No. 82-137 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

GENE D. LEISCHNER, 

Defendant and Appellant. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Jefferson 

Ilonorable Peter G. Meloy, Judge presiding. 

Counsel of Record : 

For Respondent : 

Nick Rotering, Special Assistant Attorney General, Helena, 

Montana 

John Connor, Deputy County Attorney, Boulder, filontana 

For Appellant: 

Hull and Sherlock; Jeffrey M. Sherlock, Helena, Montana 

Submitted on briefs: August 19, 1982 

Decided: September 10, 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 superintendent. (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 condition 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 preponderance 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. 
We reverse the District Court and remand with directions 

to enter an order granting the relief sought by appellant. 

We Concur: 

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JA ww & 

Chief Ju3tice