No. 13011
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1979
THE STATE O F MONTANA,
P l a i n t i f f and Respondent,
VS.
DUNCAN PEDER McmNZIE, J R . ,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
Honorable R. J. Nelson, J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Barney Reagan, Cut Bank, Montana
C h a r l e s L . J a c o b s o n a r g u e d , Conrad, Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Chris Tweeten argued, A s s i s t a n t Attorney General,
H e l e n a , Montana
Douglas Anderson, County A t t o r n e y , Conrad, Montana
Submitted: O c t o b e r 29, 1979
Decided : OEC - 3 1979
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
This is an appeal from an order of the District Court,
the Honorable H. William Coder sitting without a jury, fixing
compensation for the services of Barney Reagan, Esq., and Charles
L. Jacobson, Esq., court-appointed attorneys for Duncan Peder
McKenzie, Jr.
Messrs, Reagan and Jacobson were appointed in this case
as defense counsel for Duncan Peder McKenzie, Jr., an indigent.
Following a jury trial, defendant was convicted of deliberate
homicide and aggravated kidnapping and sentenced to death. The
judgment and sentence were affirmed by this Court. On certiorari
to the United States Supreme Court, the judgment of the Montana
Supreme Court was vacated and the cause remanded to us for further
consideration in light of Patterson v. New York (1977), 432 U.S.
197, 97 S.Ct. 2319, 53 L Ed 2d 281. Compensation for counsel's
services following this remand is the subject of this appeal.
Following remand we set the matter for briefing and reargu-
ment limited to one issue, viz. the effect of the United States
Supreme Court's ruling in Patterson. Our order dated November 25,
1977, stated in pertinent part:
"The court ... does not desire repetition of
briefing and oral argument on the issues hereto-
fore presented and unrelated to the remand by the
United States Supreme Court."
Notwithstanding this order, Messrs. Reagan and Jacobson
submitted voluminous briefs covering many issues unrelated to
Patterson. Although advised by the Chief Justice at the commence-
ment of the hearing that the Court was interested in argument on
the Patterson issue, defense counsel covered other issues as well
in argument. On March 13, 1978, defense counsel filed claims
totalling $2,103.10 for their services and expenses up to this point,
This Court issued the second McKenzie opinion thereafter.
State v. McKenzie (1978), Mont. , 581 P.2d 1205, 35 St.
Rep. 759. Messrs. Reagan and Jacobsen prepared and filed a pe-
tition for rehearing which we subsequently denied. In ~ u l y ,1978,
defense counsel filed a claim totalling $1,496.43 for services
and expenses in connection with the petition for rehearing.
On December 31, 1977, counsel had submitted claims for
their services and the expenses incurred incident to having this
Court reconsider the case in light of Patterson. These claims
totalled $8,145.82. The District Court approved payment in the
amount of $3,000 ($1,500 to each counsel) on February 27, 1978.
These claims were resubmitted by counsel on February 27, 1978,
and they reflected the fact that $3,000 had been authorized by the
Court.
On October 17, 1978, counsel submitted claims totalling
$299.50. These claims were for legal services performed and ex-
penses incurred pursuant to preparation and submission of a peti-
tion for stay of execution of judgment.
On or about January 22, 1979, Mr. Reagan filed with the
District Court a claim for reimbursement of fees and expenses in-
curred incident to application for stay of execution to the Mon-
tana Supreme Court and the attendant preparation and hearing be-
fore the Sentence Review Board. These claims totalled $1,275.48.
Subsequent to the hearing before the Sentence Review
Board, Mr. Reagan on February 23, 1979, filed with the District
Court his claim for reimbursement of fees and expenses incurred
in seeking review, by appeal, of the Review Board's decision to
the Montana Supreme Court. This claim amounted to $620.63.
On February 2, 1979, this Court issued an order which dir-
ected the district judge to hold an evidentiary hearing concern-
ing these claims. The order further directed that the district
judge issue findings of fact, conclusions of law and an order pur-
suant to this hearing.
- 3 -
The hearing was held on February 27, 1979, and at that
time counsel submitted an additional claim for fees and expenses
in connection with their appearance for setting execution date
and evidentiary hearing on payment of fees and expenses. These
claims amounted to $244.97.
The total of all of these claims minus the $3,000 already
approved amounted to $11,185.93. The district j-adge in his order
disapproved $10,711.96 and approved the remaining $47'3.97. The
approved claims were for services and expenses incurred pursuant
to resetting date of execution and the preparation of the petition
for stay of execution of judgment ($264.00) and for an appearance
for setting execution date ($209.97).
The disapproved claims were as follows:
(1) $5,145.82, which represented the fees and expenses
incurred in rearguing the case in light of Patterson. (The orig-
inal claim was for $8,145.82, of which $3,000 was approved pre-
viously. )
(2) $2,103.10, which represented additional fees and ex-
penses incurred rearguing the case in light of Patterson. This
claim arose out of the hearing before this Court on March 13, 1978.
(3) $1,496.43, which represented the fees and expenses in-
curred for preparation and petitions for rehearing before this
Court.
(4) $35.50, which represented fees and expenses incurred
resetting date of execution and preparation of the petition for
stay of execution of judgment. ($264.00 of this claim was approved.)
(5) $1,275.48 for fees and expenses incurred incident to
application for stay of execution to the Montana Supreme Court and
the attendant preparation and hearing before the Sentence Review
Board.
(6) $620.63 for fees and expenses incurred in seeking review
of the Sentence Review Board's decision to this Court.
(7) $35.00 for fees and expenses incurred for appear-
ance for setting execution date and evidentiary hearing on pay-
ment of fees and expenses ($209.97 of this claim was approved).
The District Court wrote an opinion on this matter and
made the following observation:
"Needless to say, the Hearing shed little light
on the substantive nature of the claims and
didn't at all ameliorate the Court's concern
regarding the validity of the claims."
The District Court also stated:
" . . . I am not persuaded that it required $8,000.00
worth of judicial time and research to create
Patterson, and on the basis of what has been supplied
to me regarding counsel's efforts, I cannot conscien-
tionaly reimburse them $8,145.82 for reading, brief-
ing it and arguing its application to McKenzie."
The District Court expressed the opinion that the $3,000
paid to counsel for the reconsideration of ~ c ~ e n z i e adequate.
was
The District Court was also concerned that notice had not been
given prior to the performing of the additional services. It was
noted in the opinion that most of the claims related to actions
taken by defense counsel which were beyond the scope of the orders
issued by this Court, i.e. beyond the scope of the Patterson issue.
The District Court felt that many of the additional services which
defense counsel performed were not constitutionally required.
That fact, plus the fact that counsel had not given the ~istrict
Court notice that these services were going to be performed, promp-
ted the District Court to hold that the State should not pay for
these services.
The only issue presented on this appeal is whether the
District Court erred in denying court-appointed counsel certain
fees and reimbursement for expenses in this cause.
The pertinent statute involved in this issue is section
46-8-201 (1), MCA:
"Remuneration of appointed counsel. Whenever in
a criminal proceeding an attorney represents or
defends any person by order of the court on the
ground that the person is financially unable to
employ counsel, the attorney shall be paid for
his services such sum as a district court or
justice of the state supreme court certifies to
be a reasonable compensation therefor and shall
be reimbursed for reasonable costs incurred in
the criminal proceeding."
The language of this statute clearly indicates that the appro-
priate court has a discretionary duty to determine "reasonable
compensation." The District Court's opinion states: "By any
criteria, the $3,000 paid to counsel for the 'reconsiderationtof
McKenzie which was mandated by the United States Supreme Court
was, I submit, more than adequate under the circumstances."
The facts of this case do not warrant the application of
constitutional principles concerning a state's duty to appoint
counsel in certain situations. In the instant case counsel has
already presented the defense. The question is: How much should
the state pay for these services?
The approach that this Court will use in deciding questions
of this type was set forth in State v. Allies (1979), Mont . I
597 P.2d 64, 36 St.Rep. 820. In Allies court-appointed attorneys
were limited to $2,000 for their efforts and expenses involved in
an appeal of a homicide conviction. The attorneys appealed this
monetary limit alleging that it was unreasonable and an abuse of
discretion. This Court found that the District Court was perform-
ing a discretionary function and it would not be overturned ab-
sent a showing of an abuse of discretion, " . . . in striking a
balance between the age-old responsibility of providing gratuitous
service to indigent defendants and the increasing burdens placed
on the bar by expanded indigent rights, much discretion must be
left in the trial judge." 597 P.2d at 66, 36 St.Rep. at 822. This
Court went on to hold that the $2,000 limit was not an abuse of
discretion.
In the present case defense counsel was awarded $3,000
for an appeal that was limited by court order to one issue; i.e.
Patterson. This Court stated in an order to counsel dated Novem-
ber 25, 1977:
"The Court .. . does not desire repetition of
briefing and oral argument on the issues hereto-
fore presented and unrelated to the remand by
the United States Supreme Court."
It was not an abuse of discretion for the District Court
to limit payments for a one issue appeal to $3,000.
Similarly, it was not an abuse of discretion for the
~istrictCourt to limit the additional expenses to an amount less
than that asked for by counsel. As was emphasized above, this is
a matter which must be left to the District Court judge. We do
not, under these facts, find an abuse of discretion.
Affirmed.
..............................
Chief Justice
Hon. W. W. Lessle
Judge, sitting in
J on the Court.