95-340

 No. 95-340

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v.

PAUL WOODS, 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

 In and for the County of Jefferson,

 Honorable Frank M. Davis, Judge Presiding.

COUNSEL OF RECORD:

 For Appellant:

 Lonnie J. Olson (argued), Allen Smith, Jr. (argued), and 

 Brenda K. Elias, Montana Advocacy Program, Helena, Montana 

 For Respondent:

 Honorable Joseph P. Mazurek, Attorney General; 

 John Paulson (argued), Assistant Attorney General, Helena, Montana

 Valerie D. Wilson, County Attorney, Boulder, Montana

 Heard: April 11, 1997

 Submitted: April 22, 1997

 Decided: October 9, l997

 

Filed:

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 __________________________________________

 Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

 Paul Woods appeals from an order of the Fifth Judicial District Court, Jefferson

County, denying his petition for release from the Montana State Hospital. We affirm.

 The issue on appeal is whether the District Court properly denied Woods' 

petition

for release from the Montana State Hospital.

 In 1974, a criminal information was filed in the District Court against Woods, 

who

was then thirty-five years old. The information charged Woods with felony sexual

assault, alleging that he had knowingly subjected several young boys to sexual 

contact

without consent by committing fellatio on one of them and by having others pose nude

so that he could photograph them engaging in actual or feigned homosexual activities.

 At his counsel's request, Woods was committed to the Montana State Hospital at

Warm Springs, Montana, for a psychiatric examination. The examining physicians gave

Woods diagnoses of borderline mental retardation and "other sexual deviation," and 

noted

that he had poor judgment and poor impulse control. In their opinion, Woods did not

have the capacity to understand the proceedings against him, and he was not able to 

assist

in his own defense.

 After the State Hospital filed its report, Woods moved for acquittal on the 

criminal

charge against him on grounds of mental disease or defect, pursuant to 95-507 and 

-

508, R.C.M. (1947). The District Court entered judgment acquitting Woods of the

charge against him and committed him to the custody of the superintendent of the

Montana State Hospital.

 Seven years later, the superintendent of the State Hospital petitioned the 

District

Court for Woods' conditional release. The court ordered that Woods be conditionally

released from the State Hospital for up to five years, under a gradual community 

reentry

program. It later ordered that Woods be examined by several professionals, including

Dr. William D. Stratford. Stratford's report affirmed Woods' prior diagnoses of mild

mental retardation and sexual deviancy. Stratford further commented: 

 One of the most alarming things about Mr. Woods is that he can justify his

 pedophilic behavior. He does, with a little coaxing, believe and reiterates

 that this conduct is fine and that there is nothing wrong with it. Regardless

 of whether other people catch him or not, that is their concern but he feels

 perfectly justified in doing what he alleges that their parents also do with

 them. He believes that their parents also take pictures of them in the nude

 and that he is doing nothing more than that.

As a result of his clinical evaluation, Stratford concluded that he "definitely 

would not

support any consideration of community placement or a gradual release system for Mr.

Woods at this time or in the foreseeable future." 

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 Woods continued to live at the State Hospital after Stratford's report was 

filed. 

Several times each year, the court granted motions by members of Woods' family that

he be released to their custody for visits of up to a few weeks at a time.

 In 1994, Woods filed a petition for unconditional release from the State 

Hospital. 

He attached to his petition a 1993 psychiatric evaluation by Dr. Ardean Moore, whose

diagnoses of Woods were pedophilia, in remission; borderline intellectual 

functioning;

and passive-aggressive personality. Moore opined that Woods "does not present a

substantial risk or a serious threat of serious bodily injury or death to himself or 

others." 

Stating that Woods "is not seriously mentally ill and has not shown dangerousness for

some time," Moore recommended that he be considered for discharge.

 The District Court appointed counsel to represent Woods and ordered Dr. Timothy

J. Casey, a Ph.D. psychologist, to conduct a mental examination of him. In his

subsequent report, Casey noted that while Woods had enjoyed a rather open environment

within the State Hospital, questions had been raised about his capacity to function 

within

the community. Casey stated that Woods is in "enormous" denial and "has consistently

denied the presence of any problems and consequently has been resistive to treatment

programs designed to address his needs. . . . Since he denies any problems of a 

sexual

nature, he is unsuitable for a sex offender program." According to Casey, Woods'

enormous denial and rationalization for his behavior are exemplified by his 

statements

that his victims' parents asked him to photograph the children in the nude because 

they

were poor and could not afford a camera. Casey opined that Woods was not a suitable

candidate for conditional release from the State Hospital. 

 The District Court next held a hearing on Woods' petition, at which it admitted

into evidence the reports of Moore and Casey and heard the arguments and recommendations of counsel. At the hearing, the county attorney drew the court's attention to 

a letter

the court had received and placed in the court file in 1994, from Woods' three 

sisters. 

The letter described a 1993 incident in which Woods, on a visit to one of his 

sisters and

her family, told his ten-year-old nephew that "good friends will even take their 

clothes

off, if they are good friends." In the letter, Woods' sisters expressed their 

opposition to

and concern about the consequences of any release of Woods from the State Hospital. 

 The court entered written findings and conclusions setting forth the history of 

the

case. It concluded that Woods continued to suffer from a mental disorder, disease, 

or

defect which caused him to present a substantial risk of serious bodily injury or 

imminent

threat of physical injury to other persons, particularly young children. The court 

denied

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Woods' petition for release.

 Woods appealed to this Court. After briefing had been completed, we remanded

for further proceedings to obtain expert opinions on whether Woods' condition and

behaviors constitute a "mental disease or defect that causes the person to present a

substantial risk of serious bodily injury or death to the person or others . . . or a

substantial risk of substantial property damage," as required for continued 

commitment

under 46-14-302, MCA. 

 At a second evidentiary hearing in June 1996, the District Court heard testimony

by Casey, who had reexamined Woods in January 1996 following this Court's remand

order, and by a clinical psychologist, Dr. Judy Bowman, who was on Woods' treatment

team at the State Hospital. Bowman testified that Woods' treatment team concurred in

the opinion that he continued to suffer from the same mental disease or defect that 

had

caused him to be committed to the State Hospital in the first place. She opined 

that it

would not be appropriate to place Woods in a less restrictive setting until he has 

had

treatment for pedophilia--which has been offered but he has refused--and that he 

presented

a substantial risk of reoffense if he were discharged without treatment. Casey 

testified

that his findings as a result of his examinations of Woods were that there was 

essentially

no change in Woods' condition from 1974 to the present time and, in his opinion, 

Woods

presented a risk of reoffense. 

 Woods presented the testimony of one of his friends, with whom he proposed to

live upon his release from the State Hospital. The friend, who had himself been

diagnosed as a pedophile, offered to share his home in Billings, Montana, with Woods.

 Following the second hearing, the District Court again concluded that Woods

continued to suffer from a mental disease or defect and constituted a substantial and

imminent risk for further sexual offenses. The court denied the petition for 

release from

the State Hospital. The record was then returned to this Court for the resumption 

of this

appeal.

 Discussion

 Did the District Court properly deny Woods' petition for release from the

Montana State Hospital?

 Woods relies upon Foucha v. Louisiana (1992), 504 U.S. 71, 112 S.Ct. 1780, 118

L.Ed.2d 437, in arguing that constitutional due process and equal protection 

guarantees

require the State to prove that he is both mentally ill and dangerous in order for 

his

commitment to stand. He maintains that these requirements were not met.

 In Foucha, Terry Foucha challenged the Louisiana statutes under which he was

committed to a psychiatric hospital after being found not guilty of criminal 

offenses by

reason of insanity. Foucha was diagnosed as having an antisocial personality, an

untreatable condition not classed as a mental disease. He claimed that Louisiana's

statutes denied him due process of law and equal protection, because they allowed a

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person acquitted by reason of insanity to be committed to a mental institution until 

he is

able to demonstrate that he is not dangerous to himself and others, even though he 

does

not suffer from any mental illness.

 The State of Louisiana did not claim that Foucha was mentally ill, but instead

argued for his continued confinement under a statutory provision permitting 

confinement

based upon dangerousness alone. Additionally, the statutory scheme placed the burden

on the defendant to prove that he was not dangerous. In reaching its decision, the

Supreme Court upheld the rule that "the acquittee may be held as long as he is both

mentally ill and dangerous, but no longer." Foucha, 504 U.S. at 77. The Court 

reversed

a lower court order returning Foucha to a mental institution, and held that the 

burden of

proving the grounds of insanity and dangerousness must be upon the State and that 

proof

must be by clear and convincing evidence. Foucha, 504 U.S. at 86. 

 Montana's statutory procedures for cases involving issues of mental disease or

defect of a criminal defendant have been amended since Foucha. Commitment of a

person to the custody of the Department of Public Health and Human Services after a

finding of not guilty by reason of lack of mental state is subject to an annual 

treatment

review. Section 46-14-301(5), MCA. Such a person may be discharged when

 the person no longer suffers from a mental disease or defect that causes the

 person to present a substantial risk of serious bodily injury or death to the

 person or others, a substantial risk of an imminent threat of physical injury

 to the person or others, or a substantial risk of substantial property

 damage[.]

Section 46-14-302(1), MCA. The term "mental disease or defect" does not include an

abnormality manifested only by repeated criminal or other antisocial behavior. 

Section

46-14-101, MCA. 

 Application for discharge or release may be made by the director of the 

institution

to which the person was committed, the director of the Department of Public Health 

and

Human Services, or the person committed. Section 46-14-302(1) and (2), MCA. Upon

application for release, the court must appoint a psychiatrist or licensed clinical

psychologist to examine the person and report as to the person's mental condition. 

Section 46-14-302(3), MCA. The committed person also has the right to secure a

professional person of his choice to examine him and testify on his behalf. Section 

46-

14-302(4), MCA. 

 If the court is not satisfied from the report of the appointed psychiatrist or 

clinical

psychologist that the committed person may be released because he no longer suffers

from a mental disease or defect causing him to present a substantial risk of serious 

bodily

injury or death to himself or others, the court must order a hearing on the issue. 

Section

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46-14-302(6), MCA. The burden is upon the State to prove by clear and convincing

evidence that the person

 may not be safely discharged or released because the person continues to

 suffer from a mental disease or defect that causes the person to present a

 substantial risk of:

 (i) serious bodily injury or death to the person or others;

 (ii) an imminent threat of physical injury to the person or others; or

 (iii) substantial property damage.

 

Section 46-14-302(6)(b), MCA. 

 Woods does not challenge the facial constitutionality of the Montana statutes

concerning commitment of persons found not guilty due to lack of mental state. He 

does

contend, initially, that his right to due process was violated by this Court's 

authorization

of a second hearing in this matter. He contends that the State failed in its burden 

of

proof at the first hearing and should not have been given a second opportunity to 

prove

its case.

 This argument was considered and rejected when this Court denied Woods'

petition for rehearing on this Court's remand order. Under the doctrine of law of 

the

case, a prior decision of this Court resolving a particular issue between the same 

parties

in the same case is binding and cannot be relitigated. State v. Black (1990), 245 

Mont.

39, 44, 798 P.2d 530, 533. We hold that this Court's previous resolution of the 

issue

concerning the second hearing remains binding.

 The dissent nevertheless insists that the second hearing ordered by this Court

represented a denial of Woods' right to due process. This Court has noted that the

fundamental requirements for due process are notice and an opportunity for hearing

appropriate to the case. Matter of Adoption of K.L.J.K. (1986), 224 Mont. 418, 421,

730 P.2d 1135, 1137. These fundamental requirements were satisfied by the 

proceedings

here, including this Court's remand order. Woods was given adequate notice and

opportunity to challenge the State's evidence and present his own evidence 

concerning his

mental condition and dangerousness. The supplemental proceedings herein were an

expansion on the hearing on the petition rather than a second or separate hearing. 

The

remand order afforded due process to Woods by requiring the District Court to 

reconsider

its findings, which were adverse to the application for discharge, on the statutory

requirement of "mental disease or defect" in the light of expert testimony directed

specifically to that issue. 

 Woods' central argument is that the record supports neither a finding that he is

mentally ill nor the finding that he is dangerous, especially by the clear and 

convincing

evidence standard of proof required under Foucha and 46-14-302, MCA. This Court's

standard of review of findings of fact was set forth in Interstate Production Credit 

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v.

DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287: whether substantial evidence

supports the findings, whether the district court misapprehended the effect of the

evidence, and whether this Court has a definite and firm conviction that the trial 

court

made a mistake. 

 First, we consider whether the District Court erred in determining that the 

State

had presented clear and convincing evidence that Woods suffered from a mental disease

or defect. As Woods points out, the experts agree that he is not and has never been

seriously mentally ill. However, the question under 46-14-302, MCA, is not whether

Woods is seriously mentally ill, but whether he suffers from a mental disease or 

defect

that causes him to present a substantial risk of (1) serious bodily injury or death 

to

himself or others, (2) an imminent threat of physical injury to himself or others, 

or (3)

substantial property damage. 

 The absence of a constitutional requirement that a person confined be found

"mentally ill," per se, has recently been clarified by the United States Supreme 

Court in

Kansas v. Hendricks (1997), ___ U.S. ___, 117 S.Ct. 2072, 138 L.Ed.2d 501. In

Hendricks, the Court ruled that the Kansas Sexually Violent Predator Act (Kansas 

Act),

Kan. Stat. Ann. 59-29a01 et seq. (1994), comports with due process requirements and

neither runs afoul of double jeopardy principles nor constitutes impermissible ex 

post

facto lawmaking. The Kansas Act establishes a civil commitment procedure for the 

longterm care and treatment of sexually violent predators, "[a] small but extremely 

dangerous

group" who do not have a mental disease or defect that renders them appropriate for

involuntary treatment pursuant to general involuntary civil commitment statutes, but 

who

generally have antisocial personality features which are unamenable to existing 

mental

illness treatment and render them likely to engage in sexually violent behavior. 

Hendricks, a repeat-offender pedophile, has rejected treatment for his condition on 

the

grounds that "treatment is bull----." Upon his release from prison, Hendricks was 

civilly

committed to the custody of the Kansas Secretary of Social and Rehabilitation 

Services

as a sexually violent predator.

 The Supreme Court noted that the States have always provided, in certain narrow

circumstances, for the forcible civil detainment of persons who are unable to 

control their

behavior and who therefore pose a danger to the public health and safety. The Court

explained that its earlier cases, including Foucha, have not required States to 

adopt any

particular nomenclature in drafting civil commitment statutes. It noted that legal

definitions of words such as "insanity" and "competency" often vary from their

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psychiatric counterparts. "We have sustained civil commitment statutes when they 

have

coupled proof of dangerousness with the proof of some additional factor, such as a

'mental illness' or 'mental abnormality.'" Hendricks, 117 S.Ct. at 2080. The Court 

went

on to rule that "Hendricks' diagnosis as a pedophile, which qualifies as a 'mental

abnormality' under the Act, thus plainly suffices for due process purposes." 

Hendricks,

117 S.Ct. at 2081.

 Additionally, the fact that a mental condition is in remission does not 

preclude a

finding that the person continues to suffer from the condition and is in need of 

further

detention. In State v. Korell (1986), 222 Mont. 112, 116, 720 P.2d 688, 691, this 

Court

suggested that a mental illness in remission remains a mental illness for purposes of

further detention at the State Hospital. That view is in accord with the position 

taken in

other jurisdictions. See Mental Hygiene Legal Services v. Rhodes (N.Y. App. Div.

1994), 606 N.Y.S.2d 834; Bahrenfus v. PSRB (Or. Ct. App. 1993), 862 P.2d 553; State

v. Ross (Mo. Ct. App. 1990), 795 S.W.2d 648. In fact, a finding that a mental 

condition

is in remission supports an inference that it still exists.

 The term remission means the abatement of the symptoms and signs

 of a disorder or disease. The abatement may be partial or complete. 

 Physicians use the expression remission to denote amelioration, which even

 if complete for the time being, does not necessarily imply permanent cure;

 in fact, the term carries the idea that the amelioration of the symptoms is

 temporary.

Doe v. Harris (D.C.N.Y. 1980), 495 F.Supp. 1161, 1170 n.36, quoting L. Hinsie & R.

J. Campbell, Psychiatric Dictionary 641 (Oxford Univ. Press, N.Y. 1960).

 The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSMIV) describes pedophilia as a mental disorder. See Diagnostic Code 302.2, American

Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 

Fourth

Edition, Washington, D.C., American Psychiatric Association, 1994. Woods argues that

pedophilia is excluded from the definition of mental disease or defect under 46-14-

101,

MCA, however, because it is manifested only by criminal acts or behaviors. According

to the DSM-IV, though, the diagnostic criteria for pedophilia include recurrent, 

intense,

sexually arousing fantasies, sexual urges, or behaviors over a period of six months

involving sexual activity with a prepubescent child or children which cause 

clinically

significant distress or impairment in social, occupational, or other important areas 

of

functioning. These diagnostic criteria do not support a conclusion that pedophilia 

is

solely manifested by criminal acts or behaviors, because the diagnostic criteria 

include

manifestations which are not criminal in nature.

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 In the present case, all of the expert witnesses agreed on the diagnosis of 

Woods

as a pedophile, whether "in remission" or not. It is uncontested that Woods' 

pedophilia

has not been treated because he has refused to participate in treatment. The 

District

Court found that Woods' condition remained unchanged from the time of his placement

at the State Hospital. In its conclusions of law, the court further referred to its 

"[f]inding

the Defendant still suffers from a mental disease or defect within the context of 

46-14-

302, MCA . . . ." We hold that these findings are supported by clear and convincing

evidence and are not clearly erroneous.

 We next consider whether the State presented clear and convincing evidence of

Woods' dangerousness, or, in the words of the applicable subsection of the statute, 

that

he presents a substantial risk or serious threat of serious bodily injury to 

others. Woods

cites Moore's opinion that he does not present a substantial risk or a serious 

threat of

serious bodily injury or death to himself or others. He points out that the 

District Court

did not make a finding concerning Moore's opinion. Referring to the letter in the 

court's

file from his sisters, Woods contends that "[a] single reported incident of 

inappropriate

verbal conduct over the years of conditional releases for home visits does not 

provide the

clear and convincing evidence necessary to sustain a finding of dangerousness." 

 Casey testified at the second hearing that, "In my opinion, that pedophilia is 

in

remission because of the structure and the restrictions that the environment at the 

State

Hospital impose on him." In other words, Woods has had very little opportunity to

reoffend within the confines of the State Hospital or under the watchful eyes of his 

family

while on visits with them. Both Casey and Bowman testified that, in the absence of

treatment for pedophilia, which Woods has refused, it is probable that he will 

reoffend

against children if the opportunity arises. 

 The District Court noted that Woods' pedophilia had never been treated because

of his continued denial. The court found: 

 It was the opinion of the professionals at the previous hearing and

 now, that given the untreated pedophilia, [and] lack of impulse control; an

 unconditional release would result in an imminent and substantial risk of re-

 offending.

The court stated that "[t]he Defendant's refusal of treatment for pedophilia renders 

him

a substantial risk for committing other sexual offenses, particularly to children." 

 Does the risk that Woods will reoffend against children constitute a 

substantial risk

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of an imminent threat of physical injury to others? While physical injury is not 

defined

in the statutes, it equates in the common parlance to "bodily injury," which, 

pursuant to

 45-2-101(5), MCA, includes physical pain and mental illness or impairment. 

 Casey wrote in his report to the District Court that Woods poses a risk of

"psychological injury to young males." In her letter addendum to her report to the 

court,

Bowman stated that, untreated for pedophilia, Woods presents "a substantial risk of

imminent threat of physical injury or emotional injury to others." We conclude that 

the

court's finding that unconditional release would result in an imminent and 

substantial risk

of reoffending constitutes a finding that Woods presents a substantial risk of an 

imminent

threat of physical injury to others, that this finding is supported by clear and 

convincing

evidence, and that this finding is not clearly erroneous. 

 In summary, the District Court's findings that Woods has a mental disorder or

defect which causes him to present a substantial risk of imminent threat of bodily 

injury

to other persons, particularly young children, are supported by clear and convincing

evidence and are not clearly erroneous. Woods has not established violation of his 

right

to due process. The court's order denying Woods an unconditional release from the 

State

Hospital is therefore affirmed. 

 /S/ J. A. TURNAGE

We concur: 

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ KARLA M. GRAY

Justice Terry N. Trieweiler dissenting.

 I dissent from the majority opinion.

 In 1974, Paul Woods was acquitted of the charge against him by reason of mental

disease or defect and committed to the Montana State Hospital. Section 46-14-303,

MCA, provides that a committed person may apply to the district court for release, 

and

that if he does so, the procedure to be followed is that which is set forth at 46-

14-302,

MCA.

 Section 46-14-302, MCA, provides that after an application for release is made,

the court shall appoint at least one person, who is a psychiatrist or psychologist, 

to

examine the person who applies for release and the committed person has a right to an

evaluation by a similarly qualified person of his or her choice. If the court is 

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satisfied

from the reports that the applicant no longer suffers from a mental disease or 

defect that

causes that person to present a substantial risk of bodily injury, the court shall 

order the

person's discharge. If it is not so satisfied, it must hold a hearing at which the 

State has

the burden of proving by clear and convincing evidence

whether the person may safely be discharged or released on the grounds

that the person no longer suffers from a mental disease or defect that causes

the person to present a substantial risk of:

 (i) serious bodily injury or death to the person or others;

 (ii) an imminent threat of physical injury to the person or others; or

 (iii) substantial property damage.

Section 46-14-302(6)(a), MCA.

 Woods applied for release on December 22, 1994. In support of his application,

he attached the report from Ardean Moore, the staff psychiatrist at Montana State

Hospital at Warm Springs. The report is dated December 2, 1993. In the report, she

observed that:

Although he uses denial regarding his sexual offenses, he has remained in

control of his impulses and has not demonstrated any serious behavioral

problems or lapses in judgment and has been able to participate adequately

in his treatment plan.

Moore diagnosed "Pedophilia, in Remission" and concluded that:

He does not present a substantial risk or serious threat of serious bodily

injury or death to himself or others. He does not present a substantial risk

of substantial property damage.

Recommendations: Since Mr. Woods is not seriously mentally ill and has

not shown dangerousness for some time, he qualifies for consideration for

discharge. At the time of his mental status assessment in October, 1993,

he appeared stable and appeared to have reached maximum hospital benefits

from a lengthy hospitalization.

 The District Court appointed Timothy J. Casey, Ph.D., to evaluate Woods. He

did so and issued a report to the court dated January 18, 1995. Dr. Casey also 

diagnosed

pedophilia in remission, but concluded that Woods was not a suitable candidate for

release from the hospital because he had no support system within the community. 

Significantly, however, neither did he make any finding that Woods suffered from a

mental disease or defect which caused him to present a substantial risk of harm to 

himself

or others. 

 Remission is defined in the 25th Edition of Dorland's Illustrated Medical

Dictionary as "a diminution or abatement of the symptoms of a disease; also the 

period

during which such diminution occurs." Dorland's Illustrated Medical Dictionary 1343

(25th ed. 1974).

 The District Court held a hearing to consider Woods' application for release on

February 17, 1995. The only medical evidence presented was the aforementioned 

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reports

from Moore and Casey. In spite of this lack of evidence, the District Court found 

that:

 13. Woods' mental disorder(s), disease(s) or defect(s) cause him

to present a substantial risk of serious bodily injury, or an imminent threat

of physical injury to other persons, particularly young children. 

For that reason, the District Court denied Woods' application for release from the

Montana State Hospital.

 Woods appealed the District Court's denial of his application to this Court for 

the

reason that the District Court's critical finding was unsupported by substantial 

evidence

and, therefore, was clearly erroneous. This Court, after review of the record, 

apparently

agreed. On December 12, 1995, the majority issued an order in which it retained

jurisdiction but remanded to the District Court for further proceedings. In that 

order, the

majority concluded as follows:

 We conclude that neither report addresses the fundamental requirement of 46-14-302, MCA (1993), that the defendant "no longer suffer[s]

from a mental disease or defect," and that, accordingly, the District Court

was without any factual or legal basis on which to determine whether the

requirements of this statute had been met.

 . . . .

 . . . [N]either professional person has rendered an opinion on the

fundamental requirement of the statute at issue--whether Woods suffers

from a mental disease or defect in the context of 46-14-302, MCA

(1993). Under such circumstances, we conclude that the District Court was

in no position to determine whether the requirements of 46-14-302, MCA

(1993), were met.

 As pointed out by Woods, the statutory framework for consideration of his

application for release does not provide for sequential hearings. It provides, in 

46-14-

302, MCA, that he is entitled to a hearing at which the State has the burden of 

proving

that he suffers from a mental disease or defect which makes him dangerous to himself 

or

others. If the State does not carry its burden, he is entitled to be released. 

Section 46-

14-302(6)(b), MCA, clearly provides:

 A hearing is considered a civil proceeding, and the burden is upon

 the state to prove by clear and convincing evidence that the person may not

 be safely discharged or released because the person continues to suffer from

 a mental disease or defect that causes the person to present a substantial risk

 of: 

 (i) serious bodily injury or death to the person or others;

 (ii) an imminent threat of physical injury to the person or others; or

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 (iii) substantial property damage. 

(Emphasis added.) 

 The State had the opportunity to meet its burden on February 17, 1995, but 

failed

to do so. This Court agreed that the State failed to do so and, accordingly, 

decided the

merits of Woods' appeal by its order dated December 12, 1995. There is no precedent

in a case where the issue is whether the district court's judgment is supported by

substantial evidence for concluding that it is not and then simply remanding to the 

district

court while retaining jurisdiction so that the unsuccessful party can take another 

shot at

it.

 I agree with the majority that principles of res judicata and law of the case 

should

apply to our decision. See State v. Smith (1993), 261 Mont. 419, 863 P.2d 1000; 

State

v. Black (1990), 245 Mont. 39, 798 P.2d 530; State v. Van Dyken (1990), 242 Mont.

415, 791 P.2d 1350. However, I disagree with the majority's determination of what 

the

law of the case is. I conclude that the law of the case is the majority's decision 

on

December 12, 1995, that the State had not proven by clear and convincing evidence 

that

Woods suffered from a mental disease or defect which made him a danger to himself or

others. 

 Although there is no precedent for the procedure followed by the majority in 

this

case, the real danger is that this case becomes precedent for any party who similarly

needs a second shot at proving his or her case in the future. 

 Just think about it. Based on this decision, in every appeal where the losing 

party

raises insufficiency of the evidence as the basis for appeal, and where that 

argument has

merit, if this Court does not like the result, the prevailing party should have the

opportunity to present additional evidence at a hearing following remand before we 

make

a final decision regarding the merits of the appeal. No one is guaranteed finality

following any trial. The rules regarding burden of proof are meaningless and there 

is no

end to the possible mischief a result-oriented supreme court could accomplish by this

procedure.

 Finally, 46-14-302(6)(c), MCA, provides that the court discharge or release 

the

committed person "on conditions that the court determine[s] to be necessary or must 

be

recommitted to the custody of the director of the department of public health and 

human

services." In other words, if the District Court determined that the State had not 

proven

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by clear and convincing evidence that the committed person presents a substantial 

risk of

serious bodily injury or death to himself or others, but had concerns about his 

adjustment

to society, the District Court could have imposed conditions to the release, 

requiring that

Woods be monitored, treated, or supervised to assure the public that further problems

will not occur. 

 For these reasons, I conclude that the State failed to meet its burden at the 

original

hearing held on February 17, 1995. The District Court was clearly erroneous when it

found otherwise. The majority erred by remanding this case to the District Court to 

give

the State a second opportunity to prove what it had not proven at the original 

hearing, and

the majority's prior decision that the State had failed to meet its burden of proof 

is the

law of this case. There is no precedent nor procedural authority for remanding for

additional evidence and for entering a contrary decision based on that additional 

evidence.

 I dissent from the majority opinion.

 /S/ TERRY N. TRIEWEILER

Justices William E. Hunt, Sr., and Jim Regnier join in the foregoing dissenting 

opinion.

 /S/ JIM REGNIER 

 /S/ WILLIAM E. HUNT, SR.

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