IN THE SUPREME COURT OF THE STATE OF MONTANA
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.,
CITY OF COLUMBUS
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Honorable Maurice Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T . Renz & Associates, Missoula, Montana
Fox Respondent:
Douglas D. Howard, Heard & Howard, Columbus, Montana
Submitted on Briefs: April 27, 1995
Decided: August 21, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court
The Appellant, Cynthia Gaustad (Gaustad), appeals from the
Thirteenth Judicial District Court, Stillwater County, memorandum
and order denying her motion for attorney fees. We affirm.
We address the following issue on appeal: Did the District
Court abuse its discretion by denying Gaustad's motion for attorney
fees?
Background
On February 19, 1992, an adult at the Columbus Elementary
School allegedly assaulted Gaustad's minor son. In the course of
investigating the alleged assault, the City of Columbus Police
Department interviewed more than a dozen witnesses. No criminal
charges were filed.
On March 26, 1992, Gaustad filed a petition in the Thirteenth
Judicial District, Stillwater County, seeking release of
information in the City of Columbus' investigatory file and seeking
an award of attorney fees. After an camera inspection, the
District Court allowed Gaustad limited access to the investigatory
file, but denied her motion for attorney fees. She appealed the
District Court's order denying her motion for attorney fees. We
remanded the order holding that 1) an award of attorney fees
pursuant to § 2-3-221,MCA, is discretionary rather than mandatory;
and 2) remand was appropriate because the denial of attorney fees
lacked sufficient explanation or rationale and new case law was
available regarding the applicable statute. On November 28, 1994,
the District Court issued a 13-page memorandum and order denying
2
Gaustad's motion for attorney fees. Gaustad appeals the District
Court's order denying her motion.
Discussion
Did the District Court abuse its discretion by denying
Gaustad's motion for attorney fees?
Gaustad claims that upon weighing the relevant factors, the
District Court abused its discretion because it made a clear error
of judgment in its conclusion to deny Gaustad's motion for attorney
fees. We review a trial court's discretionary ruling to see if the
trial court abused its discretion. Steer, Inc. v. Department of
Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603-04. We will
reverse the trial court only if its findings are clearly erroneous
,
and result in an abuse of discretion. Rule 52 (a) M.R.Civ.P. "The
test of abuse of discretion is whether the trial court acted
arbitrarily without employment of conscientious judgment or
exceeded the bounds of reason resulting in substantial injustice."
Goodman v. Goodman (1986), 222 Mont. 446, 448, 723 P.2d 219, 220.
We will not substitute our judgment for the district court's
judgment unless it clearly abused its discretion. In Re Marriage
of King, 216 Mont. 92, 95, 700 P.2d 591, 593.
Gaustad claims that she is entitled to attorney fees pursuant
to § 2-3-221, MCA, which provides in pertinent part:
Costs to plaintiff in certain actions to enforce
constitutional right to know. 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' fees.
Gaustad correctly cites § 2-3-221, MCA, as the only authority for
an award of attorney fees in cases brought under Article 11,
Section 9 of the Montana Constitution, the right to know provision.
Montana's Constitution does not provide a right to attorney fees.
Additionally, we have held that generally there can be no recovery
for attorney fees unless authorized by statute or contract. Miller
v. Titeca (1981), 192 Mont. 357, 366, 628 P.2d 670, 676. Under
this rule, Gaustad would not have a right to attorney fees at all,
absent § 2-3-221, MCA, which clearly makes the award of such fees
discretionary.
As we held in Matter of Investigative Records (1994), 265
Mont. 379, 877 P.2d 470, pursuant to § 2-3-221, MCA, a plaintiff
who prevails may be awarded attorney fees; the word I1mayH is
permissive and therefore gives the district court the discretion to
award attorney fees. We have not held in any of our decisions
interpreting 5 2-3-221, MCA, that the trial court "must" award
attorney fees to a prevailing plaintiff, and we decline to do so
here.
In the instant case, the District Court conscientiously
balanced the competing rights and interests of the individual's
right to privacy with the public's right to know. Moreover, in
balancing these competing rights and interests, the District Court
carefully analyzed the controlling cases of Allstate Insurance
Company v. City of Billings (l989),239 Mont. 321, 780 P.2d 186 and
Bozeman Daily Chronicle v. City of Bozeman (1991), 246 Mont. 386,
804 P.2d 376.
Having reviewed the District Court's thirteen-page memorandum
and order analyzing the applicable case law and setting forth its
rationale for denying Gaustadls motion for attorney fees, we
conclude that the District Court clearly employed conscientious
judgment and did not exceed the bounds of reason in its decision.
Accordingly, we hold that the District Court did not abuse its
discretion in refusing to award Gaustad her attorney fees under §
2-3-221, MCA.
AFFIRMED.
We Concur: