Commentary on AG's Filing in Connection with VA Supreme Court Appeal

Here is a short commentary on the AG’s filing in connection with the Virginia Supreme Court appeal for posting to the SBC2.0 website and Facebook page:

 

Title:  Attorney General Decides Not to File a Brief 

 

In my May 16th post  I noted that when the Virginia Supreme Court agreed to hear County Attorney Ellen Bowyer’s appeal, it invited the Attorney General to file a brief by May 22.  Instead of filing a legal brief, the Attorney General sent a letter to the Clerk of the Court.  The letter states that the AG “respectfully elects not to file a brief amicus curiae or participate at oral argument.”  It then informs the Court that the parties have participated in two mediation sessions, with another scheduled for May 29.  It claims that “the meetings involved candid and productive discussions about the future of Sweet Briar College.”  The letter further indicates that the public interest would best be served if the dispute is resolved by agreement rather than litigation, through the mediation process that he has sponsored.

 

The letter also uses phrases such as “working to foster collaborative communication between the parties”  and “to encourage a positive outcome.” It also notes the “limited time” to achieve an agreement.

 

What does this mean for our legal effort?  First, it is a huge plus that the AG is not engaging in a repeat of his performance before Judge Updike.  Then, he filed a brief that supported SBC’s legal arguments 1) that SBC is a mere corporation, and thereby subject only to the ordinary business judgment rule that generally prevents judicial second guessing of a board’s decision; and 2) that only the AG, and not the County Attorney, has standing to enforce VA law in this case.  Although SBC cited the AG’s earlier brief in the briefs it submitted to the Virginia Supreme Court, the arguments do not pack as much punch as they would have if the AG was stating these positions as his own.

 

The AG has, however, been very careful here.  He is not saying whether or not he still agrees with what he filed before Judge Updike.  The letter’s language is neutral in tone.  He appears to be telling the Court that his mediation is the best bet for resolving the mess, and perhaps signaling that he would prefer that the Court stay out of it.  But, by not filing a brief, this gambit of neutrality will not help SBC.  It will not necessarily help us, but it does not help SBC.  This is a good thing.

 

The AG is putting a lot of eggs in the May 29 mediation basket.  Whether there actually will be a mediation that day, or not, is not know for sure.  It is, after all, the first day of Reunion!  I am sure he hopes there is one, and that it finally bears some real fruit so he can signal that the Court ought to delay ruling after the arguments on June 4.  Seriously, though, this seems doubtful.  The question remains whether it is possible to achieve a negotiated solution.  Just this week, the SBC Board VP Elizabeth Wyatt and Board member Nancy Keuffel wrote another op-ed piece stating again the same arguments about how the board had no choice but to vote to close.  Saving Sweet Briar, Inc., on the other hand, exists to prevent closure.  It is hard to see any middle ground between these diametrically opposed positions.  

 

Georgene Vairo SBC '72