International Marathons, Inc. v. Attorney General

• Decision Date: 03 July 1984
• Citation: 392 Mass. 376,467 N.E.2d 55
• Parties: INTERNATIONAL MARATHONS, INC. v. ATTORNEY GENERAL et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 55

467 N.E.2d 55

392 Mass. 376

INTERNATIONAL MARATHONS, INC. v. ATTORNEY GENERAL et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 8, 1984.

Decided July 3, 1984.

Edward J. Barshak, Boston (Jeffrey S. Stern and Tina M. Traficanti, Boston, with him), for plaintiff.

George C. Caner, Jr., Boston (Thomas H. Hannigan, Jr., Boston, with him), for Boston Athletic Association.

Catharine W. Hantzis, Asst. Atty. Gen. (Leslie G. Espinoza, Asst. Atty. Gen., with her), for Attorney General.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

A complaint was brought in the Superior Court by the plaintiff, International Marathons, Inc. (IMI), for judicial review pursuant to G.L. c. 30A, § 14, of a decision entered by a hearing examiner on behalf of the division of public charities of the Attorney General's office (division). The hearing examiner's decision, which affirmed a previous decision of the division, disapproved a contract between IMI and the Boston Athletic Association (BAA) as violative of G.L. c. 68, § 21, because IMI, in its capacity as a professional solicitor on behalf of the BAA, was likely to receive compensation in excess of fifteen per cent of the total moneys raised. ² IMI challenged the decision of the hearing examiner on two bases. First, it argued that G.L. c. 68, § 21, is an unconstitutional infringement on the free speech rights of the charities which are subject to the statute. Second, it claimed that the hearing examiner mischaracterized the contract between IMI and the BAA as one for solicitation of charitable contributions when in fact the transactions between the BAA and sponsors solicited by IMI were commercial in nature.

A judge of the Superior Court dismissed IMI's appeal of the administrative decision on the ground that a concurrent decision declaring the contract between IMI and the BAA void ab initio rendered it moot. ³ We agree with the judge and affirm the judgment of dismissal.

A complete description of the events leading up to the making of the contract between IMI and the BAA and the subsequent falling out can be found in Boston Athletic Ass'n v. International Marathons, Inc., 392 Mass. 356, 467 N.E.2d 58 (1984), decided this day. For the purposes of the present discussion, an abbreviated history will suffice. On September 23, 1981, IMI (through its president) and the BAA (through its president) entered into a contract whereby IMI would solicit sponsors for the BAA in order that it might fund the annual Boston Marathon (Marathon). The BAA is a nonprofit corporation, incorporated by St. 1887, c. 287. The original purposes of the organization were to maintain a clubhouse and reading room for "social purposes and for the encouragement of athletic exercises." Its amended by-laws describe its purpose as the general encouragement of amateur sports and physical exercise, and its main function as the presentation of the annual Marathon. The contract provided that if less than $400,000 were raised, IMI would receive fifteen per cent of the total. If more than $400,000 were raised, IMI's compensation would be all moneys in excess of that amount. The members of the board of governors of the BAA (other than the president) did not learn of the contract with IMI until February, 1982. On September 9, 1982, the director of the division determined that IMI's compensation was likely to exceed fifteen per cent of the total moneys received and disapproved the contract pursuant to G.L. c. 68, § 21. ⁴ The director's decision was affirmed after a hearing before the division. The determination of disapproval rendered both IMI and the BAA subject to prosecution for "performing services or receiving or making payment on such contract." G.L. c. 68, § 21, as amended through St. 1981, c. 345, § 2. IMI appealed the decision of the division to the Superior Court pursuant to G.L. c. 30A, § 14. ⁵ Meanwhile the BAA brought a separate action in the Superior Court seeking a declaration that the president of the BAA lacked the authority to enter into the contract with IMI and that the contract was void ab initio. That declaration was granted and is affirmed by this court. Boston Athletic Ass'n v. International Marathons, Inc., supra.

We have determined that IMI is not entitled to recover under its contract with the BAA. There is no longer a contract between IMI and the BAA. We have also determined that the activities of IMI were commercial in nature, rather than charitable solicitations within the meaning of the statute. Attorney Gen. v. International Marathons, Inc., 392 Mass. ---, 467 N.E.2d 51. Its compensation for the solicitation on behalf of the BAA will be determined on the basis of the fair value of its services. Boston Athletic Ass'n v. International Marathons, Inc., supra 392 Mass. at ----, 467 N.E.2d 58. Thus, even if the implied agreement to pay IMI a reasonable fee were to result in recovery by IMI of more than fifteen per cent of the funds collected, the statute would not be violated. Therefore, the issue being moot, we decline to pass on the statute's constitutionality. ⁶

This court has long adhered to the principle that it should not resolve hypothetical issues. ⁷ The issue is moot because the contract between IMI and the BAA has been declared void and the statute held inapplicable to IMI's solicitation of funds. Thus no violation of G.L. c. 68, § 21, can arise from the facts before us in this case. ⁸ The parties no longer have a concrete stake in the determination of the issue.

Courts may be willing to resolve issues of public importance which have become moot if they are "capable of repetition, yet evading review." Karchmar v. Worcester, 364 Mass. 124, 136, 301 N.E.2d 570 (1973), quoting Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Although the issue presented by IMI's challenge to the constitutionality of G.L. c. 68, § 21, is certainly important and one capable of repetition, it is not one that typically will evade review by becoming moot prior to completion of the appellate process. Cf. Guardianship of Doe, 391 Mass. 614, 618-619, 463 N.E.2d 339 (1984) (temporary guardianship and commitment of the mentally ill); Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 847-848, 401 N.E.2d 360 (1980), vacated and remanded on other grounds, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980), S.C. 383 Mass. 838 (1981), rev'd 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (news media coverage of criminal trials). It is reasonable to expect that appellate review of this question may be obtained "in the normal course of some subsequent action without any substantial likelihood of mootness." First Nat'l Bank v. Haufler, 377 Mass. 209, 211, 385 N.E.2d 970 (1979).

The mootness doctrine applies to judicial review of administrative decisions as well as to appellate review of lower court decisions. See, for example, Tennessee Gas Pipeline Co. v. Federal Power Comm'n, 606 F.2d 1373, 1379 (D.C.Cir.1979) ("Judicial review of administrative action, like all exercises of the federal judicial power, is circumscribed by the requirement that there...