GAUSTAD v CITY OF COLUMBUS
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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 Missoula, Montana & Associates, 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. information in the City's attorney's fees. She sought release of the investigatory file and an award of 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 2 fees pursuant to 5 2-3-221, MCA, is within the court's discretion. Press, 804 P.2d at 380. Associated 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 public fees using 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. 129, 246 P.2d 223. See Bascom v. Carpenter (1952) , 126 Mont. 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 3 House Journal 1553 (1975). courts' discretion. In response, both the House and the Senate amended H.B. 531 to include the permissive "may. 1546 (1975). 3 House Journal 1597 (1975), 3 Senate Journal 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 2-3221, 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 ~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 Constitution. Article Section 11, 9, of the Montana Bozeman Dailv Chronicle, 859 P.2d 435, 442-43. We conclude that a remand is appropriate here in light of the District Court's availability of bare denial Bozeman of Daily Gaustad's Chronicle motion to applicability of 5 2-3-221, MCA, to this case. and the clarify the 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, It 311, 20 P. 629, 631, Mr. Justice Strahan said: I . 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) ex rel. Case v. Bolles , 37 Mont (1925), 74 Mont. 54, 238 . 298, 96 P. 337; State . 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. purpose must also be considered. However, legislative 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 EI 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: \y Dep
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