No. 82-137
I N THE SUPREME COURT O THE STATE OF MONTANA
F
1982
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
VS .
GENE D. LEISCHNER,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f J e f f e r s o n
Ilonorable P e t e r G. Meloy, J u d g e p r e s i d i n g .
Counsel o f Record :
For Respondent :
Nick R o t e r i n g , S p e c i a l A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
Montana
John Connor, Deputy County A t t o r n e y , B o u l d e r , filontana
For A p p e l l a n t :
H u l l and S h e r l o c k ; J e f f r e y M. S h e r l o c k , Helena, Montana
S u b m i t t e d on b r i e f s : August 1 9 , 1982
Decided: September 1 0 , 1982
Filed:
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Appellant appeals from an order entered by the Fifth
Judicial District Court of the State of Montana denying
appellant conditional release from custody at Warm Springs
State Hospital. We reverse.
By judgment entered February 2, 1977, appellant was
committed to the custody of the superintendent of Warm
Springs State Hospital, pursuant to the provisions of section
95-508, R.C.M., 1947 (now section 46-14-301(2), MCA) .
Appellant has resided at Warm Springs State Hospital since
that date. On March 16, 1981, James Hamill, then Superintendent
of Warm Springs State Hospital, petitioned for appellant's
release on condition. Thereafter, on July 17, 1981, a new
petition was filed entitled "Petition For Temporary Release For
A Home Visit." In response to the filing of these petitions,
the District Court directed two psychiatrists to examine the
appellant and report to the court.
Appellant was examined by Drs. James Deming and William
Harris of the staff, both of whom recommended appellant be
released for home visits with twenty-four hour supervision.
Appellant was further examined by Dr. Brian Davis of the
Southwest Montana Mental Health Center in Helena, whose
report, dated August 25, 1981, concurred in the recommendations
of the staff psychiatrists.
A hearing was held before the District Court on January
21, 1982. The District Court entered an order February 23,
1982 finding it could not release appellant from custody
absent proof that there was no potential for harm from the
appellant. The court further found that it had no power to
allow a temporary release from custody.
Appellant claims the District Court applied the wrong
legal standard. Respondent, State of Montana, answers by
agreeing with appellant and asks this Court to reverse the
order entered by the District Court.
The applicable statute is section 46-14-302, MCA, which
provides in pertinent part as follows:
"Discharge or release upon motion of super-
intendent. (1) If the superintendent of
Warm Springs state hospital believes that
a person committed to his custody under 46-
14-301 may be discharged or released on con-
dition without danger to himself or others,
he shall make application for the discharge
or release of the person in a report to the
court by which the person was committed and
shall send a copy of the application and
report to the county attorney of the county
from which the defendant was committed."
Although the statute does not specifically refer to
home visits, we hold that the above-quoted language governs
an application for a home visit. The district courts of
this State have jurisdiction to hear such applications and
make a determination in accordance with the following language
of section 46-14-302, MCA:
"(4) . .
.A hearing is considered a civil
proceeding, and the burden is upon the
committed person to prove by a preponder-
ance of the evidence that he may safely
be discharged or released."
The District Court held that the defendant had the
burden of showing that there was "no potential for harm."
This standard is not the proper legal standard enunciated by
the statute.
Appellant's proof submitted at the hearing included home
visits as part of the therapy program recommended by Warm
Springs State Hospital. The State offered no evidence in
opposition. Appellant satisfied his burden to prove by a
preponderance of the evidence that he could safely be discharged
for home visits.
W r e v e r s e t h e D i s t r i c t C o u r t and remand w i t h d i r e c t i o n s
e
t o e n t e r a n o r d e r g r a n t i n g t h e r e l i e f s o u g h t by a p p e l l a n t .
W e Concur:
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JA
Chief J u 3 t i c e
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