### No. 13282 

### INTHE 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 BIGHORN, HON. 

### NAT ALLEN PRESIDING; and 

### THE COUNTY COMMISSIONERS OF BIG 

### HORN COUNTY, MONTANA, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator

### : 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, 

### 1976Mr. JusticeFrank I. Haswell delivered the Opinion of the Court.

Relator applied tothis Court for a 

### writof supervisory control toreview a reduced award of attorney fees and expenses inconnection with his services ascourt appointed attorney for

an indigent defendant in a criminal case. Relator 

### is Robert L. Stephens, Jr., a Billings attorney, who was appointed by the districtcourt of Big Horn County to represent Gary Radi, charged with the 

### crimes of deliberate homicide, aggravated kidnapping, and robbery. Respondents arethe districtcourt, Hon. Nat Allen, districtjudge 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 toJudge Allen. Relator's claimas 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 toapprove a $200 claim for investigative services (not in issue here), but the principal disallowance was $2,860 inattorney fees. The judge's order explained the disallowance inthis language: "The reason for cutting the 

### claim for services down $2,860.00 

### isbecause Mr. Stephens, in spite of many admonitions by the court, insisted on asking purely educational questions tothe jury on voir dire. Since eight days 

### were consumed on voir direwith fivepaid attorneysparticipating therein for the defense, Mr. Stephens conservativelyused more than one fourthof the time, orover 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 inthisCourt seeking a writof supervisory control or other appropriate 

### writtoreview the reduction inhis claim for attorney fees. Specifically, he seeks payment of the disallowed $2,860 for his services atthe trial, $1,250 asattorney fees in thisproceeding, 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 arebefore the Court: (1)Did the districtcourt abuse 

### its discretion indisallowing $2,860 inattorney fees? (2) Should relator be awarded an additional attorney fee of $1,250 inthisproceeding? On the firstissue, the gistof relator's contention is that the districtcourt's reduction inhis attorney feewas unlawfully imposed aspunishment for his conduct atthe trial. He argues that this action by the districtcourt 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 "chillingeffect" on his client's right tothe effective assistance of counsel inviolation 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 districtcourt exceeded its jurisdiction or that the court breached any agreement on allowance of attorney fees. Atthe outset

### we areconfronted with factual disputesconcerning 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 thevoir direwith respect tomotions by counsel for the prosecution and the defense. Under these circumstances 

### we rely on thepresumption that the court order correctly states the facts on which 

### it 

### isbased. Jones v. Continental OilCo., 130Mont. 267, 300 P.2d 518, and

cases cited therein; State ex rel. Elakovich v. Zbitnoff, 142 Mont. 576, 386 P.2d 343. The trialcourt's order ispresumed to be correct, and relator must carry the burden toovercome this presumption. State ex rel. Elakovich v. Zbitnoff, supra; Nissen

v. Western Construction Equipment Co., 133Mont. 143, 320 P.2d 997. We find nothing inthe abbreviated record toovercome this presumption. Accordingly, 

### we accept the statements in the court order that relator consumed over two days time asking educational questions on voir direover repeated admonitions and protests of the court. Montana's statutegoverning payment for services of court appointed counsel for indigents incriminal cases, provides in pertinent part: "Remuneration of appointed counsel. Whenever, in a criminal action or proceeding, an attorney atlaw represents or defends any person by order of the court, on the ground that the person is financiallyunable toemploy counsel, such attorney shall be paid for his services such sum 

### as a districtcourt or justice of the state supreme court certifies tobe a reasonable compensation therefor and shall be reimbursed for reasonable costs incurred in the criminal proceeding. Such costs shall be chargeable to the county inwhich the proceeding arose [subject toexceptions not pertinent here]

# .I' (Bracketed phrase supplied.) Section 95-1005, R.C.M. 1947. "Reasonable compensation" torelator is required by this statute. The determination of "reasonable compensation" is a discretionary

### functionof the judge under the statute. The exercise of a 

### judge's discretionwill not be disturbed absent abuse thereof. Luebbenv. Metlen, 110Mont. 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 "askingpurely 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 examinationwas 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 StandardsRelating 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. Statev. Smith, 57 Mont. 563, 190 P. 107;ABA StandardsRelating to the Administration of Criminal Justice, 

### 5 2.4, pp. 325, 326. We consider itwell 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 constitutepunishment ina legal sense, nor is there any indication that it was imposed asan alternativetoa fine in a contempt proceeding.Relator further argues the action of the district court breached an express agreement between court and counsel topay him $25 per hour for his services. Hepoints out that counsel for the other defendants 

### werepaid on this basis, yet his 

### claim for services atthis rate

### was disallowed inpart. Wedo not consider that a general agreement topay counsel 

### atthe rateof $25 per hour isbreached by refusal topay for services that are improper, unnecessary or useless. To hold otherwise would render the statutory limitationof "reasonable compensation" meaningless. Relator's contention that refusal topay adequate compensation for his services amounts toa "taking" of hisproperty without due process of law cannot be sustained. It has been held that this 

### isnot a deprivation of the attorney's property without just compensation inviolation of the due process clause of the Fifth Amendment tothe United States Constitution. United States

v. Dillon, 346 F.2d 633, cert.den. 382 U.S. 978, and cases collected inAppendix atp. 637. The same reasoning and result applies under the Fourteenth Amendment due process clause tothe United States Constitution and under the due process clause of Montana's Constitution, 

### Art. 11, Sec. 17. There is simply no taking of property ina constitutional sense. Relator alsoclaims the action of the districtcourt had

a "chilling effect" on his client's right tothe effective assistance of counsel guaranteed by the SixthAmendment tothe United States Constitution. It isdifficult to see how thiscould be here, asrelator apparently proceeded much inhis own fashion in any event. Considering the broad question of whether inadequately compensated counsel denies the defendant adequate representationthere appears to be a split

### of authority. It has been stated that the courts generally have rejected thiscontention. ABA Standards Relating to Providing Defense Services, Approved Draft, Commentary to

### B 2.4(c), p. 33; Statev. Rush, 46 N.J. 399, 217 A.2d 441. Other 

### cases hold thisconstitutes 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 effectiveassistance of counsel impaired by denial of compensation that 

### is not reasonable. Weaffirm the district court's reduction of relator's claim for servicesby two days 

### time at$286 per day or a total of $572, asa reasonable exercise of discretion. However, the order of the district court alsoreduced 

### relator's claim for servicesby an additional $2,288 tocover wasting the 

### timeof 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 atthe trial. Itbore no relationship to the remaining services actuallyperformed 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 themaximum fine for contempt. Section 93-9810, R.C.M. 1947. On relator's second issue, we decline togrant 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 torecover an attorney's claim for services under section 45-602, R.C.M. 1947. Neither 

### is there authority for granting attorney fees on a 

### writof supervisory control. If

### we pierce form and consider thisan application for 

### writof mandate forwhich attorney fees can be awarded inthe court's discretion, 

### we decline toaward them in this instance asrelator's

own conduct was the fountainhead of thisproceeding. In summary, the order of the districtcourt isvacated. This cause 

### is remanded tothe district court with directions to approve relator's claim inthe 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: 

## Ido 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 formisconduct at trial. The realmischief that 

## I perceive here is that in allowing this kind of procedure under the guise of "discretionf'

ft 

### in allowing reasonable fees" smaclcs of class discrimination because it can only be applied against the economically disadvantagedwho 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 summarypenalties against him because his fee is not in the hands of the state. Therefore, the judgewould have to resort to contempproceedings, designed to apply to all who appear before his bench.INTHE 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 inthe total amount of $5,528.59 which Judge Allen cut

### to a total of $4,618.89. Costs totalling $516 inthese three claims 

### was approved. None of these 

### claims or allowances 

### is contested i n t h i sproceeding. "Radi was subsequently tried by jury with four other defendants. Following trial, relator submitted a fourth claim for his 

### services and expenses toJudge Allen. This 

### claimas 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

### claimwhich is the subject of thisproceeding. "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.