                                            No.    80-341

                   I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA




I N RE:        P E T I T I O N TO ADOPT RULE REGARDING
ATTORNEY'S F E E S , C O S T S & I N V E S T I G A T I O N
E X P E N S E S O F P R I V A T E ATTORNEYS A P P O I N T E D
TO DEFEND I N D I G E N T DEFENDANTS e t a l . ,




O R I G I N A L PROCEEDING:

C o u n s e l of R e c o r d :

 For A p p e l l a n t :

        D. P a t r i c k M c K i t t r i c k a r g u e d , G r e a t F a l l s , M o n t a n a
        R o c k w o o d B r o w n argued, B i l l i n g s , M o n t a n a
        M i k e S t e p h e n s argued, M o n t a n a A s s o c i a t i o n of C o u n t y A t t o r n e y s ,
          Helena, Montana
        Joseph W o l f f argued, B u t t e , M o n t a n a
        R. D. C o r e t t e , J r . , B u t t e , M o n t a n a
        M i c h a e l J. H u g h e s , H e l e n a , M o n t a n a
        W i l l i a m E. A s t l e , K a l i s p e l l , M o n t a n a
        John H. K u e n n i n g , G r e a t F a l l s , M o n t a n a
        W. W i l l i a m L e a p h a r t , H e l e n a , M o n t a n a
        W i l l i s B. J o n e s , B i l l i n g s , M o n t a n a
        R u s s e l l K. F i l l n e r , B i l l i n g s , M o n t a n a
        J a m e s T . H a r r i s o n , Jr., H e l e n a , M o n t a n a




                                            Submitted:          D e c e m b e r 3, 1 9 8 0

                                               Decided:        S f P 2 9 1981


Filed:        SEP 29 1981
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

        This is an original proceeding arising out of a
petition filed in this Court by the judiciary committee of
the State Bar of Montana requesting that we adopt a rule
regarding a minimum schedule for attorneys fees, costs and
investigation expenses of private attorneys appointed to
defend indigent defendants in criminal and juvenile cases.
        The judiciary committee submitted a proposed rule with
the petition, and requested us to set the matter for hearing.
We did cause a public hearing on the petition to be held on
December 3, 1980 and invited participation by the public.
We published notice to the bar through The Montana Lawyer,
the publication promulgated by the State Bar of Montana.
     Responses or appearances were filed or made by Willis
B. Jones and Russell K. Fillner, individually, of Billings,
Montana, and James T. Harrison, Jr., of Helena, Mcntana.
Written response was received from Daniel Donovan, a public
defender in Great Falls, Montana.    Appearances and written
responses were received from Michael Stephen, executive
director of the Montana Association of Counties and from
Joseph G. Wolf, budget director, Butte-Silver Bow.
     The judiciary committee, acting on behalf of the Board
of Trustees of the State Bar of Montana, requested that the
Montana Supreme Court establish hourly rates, maximum totals,
and investigative fees for court-appointed private counsel
(not including public defenders) where indigent defendants
are involved.     The suggested hourly rates were $45 for pretrial
and post-trial appearances and actual trial time in court,
$25 per hour for travel, and $40 per hour for all other legal
work.     The suggested maximum totals included $7,500 for
felonies, where the possible penalty is death, life imprison-
ment, or imprisonment for more than 50 years; felonies with
lesser punishments, $5,000; in juvenile cases, a maximum of
$2,000 per trial court proceedings; and for misdemeanors and
petty offenses, a maximum of $1,000 for trial court proceedings.
If such cases did not go to actual trial, the maximums would
be one-half of the suggested amounts for full trial.   A total
sum for appellate proceedings, regardless of the type of
crime involved was suggested at $2,000.
     The petition also suggests that investigative, expert,
or other services necessary for adequate defense for an
indigent client should be allowed, not to exceed $600,
exclusive of reimbursement for other expenses reasonably
incurred.
     In his written statement, Russell K. Fillner suggests
$45 for pretrial and post-trial appearances and $50 for actual
trial time.   He objects to maximums because they may not
square with a defendant's constitutional right to effective
counsel.    He suggests that the $600 limitation for investigative
and expert work is unrealistic.
     Daniel Donovan in his written response, contends that
$50 is proper as an hourly amount to be paid for all legal
work performed by a court-appointed attorney, and again, he
also objects to the maximums as being unrealistically low.
     The attorneys who appeared at the oral hearing    were
generally in favor of the judiciary committee petition though
all suggest that the amounts requested are probably low.
     Opposition, or perhaps restraint, was proposed or
suggested by Mr. Stephen and Mr. Wolf.    Mr. Stephen pointed
out the different circumstances that prevail in Montana's
56 counties and the differing situations for taxpayers in
counties where there are substantial amounts of federal
lands or Indian reservations which do not produce a tax
base.     (Mr. Stephen contends that the in-lieu payments
received from the federal government are not sufficient to
make up the difference.)    Mr. Wolf expressed opposition to
any rule promulgated by this Court upon the ground that the
matter of fees in criminal cases should be left to the dis-
cretion of the local district judge.    The attorney general,
Mike Greely, suggested through his deputy, Jerome J. Cate,
that such a statewide rule might have anti-trust implications.
        We have carefully studied the judiciary committee petition,
and the various responses that have been made to that petition,
orally and in writing.    We have tried to assess the ramifica-
tions of any statewide rule that we might promulgate, but we
find such different circumstances from county to county, even
within the same districts, that we conclude that a just
application of a statewide rule is hardly feasible.
        The greatest problem we find with the promulgation of
a statewide fee schedule is the certain impact it would have
on the county-funded budgets of the district courts.    The
1979 legislature, in Ch. 692, Laws of 1979, limited property
taxes collected in each county for all district court costs
(except for judicial salaries and travel expenses) to 6 mills
for first and second class counties, 5 mills for third and
fourth class counties, and 4 mills for all other counties.
Ch. 405, Laws of 1979, requires county-funded district court
programs to be subjected to the county budgeting process,
and Ch. 275, Laws of 1979 limits district court judges, in
making expenditures or incurring liabilities, to the amount
of the county-detailed budgetary appropriations and classifications.
As long as those statutes are on the books, and not vacated,
repealed or modified by a subsequent legislature or by
order of a court of competent jurisdiction, their strictures
apply to the district courts.   We will not adopt a minimum
fee schedule and put the district courts in the possible
predicament, though the predicament may not be intended by
us, of following our order or breaking the budgetary laws.
     The second problem that we face in considering a state-
wide fee schedule is the disparity that exists in the costs
of doing business borne by the legal profession between
districts with large populations and those areas of smaller
population.   The attendant expenses of paying rent for
professional offices, purchasing and housing a workable law
library, and employing competent clerical and stenographic
help vary greatly from area to area; yet such expenses
undoubtedly enter into a proper calculation as to what a
private attorney should receive for his services.   A statewide
figure would probably be a boon to some and a bane to others.
     A third variable is the competence of some attorneys for
criminal work as compared to others.   Experience, learning
and talent are undoubtedly among the factors that a district
court may wish to consider in appointing private attorneys
to defend indigent persons.   The district courts should be
free, within their budgetary limitations, to contract for the
best possible available defense counsel.    This is especially

true if the crimes charged have a great public significance
or gravity.
     In State v. Allies (1979), - Mont     . -, 597 P.2d
64, 66, 36 St.Rep. 820, 823, because of the plethora of cases
coming to this Court involving disputed attorneys fees and
costs for court-appointed counsel, we set a maximum guideline
o f $30 p e r hour f o r l e g a l work, s u b j e c t t o a t o t a l maximum

o f $5,000 i n any c r i m i n a l p r o c e e d i n g w i t h o u t p r i o r c o u r t

a p p r o v a l , and w e approved a $2,000 f e e f o r t h e s e r v i c e s

performed on a p p e a l i n t h a t c a s e .             I n S t a t e v. McKenzie

(1979) ,     - Mont.                 ,   608 P.2d 425, 36 St.Rep.                  2157, we

approved and awarded $3,000 t o a t t o r n e y s r e p r e s e n t i n g t h e

d e f e n d a n t on one i s s u e i n t h e a p p e l l a t e p r o c e s s .       Each of

t h o s e c a s e s i n v o l v e d open-end c o n t r a c t s ; t h a t i s , no upper

l i m i t on t h e amounts t o be p a i d t h e a t t o r n e y s w a s d i s c u s s e d

o r a g r e e d t o when t h e a t t o r n e y s w e r e f i r s t a p p o i n t e d .        Thus,

t h e a t t o r n e y s on t h e i r p a r t , i n good f a i t h , expended t h e i r

h o u r s on b e h a l f o f t h e r e s p e c t i v e d e f e n d a n t s , t r u s t i n g t h a t

t h e y would be p a i d on t h e a g r e e d s c h e d u l e ; whereas t h e

d i s t r i c t c o u r t s , on t h e i r p a r t , b e i n g busy and h a v i n g no

d i r e c t knowledge o f t h e amount of work b e i n g done, u n e x p e c t e d l y

found t h e m s e l v e s f a c i n g e x t r a o r d i n a r y c l a i m s f o r a t t o r n e y s

costs.       These w e r e t h e c o n s i d e r a t i o n s t h a t l e d t h i s C o u r t i n

A l l i e s t o s e t f o r t h t h e upper l i m i t s of $5,000 i n d i s t r i c t

c o u r t work and $2,000 f o r a p p e l l a t e work.                  O f course, each

o f t h e s e l i m i t s was s u b j e c t t o t h e f u r t h e r o r d e r o f t h e

d i s t r i c t court i n j u s t i f i a b l e cases.

        A fourth reason f o r our conclusion i n t h i s case is

found i n s e c t i o n 46-8-201,            MCA, which p r o v i d e s :

        "Remuneration of a p p o i n t e d c o u n s e l .            (1)
        Whenever i n a c r i m i n a l p r o c e e d i n g a n a t t o r n e y
        r e p r e s e n t s o r d e f e n d s any p e r s o n by o r d e r o f
        t h e c o u r t on t h e ground t h a t t h e p e r s o n i s
        f i n a n c i a l l y u n a b l e t o employ c o u n s e l , t h e a t t o r n e y
        s h a l l be p a i d f o r h i s s e r v i c e s - - - -
                                                            s u c h sum a s a
        d i s t r i c t c o u r t o r j u s t i c e o f t h e s t a t e supreme
        c o u r t c e r t i f i e s -o-b- a r e a s o n a b l e compensation
                                     t      e
        t h e r e f o r and s h a l l b e reimbursed f o r r e a s o n a b l e
        c o s t s incurred i n t h e criminal proceedings."
         (Emphasis added. )

The i n t e n t of t h e s t a t u t e i s c l e a r :         where c o u n t y f u n d s are

concerned, a d i s t r i c t c o u r t should c e r t i f y a s t o t h e p r o p r i e t y
of t h e b i l l ; where s t a t e f u n d s a r e c o n c e r n e d , a j u s t i c e of

t h e s t a t e supreme c o u r t s h o u l d s o c e r t i f y .         The p r o m u l g a t i o n

by u s o f a s t a t e w i d e f e e s c h e d u l e would t a k e from t h e

d i s t r i c t c o u r t s a d i s c r e t i o n a r y duty t o determine t h e

propriety of the b i l l f o r l e g a l s e r v i c e s presented a g a i n s t t h e

c o u n t y f u n d s , and make t h e d i s t r i c t c o u r t s ' c e r t i f i c a t e

m i n i s t e r i a l r a t h e r than discretionary.              W e find the legis-

l a t u r e i n t e n d e d t o v e s t a wide l a t i t u d e o f d i s c r e t i o n i n t h e

d i s t r i c t c o u r t i n t h e m a t t e r of f e e s , s o i t c o u l d t a k e i n t o

c o n s i d e r a t i o n t h e f a c t o r s involved.

        In A l l i e s ,   597 P.2d a t 65-66,            w e q u o t e d from S t a t e v .


t o t h e following e f f e c t :

        "Elements of c o n s i d e r a t i o n i n f i x i n g f e e s
        i n c l u d e t h e amount o f t i m e and e f f o r t expended,
        t h e n a t u r e and e x t e n t of t h e s e r v i c e s r e n d e r e d ,
        the fees paid f o r similar service i n other
        jurisdictions, the traditional responsibilities
        o f t h e l e g a l p r o f e s s i o n , t h e amount o f p u b l i c
        f u n d s made a v a i l a b l e f o r such p u r p o s e s , and a
        judicious r e s p e c t f o r t h e taxpaying public a s
        w e l l a s t h e needs o f t h e a c c u s e d .      (Citing cases.)"

        W e t h e r e f o r e c o n c l u d e i t p r o p e r and s t a t u t o r i l y r e q u i r e d

t o l e a v e t o t h e d i s t r i c t c o u r t s t h e c h o i c e of c o u n s e l f o r

t h e p a r t i c u l a r crime c h a r g e d a g a i n s t i n d i g e n t d e f e n d a n t s , and

t h e r a t e o f pay s u c h c o u r t - a p p o i n t e d c o u n s e l may r e c e i v e

for their efforts.               W remove t h e $30 p e r hour maximum r a t e
                                  e

t h a t we fixed i n A l l i e s ,        s u p r a , and w e l e a v e t o t h e d i s c r e t i o n

of d i s t r i c t judges t h e f i x i n g o f a maximum h o u r l y r a t e t o

apply i n each d i s t r i c t .         W e keep i n e f f e c t t h e upper t o t a l

l i m i t of $5,000 f o r any g i v e n c r i m i n a l p r o c e e d i n g w i t h o u t

p r i o r c o u r t a p p r o v a l , and t h e t o t a l f i g u r e o f $2,000 f o r

a p p e a l p u r p o s e s where t h e same a r e t o be p a i d from c o u n t y

funds.       These t o t a l l i m i t s may be i n c r e a s e d by t h e d i s t r i c t
courts in justifiable cases.   We caution the members of
the bar and the district courts to see to it that in each
case of appointnerit of private counsel at the outset of the
appointment, there be placed upon the minutes or other records
of the district court the rate of pay and upper limits to be
received by court-appointed private counsel for services, in
addition to reasonable expenses, and that any subsequent
modifications or amendments to that contract be also entered
on the same records of the court.   A district court rule
adopted   for each county in each district, setting out rates,
would comply with this requirement.
     This opinion shall be and does constitute a judgment,
to be binding upon members of the bar and district courts
from and after the promulgation of this opinion, and applying
to criminal cases and juvenile proceedings from and after the
date of promulgation hereof.   Copies of this opinion shall
be mailed by the Clerk of this Court, to counsel of record,
to the parties making appearance herein not otherwise
represented, and to each district judge and county attorney
in the State of Montana.   The further relief requested by
petitioner, the judiciary committee of the State Ear of
Montana, is denied.   No costs to


                                              Justice
We Concur:




                                                             ?




         Justices
This cause deemed submitted prior
