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 ThirteenthJudicial 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, 1994Justice 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 fileheld 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 toview 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 theMontana constitutionmay 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 2to 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 Chroniclev. 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 beneficiariesttand 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 theMontana 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 suitbrought 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), 128Mont. 1, 9-10,270 P.2d 404, 409. In contrast, "shalltt is understood to be compelling ormandatory. 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 DistrictCourt 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 factualbasis. 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 Bascomv. Carpenter (1952)

### , 126Mont. 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. GovernorThomasJudgereturned thebill 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 legislativehistory of 5 2-3-221, MCA, precludes an interpretationthat the statute is mandatory. Moreover, the legislaturemay 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 interpretationthat 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 interpretationthat an award of attorney's feespursuant to 5 2-3- 221, MCA, lies within the discretion of the district court. We

- conclude that suchan award 

### is discretionary rather thanmandatory. 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 ProfessionalVillage (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 feespursuant 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 

### itwas 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 orJustice Terry N. Trieweiler dissenting. I dissent from the majority opinion. The majority relies on its decisions inAssociatedPressv.Boardof PublicEducation (1991)

### , 246 Mont. 386, 804 P.2d 376, and BozemanDaily Chroniclev. CityofBozemanPoliceDepartment (1993)

## , 260Mont

# . 218, 859 

### P.2d 435, for the proposition that an award of attorney feespursuant 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 litigationwhich is beneficial to thepublic should be spread among all of its beneficiaries. Attorney fees were referred to as discretionary. However, therewas 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 statutewe 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 "maywhas been construed to provide a mandatory directive to the court or public official vested with authority to act. See,e.g., Bascomv.Carpenter (l952), 126Mont. 129,136, 246 P.2d 223, 226,where

we pointed out that:InSimpsonv. Winegar, 122 Or. 297, 258 P. 562, 563,the court said: "It is well settled that, where even the word 'may1is used, and the rights of the public or of a third party are affected, the language ismandatory, and must be strictly obeyed. In Kohnv.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 thepower becomes imperative. "I [Emphasis added]. We have construed the term "maywwhen 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 OrePurchasing Companyv. Lindsay (1901), 25 Mont. 24, 27, 63 P. 715, 716. We have consistently so held, wherever appropriate, in subsequent cases. See Stateexre[.Stiefelv.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), 110Mont. 343, 100 P.2d 938;Hansonv.CifyofHavre (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 thepart of the trial court. See Walker

### v.H.F.Johnson, Inc. (1978)

## , 180 Mont. 405, 591 

### P.2d 181; Catteysonv. 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 reinforcedand strengthened,shouldnot 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 itspower 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 discretionby 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.

### June27, 1994 

### CERTIFICATEOFSEEI herebycertifythatthefollowingcertifiedorderwas sentbyUnited Statesmail,prepaid, to thefollowingnamed: JeffreyT.Renz JEFFREYT.RENZ&

### ASSOCIATES 201

### Westview Missoula,MT59803 

### DouglasD.Howard HEARD&

### HOWARD P. 0.

### Box926 

### Columbus,

### MT59019 

### JohnK.

### Addy MATOVICH, ADDY &

### KELLER,P.C. 2812

### FirstAvenueNorth 

### Billings,

### MT59101 

### EDSMITH CLERKOF THESUPREME COURT STATE

### OFMONTANA 

### BY:

# \y

Dep