No. 13011 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

DUNCAN PEDER McmNZIE, JR., 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable R. J. Nelson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Barney Reagan, Cut Bank, Montana 

Charles L. Jacobson argued, Conrad, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten argued, Assistant Attorney General, 

Helena, Montana 

Douglas Anderson, County Attorney, Conrad, Montana 

Submitted: October 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 reargument 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 heretofore 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 commencement 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 petition for rehearing which we subsequently denied. In ~uly, 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 expenses incurred pursuant to preparation and submission of a petition 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 incurred incident to application for stay of execution to the Montana Supreme Court and the attendant preparation and hearing before 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 directed the district judge to hold an evidentiary hearing concerning these claims. The order further directed that the district 

judge issue findings of fact, conclusions of law and an order pursuant 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 original claim was for $8,145.82, of which $3,000 was approved previously. ) 

(2) $2,103.10, which represented additional fees and expenses 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 incurred 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 appearance for setting execution date and evidentiary hearing on payment 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 conscientionaly reimburse them $8,145.82 for reading, briefing 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~enzie was adequate. 

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, prompted 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 appropriate 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 'reconsiderationt of 

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 performing a discretionary function and it would not be overturned absent 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 November 25, 1977: 

"The Court . . . does not desire repetition of 

briefing and oral argument on the issues heretofore 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 

~istrict Court 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.