INTHE SUPREME COUKT OF THE STATE OF MONTANA

IN3E THE APPLICATION OF J. VAUGHAN RARRON FOR A WRIT OF MANDATE and No. 

### 13328 !J

# .WrJLLLIAM LEAPHART, Court -appointed counsel forMerrel Cline and Shirley Cline, Plaintiff, Respondent and Cross-Appellant.

COUhTY LOP~PALSS IOTJERS of Lewis and Clark County, Stateof 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: 

### JkfQliitHS1.

### ADi8$EY Clerk Supreme CourtHon. W. W. Lessley, DistrictJudge, 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 originalwrit of mandate from the district court, Cascade County; both causes basically dealwith the payment for services of appointed counsel of criminal defense of Workmen's Compensation cases. Peripheralmatters inthis appeal are the claim of Timothy S. Thane, court reporter, for preparation of transcripts of the districtcourt trial; Leaphart, a court appointed attorney's claim forhis fees on this appeal in one of these causes; and the question of the reasonableness of Barron's attorney fees. It isadmitted 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 tobe answered on this appeal iswho pays for the attorneys' services and costs. Both district courts have held that in theseWorkmen's Compensation cases the department of justice must pay. The attorney general ashead 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 generalby section 79-2315, R.C.M., 1947. The statutewas enacted in 1974 and provides:"The attorney general shall conduct on behalf of the state, allprosecutions for public offenses disclosed by an audit of a stateagency performed by the legislative auditor.I1 This Court prior to enactment of this special statuteheld that the attorney general had no such authority. Stateex 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, inwhat the media has called theWorkmen's Compensation scandals; it appropriated money for that specific task. A reading of 

### H.B. 520, Laws of 1975, makes clear themoney 

### is appropriated for a definitepurpose; the billdescribes that purpose inthese words: !'FOR INVESTIGATION AND PROSECUTION OFWORKMEN'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

arenow before us because the department of justice isacting 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 itspresent 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 isfinancially unable toemploy counsel, such attorney shallbe paid for his services such sum as a districtcourt orjustice of the state supreme court certifies tobe a reasonable com-pensation therefor and shallbe reimbursed for reasonable costs incurred inthe criminal proceeding. Such costs shallbe chargeable to the county inwhich the proceeding arose, except that (a) inproceedings solely involving the violation of a cityordinance or state statute prosecuted in a municipal, city or police court wherein costs shallbe chargeable to the city or town inwhich the proceeding arose, and (b) in arrests incriminal proceedings by agents of the department of fish and game and arrestsby 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 statutemakes 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 themore 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 startingwith the words "in arrests" and concluding with the words "causing the arrest." The attorney genera1,underlines and

11 emphasizes the phrase, arrests incriminal proceedings by agents

# **

# * of the department of justice." He takes one narrow step further inhis construction of the statute and inits application to the facts here, and states that inthese cases no agent of the department of justice physically made an arrest; this is true; he further states that in those caseswhere arrestswere 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 attorneygeneral 

### is to show and emphasize 

### itsnarrowness. He insists the statutory exceptions deal with and are intended to deal onlywith arrests actuallymade by game wardens and highway

### patrolmen in their respective departments, fish and game and justice. When we considerwhat 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, throughDzivi, requested the warrants of arrest; thewarrants, after issue by the court, were returned to the department of justice;a telephone callwas made by an agent of the department to Sheriff Brooks of Toole County; later a teletype copy of the warrant was sent to the sheriffby an agent of the department of justice and the sheriffwas asked to apprehend and physically take into custody the Clines and thennotify the department of that occurrence; the Clines were physically taken into custodyby the sheriff, the departmentnotified, and then the Clineswere physically transported to Helena by investigators of the department of justice. In the other cases before us no actual physical act of arrestwas made; it is clear however that the defendants appeared at arraignments as the result of Informations filedby 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 activitiesby the department of justice. Is themere ministerial physical act of arrest to determine the operative effect of the subsection (b) exception? We thinknot. Are we to say the single physical act of arrest by a sheriff inToole County or the lack of a physical act of arrest is the pivotal question? Surelywe must not gather the intent and purpose of the legislature on suchnarrow ground.The legislature's purpose of section 95-1005, R.C.M. 1947,

was to assure payment of the services of appointed defense counsel incriminal proceedings. In State ex rel. Langan v. District Court, 

### 111Mont. 178, 180, 107 P.2d 880, itwas said: "In construing a statutecourtsmust look to the language employed and the object sought to be accomplished.I' The further purpose of the legislaturewas 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 allcosts of prosecution does include attorney fees for court appointed counsel; itwas and 

### is a workable, practical plan inthat it provides: (1) Where the case isprosecuted incity 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 shallpay. The exceptionwe are concerned with is subsection (b) on department of justice. It must be given meaning and purpose. InBurritt and Safeway v. City of Butte, 161Mont. 530, 534,535, 508 P.2d 563, the Court stated:

11

The Court's function isto construe the language of the statute inaccordance with itsusual and ordinary acceptance, with a view tobe giving vitality to and making operative allprovisions of the law and accomplishing the intention of the legislaturewhen 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 inwhich the words are used is more important than precise grammatical rules or a dictionarydefinition." The phrase in subsection (b) "must be borne by the state agency causing the arrest" goes beyond themere act of arrest. InDoullv. Wohlschlager, 141Mont. 354, 364, 377 P.2d 758, itwas said: 

# "***A statutewill 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, 126Mont. 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 statuteproviding 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 shallbe paid forhis services such sum as a district court or justice of the state supreme court certifies to be a reasonable compensation therefor and shallbe reimbursed for reasonable costs incurred in the criminalproceeding.I1 

### (Emphasis added.) 

### The recordbefore 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. Suchproceduresmust be before us, that we may determine the reasonableness of the fees allowed. Statev. Mempa, 78 Wash 2d 530, 477 P.2d 178, 182 (1970); Statev. Horton, 

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

### S.2d

f 

### 44 (1968).W. 

### William Leaphart seeks fees forhis services on this appeal. Stateex rel. Stephens v. DistrictCourt, Mont

# . 9 

### P.2d 

## , 33 St.Rep. 469, is

### controlling, this is allowable. He isgranted $1,000 forhis attorney fee on this appeal.We deny the

### writof mandamus and return the cause to the districtcourt for hn evidentiaryhearing inconformitywith the guide lines suggested as tothe 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. 

### JusticeJohn Conway Harrison specially concurring:

While I 

### concur with themajority in the above matter, 

### I desire for the information of Montana's legislature, toput focus upon the rising costs of defense inthe various counties of the state. The majority opinion provides that the costs arising out of cases intheWorkmen's Compensation investigation shall be paid by the state. However, during recent years several counties of the statehave had to shoulder heavy trialcosts due to the necessity of providing counsel for indigent defendants. The time has come, inmy opinion, for the legislature to study the rising costs of defense and adopt one of severalmethods now inuse toprovide costs of attorney fees for indigent defendants. For example, intwo 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 atthe district court level amounted to $28,000 plus $7,815.25 incosts. 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 tobe determined. These two examples, 

### I feel, highlight the growing problem. A 

### number of judicial districtsof the stateprovide for a fulltime defense counsel staff for the indigent and budget the costs as a part of the judicial budget. Whether the salaries paid

are adequate ornot may be debatable, but in severalcaseswe have had called toour attention, that a defense counsel drawing a monthly salary, as the county attorneydoes, has been paid an additional fee for some unusual case thathas arisen. Such an arrangement 

### is thebest of two worlds, but 

### is an unnecessary burden

on the taxpayer.A studyby theNational Legal Aid and Defender Association released January 

### 7, 1976, provides a draft report and guide line for the defense of eligiblepersons. This report covers both the federal system and those of thevarious 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 isinteresting to note from a Summary of the Report of the Committee to Implement the Criminal JusticeAct that throughout the federal system payments aremade 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 fiscalyear 1975 as of December 31, 1975, indicates that under the federal system the following figures cover the defense of the indigent inMortana: Number of persons represented 

# ...................... 157 Number of cases inwhich 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 intheMontana district. One feewas set at $1,570.00 and the other $1,914.00. The time has come, inmy opinion, for the legislature to either adopt a set fee system as is done under the Federal Criminal JusticeAct or to provide fulltime defense counsel in eachjudicial district of Montana.