Investigative Records of City of Columbus Police Dept., Matter of

• Decision Date: 27 June 1994
• Docket Number: No. 93-487,93-487
• Citation: 265 Mont. 379,877 P.2d 470
• Parties: 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, v. CITY OF COLUMBUS, Respondent and Respondent.
• Court: Montana Supreme Court

Page 470

877 P.2d 470

265 Mont. 379

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, v. CITY OF COLUMBUS, Respondent and Respondent.

No. 93-487.

Supreme Court of Montana.

Submitted on Briefs March 3, 1994.

Decided June 27, 1994.

Jeffrey T. Renz, Jeffrey T. Renz & Associates, Missoula, for appellant.

Douglas D. Howard, Heard & Howard, Columbus, for respondent.

GRAY, Justice.

Cynthia Gaustad (Gaustad) appeals from an order of the Thirteenth Judicial District Court, Stillwater County, denying her motion for attorney's fees pursuant to § 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, Gaustad's 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 II, 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 § 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 II, section 9, of the Montana constitution may be awarded his costs and reasonable attorneys' fees." This 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 II, Section 9, an award of attorney's fees pursuant to § 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 "spread the cost of the litigation among its beneficiaries" 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 II, Section 9, of the Montana Constitution. To this end, Gaustad urges this Court to hold that § 2-3-221, MCA, requires the district court to award attorney's fees to the prevailing party in a suit brought under Article II, 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." In re Woodburn's Estate (1954), 128 Mont. 145, 153, 273 P.2d 391, 394-95. The word "may" 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, "shall" is understood to be compelling or mandatory. See Abshire v. School Dist. (1950), 124 Mont. 244, 245, 220 P.2d 1058, 1059.

Gaustad's argument that § 2-3-221, MCA, requires the District Court to award attorney's fees is premised on the interpretation that "may" is mandatory rather than permissive. She cites to several cases where this Court interpreted "may" to be mandatory. Each of those cases interpret statutes other than § 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 § 2-3-221, MCA, with mandatory "shall" 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 § 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 § 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 § 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. See Gursky v. Parkside Professional Village (1992), 258 Mont. 148, 152, 852 P.2d 569, 571.

The District Court's order contains a bare denial of Gaustad's motion for attorney's fees pursuant to § 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 § 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 § 2-3-221, MCA, is applicable in cases seeking the release of criminal justice information under Article II, Section 9, of the Montana Constitution. Bozeman Daily 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 § 2-3-221, MCA, to this case. On remand, the District Court is directed to include its rationale in granting or denying the motion.

Vacated and remanded.

TURNAGE, C.J., and HARRISON, HUNT, NELSON and WEBER, JJ., concur.

TRIEWEILER, Justice, 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 § 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 "may" has been construed to provide a mandatory directive to the court or public official vested with authority to act. See, e.g., Bascom v. Carpenter (1952), 126 Mont. 129, 136, 246 P.2d 223, 226, where we pointed out that:

In Simpson v. Winegar, 122 Or. 297, 258 P. 562, 563, the court said: "It is well settled that, where even the word 'may' 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...