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 

Filed: 

Fox Respondent: 

Douglas D. Howard, Heard & Howard, Columbus, Montana 

Submitted on Briefs: April 27, 1995 

Decided: August 21, 1995 
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: