Matter of Investigative Records

NO. 93-487

IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

IN THE MATTER OF THE INVESTIGATIVE
RECORDS OF THE CITY OF COLUMBUS
POLICE DEPARTMENT:
CYNTHIA GAUSTAD, as the parent
and next friend of M.G.,
Petitioner and Appellant,

CITY OF COLUMBUS,
Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Hon. Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz; Jeffrey T. Renz & Associates,
Missoula, Montana
For Respondent:
Douglas D. Howard; Heard & Howard, Columbus
Montana

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AJN 2 7 1994 Submitted on Briefs: March 3, 1994
Justice Karla M. Gray delivered the Opinion of the Court.

Cynthia Gaustad (Gaustad) appeals from an order of the
Thirteenth Judicial District Court, stillwater County, denying her
motion for attorney's fees pursuant to 5 2-3-221, MCA, after she
prevailed in obtaining the inspection of an investigative file held
by the City of Columbus. We vacate and remand.
On February 19, 1992, Gaustadrs minor son allegedly was
assaulted by an adult in the Columbus Elementary School. While
investigating the alleged assault, the City of Columbus Police
Department (the City) interviewed more than a dozen witnesses.
Gaustad filed a petition in the District Court pursuant to
both Article 11, Section 9, of the Montana Constitution and the
Criminal Justice Information Act. She sought release of the
information in the City's investigatory file and an award of
attorney's fees. Following an in camera inspection, the District
Court allowed Gaustad to view and copy the file; it did not respond
to her request for attorney's fees. Gaustad then moved for an
award of attorney's fees pursuant to 8 2-3-221, MCA. The court
denied the motion.
Section 2-3-221, MCA, provides that "[a] plaintiff who
prevails in an action brought in district court to enforce his
rights under Article 11, section 9, of the Montana constitution may
be awarded his costs and reasonable attorneys' f e . I
es! his Court
determined in Associated Press v. Board of Pub. Educ. (1991), 246
Mont. 386, 804 P.2d 376, that, in cases successfully litigated
under Article 11, section 9, an award of attorney's fees pursuant
2
to 5 2-3-221, MCA, is within the court's discretion. Associated
Press, 804 P.2d at 380. We reiterated this determination in
Bozeman Daily Chronicle v. City of Bozeman Police Dep't (1993), 260
Mont. 218, 230, 859 P.2d 435, 442.
In Associated Press, this Court reviewed a district court's
award of attorney's fees and concluded that because the public
benefited from the litigation, an award of attorney's fees using
public funds Itspread the cost of the litigation among its
beneficiariestt and was not an abuse of the district court's
discretion. Associated Press, 804 P.2d at 380. Gaustad
characterizes this language to mean that fees should be awarded as
a matter of course to spread the costs of enforcing Article 11,
Section 9, of the Montana Constitution. To this end, Gaustad urges
this Court to hold that 5 2-3-221, MCA, requires the district court
to award attorney's fees to the prevailing party in a suit brought
under Article 11, Section 9, of the Montana Constitution. We
decline to do so.
In construing the meaning of a statute, we presume "that the
terms and words used were intended to be understood in their
ordinary sense.tt In re Woodburn's Estate (1954), 128 Mont. 145,
153, 273 P.2d 391, 394-95. The word Itmay" is commonly understood
to be permissive or discretionary. See In re Minder's Estate
(1954), 128 Mont. 1, 9-10, 270 P.2d 404, 409. In contrast, "shalltt
is understood to be compelling or mandatory. Abshire V. School
Dist. (1950), 124 Mont. 244, 245, 220 P.2d 1058, 1059.
Gaustad's argument that 5 2-3-221, MCA, requires the District
Court to award attorney's fees is premised on the interpretation
that "mayw is mandatory rather than permissive. She cites to
several cases where this Court interpreted *Imayl1to be mandatory.
Each of those cases interpret statutes other than S 2-3-221, MCA,
and are distinguishable on a factual basis. Furthermore, each case
involved an examination of the policies underlying the individual
statutes and, in some cases, the legislative history of the
statute. Based on that examination, this Court concluded that the
only reasonable interpretation was that the duties imposed by the
statute were mandatory. See Bascom v. Carpenter (1952) , 126 Mont.
129, 246 P.2d 223. The legislative history of § 2-3-221, MCA,

however, does not support such an interpretation.
The legislature originally passed House Bill 531, later
codified as 5 2-3-221, MCA, with mandatory "shallw language.
Governor Thomas Judge returned the bill unsigned, recommending that
the legislature replace the mandatory language of the bill with
language placing the award of attorney's fees within the district
courts' discretion. 3 House Journal 1553 (1975). In response,
both the House and the Senate amended H.B. 531 to include the
permissive "may. 3 House Journal 1597 (1975), 3 Senate Journal

1546 (1975). The amended version was submitted for Governor
Judge's approval on April 19, 1975. 3 House Journal 1790 (1975).

Governor Judge signed H.B. 531, as amended, on April 21, 1975.
1975 Mont. Laws 1303. Thus, the clear intent of the statute is
that an award of attorney's fees is discretionary and the
legislative history of 5 2-3-221, MCA, precludes an interpretation
 that the statute is mandatory.
Moreover, the legislature may amend a statute at any time. We
presume that the legislature is aware of the existing law,
including our decisions interpreting individual statutes. In re
Wilson's Estate (1936), 102 Mont. 178, 194, 56 P.2d 733, 737. The
legislature has met in regular session since our decision in
Associated Press. We presume that if the legislature disagreed
with our interpretation that 5 2-3-221, MCA, was discretionary, it
would have amended the statute accordingly. It did not do so.
For these reasons, it would be inappropriate to modify our
interpretation that an award of attorney's fees pursuant to 5 2-3-
221, MCA, lies within the discretion of the district court. We
- conclude that such an award is discretionary rather than mandatory.

We review a district court's discretionary rulings for abuse
of discretion. Steer, Inc. v. D p t of Revenue (1990), 245 Mont.
e'
470, 475, 803 P.2d 601, 603-04. We previously have concluded that,
in certain cases, a district court's outright denial of a motion
without a sufficient rationale for its action is not an exercise of
discretion, but is an abuse of that discretion. &g Gursky v.
Parkside Professional Village (1992), 258 Mont. 148, 152, 852 P.2d
569, 571.

The ~istrictCourt's order contains a bare denial of Gaustad's
motion for attorney's fees pursuant to 9 2-3-221, MCA; it is devoid
of any explanation or rationale for its decision. This bare denial
renders our review for abuse of discretion difficult. Moreover,
the court's order demonstrates that it was uncertain whether 9 2-3-
221, MCA, applied in cases such as this where a private individual
obtains the release of criminal justice information. Two weeks
after the District Court's order, we determined that 5 2-3-221,
MCA, is applicable in cases seeking the release of criminal justice
information under Article 11, Section 9, of the Montana
Constitution. Bozeman Dailv Chronicle, 859 P.2d 435, 442-43.
We conclude that a remand is appropriate here in light of the
District Court's bare denial of Gaustad's motion and the
availability of Bozeman Daily Chronicle to clarify the
applicability of 5 2-3-221, MCA, to this case. On remand, the
District Court is directed to include its rationale in granting or
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
The majority relies on its decisions in Associated Press v. Board of

Public Education (1991), 246 Mont. 386, 804 P.2d 376, and Bozeman Daily

Chronicle v. City of Bozeman Police Department (1993 ) , 260 Mont . 218, 859 P.2d
435, for the proposition that an award of attorney fees pursuant to
5 2-3-221, MCA, is discretionary. However, the precise issue
presented by this case was not before this Court in either of the
cases relied upon. In both cases, attorney fees were awarded and
the public entity argued on appeal that they should not have been
awarded because it had acted in good faith. However, this Court
affirmed the award of attorney fees for the reason that the cost of
litigation which is beneficial to the public should be spread among
all of its beneficiaries. Attorney fees were referred to as
discretionary. However, there was no analysis of the language used
in the statute, nor any discussion of why an award of attorney fees
pursuant to the statute was permissive, rather than mandatory.
The majority concludes that when construing a statute we must
apply terms and words as they are ordinarily understood, and that
"may" is commonly understood to be permissive or discretionary.
However, we have a long history of cases in this State where the
term "mayw has been construed to provide a mandatory directive to
the court or public official vested with authority to act. See, e.g.,

Bascomv. Carpenter (l952), 126 Mont. 129, 136, 246 P.2d 223, 226, where

we pointed out that:
 In Simpsonv. Winegar, 122 Or. 297, 258 P. 562, 563, the
court said: "It is well settled that, where even the
word 'may1 is used, and the rights of the public or of a
third party are affected, the language is mandatory, and
must be strictly obeyed. In Kohn v. Hinshaw, 17 Or. 308,
311, 20 P. 629, 631, Mr. Justice Strahan said: I . It ..
is a general principle in statutory construction that,
where the word "may" is used in conferring power upon an
officer, court, or tribunal, and the public or a third
person has an interest in the exercise of the power, then
the exercise of the power becomes imperative. " [Emphasis
I
added].
We have construed the term "mayw when used in statutes to be
imperative or mandatory and the equivalent of #*shallq' "must" as
or
long ago as 1901 in our decision in Montana Ore Purchasing Company v.

Lindsay (1901), 25 Mont. 24, 27, 63 P. 715, 716. We have

consistently so held, wherever appropriate, in subsequent cases.
See State ex re[. Stiefel v. District Court ( 1908) , 37 Mont . 298, 96 P. 337; State
ex rel. Case v. Bolles (1925), 74 Mont. 54, 238 . 586 ; Thomas v. Cloyd

(l94O), 110 Mont. 343, 100 P.2d 938; Hanson v. Cify ofHavre (1941), 112

Mont. 207, 114 P.2d 1053.
Sure, these cases involve different facts and different
statutes. If they did not, we would not need to decide this case.
However, the majority has ignored prior decisions of this Court
where statutes which provided that a trial court 8*mayt8
award
attorney fees to a prevailing party were interpreted to require
that attorney fees be awarded without any discretion on the part of
the trial court. See Walker v. H. F. Johnson, Inc. (1978), 180 Mont. 405,

591 P.2d 181; Catteyson v. Glacier General Assurance Co. (1979) , 183 Mont .
 It is also true that legislative intent is one factor to
consider when interpreting the statute. However, legislative
purpose must also be considered. For example, in Montana Ore

PurchasingCompany, 63 P . at 716, we also held that:

[Tlhe word is interpreted to mean "shall'v or "must'v
whenever the rights of the public or of third persons
depend upon the exercise of the power or performance of
the duty to which it refers.
In this case, and in all cases where a citizen of Montana
petitions for the disclosure of public records pursuant to his or
her right granted in Article 11, Section 9, of the Montana
Constitution, and where a district court or this Court concludes
that the right to information has been withheld, that person has
performed a service for the State, and all other citizens in the
State, by enforcing a part of our Constitution which would
otherwise be violated. The degree of good faith with which the
Constitution is violated is irrelevant.
The expense of this service, which is of benefit to everyone
because our Constitution is reinforced and strengthened, should not
and cannot be born solely by that individual who takes the
initiative to compel a public official to perform his or her duty.
There may be little economic incentive to do so, yet the public's
right to know is priceless.
In this case, for example, the filing fees to a successful
party are $135, and other costs and attorney fees approached $1000.
When those kind of costs are necessarily incurred to enforce a
constitutional right, how can it be argued that the rights of the
public do not depend upon the district court's exercise of its
power to reimburse the person who, at his or her own expense, has
breathed life into the Constitution?
For these reasons, I would reverse the order of the District
Court and hold that the language in § 2-3-221, MCA, which

authorizes an award of attorney fees, is directive or mandatory and
not discretionary or permissive.
I do, however, concur with the majority that if the District
Court had discretion to deny attorney fees, that discretion was
abused in this case. The thrust of its rationale for denying
attorney fees is that they are inappropriate where documents are
requested under the Criminal Justice Information Act. That issue
was resolved to the contrary in the Bozeman Chronicle case. If the

District Court had any other basis for exercising its discretion by
denying an award of attorney fees in this case, that basis is not
set forth in its order, and I find none from my review of the
record.
 June 27, 1994

CERTIFICATE OF S E
E-

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:

Jeffrey T. Renz
JEFFREY T. RENZ & ASSOCIATES
201 Westview
Missoula, MT 59803

Douglas D. Howard
HEARD & HOWARD
P. 0. Box 926
Columbus, MT 59019

John K. Addy
MATOVICH, ADDY & KELLER, P.C.
2812 First Avenue North
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT

BY:
Dep
\y
STATE OF MONTANA