Grabow v. Montana High School Ass'n

• Decision Date: 04 November 2002
• Docket Number: No. 01-633.,01-633.
• Citation: 2002 MT 242,312 Mont. 92,59 P.3d 14
• Parties: Rob GRABOW, Petitioner and Appellant, v. The MONTANA HIGH SCHOOL ASSOCIATION, a nonprofit corporation, Livingston High School District No. 1, Livingston High School District No 1 School Board, and Park High School, Respondents and Respondents.
• Court: Montana Supreme Court

59 P.3d 14

2002 MT 242

312 Mont. 92

Rob GRABOW, Petitioner and Appellant, v. The MONTANA HIGH SCHOOL ASSOCIATION, a nonprofit corporation, Livingston High School District No. 1, Livingston High School District No 1 School Board, and Park High School, Respondents and Respondents.

No. 01-633.

Supreme Court of Montana.

Argued and Submitted May 9, 2002.

Decided November 4, 2002.

Rehearing Denied December 5, 2002.

Stephen M. Frankino, Hughes, Kellner, Sullivan & Alke, Helena, Montana, for Appellant.

Jock O. Anderson, Gough, Shanahan, Johnson & Waterman, Helena, Montana, for Respondent Montana High School Association.

Laurence R. Martin, Felt, Martin, Frazier, Jacobs & Rapkoch, Billings, Montana, for Respondent Livingston School District.

Jeffrey A. Weldon, Office of Public Instruction, Helena, Montana, for Amicus Superintendent of Public Instruction.

Elizabeth A. Kaleva, Montana School Boards Association, Helena, Montana, for Amicus Montana School Boards Association.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Rob Grabow sought a declaratory judgment and injunctive relief against the Montana High School Association (the "MHSA") in the First Judicial District Court, Lewis and Clark County. The court denied Grabow's request, and he immediately appealed. We granted his request for a preliminary injunction by our Order dated December 23, 1999. On the merits of his appeal, we declared one issue moot but remanded to the District Court on the others. On remand, the District Court ruled against Grabow. Grabow appeals and we affirm.

¶ 2 The following issues are dispositive of this appeal:

¶ 3 1. Did our Order of December 23, 1999, entitle Grabow to attorney's fees?

¶ 4 2. May the Livingston School District contract with the MHSA to consent to be bound by the MHSA's rules?

BACKGROUND

¶ 5 For purposes of this appeal, we will summarize the facts, which we more fully set forth in Grabow v. Montana High Sch. Ass'n, 2000 MT 159, ¶ ¶ 6-13, 300 Mont. 227, ¶¶ 6-13, 3 P.3d 650, ¶¶ 6-13.

¶ 6 Grabow enrolled at Park High School in Livingston, Montana, in the fall of 1999. After he enrolled, the MHSA informed Grabow that he could not participate in basketball because of its semester rule. The semester rule essentially states that students each have eight consecutive semesters within which they may participate in MHSA contests. Grabow, the MHSA determined, did not meet this requirement.

¶ 7 The MHSA is a nonprofit association that has existed since 1921. It supervises, regulates and administers interscholastic activities between its member high schools. Delegates from the member schools meet each year to conduct the business of the MHSA, which a staff and seven member Board of Control then administer. The MHSA classifies schools into four classifications; each of which, along with the Montana School Boards Association, Office of Public Instruction and Governor, elects one member of the Board of Control.

¶ 8 All public and private high schools in Montana that the Montana Board of Public Education accredits may join the MHSA. Membership is voluntary and has consisted of 182 public and private schools during the relevant times of this appeal. Park High School, which Grabow attended, is a member of the MHSA. The Board of Trustees (the "Board") for the school district in which Park High School is located meets each year to consider and vote on whether to rejoin the MHSA. Each year, the Board renews its membership by signing a membership form.

¶ 9 Before the MHSA's annual meeting, the Board receives and considers any proposed changes to the MHSA's rules and regulations. The Board then instructs its representative on how to vote. As a member of the MHSA, the Livingston School District also had the power to submit proposed changes at the MHSA's annual meeting.

¶ 10 Grabow filed a complaint with the District Court seeking relief from the MHSA's decision to declare him ineligible to play basketball. The District Court ruled against Grabow, and Grabow appealed. On appeal, we dismissed portions of Grabow's appeal as moot. We remanded, however, Grabow's claims that he was entitled to attorney's fees and that the Board had unlawfully delegated its discretionary functions to the MHSA. The District Court ruled against Grabow on both issues. Grabow now appeals.

STANDARD OF REVIEW

¶ 11 When reviewing a district court's conclusions of law, we determine whether they are correct. See Montanans for the Responsible Use of the School Trust v. State ex rel. Board of Land Comm'rs, 1999 MT 263, ¶ 11, 296 Mont. 402,

¶ 11, 989 P.2d 800, ¶ 11; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

ISSUE ONE

¶ 12 Did our Order of December 23, 1999, entitle Grabow to attorney's fees?

¶ 13 Grabow argues that our December 23, 1999, Order, which granted him a preliminary and permanent injunction, entitles him to attorney's fees under 42 U.S.C. § 1988 and the private attorney general doctrine. We disagree.

¶ 14 To receive attorney's fees under § 1988, a party must prevail in an action to enforce 42 U.S.C. § 1983. See 42 U.S.C. § 1988. The District Court concluded that Grabow had not "prevailed" in this case for purposes of § 1988 because he had not received a final judgment in his favor. Although Grabow cites several cases that support his argument that receiving injunctive relief amounts to prevailing under § 1988, his claim still must fail. Even if an award of injunctive relief amounts to prevailing under § 1988, our order granting him that injunctive relief had nothing to do with § 1983.

¶ 15 Although Grabow alleges that his Complaint clearly set forth a § 1983 claim, it carried no reference to § 1983 or § 1988. Instead, his Complaint cited only the Montana Constitution and Montana case law. Grabow nevertheless argues that, although his Complaint contained no reference to § 1983 or § 1988, the parties extensively briefed and argued the issue of attorney's fees under § 1988 before the District Court. The District Court, however, consistently ruled against him. He thus clearly cannot claim that he "prevailed" there.

¶ 16 As for our Order granting him injunctive relief, we never cited § 1983, § 1988 or any other federal law. Instead, we cited exclusively Montana law, like Grabow did in his Complaint. We thus conclude that Grabow did not prevail under § 1983 and, therefore, is not entitled to attorney's fees under § 1988.

¶ 17 Without a specific contractual or statutory grant, Montana law typically does not entitle the prevailing party to an award of attorney fees. See Foy v. Anderson (1978), 176 Mont. 507, 511, 580 P.2d 114, 116

. Courts have created exceptions to this rule, including the private attorney general exception. See School Trust, ¶ 67. Grabow asserts that our Order entitles him to attorney's fees under the three-part test that we set forth in School Trust. That case, however, involved a controversy in which the party seeking attorney's fees had prevailed on the merits before the district court, which we later affirmed. We will not address the issue of attorney's fees until a party reaches a final determination of the underlying controversy in their favor. See Dreyer v. Board of Trustees (1981), 193 Mont. 95, 99, 630 P.2d 226, 228.

¶ 18 Here, the District Court neither issued a preliminary injunction nor reached the merits of Grabow's claim. In our Order on Grabow's petition, we granted an injunction in favor of Grabow but noted only that Grabow had shown a likelihood of prevailing on the merits of his appeal. On appeal, we decided that Grabow's constitutional argument had become moot.

¶ 19 Grabow cites several non-Montana cases supporting his argument that he prevailed in this matter. None, however, bear on the private attorney general exception as established under Montana law. We have clearly held that awarding attorney's fees without a determination of the merits against the other party "violates the most fundamental right of due process the right to appear and be heard on the merits of their adversaries' complaint." See Dreyer, 193 Mont. at 101,

630 P.2d at 229.

¶ 20 Because our Order did not involve § 1983 and never reached the merits of Grabow's claim, we conclude that it does not entitle Grabow to attorney's fees.

ISSUE TWO

¶ 21 May the Livingston School District contract with the MHSA to consent to be bound by the MHSA's rules?

¶ 22 The Montana Constitution vests school board trustees with the power to supervise and control the schools in their district. See Mont. Const. Art. X, § 8. The Montana Code, in turn, authorizes trustees to adopt policies and perform any duties necessary to carry out their legal requirements. See generally §§ 20-3-323 & -324, MCA. The pivotal question in this appeal is what powers do trustees have regarding interscholastic athletics.

¶ 23 The difficulty in answering this question arises in that the Montana Legislature provides only a single reference to extracurricular activities. Section 20-5-201(3), MCA, allows school trustees to exclude students from participating in "school activities" as a sanction for violating school duties. Grabow interprets this code section to mean that the board of trustees has the exclusive power to decide a student's eligibility to participate in extracurricular activities. We disagree.

¶ 24 Section 20-5-201, MCA, enumerates certain duties to which a pupil must adhere. If a student violates these duties, that code section sets forth sanctions to which a pupil may become subject. The subsection that Grabow relies on, subsection (3), states that "[i]n addition to the sanctions prescribed in this section, the trustees of a high school district may deny a high school pupil the honor of participating ... in school activities." Grabow argues that this language entitles only trustees to preclude students from participating in school activities.

¶ 25 The scope of this subsection, however, is more limited than that. Und...