IN THE MATTER OF THE INVESTIGATIVE RECORDS OF THE CITY OF COLUMBUS POLICE DEPARTMENT: CYNTHIA GAUSTAD, аs the parent and next friend of M.G., Petitioner and Appellant, v. CITY OF COLUMBUS, Respondent and Respondent.
No. 93-487
IN THE SUPREME COURT OF THE STATE OF MONTANA
June 27, 1994
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
Jeffrey T. Renz; Jeffrey T. Renz & Associates, Missoula, Montana
For Respondent:
Douglas D. Howard; Heard & Howard, Columbus Montana
Submitted on Briefs: March 3, 1994
Decided: June 27, 1994
FILED JUN 27 1994 Ed Smith CLERK OF SUPREME COURT STATE OF MONTANA
Justice Karla M. Gray delivered the Opinion of the Court.
Cynthia Gaustad (Gaustad) aрpeals from an order of the Thirteenth Judicial District Court, Stillwater County, denying her motion for attorney‘s fees pursuant to
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
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 “sprеad 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 cоurse to spread the costs of enforcing
In construing the meaning of a statute, we presume “that the terms and words used were intеnded 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 mаndatory. Abshire v. School Dist. (1950), 124 Mont. 244, 245, 220 P.2d 1058, 1059.
Gaustad‘s argument that
The legislature originally passеd House Bill 531, later codified as
Moreover, the legislature may amend a statute at any time. We presume that the legislature is aware of the existing law, including our decisions interprеting 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
For these reasons, it would be inappropriate to modify our interpretation that an award of attorney‘s fees pursuant to
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 cаses, 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
We conclude that a remand is appropriate here in light of the District Court‘s bare deniаl of Gaustad‘s motion and the availability of Bozeman Daily Chronicle to clarify the applicability of
Vacated and remanded.
Karla M. Gray
Justice
We concur:
J.A. Turnage
Chief Justice
John Conway Harrison
William E. Hunt, Sr.
Terry N. Trieweiler
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
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 cаses 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, 17 Or. 308, 311, 20 P. 629, 631, Mr. Justice Strahan said: ‘. . . 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.‘” [Emphasis added].
We have construed the term “may” when used in statutes to be imperative or mandatory and the equivalent of “shall” or “must” as long ago as 1901 in our decision in Montana Ore Purсhasing 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 rel. Stiefel v. District Court (1908), 37 Mont. 298, 96 P. 337; State ex rel. Case v. Bolles (1925), 74 Mont. 54, 238 P. 586; Thomas v. Cloyd (1940), 110 Mont. 343, 100 P.2d 938; Hanson v. City of Havre (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 “may” 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; Catteysоn v. Glacier General Assurance Co. (1979), 183 Mont. 284, 599 P.2d 341.
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 Purchasing Company, 63 P. at 716, we also held that:
[T]he word is interpreted to mean “shall” or “must” 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 cаses where a citizen of Montana petitions for the disclosure of public records pursuant to his or her right granted in
In this case, for example, the filing fees to a successful party are $135, аnd 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 depеnd 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
I do, however, concur with the majority that if the District Court had discretion to deny attornеy 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.
Terry N. Trieweiler
Justice
June 27, 1994
CERTIFICATE OF SERVICE
I 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. O. 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: Deputy