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 

4 $ 

9 

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' fees.!I 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 *Imayl1 to 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. Dep't of Revenue (1990), 245 Mont. 

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 ~istrict Court'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 (199 3 ) , 2 6 0 Mont . 2 18, 8 59 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. "I [Emphasis 

added]. 

We have construed the term "mayw when used in statutes to be 

imperative or mandatory and the equivalent of #*shallq' or "must" as 

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. 3 37 ; 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, 

59 1 P. 2d 18 1 ; Catteyson v. Glacier General Assurance Co. (19 79) , 18 3 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 SEEI 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 

STATE OF MONTANA 

BY: 

Dep 

\y