IN THE SUPREME COUKT OF THE STATE OF MONTANA 

IN 3E THE APPLICATION OF J. VAUGHAN RARRON 

FOR A WRIT OF MANDATE 

and No. 13328 

!J . WrJLLLIAM LEAPHART, Court -appointed counsel 

for Merrel Cline and Shirley Cline, 

Plaintiff, Respondent 

and Cross -Appellant. 

COUhTY LOP~PALSS IOTJERS of Lewis and Clark 

County, State of Montana, 

Defendants and Respondents, 

-VS - No. 13345 

ROBERT WOODAHL, Attorney General of the 

State of Montana and Head of the Department 

of Justice, 

Defendant and Appellant. 

ORIGINAL PKOCEED1:NG : 

Counsel of Record: 

For Appellants : 

J. Vaughan Barron argued, Great Falls, Montana 

Stuart L. Kellner argued, Helena, Montana 

'or Respondents: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Jock 0. Anderson, Assistant Attorney General, argued, 

Helena, Montana 

Thomas Honzel argued, Helena, Montana 

Submitted: May 28, 1976 

I>ec ided : 

3UL Filed: 

JkfQliitHS 1. ADi8$EY 

Clerk Supreme Court 
Hon. W. W. Lessley, District Judge, sitting for Chief Justice 

James T. Harrison, delivered the Opinion of the Court. 

This is a consolidation of an appeal from the district 

court, Lewis and Clark County, and an original writ of mandate 

from the district court, Cascade County; both causes basically 

deal with the payment for services of appointed counsel of 

criminal defense of Workmen's Compensation cases. 

Peripheral matters in this appeal are the claim of 

Timothy S. Thane, court reporter, for preparation of transcripts 

of the district court trial; Leaphart, a court appointed attorney's 

claim for his fees on this appeal in one of these causes; and the 

question of the reasonableness of Barron's attorney fees. 

It is admitted the services of the court appointed counsel 

were performed. It is further admitted the fees for the services 

performed in the Lewis and Clark County case are reasonable. The 

reasonableness of counsel fees in the Cascade County case is 

not admitted. 

The central issue to be answered on this appeal is who 

pays for the attorneys' services and costs. Both district courts 

have held that in these Workmen's Compensation cases the department 

of justice must pay. 

The attorney general as head of the department of justice 

appeals. 

These criminal cases before us are the result of a statewide program investigated and prosecuted by the attorney general 

as head of the department of justice. 

The authority to so act comes to the attorney general by 

section 79-2315, R.C.M., 1947. The statute was enacted in 1974 

and provides : 
"The attorney general shall conduct on behalf of the 

state, all prosecutions for public offenses disclosed 

by an audit of a state agency performed by the legislative auditor .I1 

This Court prior to enactment of this special statute held that 

the attorney general had no such authority. State ex rel. 

Woodahl v. District Court, 159 Mont. 112, 495 P.2d 182. 

Montana's legislature fully intended this state-wide 

program of investigation and prosecution be carred on to a final 

conclusion, in what the media has called the Workmen's Compensation scandals; it appropriated money for that specific task. A 

reading of H.B. 520, Laws of 1975, makes clear the money is 

appropriated for a definite purpose; the bill describes that 

purpose in these words: 

!'FOR INVESTIGATION AND PROSECUTION OF WORKMEN'S 

COMPENSATION DIVISION RELATED MATTERS JC * *.I1 

Armed with the specific authority of the statute, section 

79-2315, K.C.M. 1947, and furnished with money by the legislature 

for that purpose, the department of justice, acting through its 

head, the attorney general, proceeded with the task. These cases 

are now before us because the department of justice is acting 

under the mandates of those statutes. 

We now reach the crucial question: Who pays for these 

court appointed services? 

The answer must come from section 95-1005, R.C.M. 1947, 

enacted in 1967, amended in 1973, and in its present form as of 

1974, and provides: 

"Whenever, in a criminal action or proceeding, an 

attorney at law represents or defends any person by order 

of the court, on the ground that the person is financially 

unable to employ counsel, such 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 com- 
pensation therefor and shall be reimbursed for 

reasonable costs incurred in the criminal proceeding. Such costs shall be chargeable to the 

county in which the proceeding arose, except 

that (a) in proceedings solely involving the 

violation of a city ordinance or state statute 

prosecuted in a municipal, city or police court 

wherein costs shall be chargeable to the city or 

town in which the proceeding arose, and (b) in 

arrests in criminal proceedings by agents of the 

department of fish and game and arrests by agents 

of the department of justice, the costs (including 

attorneys' fees of attorneys appointed by the 

court for the defendant) must be borne by the 

state agency causing the arrest." (Emphasis added). 

A reading of this statute makes evident (1) costs are 

chargeable to the county with two exceptions and (2) costs 

include attorneys' fees for attorneys appointed by the court 

in criminal causes for the defendant. 

Here, we are faced with the more specific question of who 

must pay under the exception of this statute. We are dealing 

with the exception of subdivision (b). This is a single sentence 

starting with the words "in arrests" and concluding with the 

words "causing the arrest." The attorney genera1,underlines and 

11 emphasizes the phrase, arrests in criminal proceedings by 

agents * * * of the department of justice." He takes one narrow 

step further in his construction of the statute and in its application to the facts here, and states that in these cases no agent 

of the department of justice physically made an arrest; this is 

true; he further states that in those cases where arrests were 

necessary the arrests were physically made by local law enforcement 

agencies or agents, such as the sheriff of Toole County. 

Merely to state this construction and the meaning inferred 

by the attorney general is to show and emphasize its narrowness. 

He insists the statutory exceptions deal with and are intended to 

deal only with arrests actually made by game wardens and highway 
patrolmen in their respective departments, fish and game 

and justice. 

When we consider what was actually done here in the Cline 

cases now before us, we illustrate the absurdity of such a narrow 

approach. There the department of justice, through Dzivi, requested the warrants of arrest; the warrants, after issue by the 

court, were returned to the department of justice; a telephone 

call was made by an agent of the department to Sheriff Brooks 

of Toole County; later a teletype copy of the warrant was sent 

to the sheriff by an agent of the department of justice and 

the sheriff was asked to apprehend and physically take into 

custody the Clines and then notify the department of that occurrence; the Clines were physically taken into custody by the 

sheriff, the department notified, and then the Clines were physically transported to Helena by investigators of the department 

of justice. 

In the other cases before us no actual physical act of 

arrest was made; it is clear however that the defendants appeared 

at arraignments as the result of Informations filed by officers 

and agents of the department of justice. The record is barren 

of any acts by any agents of any counties except Sheriff Brooks' 

directed activities by the department of justice. 

Is the mere ministerial physical act of arrest to determine 

the operative effect of the subsection (b) exception? We think not. 

Are we to say the single physical act of arrest by a 

sheriff in Toole County or the lack of a physical act of arrest is 

the pivotal question? Surely we must not gather the intent and 

purpose of the legislature on such narrow ground. 
The legislature's purpose of section 95-1005, R.C.M. 1947, 

was to assure payment of the services of appointed defense counsel 

in criminal proceedings. 

In State ex rel. Langan v. District Court, 111 Mont. 178, 

180, 107 P.2d 880, it was said: 

"In construing a statute courts must look to 

the language employed and the object sought to 

be accomplished .I' 

The further purpose of the legislature was to establish a 

specific and practical payment for such court appointed counsels' 

services. 

By the two amendments to section 95-1005, the legislature 

made it clear that all costs of prosecution does include attorney 

fees for court appointed counsel; it was and is a workable, practical 

plan in that it provides: (1) Where the case is prosecuted in city 

court, the city or town is responsible. (2) Where the department 

of fish and game or the department of justice causes the arrest, 

then costs of the resulting criminal proceedings must be borne by 

the agency. (3) In other cases the costs are properly chargeable 

to the county wherein the proceeding arose. 

The legislature set in exceptions to the general rule that 

counties shall pay. The exception we are concerned with is 

subsection (b) on department of justice. It must be given meaning 

and purpose. 

In Burritt and Safeway v. City of Butte, 161 Mont. 530, 

534,535, 508 P.2d 563, the Court stated: 

11 The Court's function is to construe the language 

of the statute in accordance with its usual and 

ordinary acceptance, with a view to be giving 

vitality to and making operative all provisions 

of the law and accomplishing the intention of 

the legislature when ascertainable * * *. 

"The goal of statutory interpretations is to give 

effect to the purpose of the statute. * 9; 9; To give 

effect to the purpose of the statute as intended 
by the legislature, the context in which the 

words are used is more important than precise grammatical 

rules or a dictionary definition." 

The phrase in subsection (b) "must be borne by the state 

agency causing the arrest" goes beyond the mere act of arrest. 

In Doull v. Wohlschlager, 141 Mont. 354, 364, 377 P.2d 

758, it was said: 

"* * * A statute will not be interpreted to defeat 

its evident,. object or purpose * 

fi *. The objects 

sought to be achieved by legislation are of prime 

consideration in interpretation of such legislation. 

Corwin v. Beiswanger, 126 Mont. 337, 251 P.2d 252." 

Let us look at the peripheral problems here presented. 

J. Vaughan Barron serving as attorney for the defendant in 

Cause No. 6537B, was allowed $9,068.74 for services rendered, 

plus costs. The reasonableness of that fee has been challenged. 

The statute providing such fees is section 95-1005, R.C.M. 

"Whenever, in a criminal action or proceeding, an 

attorney at law represents or defends any person by 

order of the court, on the ground that the Derson 

is financially unable to employ counsel, such 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 .I1 (Emphasis added. ) 

The record before us is barren of any evidentiary hearing, 

of affidavits, of time estimates, or of guide lines used to 

arrive at the reasonableness of the fee allowed to Barron by Judge 

Truman G. Bradford. Such procedures must be before us, that we 

may determine the reasonableness of the fees allowed. State v. 

Mempa, 78 Wash 2d 530, 477 P.2d 178, 182 (1970); State v. Horton, 

(qq?, 34 N.J. 518, 170 A.2d 1 (1961), Gant v. State, (Fla)', 216 S .2d f 

44 (1968). 
W. William Leaphart seeks fees for his services on this 

appeal. State ex rel. Stephens v. District Court, Mont . 9 

P.2d , 33 St.Rep. 469, is controlling, this is 

allowable. He is granted $1,000 for his attorney fee on this 

appeal. 

We deny the writ of mandamus and return the cause to the 

district court for hn evidentiary hearing in conformity with 

the guide lines suggested as to the amount and reasonableness 

of J. Vaughan Barron's fees and costs. 

It is conceded W. William Leaphart's fees and costs are 

reasonable and they will be granted. We refer to our previous 

order of June 11, 1976, on Court Reporter Thane's claim for 

transcript. 

We affirm the district courts and hold the department 

of justice must pay the appointed attorneys' compensation and 

costs. 

Judge, sitting for Chief 

Justice James T. Harrison. 

We Concur: 

Justices. 

-8- 
Mr. Justice John Conway Harrison specially concurring: 

While I concur with the majority in the above matter, 

I desire for the information of Montana's legislature, to put 

focus upon the rising costs of defense in the various counties 

of the state. The majority opinion provides that the costs arising 

out of cases in the Workmen's Compensation investigation shall 

be paid by the state. However, during recent years several 

counties of the state have had to shoulder heavy trial costs 

due to the necessity of providing counsel for indigent defendants. 

The time has come, in my opinion, for the legislature to study 

the rising costs of defense and adopt one of several methods now 

in use to provide costs of attorney fees for indigent defendants. 

For example, in two rural counties of this state, Pondera 

and Big Horn, because of prolonged murder trials, the taxpayers 

have had to assume extraordinary expense. In the instance of 

Pondera County defense attorney fees at the district court level 

amounted to $28,000 plus $7,815.25 in costs. In Big Horn County, 

in a multiple defendant murder case, attorney fees amounted to 

$35,391.57 and costs of $2,529.95. Both cases are now on appeal 

and the cost of appellate counsel remains to be determined. These 

two examples, I feel, highlight the growing problem. 

A number of judicial districts of the state provide for a 

full time defense counsel staff for the indigent and budget the 

costs as a part of the judicial budget. Whether the salaries paid 

are adequate or not may be debatable, but in several cases we have 

had called to our attention, that a defense counsel drawing a 

monthly salary, as the county attorney does, has been paid an 

additional fee for some unusual case that has arisen. Such an 

arrangement is the best of two worlds, but is an unnecessary burden 

on the taxpayer. 
A study by the National Legal Aid and Defender Association 

released January 7, 1976, provides a draft report and guide line 

for the defense of eligible persons. This report covers both the 

federal system and those of the various states. The federal 

government since the passage of the Criminal Justice Act of 

1964, handles the payment of the defense on a set fee cost and 

administers it "under the supervision of the Director of the 

Administrative Office of the United States Courts". 

It is interesting to note from a Summary of the Report of 

the Committee to Implement the Criminal Justice Act that throughout 

the federal system payments are made on the basis of $50 per hour 

court time and $20 per hour office time. A report on the cumulative payments to private attorneys for the fiscal year 1975 as of 

December 31, 1975, indicates that under the federal system the 

following figures cover the defense of the indigent in Mortana: 

Number of persons represented ...................... 157 

Number of cases in which counsel was paid ........... 135 

In court compensation ............................. $6,803.50 

Out of court compensation ....................... $30,239.86 

Out of pocket expenses,.. ....................... $2,430.19 

Total paid to counsel .............. $39,473.55 

Average payment to counsel ..................... $292.39. 

During this period the federal government paid for the defense 

of two murder cases in the Montana district. One fee was set at 

$1,570.00 and the other $1,914.00. 

The time has come, in my opinion, for the legislature to 

either adopt a set fee system as is done under the Federal Criminal 

Justice Act or to provide full time defense counsel in each judicial 

district of Montana.