Opinion
10-P-925
08-30-2011
LINDSEY THOMKA v. MASSACHUSETTS INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC. & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On May 28, 2008, a Superior Court judgment entered declaring that the Massachusetts Interscholastic Athletic Association, Inc.'s (MIAA) rule 43.2.1.2 discriminates on the basis of sex and violates the Massachusetts Equal Rights Amendment (MERA). The judgment further ordered that the defendants be enjoined from enforcing rule 43.2.1.2 as it applies to female golfers, including the plaintiff, Lindsey Thomka, and that the plaintiff be awarded $19,110.20 in attorney's fees and costs. On appeal, the MIAA argues, inter alia, that the declaratory judgment was invalid because the plaintiff failed to notify the Attorney General of her constitutional challenge. We affirm in part and vacate in part.
Discussion. '[T]here is no indication in the record that the Attorney General was sent notice and given the opportunity to be heard as is required by [G. L.] c. 231A, § 8, if 'a question of constitutionality' is raised.' Springfield Preservation Trust, Inc. v. Roman Catholic Bishop of Springfield, 7 Mass. App. Ct. 895, 895 (1979), quoting from G. L. c. 231A, § 8. See Mass.R.Civ.P. 24(d), 365 Mass. 770 (1974). 'Such notice and opportunity are conditions precedent to the entry of a declaratory decree.' Court St. Parking Co. v. Boston, 336 Mass. 224, 226 (1957). Since the plaintiff did not comply with G. L. c. 231A, § 8, the judge did not have the power to issue a declaratory decree. See Springfield Preservation Trust, Inc., supra. Accordingly, so much of the judgment as declares that MIAA rule 43.2.1.2 violates the MERA and orders that the defendants be enjoyed from enforcing that rule is vacated.
Finally, we address the judge's award of attorney's fees and costs pursuant to 42 U.S.C. § 1988 (2006). Under § 1988, a judge may award fees to a plaintiff who prevails on a claim that is 'pendent to a substantial constitutional claim and arises from the same nucleus of facts on which the State law claims are based.' Cronin v. Tewksbury, 405 Mass. 74, 76 (1989), citing Maher v. Gagne, 448 U.S. 122, 132-133 & n.15 (1980). 'Indeed, '[c]ases are not numerous in which the award of fees is denied." Cronin, supra, quoting from Draper v. Town of Greenfield, 384 Mass. 444, 455 (1981), cert. denied sub nom. Draper v. Prescott, 456 U.S. 947 (1982). 'Our inquiry, therefore, must focus on two factors: (1) whether the plaintiff[] [is] the 'prevailing party,' id. at 452, and (2) whether [the plaintiff's] complaint alleged a 'substantial constitutional claim." Cronin, supra, quoting from Stratos v. Department of Pub. Welfare, 387 Mass. 312, 317 (1982).
The plaintiffs are considered prevailing parties 'if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing [the] suit.' Texas State Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989), quoting from Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The plaintiff was indeed a prevailing party here, since a temporary restraining order issued on October 21, 2005, permitting the plaintiff to play in the men's individual State championship golf tournament, thereby granting her the relief she sought in her complaint.
The temporary restraining order was valid despite our reversal of the subsequent declaratory judgment. See Court St. Parking Co., supra ('[T]he lack of power to enter such a [declaratory] decree of course does not impair the general equitable jurisdiction of the Superior Court . . . to prevent irreparable injury by enjoining invalid action').
'As to the substantiality of the constitutional claims, a 'painstakingly minimal standard' is applicable.' Miller v. Commissioner of Correction, 36 Mass. App. Ct. 114, 118 (1994), quoting from Stratos, supra at 319. 'The test here is not what the ultimate resolution of that issue might be but whether that claim is 'so insubstantial, implausible, foreclosed by prior decisions of [the United States Supreme] Court, or otherwise completely devoid of merit,' as not to involve an appropriate controversy.' Cronin, supra at 77, quoting from Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974). Applying this lenient standard, we conclude that the plaintiff's challenge to rule 43.2.1.2 was substantial for purposes of awarding fees under § 1988.
For the foregoing reasons, so much of the judgment as declares that MIAA rule 43.2.1.2 violates the MERA and orders that the defendants be enjoined from enforcing that rule is vacated. The remainder of the judgment awarding the plaintiff $19,110.20 in attorney's fees and costs is affirmed.
The plaintiff's request for attorney's fees and costs associated with this appeal is denied.
So ordered.
By the Court (Trainor, Brown & Carhart, JJ.), Clerk