beneficiaries, and whether the charter permits a private cause of action.

The plaintiffs complain that the defendant has imposed “candidate restrictions” upon alumni that violate the defendant’s charter and infringe upon their right to be elected as alumni trustees. In particular the defendant, purporting to exercise regulatory authority provided by the charter, has eliminated a petition process by which alumni have historically had the right to put themselves forward as candidates. By eliminating the petition process, only one path remains for alumni seeking election as trustees – they must obtain the approval of the Alumni Fellow Nominating Committee of the Yale Alumni Association.

JDNO 1 of 5, see cont’d Cont'd Order re: 108.00 Motion to Dismiss ...

The plaintiffs claim in count one that this restriction by the defendant is an ultra vires act. They claim that as “members of Yale” they have standing to enforce the charter pursuant to General Statutes § 33-1038 (b), which provides that “a member or director” of a corporation may bring an action to enjoin an ultra vires act by the corporation. The plaintiffs also allege in count two that the charter constitutes a contract between the alumni and the defendant and, alternatively in count three, a contract between the state and the defendant under which they hold the status of third-party beneficiary. They assert classical aggrievement under those counts.

The defendant’s corporate status is grounded in a series of special acts adopted by the legislature in the eighteenth and nineteenth centuries. See Yale University v. New Haven, 71 Conn. 316, 42 A. 87 (1899). Together these special acts constitute the defendant’s charter. The most recent amendment to the charter was adopted in 1872. It provides, in pertinent part, that all undergraduate alumni of five or more years and all those with graduate degrees may “cast their votes, under such regulations as the president and fellows may prescribe, for six persons to be chosen from among such graduates” to serve as alumni trustees. The plaintiffs claim that the defendant’s regulatory authority extends only as far as the voting procedure (“time, place and manner type provisions”) and does not authorize the regulation of “who may be voted for and who may put themselves up as a candidate.” The defendant argues the plaintiffs lack standing to make this claim.

JDNO 2 of 5, see cont’d Cont'd Order re: 108.00 Motion to Dismiss ...

The court agrees with the defendant that the plaintiffs are not “members of Yale” with standing to sue for ultra vires acts under § 33-1038 (b). The defendant’s charter clearly establishes that the only members of the nonstock corporation are the President and Fellows of Yale College, modernly referred to as the “board of trustees.” The court is not persuaded by the plaintiffs that the board of trustees is merely the governing body of a corporation comprised of “Yale” at large and that, because alumni have the right to vote and stand for election as trustees, they are members of “Yale” at large for the limited purpose of participating in those elections. Consequently, the court grants the motion to dismiss as to count one.

In count two, the plaintiffs allege that the defendant’s charter creates a contract between the defendant and the alumni eligible to participate in elections, including the plaintiffs, and therefore they have standing to enforce the charter. At oral argument the plaintiffs abandoned this theory, and the court grants the motion to dismiss count two.

In count three, the plaintiffs allege that the charter constitutes a contract between the state and the defendant under which they hold the status of third-party beneficiaries. The defendant agrees that the charter is a contract between itself and the state but argues that the plaintiffs are not third-party beneficiaries. The defendant also argues that the plaintiffs lack standing because the charter does not establish, explicitly or implicitly, that those impacted by the charter, such as the plaintiffs, shall have a private cause of action to enforce the charter.

JDNO 3 of 5, see cont’d Cont'd Order re: 108.00 Motion to Dismiss ...

Relying upon the factors enumerated in Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 680 A.2d 127 (1996), the defendant argues the charter, despite its contractual nature, is subject to the same analysis applied to statutes of general application to determine whether they support the assertion of a private cause of action. No direct authority on this point has been cited by either side, despite their concerted effort to identify such authority.

The court is not persuaded that the Napoletano factors apply in this context. Further, the defendant’s argument that the plaintiffs lack third-party beneficiary status turns, in part, on its view of the merits. The defendant acknowledged at oral argument that if the plaintiffs’ right to vote had been impermissibly infringed by the defendant’s regulations, they may well have third-party beneficiary status. The defendant disagrees with the plaintiffs’ argument that the defendant’s regulatory authority under the charter is limited to time, place and manner restrictions on the election process. Assuming, however, (a) that the plaintiffs are correct in their interpretation of the scope of the defendant’s regulatory authority, i.e., that the defendant cannot directly regulate who is eligible to be a candidate; and (b) the candidate restrictions exceed that authority, the plaintiffs may, even according to the defendant, have third party beneficiary status.

JDNO 4 of 5, see cont’d Cont'd Order re: 108.00 Motion to Dismiss ...

These issues warrant discussion beyond what the court provides at present. To some extent, particularly with respect to the third-party beneficiary theory, the jurisdictional issues cross over into a discussion of the merits. Consequently, the court denies the motion to dismiss as to count three, without prejudice to its renewal in the context of the parties’ anticipated cross motions for summary judgment. Conboy v. State, 292 Conn. 642, 653 n.16, 974 A.2d 669 (2009) (court has discretion to postpone resolution of jurisdictional question when intertwined with the merits of the case). In ruling on those motions, the court will address the jurisdictional issues in greater depth, unconstrained by a presumption that the plaintiffs are correct on the merits. Hinde v. Specialized Education of Connecticut, Inc., 147 Conn. App. 730, 740-41, 84 A.3d 895 (2014) (court deciding motion to dismiss must not determine the merits of the claim or even its legal sufficiency).

The motion to dismiss is granted as to counts one and two and denied without prejudice as to count three.

436946 Judge: John Burns Farley

Converted to HTML by Flash Sheridan; posted by permission. This page: http://flash-sheridan.name/Restore_Yale_Vote/Ashe_Wins_standing.html