No. 13282 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA ex re1 

ROBERT L. STEPHENS, JR. , 

Relator, 

THE DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTAFTA, IN AND FOR THE COUNTY OF 

BIG HORN, HON. NAT ALLEN PRESIDING; 

and THE COUNTY COMMISSIONERS OF BIG 

HORN COUNTY, MONTANA, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Rela tor : 

Robert L. Stephens, Jr. argued, Billings,' Montana 

For Respondents : 

Hon. Nat Allen argued, Roundup, Montana 

James Seykora argued, County Attorney, Hardin, 

Montana 

For Amicus Curiae: 

Smith, Smith and Sewell, Helena, Montana 

Robert Sewell argued, Helena, Montana 

Submitted: March 19, 1976 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Relator applied to this Court for a writ of supervisory 

control to review a reduced award of attorney fees and expenses 

in connection with his services as court appointed attorney for 

an indigent defendant in a criminal case. 

Relator is Robert L. Stephens, Jr., a Billings attorney, 

who was appointed by the district court of Big Horn County to 

represent Gary Radi, charged with the crimes of deliberate homicide, aggravated kidnapping, and robbery. Respondents are the 

district court, Hon. Nat Allen, district judge presiding, and 

the county commissioners of Big Horn County. 

Radi was tried by jury with four other defendants. Following trial, relator submitted a claim for his services and expenses 

to Judge Allen. Relator's claim as submitted was $5,806.50, for 

194 1/2 hours services at $25 per hour and miscellaneous out-ofpocket expenses. 

Judge Allen approved the claim for $2,746 only. He refused to approve a $200 claim for investigative services (not in 

issue here), but the principal disallowance was $2,860 in attorney fees. The judge's order explained the disallowance in this 

language : 

"The reason for cutting the claim for services 

down $2,860.00 is because Mr. Stephens, in spite 

of many admonitions by the court, insisted on 

asking purely educational questions to the jury 

on voir dire. Since eight days were consumed 

on voir dire with five paid attorneys participating therein for the defense, Mr. Stephens 

conservatively used more than one fourth of the 

time, or over two days asking educational questions over protests of this court. Mr. Stephens 

asks 286.00 per day for the trial, multiplied by 

5 equals $1430.00 per day, and for two days the 

total sum wasted by Mr. Stephens is $2,860.00." 

The Big Horn County commissioners paid only the sum approved by 

Judge Allen. 

Thereafter relator filed an original proceeding in this 
Court seeking a writ of supervisory control or other appropriate 

writ to review the reduction in his claim for attorney fees. 

Specifically, he seeks payment of the disallowed $2,860 for his 

services at the trial, $1,250 as attorney fees in this proceeding, and his costs and disbursements herein. 

Following ex parte presentation, relator's application 

was set for adversary hearing and heard on April 8, 1976. Relator and Judge Allen appeared pro se; James E. Seykora, county 

attorney, appeared on behalf of the county commissioners, and 

Robert J. Sewell appeared on behalf of the Montana Criminal 

Defense Lawyers Association, amicus curiae. The matter was taken 

under advisement following briefs and oral argument. 

Two issues are before the Court: 

(1) Did the district court abuse its discretion in disallowing $2,860 in attorney fees? 

(2) Should relator be awarded an additional attorney fee 

of $1,250 in this proceeding? 

On the first issue, the gist of relator's contention is 

that the district court's reduction in his attorney fee was unlawfully imposed as punishment for his conduct at the trial. He 

argues that this action by the district court breached an express 

agreement between court and counsel on attorney fees; amounted to 

a "taking" of his property without due process of law; had a 

"chilling effect" on his client's right to the effective assistance of counsel in violation of constitutional guarantees; and 

was arbitrary, capricious and beyond the power of the court. 

Respondents, on the other hand, contend the district court 

did not abuse its discretion in its award of attorney fees to 

relator. They deny the district court exceeded its jurisdiction 

or that the court breached any agreement on allowance of attorney 

fees. 

At the outset we are confronted with factual disputes 
concerning relator's voir dire examination of prospective jurors 

and whether he was repeatedly admonished by the court. We 

cannot resolve these disputes without a verbatim transcript of 

the voir dire. We have but a partial transcript before us, containing only excerpts of the voir dire with respect to motions 

by counsel for the prosecution and the defense. 

Under these circumstances we rely on the presumption that 

the court order correctly states the facts on which it is based. 

Jones v. Continental Oil Co., 130 Mont. 267, 300 P.2d 518, and 

cases cited therein; State ex rel. Elakovich v. Zbitnoff, 142 

Mont. 576, 386 P.2d 343. The trial court's order is presumed to 

be correct, and relator must carry the burden to overcome this 

presumption. State ex rel. Elakovich v. Zbitnoff, supra; Nissen 

v. Western Construction Equipment Co., 133 Mont. 143, 320 P.2d 

997. We find nothing in the abbreviated record to overcome this 

presumption. Accordingly, we accept the statements in the court 

order that relator consumed over two days time asking educational 

questions on voir dire over repeated admonitions and protests of 

the court. 

Montana's statute governing payment for services of court 

appointed counsel for indigents in criminal cases, provides in 

pertinent part: 

"Remuneration of appointed counsel. 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 compensation 

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 [subject to exceptions not 

pertinent here] . I' (Bracketed phrase supplied. ) 

Section 95-1005, R.C.M. 1947. 

"Reasonable compensation" to relator is required by this statute. 

The determination of "reasonable compensation" is a discretionary 
function of the judge under the statute. The exercise of a 

judge's discretion will not be disturbed absent abuse thereof. 

Luebben v. Metlen, 110 Mont. 350, UOP.2d 935. 

We hold Judge Allen did not abuse his discretion to the 

extent that he refused to compensate relator for what the judge 

considered to be two days wasted time in "asking purely educational questions" of prospective jurors on voir dire "in spite 

of many admonitions by the court" and "over protests by the court". 

Even the abbreviated transcript before us indicates instances in 

which relator's voir dire examination was conducted to establish 

"rapport" with the prospective jurors, to "educate" them, and to 

point out the disparity of investigative resources available to 

the state in comparison to the defendant. This type of questioning is extraneous to the legitimate objects of voir dire. See 

Commentary to §, 7.2(c), p. 263, ABA Standards Relating to the 

Prosecuting Function and the Defense Function, Approved Draft. 

The purpose of voir dire is simply to enable counsel to 

determine the existence of bias and prejudice on the part of 

prospective jurors and to enable counsel to exercise intelligently 

his peremptory challenges. State v. Smith, 57 Mont. 563, 190 P. 

107; ABA Standards Relating to the Administration of Criminal 

Justice, 5 2.4, pp. 325, 326. We consider it well within a proper 

exercise of the judge's discretion to disallow compensation for 

substantial amounts of time consumed in improper, unnecessary or 

useless services. Reasonable compensation within the meaning of 

the statute does not require payment for such services. 

To the extent the judge refused to compensate relator 

for such services, his action does not constitute an unlawful 

punishment of relator for his conduct at the trial. There is 

nothing unlawful in refusing payment of compensation that is not 

reasonable, as the judge did here. Such refusal does not constitute 
punishment in a legal sense, nor is there any indication that 

it was imposed as an alternative to a fine in a contempt proceeding. 

Relator further argues the action of the district court 

breached an express agreement between court and counsel to pay 

him $25 per hour for his services. He points out that counsel 

for the other defendants were paid on this basis, yet his claim 

for services at this rate was disallowed in part. We do not 

consider that a general agreement to pay counsel at the rate of 

$25 per hour is breached by refusal to pay for services that are 

improper, unnecessary or useless. To hold otherwise would render 

the statutory limitation of "reasonable compensation" meaningless. 

Relator's contention that refusal to pay adequate compensation for his services amounts to a "taking" of his property 

without due process of law cannot be sustained. It has been held 

that this is not a deprivation of the attorney's property without 

just compensation in violation of the due process clause of the 

Fifth Amendment to the United States Constitution. United States 

v. Dillon, 346 F.2d 633, cert.den. 382 U.S. 978, and cases collected in Appendix at p. 637. The same reasoning and result applies 

under the Fourteenth Amendment due process clause to the United 

States Constitution and under the due process clause of Montana's 

Constitution, Art. 11, Sec. 17. There is simply no taking of 

property in a constitutional sense. 

Relator also claims the action of the district court had 

a "chilling effect" on his client's right to the effective assistance of counsel guaranteed by the Sixth Amendment to the United 

States Constitution. It is difficult to see how this could be 

here, as relator apparently proceeded much in his own fashion in 

any event. Considering the broad question of whether inadequately 

compensated counsel denies the defendant adequate representation 
there appears to be a split of authority. It has been stated 

that the courts generally have rejected this contention. ABA 

Standards Relating to Providing Defense Services, Approved Draft, 

Commentary to B 2.4(c), p. 33; State v. Rush, 46 N.J. 399, 217 

A.2d 441. Other cases hold this constitutes an impairment of 

the constitutional right of assistance of counsel. State ex rel. 

Brundage v. Eide, 83 Wash.2d 676, 521 P.2d 706; Bradshaw v. Ball, 

Ky. (1972), 487 S.W. 2d 294. Be that as it may, we do not consider the constitutional guarantee of effective assistance of 

counsel impaired by denial of compensation that is not reasonable. 

We affirm the district court's reduction of relator's 

claim for services by two days time at $286 per day or a total of 

$572, as a reasonable exercise of discretion. 

However, the order of the district court also reduced relator's claim for services by an additional $2,288 to cover wasting 

the time of four other attorneys for 2 days. This was an abuse 

of discretion and must be set aside. 

The disallowance of the additional $2,288 was imposed in 

the nature of liquidated damages against relator for his conduct 

at the trial. It bore no relationship to the remaining services 

actually performed by relator. It denied relator reasonable compensation for these services. It violated the compensation statute, section 95-1005, R.C.M. 1947. It exceeded by more than four 

times the maximum fine for contempt. Section 93-9810, R.C.M. 

1947. 

On relator's second issue, we decline to grant relator 

$1,250 or any other sum as attorney fees for this original proceeding. There is no statutory authority for granting attorney 

fees in an action to recover an attorney's claim for services 

under section 45-602, R.C.M. 1947. Neither is there authority 

for granting attorney fees on a writ of supervisory control. If 
we pierce form and consider this an application for writ of 

mandate for which attorney fees can be awarded in the court's 

discretion, we decline to award them in this instance as relator's 

own conduct was the fountainhead of this proceeding. 

In summary, the order of the district court is vacated. 

This cause is remanded to the district court with directions to 

approve relator's claim in the additional sum of $2,288 and order 

payment forthwith. Each party shall bear his own costs. 

Justice 

A Chief Justice 
Mr. Justice Gene R. Daly dissenting: 

I do not agree that "reasonable compensation" as 

required by the statute ever envisioned the extraction of summary 

penalties by the judge from the fees and costs of public paid 

lawyers in lieu of imposing the generally recognized sanction 

of contempt -- if the situation requires a penalty for misconduct 

at trial. 

The real mischief that I perceive here is that in 

allowing this kind of procedure under the guise of "discretionf' 

f t in allowing reasonable fees" smaclcs of class discrimination because 

it can only be applied against the economically disadvantaged who are 

compelled to accept state paid counsel. If a lawyer is representing a 

economically advantaged person at the same trial and was equally 

guilty, the court could not impose summary penalties against him 

because his fee is not in the hands of the state. Therefore, the 

judge would have to resort to contemp proceedings, designed to 

apply to all who appear before his bench. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 13282 

THE STATE OF MONTANA ex rel. 

ROBERT L. STEPHENS, JR. , 

Relator, 

VS. 

THE DISTRICT COURT OF THE THIRTEENTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, in and for the COUNTY OF 

BIG HORN, HON. NAT ALLEN presiding, 

et al., 

Respondents. 

ORDER 

PER CURIAM: 

A petition for rehearing having been filed by respondents herein, 

IT IS ORDERED: 

(1) That paragraph 3 and the first sentence of paragraph 4 of the original opinion be deleted and the following 

substituted therefor: 

"Relator submitted three claims for his services 

prior to trial in the total amount of $5,528.59 

which Judge Allen cut to a total of $4,618.89. 

Costs totalling $516 in these three claims was 

approved. None of these claims or allowances is 

contested i n t h i s proceeding. 

"Radi was subsequently tried by jury with four 

other defendants. Following trial, relator submitted a fourth claim for his services and expenses to Judge Allen. This claim as submitted 

was for $5,806.50 for 194 1/2 hours of services 

at $25 per hour and miscellaneous out of pocket 

expenses. It is this claim which is the subject 

of this proceeding. 

"Judge allen approved this fourth claim for 

$2,746 only." 

(2) That with the foregoing substitution, the petition 

for rehearing is denied. 

DATED this 4th day of June, 1976.