author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF JACQUELINE LEE NALIVKA, Petitioner and Appellant, and JOHN PETER NALIVKA, Respondent and Respondent.
    No. 85-476.
    Submitted on Briefs March 28, 1986.
    Decided June 12, 1986.
    720 P.2d 683.

      James, Gray & McCafferty, Brian Bulger, Great Falls, for petitioner and appellant.
    Morrison, Barron & Young, Robert D. Morrison, Havre, for respondent and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal by the wife from an order of custody made by the District Court of the Twelfth Judicial District, Hill County, the Honorable Chan Ettien presiding. We affirm.

Jacqueline Nalivka (“wife”) and John Nalivka (“husband”) were married in 1978 in Havre, Montana. Two children were born of the marriage, namely Roman and Suzanne who were five years of age and three years of age, respectively, at the time of trial. Wife also had a minor child from a previous marriage named Jennifer. No attempt was ever made by husband to adopt Jennifer and therefore husband has no standing concerning her custody.

At the time of trial, wife was 26 years of age and had resided in Havre for ten years. She was a homemaker and was attending Northern Montana College on a full-time basis in pursuit of a degree in special education. Currently, wife is residing in Billings, Montana, in order to complete her work toward a degree in special education.

At the time of trial, husband was 30 years of age and a partner in a family owned business named “Pizza and Catering Kitchen” in Havre. Husband has resided in Havre his entire life.

After wife filed her petition for dissolution in January of 1984 and husband thereafter responded, trial of this matter was held in April of 1985. The parties had previously agreed to a division of their marital property and also neither party requested maintenance, so these issues were not in dispute during trial. Also husband agreed to pay wife her requested child support if she were awarded custody of the children. Therefore, the principal issue to be decided by the trial court was the matter of custody regarding Roman and Suzanne.

In July of 1985, the trial court issued its findings of fact, conclusions of law, and decree which dissolved the marriage of the parties and ordered in part the following:

1. Husband shall have legal custody of the children (Roman and Suzanne) at all times, and their physical custody from August 24 to June 7 of each calendar year.

2. Wife shall have extended visitation and physical custody of the children from June 7 to August 23 of each calendar year.

3. While husband and wife are within a fifty-mile radius of each other, each non-custodial parent shall have the privilege of visitation on alternating weekends, with each non-custodial parent being responsible for picking the children up and returning them to the custodial parent.

4. Nothing herein shall limit agreed visitation periods.

5. Wife shall pay her own attorney’s fees.

In light of the above trial court order, wife now presents the following issues for review:

1. Was the trial court’s rejection without explanation of joint custody as requested by both parties error?

2. Did the trial court err in refusing to make findings concerning the interrelationship of all the children as mandated by Section 40-4-212(3), MCA?

3. Was the grant of sole custody to husband in the children's best interests?

4. Is the fifty-mile radius limitation imposed by the trial court reasonable and in the best interests of the children?

5. Did the trial court err in refusing to order husband to pay wife’s attorney’s fees?

Custody

The first three issues presented by wife may be discussed together.

Wife points out at the beginning of trial she put the court on notice that she would not object to an award of joint custody regarding Roman and Suzanne. Further, wife notes that both parties requested joint custody in their proposed findings of fact. Wife also asserts that the parties’ request for joint custody triggered the provisions of Section 40-4-224, MCA (1983), which states in pertinent part:

“(1) Upon application of either parent or both parents for joint custody, the court shall consider whether or not joint custody is in the best interests of a minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.”

Wife now argues a close reading of the trial court’s findings of fact and conclusions of law does not contain any indication of why the parties’ request for joint custody was rejected. Wife points out this type of omission by the trial court has been held to constitute reversible error. See, Murphy v. Murphy (Mont. 1983), [205 Mont. 162,] 666 P.2d 755, 40 St.Rep. 1188. Therefore, wife argues, because the trial court’s finding and conclusions do not comply with Section 40-4-224, MCA (1983), the custody award must be vacated and this cause remanded for further proceedings. We disagree.

The trial court made it clear at the outset of trial that although joint custody had been requested by both parties, it would make its determination of custody based only upon what was in the best interests of the children: “Of course, you understand that the court must award in the best interests of the children even if there is an agreement.”

Judge Ettien went on in his decision to make numerous and specific findings which clearly reflected why it would not be in the best interests of the children to be placed in the joint custody of the parties.

1. Wife is chronically dirty and slovenly in the care of her house and her children. She has not made even a pretense of maintaining a semblance of cleanliness and order in her home during the pendency of this action.

2. The complete lack of sanitation in her housekeeping and child care, and her indifference in serving nourishing food to the children are a threat to their health, and an invitation to the children to adopt similar habits.

3. The above is in contrast to her own meticulous dress and grooming when she is pursuing her outside interests.

4. Wife, for now and the foreseeable future, is more interested in obtaining her personal ends. This coupled with her lack of interest in housekeeping and child care, will not provide the children with a homelife which they need now and in the foreseeable future.

5. Husband appears significantly more interested and dedicated to the welfare of the children. While it is recognized both parents love their children and want the best for them, husband’s actions show a far deeper concern for the good of the children than those of wife.

6. It is not in the best interests of the children to be in joint custody of the parties, but in the custodial care of the husband subject to visitation privileges in the parents as set forth herein.

In light of these findings, we hold the trial court adequately followed the requirements of Section 40-4-224, MCA (1983), in stating why it rejected the parties’ request for an award of joint custody.

We further hold the trial court correctly followed the applicable law in making its award of legal custody to husband. As wife correctly points out, an award of custody is to be determined in accordance with the best interests of the children. In determining custody in accordance with these interests, the trial court is statutorily required to consider a number of factors pursuant to Section 40-4-212, MCA.

“The court shall determine the custody in accordance with the best interest of the child. The court shall consider all relevant factors including: (1) the wishes of the child’s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelation of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest; (4) the child’s adjustment to his home, school, and community; and (5) the mental and physical health of all individuals involved.”

Wife now argues the trial court error in not making specific findings which addressed the requirements listed in Section 40-4-212, especially with regard to Subsection (3). We note that although the trial court did not specifically discuss the factors set out in Section 40-4-212, it did make numerous findings which generally satisfied the statute. This Court has stated that a trial court’s findings need not be in any particular form if there is substantial credible evidence to support the trial judge’s judgment on the merits. See, In Re Marriage of Baron (1978), 177 Mont. 161, 580 P.2d 936. Although this Court would prefer a trial court to specifically address the factors listed in Section 40-4-212 in its findings, failure to do so is not always fatal.

In the present case, Judge Ettien made numerous findings which basically addressed the factors set out in Section 40-4-212. These findings were also supported by substantial credible evidence in the record. Specifically, with regard to Subsection (3) (the interaction and interrelationship of the children with others), Judge Ettien found that wife was more interested in satisfying her own personal needs, and this coupled with her lack of interest in housekeeping and child care, would not provide the children with a homelife which they needed now and in the foreseeable future. Also, Judge Ettien noted that husband had a deeper concern for the good of the children than did wife.

We hold that although the trial court did not specifically discuss the guidelines contained in Section 40-4-212, it did adequately consider these items in making its award of custody to husband.

We further note that after reviewing the record in this case, there are several factors that point favorably toward wife in determining custody of the children. However, we note it is not a question of the particular fitness of either parent, but rather what is in the best interests of the children. As this Court has stated:

“The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his decision ought not to be disturbed except on a clear showing of abuse of discretion. [Citing cases.]”

In Re Marriage of Obergfell (Mont. 1985), [218 Mont. 83,] 708 P.2d 561, 563, 42 St.Rep. 1414, 1417.

We hold the trial court did not abuse its discretion in awarding husband custody of the children.

Visitation

Under the fourth issue, wife notes the trial court chose to limit the parties’ weekend visitation rights to only those times when the parties might live within a fifty-mile radius of each other. Wife now argues neither parties’ visitation rights (especially hers) should be so limited without a compelling reason being stated by the trial court in its decision.

In its findings and conclusions (as stated earlier), the trial court ordered the following:

1. While husband and wife are within a fifty-mile radius of each other, each non-custodial parent shall have the privilege of visitation on alternating weekends, with each non-custodial parent being responsible for picking the children up and returning them to the custodial parent.

2. Nothing herein shall limit agreed visitation periods.

We find the above fifty-mile radius limitation imposed by the trial court to be both reasonable and also in the best interests of the children. Although the trial court did not specifically state the reasons why it imposed such a limitation, its purpose seems clear. As indicated in the facts section of this opinion, wife is currently living in Billings while completing her degree in special education. The trial court realized that allowing alternating weekend visitation with the non-custodial parent would be a hardship on the children (not to mention the parents) if the children had to travel continuously between Billings and Havre. The trial court appears to have balanced the benefit of having the children visit their non-custodial parent every other weekend with the risk and inconvenience of having the children travel frequently between Billings and Havre. We agree with the trial court that a fifty-mile visitation restriction is not unreasonable and also appears to be in the best interests of the children.

It is also important to note that the trial court concluded and ordered that nothing in its decision should be construed so as to limit agreed visitation periods between the parties. By this statement the trial court left open to the parties any visitation arrangements they might agree upon between themselves. Such an opportunity takes away the apparent harshness of the fifty-mile radius limitation, and appears to give wife (and husband) ample opportunity to visit the children. Further, the parties gave every indication during trial that liberal visitation arrangements would not be a problem between them in the future.

Therefore, the fifty-mile radius limitation imposed by the trial court is not an abuse of its discretion.

Attorney’s Fees

Under the last issue, wife contends the trial court erred in refusing to order husband to pay her attorney’s fees. We disagree.

As both parties are well aware, the awarding of attorney’s fees are governed by Section 40-4-110, MCA. This Court has repeatedly said that the awarding of attorney’s fees is clearly permissive under this statute. Marriage of Obergfell, 708 P.2d at 564.

Wife further correctly points out this Court has stated in the past that when a trial court refuses to award attorney’s fees under Section 40-4-110, it must indicate its reasons for refusing to grant such fees. See, In Re Marriage of Gauthier (1982), 201 Mont. 320, 654 P.2d 517. In the instant case, the trial court refused to award wife her attorney’s fees and did not indicate any specific reasons for such a denial. In the past, this lack of specificity by the trial court would have constituted remandable error, but this is not always true today. This Court has very recently adopted a new standard for reviewing a trial court’s decision not to award attorney’s fees under Section 40-4-110.

“This Court has also stated in the past ‘that when the District Court refuses to award attorney’s fees, it must indicate in the findings of fact, conclusions of law, or order why such fees were not awarded.’ See, Lewis v. Lewis (1982), 198 Mont. 51, 55, 643 P.2d 604, 606, and cases cited therein. Failure to set forth the specific reasons for denial of attorney’s fees, we stated in these earlier cases, constituted remandable error.

“We now hold the rule expressed in the Lewis opinion, and earlier opinions, to be revised. Such a rule is much too harsh to be applied on a general basis. We hold a more appropriate standard for reviewing a District Court's decision not to award attorney's fees under Section 40-4-110 is whether the court abused its discretion in refusing to award such fees. Such a standard is more in line with this Court’s other standards of review regarding dissolution actions, and also is more in line with Section 40-4-110.”

In Re the Marriage of Gallinger and Weissman (Mont.1986), [221 Mont. 463, 719 P.2d 777, 782-783, 43 St.Rep. 976.

In the instant case, we hold the trial court did not abuse its discretion in refusing to award wife her attorney’s fees. The record indicates the court was well aware of the financial resources of both parties as required by Section 40-4-110. After considering this information, the court concluded that neither party was entitled to be awarded attorney's fees. Although wife clearly is not in as strong a financial position as husband, the record indicates she still has sufficient financial means to be responsible for her own attorney’s fees.

The judgment of the District Court is affirmed in all respects.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, SHEEHY and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN F. LANCE, Defendant and Appellant.
    No. 85-372.
    Submitted on Briefs Jan. 17, 1986.
    Decided June 17, 1986.
    Rehearing Denied July 10, 1986.
    721 P.2d 1258.

      John F. Lance, pro se.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

After a jury trial in the District Court of the Fourth Judicial District, appellant, John Fesler Lance, was convicted of violating Section 45-5-203(1)(b), MCA (1983) which provides:

“A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:

“(b) subject any person to physical confinement or restraint.” On appeal, Lance contends that this statute is an unconstitutional violation of the First Amendment, and he claims that several other errors occurred in the lower court which require reversal of his conviction. Since we uphold the constitutionality of the Montana intimidation statute and find no merit in the other issues raised, the judgment of conviction is affirmed.

The events leading up to Lance’s arrest and conviction began over seven years ago when he was served with a petition for divorce. Lance chose to represent himself in those proceedings, as he does in this case. When the decree of dissolution was granted, Lance lost custody of his children and a substantial amount of marital property. Sometime later, he lost possession of his very valuable ranch in Florence, Montana. From that point to the present, Lance has carried on a one-man crusade to recover his ranch, custody of his children and alleged substantial damages he has sustained in the process. Numerous lawsuits have been filed by Lance in the state and federal courts in an effort to obtain these things; however, he has been met with constant defeat and dismissal of many of his actions. This lack of success has convinced Lance that there is a colossal conspiracy against him by most of the judiciary and attorneys in Montana. It is Lance’s quest for final justice and his obvious frustration over his losses which has ultimately led to the conviction at issue in this case.

Five separate letters written and mailed by Lance form the basis for his arrest and conviction. These letters were dated July 17, 1984, August 15, 1984, September 3, September 8, and September 13, 1984, and were sent to Nate Denman, Judge Michael Keedy, Tom Wing, and Judge Jack Green respectively. Basically, Lance stated in the letters that if his remaining lawsuits are dismissed, he will take a hostage for the purpose of focusing nationwide media attention on his plight and for the purpose of negotiating to obtain the return of his ranch and his children, and for the damages he has sustained. Nate Denman was particularly alarmed by the letters he received, and he sent relevant excerpts of them to the Director of the Montana State Hospital at Warm Springs who, in turn, sent the excerpts to the County Attorney in Hamilton, Montana. Subsequently, on September 19,1984, the Missoula County Attorney filed an Information charging Lance with the offense of intimidation.

Lance was arrested on September 20, and bail was initially set at $500,000. However, one week later bail was reduced by the District Court to $50,000, and on November 8, Lance was released on his own recognizance. During this time, Lance brought an application for writ of habeas corpus alleging that Section 45-5-203, MCA, was unconstitutional on its face and as applied. On November 1, 1984, the District Court issued an opinion upholding the constitutionality of that statute and denying the application for the writ. On December 6, the court accepted the State’s motion to file an amended information. Trial was set for January 28, 1985 and on January 30 the jury found Lance guilty of intimidation. Lance conducted his own defense at trial and continues his pro se status on appeal.

Appellant has raised numerous issues, both formally and informally, in his lengthy brief. The precise issues raised were difficult to discern in view of the fact that they were intertwined with rambling attacks on the judiciary and attorneys of Montana, in addition to allegations of a massive conspiracy designed to prevent him from recovering what he lost in the divorce seven years ago. Nevertheless, we believe that there are six issues which are legitimately raised:

(1) Does Section 45-5-203(l)(b), MCA (1983), violate the First Amendment because it is overbroad or because it is unconstitutional as applied?

(2) Was reversible error created by the fact that bail was originally set at $500,000 but was reduced to $50,000 one week later, in light of the fact that appellant was released on his own recognizance six weeks later?

(3) Was appellant denied his constitutional right of access to the courts during his six week pre-trial confinement by being denied access to a substantial legal library and by the failure of his court appointed counsel to comply with every request he made?

(4) Was reversible error created when the prosecutor obtained juror affidavits before a mistrial hearing was held which was based on alleged witness misconduct occurring at the trial without first acquiring the court’s permission to do so?

(5) Did the trial court abuse its discretion by accepting the second amended information?

(6) Did the trial court abuse its discretion by failing to allow appellant a continuance so he could file proposed jury instructions, which resulted in proposed jury instructions being filed only by the prosecution?

Another issue raised by appéllant involves his allegations of conspiracy and corruption within the legal community in Montana. Since this issue is totally irrelevant to his appeal and consists largely of groundless speculation, we do not consider it in our decision.

I

Since appellant’s first issue requires us to construe Montana’s intimidation statute with the commands of the First Amendment in mind, and because there may be some doubt as to its constitutionality after the federal court decision in Wurtz v. Risley (9th Cir. 1983), 719 F.2d 1438, we will discuss this issue in some detail.

A.

Appellant first contends that Section 45-5-203 is unconstitutional on its face because it is overbroad. This statute is particularly susceptible to an overbreadth attack because it makes criminal a form of pure speech. Subsection (b) imposes criminal liability when a person “communicates to another a threat” to subject any person to physical confinement or restraint without lawful authority and with the purpose of causing another to perform or omit the performance of any act. Thus, the heart of the offense is communication. No overt act or conduct of any kind is required. Although the statute requires the communication of a threat to take some specific act coupled with a criminal state of mind, the offense is complete upon the communication of the threat. Only words are punished by the statute. Therefore, it can withstand appellant’s attack upon its constitutionality only if it does not apply to speech that is protected by the First Amendment. Gooding v. Wilson (1972), 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.

The doctrine of overbreadth in the area of First Amendment freedom of speech is an exception to the normal rules of standing. This doctrine allows appellant to raise an objection to Section 45-5-203 on First Amendment grounds even though the statute would have been constitutional as applied to his particular case. “It matters not that the words [appellant] used might have been constitutionally prohibited under a narrowly and precisely drawn statute.” Gooding, 405 U.S. at 520, 92 S.Ct. at 1105. “[A]n individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Brockett v. Spokane Arcades, Inc. (1985),_ U.S _, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394, 405-406. Thus, the statute may be unconstitutional on its face even though it would be constitutional as applied to appellant.

Section 45-5-203(l)(c) has been declared unconstitutional by the Ninth Circuit in Wurü2 on grounds of overbreadth. Appellant contends that Wurtz controls the decision in this case. We disagree with this view for two reasons.

First, only Subsection (c) was at issue in Wurtz, and the court considered the overbreadth challenge solely with regard to that subsection. The court did not declare the entire intimidation statute to be unconstitutional; rather, it held only Section 45-5-203(l)(c) to be unconstitutional. It is an elementary principle of constitutional law that “the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.” Brockett, 105 S.Ct. at 2801, quoting from Allen v. La. (1881), 103 U.S. 80, 83-84, 13 Otto 80, 26 L.Ed. 318.

We view the separate subsections of the statute as completely independent of each other. It was the legislature’s purpose to impose criminal sanctions on individuals who threaten to commit certain specific acts. Simply because threats to “commit any criminal offense” were held to be unconstitutional does not mean that the legislature would not want to continue punishing threats to “subject any person to physical confinement or restraint.” One prohibition in the statute does not hinge on another. Therefore, the decision in Wurtz declaring subsection (c) to be unconstitutional does not state the applicable law in this case.

Secondly, Wurtz is not controlling here because it was decided without the benefit of recent United States Supreme Court cases clarifying the analysis to be applied in determining whether a statute is overbroad. Broadrick v. Oklahoma (1973), 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830, 842, established that where speech is combined with conduct, “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” (Emphasis added.) There was some question after Broadrick whether substantiality was applicable where pure speech was involved. However, that question was answered in New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113.

The statute at issue in Ferber prohibited distribution of child pornography. Admittedly, only speech was involved, and the question left unanswered in Broadrick was directly presented. The Court held:

“This case, which poses the question squarely, convinces us that the rationale of Broadrick is sound and should be applied in the present context ....

“The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression.”

Ferber, 458 U.S. at 771, 102 S.Ct. at 3362.

The Court reiterated in Brockett that the substantial overbreadth doctrine applies to pure speech. In footnote 12, the Court stated: “The Court of Appeals erred in holding that the Broadrick substantial overbreadth requirement is inapplicable where pure speech rather than conduct is at issue. New York v. Ferber (Cite omitted.) specifically held to the contrary.” Brockett, 105 S.Ct. at 2802.

Applying the foregoing principles to the present case, we hold that Section 45-5-203(1)(b) is not substantially overbroad. It prohibits threats to subject any person to physical confinement or restraint without lawful authority with the purpose of causing another to perform or omit the performance of any act. Although the statute uses the words “physical confinement or restraint,” we construe the word “restraint” to mean a “physical” restraint. The statute does not punish any threat to subject another to some form of mental or psychological restraint. Only threats to subject another to a physical confinement or a physical restraint are punishable. Clearly the State has a legitimate and considerable interest in preventing persons from threatening to take a hostage or impose some other unlawful physical restraint on another for the sole purpose of attaining some end. Appellant has not identified, and we are unable to find, any situations where a person would be constitutionally permitted to make such a threat. Although it might be possible that some rare situations will arise in the future where a person could constitutionally threaten to take a hostage to accomplish some end, those possible unconstitutional applications of the statute are not sufficient to invalidate it on its face. As Ferber said, quoting from Parker v. Levy (1974), 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439:

“This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the “remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . .” (Citation omitted.)

Ferber, 458 U.S. at 770, Fn. 25, 102 S.Ct. at 3362, Fn. 25.

Therefore, since appellant has been unable to identify any substantial applications of the statute to constitutionally protected speech and has not shown how the statute impacts differently on third parties not before the Court, his claim that the statute is unconstitutionally overbroad must fail.

B

We now proceed to determine whether Section 45-5-203(1)(b) is unconstitutional as applied to appellant. We note at the outset that the statute carries a heavy burden since it seeks to prohibit pure speech without any requirement of an overt act. However, this fact alone is not sufficient to invalidate such a statute. It is only when a statute prohibits “protected” speech that it will be found to be unconstitutional, keeping in mind, however, that the vast majority of speech is protected.

Beginning at least as early as 1919, the United States Supreme Court recognized that the right to speak one’s mind on any subject at any time was not the intent of the First Amendment. Justice Holmes wisely observed that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.” Schenck v. United States (1919), 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473. The Court gave greater scope to this doctrine over twenty years later in Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 86 L.Ed. 1031, 62 S.Ct. 766. The court stated:

“Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problems. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Chaplinsky, 315 U.S. at 571-572, 62 S.Ct. at 768-69.

Thus, Chaplinsky established that “fighting words” do not come within the protection of the First Amendment.

Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, established another exception to constitutionally protected speech. The Court observed that “the First Amendment was not intended to protect every utterance,” and held that “obscenity is not within the area of constitutionally protected speech or press.” Roth, 354 U.S. at 483, 485, 77 S.Ct. at 1308, 1309. The Court took a further step in Ferber. There it held that child pornography, even though it may not meet the standards established for obscenity, is not speech protected by the First Amendment. The Court based its holding in large part on a finding that the state’s interest in regulating child pornography was of “surpassing importance,” and by finding that the evil sought to be prevented overwhelmingly outweighs the expressive interests involved.

With these firmly established principles as our guide, and ever mindful of the stringent protection of speech required by the First Amendment, we hold that threats of the kind prohibited by “ 45-5-203,(l)(b) are not speech protected by the First Amendment. The State has a substantial, if not overwhelming, interest in preventing intimidation of the public and the resulting fear and anxiety caused by these terroristic-type threats. “It has been clear since this Court’s earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest.” City Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772, 786. The value to society of permitting threats of this nature is minuscule at best. Furthermore, the statute does not aim at discriminating between different types of speech, nor does it prohibit any constitutionally protected speech. The threats prohibited by it are punishable whatever their purpose and however noble the ultimate goal of the threatener may be. The statute is based on content only insofar as to determine whether a prohibited threat is involved in the speech.

“Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.” Ferber, 458 U.S. at 763-764, 102 S.Ct. at 3357-58.

The proposition that specific types of threats do not come within the protection of the First Amendment has been given firm support by the United States Supreme Court and several lower federal courts. In Watts v. United States (1969), 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664, 667, a case involving threats against the President, the Court had no difficulty in finding that “the statute under which petitioner was convicted is constitutional on its face.” Similarly in United States v. Howell (5th Cir. 1983), 719 F.2d 1258, 1261, the court held:

“Not all utterances are afforded the same degree of first amendment protection; whatever contribution statements like Howell’s may make to the ‘uninhibited, robust, and wide-open’ debate on public issues to which this nation is committed, the compelling governmental interest in protecting the safety of the Chief Executive has been thought to outweigh it.”

Howell had been convicted of threatening the life of the President for making the statement: “If released, I would make my way to Washington and kill him — I will kill the President.”

However, Section 45-5-203 does not prohibit all speech which is “threatening.” “What is a threat must be distinguished from what is constitutionally protected speech.” Watts, 394 U.S. at 707, 89 S.Ct. at 1401. We find that implicit in the word “threat”, as used in the intimidation statute, is a requirement that it be communicated under circumstances which reasonably tend to produce a fear that the threat will be carried out. This implicit requirement has been made explicit by the legislature in its 1985 amendment of the statute. Furthermore, the threat must be a “true threat.” Threats which are, when taken in context, made in jest or which are simply “political hyperbole” are not punishable under the statute. Watts, supra. Mere advocacy of the use of force or violence to accomplish some end also does not constitute a threat under the statute since that form of expression is protected by the First Amendment. NAACP v. Claiborne Hardware Co. (1982), 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215; Brandenburg v. Ohio (1969), 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430. Rather, only serious expressions of an intention to take a hostage, murder, inflict serious injuries on persons or property, or commit a felony, for the purpose of accomplishing some end constitute a threat punishable under the statute. However, the question of intention is to be decided on the basis of an objective standard, United States v. Kelner (2nd Cir. 1976), 534 F.2d 1020, and whether a statement constitutes a true threat is to be determined by the trier of fact. United States v. Merrill (9th Cir. 1984), 746 F.2d 458; Howell, supra.

We hold that appellant’s statements constitute threats punishable under Section 45-5-203(1)(b). He repeatedly wrote that he would take a hostage in order to bring public attention to his plight and for the purpose of securing the return of his ranch, his children, and the monetary damages he has suffered. (See especially Fn. 2 and Fn. 4.) These statements were more than mere political opposition to the Montana legal system, as appellant contends on appeal. They were serious threats to take a hostage in order to attain his goals. This type of speech is so inimical to society and plays such a minimal part in the exposition of ideas that the State may constitutionally prohibit it. An individual cannot be permitted to terrorize members of the public through threats, and then claim protection from prosecution under the First Amendment. Freedom of speech was never meant to be stretched to the point where more injury is done to society as a whole than good. Furthermore, the statute is narrowly tailored to accomplish the State’s asserted purpose — caustic, abusive, and robust speech is fully protected until it rises to the level of threats which cause harm to society. “The ordinance curtails no more speech than is necessary to accomplish its purpose.” City Council, 466 U.S. at 810, 104 S.Ct. at 2132.

Under the commands of the First Amendment, we have scrupulously reviewed appellant’s conviction. We hold that the Montana intimidation statute is neither unconstitutionally overbroad, nor is it unconstitutional as applied.

II

Appellant contends next that reversible error was created by the lower court in setting his bail at $500,000 originally, and then in setting it at $50,000 one week later. The imposition of bail is an area which is largely within the discretion of the trial court, and the amount set will always be upheld if it is reasonable. State v. McLeod (1957), 131 Mont. 478, 311 P.2d 400. However, it is not necessary for us to decide whether $50,000 was a reasonable amount in appellant’s case because the issue is moot.

Appellant was released on his own recognizance at least two and one half months before his trial began. Under the circumstances, this was an adequate amount of time to enable this pro se defendant to prepare his case. Appellant has not demonstrated any prejudice which may have resulted by having only two and one half months to prepare his case, and has not shown how having the extra month and one half he spent in confinement would have materially benefited his defense. We find no error on this basis.

III

Appellant contends that he was unconstitutionally denied access to the courts during his pre-trial confinement by being denied access to a substantial legal library and by certain inadequacies of his court appointed counsel.

Appellant is correct in his assertion that a prisoner has a constitutional right of access to the courts. However, the cases appellant cites in support of this rule and others that we have been able to locate are concerned solely with the right of indigent prisoners. Johnson v. Avery (1969), 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718, 724, held only that unless the “State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation . . . barring inmates from furnishing such assistance to other prisoners.” (Emphasis added.) Bounds v. Smith (1977), 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72, 83, went a step further and held:

“[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” (Emphasis added.)

Nowhere is there a requirement that county jails provide persons awaiting trial with a substantial legal library. The only requirement is that prisons provide inmates with adequate legal libraries or some other reasonable alternative. We express no opinion on whether this constitutionally mandated requirement extends to persons awaiting trial while in county jails, nor as to whether it extends to non-indigents. Rather, we find that appellant was in fact provided with a reasonable alternative to an adequate legal library.

Appellant chose to proceed pro se in defending the charge brought against him and in his action for writ of habeas corpus. Even though appellant was not indigent, the court appointed counsel to assist him in doing legal research. Counsel made copies of cases appellant requested, did some independent research for appellant, and allowed appellant the use of his own Montana codes. The sheriff at the county jail made every effort to accommodate appellant’s request to do research at the jail and to prepare his brief. The resulting brief appellant filed in support of the writ of habeas corpus was 47 typed pages long and it cited numerous cases, the majority of which represented the relevant law on the subject. We find that appellant was provided with more than adequate legal assistance during the short time he was incarcerated, and that his right of access to the courts was not denied.

IV

Sometime after the trial had concluded, appellant moved for a mistrial on the basis of alleged misconduct by a witness during the trial. It appears that during Mr. Denman’s testimony the court recessed, and appellant, the county attorney, and the judge went into chambers. While they were out, one of the jurors asked the bailiff if he could be excused to go to the bathroom. Mr. Denman replied that the juror had a constitutional right to do so. Before the mistrial hearing was held, the prosecutor obtained, without first acquiring the court’s permission, affidavits from several jurors which generally stated that the remark was taken as a joke and had no influence on their decision. Appellant contends that the prosecutor’s action deprived him of due process of law.

Appellant has not cited a single case which holds that the taking of juror affidavits by the prosecutor after trial amounts to a denial of due process. We fail to see how he could have been prejudiced in any way by these actions. Furthermore, he has not demonstrated any prejudice to this case by the humorous remark made by the witness. No substantial rights of appellant were affected by the witness’s remarks nor by the prosecutor’s conduct. Therefore, if there was any error, it must be disregarded. Section 46-20-702, MCA.

V

Appellant contends next that the trial court committed error by its acceptance of the Second Amended Information. He bases this contention on two grounds: (1) the amended information failed to include all of the necessary elements because it did not state that the threat was made to the “victim” as required by State v. Wurtz, and (2) appellant was not given proper notice of the hearing held to address the proposed filing of the amended information, in violation of the Fourteenth Amendment.

Appellant is correct in his reading of State v. Wurtz (Mont. 1981), [195 Mont. 226,] 636 P.2d 246, 38 St.Rep. 1808. That case stated:

“There are three elements which the State must prove in order to sustain a charge of intimidation: (1) that the defendant communicated to the victim a threat to commit one or more of the acts enumerated in section 45-5-203(1); (2) that the defendant was without legal authority to perform the threatened act; and (3) that the defendant had the purpose to cause the victim to perform or omit the performance of any act.” (Emphasis added.)

Wurtz, 636 P.2d at 250. Under this definition, if the victim to whom the threat is made is required to be the same victim which defendant had the purpose of causing to perform an act, appellant could not have been properly charged under the statute because he communicated threats to four different individuals with the purpose of causing either the State of Montana or the Montana judiciary to perform an act; i.e., the person threatened differed from the person sought to be coerced.

The language of Section 45-5-203 does not use the word “victim”; rather, the word “another” is used. We believe that it is within the language and intent of the statute that the person who receives the threat can be different from the person who is sought to be compelled by the threat. Otherwise, for example, an individual could contact the news media threatening to take the life of a hostage if the Governor does not meet his demands, and he could not be convicted under this statute. But it is this very situation which the statute is aimed at outlawing. Therefore, we find that the decision in State v. Wurtz gave too narrow a reading of the statute, and we overrule it to the extent that it is inconsistent with this opinion. Considering “another” with regard to its plain meaning, the amended information sufficiently charged appellant with the crime of intimidation. Furthermore, viewing the amended information together with the contents of the supporting affidavit, it is clear that the State intended to prove the offense of intimidation and that sufficient facts were set forth to establish probable cause for that offense, which is all that was required for the court to accept the amended information. State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436; State v. Hamilton (1980), 185 Mont. 522, 605 P.2d 1121.

As to appellant’s assertion that he was not given sufficient notice of the hearing Section 46-11-403, MCA states the applicable rule:

“(l)(a) An information may be amended in matters of substance at anytime not less than 5 days before trial with leave of court.

“(c) If the motion is timely and the amended information is supported by probable cause, the court shall grant leave to amend.

“(e) The defendant shall have a reasonable period of time to prepare for trial on the amended information.”

The amended information was accepted by the court on December 6, 1984, and trial began on January 28, 1985. Under the circumstances, this was a reasonable amount of time for appellant to prepare for trial on the amended information, which did not differ materially nor state a separate charge from the original information. Nowhere in the statute is there a requirement that a defendant be given notice before the amended information may be accepted by the court, nor is such notice required by due process. The trial court did not err in its acceptance of the amended information.

VI

Finally, appellant contends that the trial court erred by not granting him a continuance so that he could file proposed jury instructions. Under Section 46-13-202(3), MCA,

“[a]ll motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. This section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the state to a speedy tried.” The only reason appellant gave in support of his motion was that because of all his other pending lawsuits, he simply did not have time to prepare the proposed instructions. Appellant chose to proceed pro se, and he will be held to the same standards applied to attorneys. Excuses based on lack of time to prepare because of other commitments are among the most frequent used by attorneys and are the least likely to justify a continuance. State v. Paulson (1975), 167 Mont. 310, 315, 538 P.2d 339, 342, held:

“Motions for continuance are addressed to the discretion of the trial court and the granting of a continuance has never been a matter of right. (Citation omitted.) The district court cannot be overturned on appeal in absence of a showing of prejudice to the movant.”

Over four months elapsed between the time appellant was arrested and the time when trial began. This was ample time for appellant to prepare his case, and the reason given in support of his motion for continuance was totally insufficient. We find no prejudice to appellant by the court’s denial of his motion.

The judgment of conviction is affirmed.

MR. JUSTICES HARRISON, MORRISON, WEBER, SHEEHY, GULBRANDSON and HUNT concur.

        FOOTNOTES

      1. This statute was amended subsequent to Lance’s conviction.

      . Two separate letters were mailed by Lance to Denman. Pertinent excerpts which constitute the threats for which Lance was convicted follow:
      First letter “ . . . the answer — to focus public attention on what has taken place — is violence. And I mean taking a hostage which would put this story on page one of every newspaper. My defense at a jury trial I would request later would be ‘all of the above.’... In short, if the road to the ranch is cut off, litigation stops and I am ready to turn to violence to reach my ends ... A cover-up will never work here because I am ready to put down my life and my personal freedom, if necessary to expose all of this. Further, I believe I am perfectly capable of getting that hostage in hand, and capable of negotiating for his/her release. There are no concrete plans now. No hostage is positively selected. No dates have been set. No location has been selected . . . But if they do, the final straw is violence.” (Emphasis his.)
      Second letter:
      “All my life I have sought to avoid violence. Always there has been another way out. Here it is not possible . . . Those incidents alone, Denman, will allow me to proceed to violence in a desperate, last ditch quest for final justice. With a key hostage in hand, I will negotiate. There are no alternatives ... I will bring the Governor into this and probably Dean of the Law School, but only when hostage is in hand. Then we will go to radio, TV, newspapers, other media. This story will be told — over a telephone — by John Lance. Hour after hour unless the law presses me. In that event, they will choose violence. And there are times when violence is the only way to create change ... I will pay any price — take any risk — to even the score ... If you think my ‘objections’ raise eyebrows (they do) just wait. The real exposure has not even begun. There are a lot of targets. With a hostage in hand, I will have an attentive audience.” (Emphasis his.)

      . Pertinent excerpts of the letter are:
      “I of course expect to have my main federal lawsuit dismissed. There is no justice in any of this.
      “. . . If a federal dismissal comes, I will of course appeal to the Supreme Court of the United States but there I will have about a 2% chance of having the appeal heard. So at that point the whole contest will really be removed to the ‘streets of Dodge’ for resolution and I of course plan to put this whole story at that time on the front page of every newspaper in the U.S.....The contest will continue until I have my ranch and my children and damages determined by a jury.”

      . Pertinent excerpts of the letter are:
      “Enclosed is a copy of my letter to Denman dated August 15, 1984. I believe it indicates where I stand with regard to Denman and with regard to the use of violence to find final justice or to upset the impropriety found today in this court system. . . Then when I do act — when the relief has not come through the courts — the record will clearly indicate what is wrong, who is wrong, and why it remains wrong. From a telephone, my hostage and I will negotiate. There will be no violence unless the ‘System’ then initiates violence by attempting to reach the hostage. That provocation would result in violence without question. But I will have the right hostage and if violence comes, there will be very, very little loss to society.”

      . Pertinent excerpts of the letter are:
      “However, I can tell you one thing I do know. I will fight for final justice here to the very end of my life. It is my intent and I have resolved that if these lawsuits are improperly dismissed on appeal, I will at that point take the necessary action to put this entire matter on the front page of every newspaper in the United States of

        America. Needless to say, this will not be done by writing to the editors of each newspaper. It will take a substantial public act to reach this goal and it is my belief that regardless of the personal consequences to me, that act must be done here if the judicial system denies me my just and proper right to jury trials for these defendants who are clearly corrupt and who have quite obviously conspired against me.”

      . Subsection (c) made it unlawful to threaten to “commit any criminal offense.”


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JERRY THOMAS KORELL, Defendant and Appellant.
    No. 85-510.
    Submitted on Briefs April 4, 1986.
    Decided June 17, 1986.
    720 P.2d 688.
    John C. Doyle, Phoenix, Ariz., for defendant and appellant.
    Mike Greely, Atty. Gen., Kimberly A. Kradolfer, Asst. Atty. Gen., Helena, Robert B. Brown, Co. Atty., Margaret Tonon, Deputy Co. Atty., Hamilton, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant Mr. Korell was convicted of attempted deliberate homicide and aggravated assault. He was placed at the Montana State Hospital, Warm Springs Campus as part of his sentence. In September 1985, his sentence was amended and he was transferred to the Montana State Prison. He appeals that order. We affirm.

The issue is whether Mr. Korell was properly sentenced to Montana State Prison.

The facts behind Mr. Korell’s criminal conviction were set out in State v. Korell (Mont. 1984), [213 Mont. 316,] 690 P.2d 992, 41 St.Rep. 2141. In that appeal, this Court remanded the case pursuant to the District Court’s duty to independently evaluate the defendant’s mental condition prior to sentencing. His mental capacity had been a heated point of contention at trial, and conflicting psychiatric testimony had been presented. Following this Court’s decision in that appeal, the District Court found that “at the time of the offense, the Defendant’s mental disease or defect rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law,” and resentenced him as follows:

“1. For Charge I, Attempted Deliberate Homicide, a Felony, the Defendant is hereby committed to the custody of the Department of Institutions for a period of thirty-five (35) years;

“2. For Charge II, Aggravated Assault, the Defendant is hereby committed to the custody of the Department of Institutions for a period of fifteen (15) years;

“IT IS FURTHER ORDERED that the above separate sentences as to Charges I and II are to run concurrently.

“IT IS FURTHER ORDERED that upon entry of this Judgment, the Defendant is to be placed for treatment in the Warm Springs State Hospital or in a Veterans Administration Hospital which has been approved by the Department of Institutions, for a period of two (2) years.

“IT IS FURTHER ORDERED that the Defendant shall not be released from any such hospital or Veterans Administration facility without specific order of this Court.

“IT IS FURTHER ORDERED that at the conclusion of the initial two-year period as above outlined, the Defendant, upon order of this Court, shall be placed in a suitable community-based residential treatment facility.

“IT IS FURTHER ORDERED that the Defendant is ordered to continue psychiatric treatment throughout the term of this sentence, and the Department of Institutions is ordered to provide such treatment or supervise treatment provided by other agencies approved by the Department of Institutions.”

Mr. Korell was admitted to Warm Springs in May 1985, under that order. He was placed in the forensic unit at the hospital. Initial physical and neurological examinations were performed, but the staff and doctors did not observe any signs or symptoms of psychosis. Mr. Korell sent several letters to the District Court, demanding treatment and requesting a pass to attend the Fourth of July parade in Butte. Based apparently on the letters, the District Court issued an order that Mr. Korell be transferred out of the forensic unit to a treatment unit “which will be able to facilitate the immediate commencement of therapeutic treatment for the Defendant’s paranoid schizophrenia.” Mr. Korell was transferred to a ward for longer term, chronically mentally ill patients, but he was not treated for mental illness because he was not found to be suffering from mental illness.

In August, pursuant to the resentencing order, Mr. Korell's placement was reviewed by the District Court. Dr. Xanthopoulos, acting Clinical Director and psychiatrist, and Mr, Deming, a psychologist, both of Warm Springs, testified. The court found, in part, that:

“4. The doctors treating Defendant have determined Defendant does not suffer from paranoid schizophrenia, either active or in remission, and shows no symtomatology of either. Defendant is not being ‘treated’ at Montana State Hospital because the staff can find no mental illness to treat. He is diagnosed as having mixed personality disorder with anti-social and passive/aggressive features, sometime referred to as maladaptive behavior, for which there is no treatment available.

“5. At the hearing on August 1, 1985, Defendant appeared to be calm and to act and dress appropriately.

“6. In February, 1985, Defendant stated he felt mentally good after approximately eleven months in Montana State Prison and that he had taken advantage of available mental health counseling there. He had functioned reasonably well and had not obtained any serious negative write-ups. He earned good time and would obtain earlier release from prison than the State Hospital, but felt he would like any treatment the Hospital could afford him.”

The court concluded that:

“1. In its previous Judgment upon resentencing, the Court found that the Defendant was suffering from a mental disease or defect at the time of the commission of the crime and committed Defendant to the Montana State Hospital or a Veterans hospital for a specified period of time.

“2. Defendant no longer suffers from a mental disease or defect, and there is serious doubt he ever did.

“3. That under Section 46-14-312(3), M.C.A., the Court may now make an order not inconsistent with its original sentencing authority except that the length of sentence or confinement must be equal to that of the original sentence.”

The court amended its Judgment on Resentencing by ordering that Mr. Korell be returned to the Montana State Prison for completion of his sentence, with credit for time served and for good time earned.

Mr. Korell states that the order transferring him to Montana State Prison violates the constitutional prohibition of cruel and unusual punishment. The case he cites in support of this argument, Estelle v. Gamble (1976), 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, involved injuries to a federal prisoner while he was performing a prison work assignment. The prisoner was examined and treated for low back strain, but his complaints of back pain and inability to work outlasted the diagnosis. He filed a pro se complaint, alleging that he had not received adequate medical treatment, in violation of the prohibition against cruel and unusual punishment and in violation of 43 U.S. Section 1983. The lower court dismissed his complaint for failure to state a claim. In affirming the holding that he had not alleged conduct constituting cruel and unusual punishment, the Supreme Court held that “deliberate indifference to serious medical needs of prisoners” constitutes an unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. Estelle, 429 U.S. at 104, 97 S.Ct. at 291. The Court held however, that:

“. . . the question whether an X-ray — or additional diagnostic techniques or forms of treatment — is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.”

Estelle, 429 U.S. at 107, 97 S.Ct. 293.

The medical opinion of the doctors at Warm Springs State Hospital is that Mr. Korell suffers from no treatable mental illness, and Dr. Xanthopoulos concurred with Mr. Korell’s once-stated wish to return to Montana State Prison. We conclude that the District Court’s order that Mr. Korell be returned to Montana State Prison is based on medical opinions on matters for medical judgment. We hold that the District Court’s order does not constitute cruel and unusual punishment.

Our standard for review of the District Court’s discretion is whether there is substantial evidence to support the court’s findings and conclusions. State v. Hall (Mont. 1983), [203 Mont. 528,] 662 P.2d 1306, 1308, 40 St.Rep. 621, 624. The basis for Mr. Korell’s position and for the District Court’s February 1985 finding that he suffered from a mental disease or defect at the time of the crimes, is the February 1985 testimony and diagnosis of Dr. William Stratford that Mr. Korell suffered from paranoid schizophrenia, and would benefit from counseling and from drug therapy. However, the uncontroverted evidence at the August 1985 hearing was that Mr. Korell is not now suffering from a treatable mental illness. Both Drs. Xanthopoulos and Deming testified to this, and they were the only witnesses. Mr. Deming also testified that Mr. Korell did not exhibit characteristics of a paranoid schizophrenic in remission. We conclude that there is substantial evidence to support the District Court’s finding that Mr. Korell is not now suffering from a mental disease or defect.

The statute governing modification of a criminal sentence of a person suffering from a mental disease or defect at the time of the act is Section 46-14-312(3), MCA:

“(3) A defendant whose sentence has been imposed under subsection (2) may petition the sentencing court for review of the sentence if the professional person certifies that the defendant has been cured of the mental disease or defect. The sentencing court may make any order not inconsistent with its original sentencing authority except that the length of confinement or supervision must be equal to that of the original sentence. The professional person shall review the defendant’s status each year.”

The District Court’s order dated September 1985 amends the finding as to whether Mr. Korell suffers from a mental disease or defect, but the amendment is not inconsistent with the court’s original sentencing authority. It does not change the length of confinement or supervision. We conclude that the District Court acted within its discretion when it modified Mr. Korell’s sentence to place him at Montana State Prison.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON and GULBRANDSON concur.


author: MR. JUSTICE SHEEHY

text:
    FIRST NATIONAL BANK OF GLASGOW, Plaintiff and Respondent, v. FIRST SECURITY BANK OF MONTANA, N.A., Defendant and Appellant.
    No. 85-567.
    Submitted on Briefs March 6, 1986.
    Decided June 17, 1986.
    Rehearing Denied July 29, 1986.
    721 P.2d 1270.

      Gallather, Archambeault & Knierim, Matthew Knierim, Glasgow, for defendant and appellant.

      Moulton, Bellingham, Longo & Mather, Sidney R. Thomas, Billings, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

First Security Bank appeals from an order of the District Court, Seventeenth Judicial District, Valley County granting summary judgment to First National Bank (FNB). We affirm.

The issue in this case is which bank has a prior perfected security interest in certain livestock and their progeny. First Security Bank began lending money to James J. Murnion, as rancher, in 1976 on an unsecured basis. In October, 1977, First Security had Murnion execute a security agreement which took a security interest in:

“350 Cows, 3 to 7 years

160 Heifers, 2 years

20 Bulls

400 Calves

140 Cattle Branded: RS ( )

70

“together with the young and produce thereof and all other livestock and poultry now owned or hereafter at any time acquired by Borrower or in which Borrower obtains rights; all of which are or will be located at

20 miles East of Jordan

on premises owned by:

James J. Murnion”

A financing statement was filed in Garfield County describing all livestock branded with the lazy TJ brand and stating they were located 20 miles east of Jordan. Each year Murnion executed new security agreements in favor of First Security Bank.

In April, 1980, Murnion contacted First Security Bank and asked if the Bank would loan additional funds so that Murnion and his partner could purchase about 513 heifers. First Security would not finance the purchase but agreed to loan $40,000 as a downpayment. Murnion went to First National Bank. FNB agreed to loan Murnion $152,000 for the purchase of 513 heifers with the Rafter B brand. On April 30,1980, Murnion executed a security agreement giving FNB a security interest in “513 yearling heifers branded: Rafter B L.R. together with the young, products, and produce thereof and all similar property whenever acquired, located or to be located at McCone County on premises belonging to Jack Rosenwald.” FNB mistakenly filed its financing statement in McCone County where the cattle would be pastured.

In July, 1980, Murnion told the president of First Security Bank of the loan by FNB. Murnion disclosed the amount of the loan, that FNB was the lender, and that the money was used to purchase the Rafter B heifers. He also told the bank president that he would be selling the heifers by November, 1980, and that part of the sale proceeds would go to FNB.

In 1982, First Security began to have concerns about Murnion’s financial condition and informed him that the loan would be due in full at the maturity date. First Security also had Murnion execute a new security agreement and financing statement granting First Security a security interest in all Murnion’s livestock, including the Rafter B cattle. The new security agreement deleted reference to the lazy TJ brand and described the collateral as located at Garfield, Custer, and Valley Counties.

On March 24,1982, in accordance with his usual practice, Murnion attempted to deliver a check to FNB from the proceeds of the sale of the Rafter B-branded cattle. First Security objected to this and called the purchasers to tell him that First Security was claiming an interest in all of the cattle, not just the lazy TJ cattle. First Security's loan comment sheets of that date indicate that Murnion told them that this would “put him in a bad light with First National Bank.”

Subsequent cattle sales were lost because First Security told potential purchasers that they would be sued for conversion if any of the proceeds were paid to FNB. When representatives of FNB discovered the situation, they offered to allow the funds to be placed in a trust account for later resolution in order to avoid the prospect of a lost sale. This was done in subsequent sales with the intention of allowing the sales to proceed without the priority dispute being litigated each time. Three sales occurred, two involving Rafter B-branded cattle, prior to Murnion’s filing of a bankruptcy petition. Further sales of the Rafter B-branded cattle and their progeny occurred following the bankruptcy petition. The funds from the later sales are being held in a trust account pending the resolution of this case.

The bankruptcy judge determined that he did not have jurisdiction over this matter, and remanded this cause to the District Court of the Seventeenth Judicial District. The Honorable Leonard H. Langen, in a thorough opinion and order, granted summary judgment in favor of FNB. We agree that this case as presented is a proper subject for summary judgment since no genuine issues of material fact remain.

We turn to the issue of which bank has a prior perfected security interest in the cattle. When First Security Bank took a security interest in Murnion’s cattle in 1977, the security agreement attempted to be at once general and specific. The specific cattle which secured the loan were typed on the agreement as:

350 Cows, 3 to 7 years

160 Heifers, 2 years

20 Bulls

400 Calves Cattle Branded: RS ( )

140

70

However in boilerplate language the agreement also referred to “all other livestock and poultry now owned or hereafter at any time acquired ... all of which are or will be located 20 miles east of Jordan.”

In interpreting this security agreement we begin with the standard set out in Section 30-9-110, MCA, which states:

“For the purposes of this chapter any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.”

We also note that the purpose for the requirement of a written description of collateral in the security agreement is different than that in the financing statement. The purpose of the description of collateral in the financing statement is to put third parties on inquiry notice of the existence of a security interest. The purpose of the description of collateral in the security agreement is to act as a statute of frauds. It allows discovery by creditors of the debtors affairs, and names the collateral securing the loan so as to prevent later disputes over what secured the loan. White and Summers, Uniform Commercial Code pp. 787-88 (1972). As such, the description of the collateral in the security agreement must reasonably lead the impartial observer to the collateral in question. Id.

While the language of this security agreement is not a model of clarity in drafting, we hold that the security agreement creates a general lien on all livestock located on the Murnion ranches 20 miles east of Jordan. The agreement refers to specific cattle which were branded with the lazy TJ brand and takes a security interest in their produce and young. The next line is an after-acquired property clause which refers to “all livestock now owned or hereafter acquired.” It is substantially similar to this description which has been held sufficient to create a general lien on all cattle:

“all livestock . . . now owned or hereafter acquired by Debtor, together with all increases, replacements, substitutions, and additions thereto, including but not limited to the following:”

U.S. v. S.E. Mississippi Livestock Farmers Ass’n (5th Cir. 1980), 619 F.2d 435; U.S. v. Mid-States Sales Co. (D.C. Neb. 1971), 336 F.Supp. 1099.

While the above language would have made the security agreement in question clearer, it is nonetheless sufficient to create a general lien on all cattle owned by Murnion.

However, the security agreement states that all the livestock covered by the agreement “are or will be located at 20 miles east of Jordan on premises owned by: James J. Murnion.” We note that it is not necessary to set out the location of livestock in a security agreement or financing statement. Section 30-9-203, MCA; Section 30-9-402(1), MCA.

FNB argues that since the location was included, we should follow Matter of California Pump and Manufacturing Co. (9th Cir. 1978), 588 F.2d 717 and 8 Anderson, UCC (3rd ed. 1985), Section 9-110:9 p. 606 in holding that a statement of location in a security agreement acts to limit the description of the collateral to the property located within the geographic area described.

First Security argues the location should not be a limiting factor, but should be taken as a promise by the debtor to keep the collateral at that location, and as an aid in describing the collateral relying on In re Lee (E.D. Tenn. 1981), 32 U.C.C. Rep. 580. Even if this were so, we fail to see how a security interest covering cattle located 20 miles east of Jordan on premises owned by James J. Murnion can aid in describing cattle located in McCone County on premises owned by Jack Rosenwald. We think this is a case where, had First Security foreseen this circumstance they would have drafted their security agreement to cover these cattle, but they did not, and it does not.

We hold First Security’s security agreement is limited to cattle located 20 miles east of Jordan on premises belonging to James J. Murnion.

FNB, on the other hand, took a security interest in 513 heifers branded Rafter B located at McCone County on premises belonging to Jack Rosenwald. It had a purchase money security interest in the cattle under Section 30-9-107, MCA. In order to perfect the purchase money security interest FNB should have filed the financing statement in accordance with Section 30-9-401. The official comments to Section 30-9-109, MCA, state that cattle are farm products, thus the financing statement should have been filed in Garfield County, the county of the debtor’s residence, pursuant to Section 30-9-401 (l)(a). However, FNB mistakenly filed in McCone County where the cattle were to be pastured. Thus FNB does not have a perfected security interest in the Rafter B cattle. However, FNB contends it should take precedence over First Security because of the good faith filing exception in Section 30-9-401 (2), MCA, which states:

“A filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this chapter and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement.”

Good faith is defined as honesty in fact by Section 30-1-201 (19), which is incorporated in Article 9 by Section 30-9-105 (4). There was testimony adduced at the depositions that it was “common banking practice” to file a financing statement in the county where the collateral was located. While we note that this will soon be moot under the 1985 code which adopted central filing effective July 1, 1986, we hold this filing in the wrong county by the purchase money lender did constitute a good faith attempt to comply with the code requirements. A good faith filing is effective against any person who has knowledge of the contents of such financing statement. “Knowledge” is defined as actual knowledge in Section 30-1-201(25). There is no requirement that a party actually see the financing statement in order to have actual knowledge of its contents. However, the party must know the names of the parties, their addresses, and a description of the collateral. Section 30-9-402(1), MCA; 8 Anderson UCC Section 9-401:47 p. 419; 47 U of Colo.L.Rev. 467 (1976). In this case, Conrad Tvedt, president of First Security Bank, states in an affidavit that Murnion approached him about loaning funds to finance the purchase of the Rafter B cattle. Tvedt stated First Security would only loan $40,000. Murnion indicated that other parties, Glasgow Livestock and Fjeldheim, would help in the transaction. Tvedt stated that he knew Fjeldheim was financed at FNB which is located about one-half block away from First Security in Glasgow. In the financial statement Murnion told Tvedt that FNB had loaned him the money to purchase the calves, and the amount of the loan. In the financial statement Murnion filled out for First Security on July 3, 1980, he listed under the category “Loans to Purchase Machinery & Equipment” a loan from FNB of Glasgow for $152,000 due 11-1-80. Also noted is the heifers Rafter B brand. The loan comment file states:

“He purchased 508 yearling heifers through the Glasgow Livestock Sales Yard that were financed by the First National Bank and is making a reduction there including interest of $60,000, leaving a balance owing of $152,000 due November 1, 1980, which are branded separately and which he will market.”

Here, First Security knew not only of the names and addresses of the parties, and the collateral in question, but also the exact amount of the loan. On appeal, First Security argues that Murnion did not tell them if or how the loan was secured. Yet the 1982 agricultural financing statement of Murnion lists the loan from FNB as secured.

This situation is clearly distinguishable from the situation in Taylor Rental Corp. v. First Citizens Bank (D.C. Mont. 1982), 539 F.Supp. 228, in which a computerized journal entry made by an accounting service in a confidential report provided by a parent company to a franchiser showed a bank loan by an unidentified bank. Judge Battin held in that case that the journal entry was not knowledge of the security interest held by a specific bank. But that situation is wholly different than the one at hand where one bank president had full knowledge of the security interest of the other bank.

Last, First Security argues that even if FNB has a purchase money security interest in the Rafter B heifers, the purchase money security interest does not extend to the progeny of the heifers. The security interest of FNB clearly does extend to the progeny of the heifers because the security agreement lists as collateral:

“513 yearling heifers branded: Rafter B LR together with young, products, and produce thereof and all similar property whenever acquired, located or to be located at McCone County on premises belonging to Jack Rosenwald:”

We affirm that FNB does not have a perfected purchase money security interest in the Rafter B heifers and their young but that its security interest in the cattle and their young is valid against First Security because First Security had actual knowledge of FNB’s security interest.

MR. JUSTICES HARRISON, MORRISON, WEBER AND GULBRANDSON concur.


text:
    DEACONESS MEDICAL CENTER OF BILLINGS, INC., Petitioner and Appellant, v. DEPARTMENT OF SOCIAL & REHABILITATION SERVICES & State Board of Social and Rehabilitation Appeals, & Petroleum County, a political subdivision, of the State of Montana, Defendants and Respondents
    No. 85-504.
    Decided April 1, 1986.
    Decided June 18, 1986.
    720 P.2d 1165.

      Felt & Martin, Kenneth S. Frazier argued, Billings, for petitioner and appellant.
    Russell E. Cater argued, Dept, of SRS, Helena, Wilkins & Berger; William Berger argued, Lewistown, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Billings Deaconess Hospital, Inc. (Deaconess), appeals a judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, in favor of Petroleum County and the Department of Social and Rehabilitation Services (SRS). The judgment affirmed Petroleum County’s and SRS’s denial of medical benefits to the James D. Wymore family.

On appeal, we will consider the constitutionality of income limitations in Section 53-3-103(3), MCA (1983) and in the Petroleum County Medical Plan. Appellant contends that the limitations violate Montana’s constitutional guarantee of assistance for the medically needy. We uphold the constitutionality of the income limitations in the statute and the county plan. However, our examination of the record also convinces us that neither the statute nor the plan was properly applied to the Wymores’ situation. We therefore remand for a determination of whether the Wymores were medically indigent and entitled to relief.

Subsection (3) of Section 3 of Article XII of the 1972 Montana Constitution provides:

“The legislature shall provide such economic assistance and social and rehabilitative services as may be necessary for those inhabitants who, by reason of age, infirmity, or misfortune may have need for the aid of society.”

Pursuant to this mandate, the legislature has established a county medical assistance program to provide assistance for eligible parties who are not covered by the Montana Medicaid program. See Sections 53-3-101 et seq. and 53-6-101 et seq., MCA. This program is financed and administered by the county but is supervised by SRS.

Prior to the 1985 legislative session the eligibility criteria were established in a “county plan” which was adopted by the counties pursuant to Sections 53-3-103 and 53-3-301, MCA (1983). We note that these sections were repealed by the 1985 legislature but the substantive contents were reenacted as Section 53-3-206(5), MCA. This opinion therefore applies to both Section 53-3-206(5), MCA, and Section 53-3-103(3), MCA, (1983).

Section 53-3-103(3), MCA, (1983), contained the income limitation challenged by appellant:

“(3) The department may promulgate rules to determine under what circumstances persons in the county are unable to provide medical aid and hospitalization for themselves, including the power to define the terms ‘medically needy.’ However, the definition may not allow payment by a county for general assistance-medical for persons whose income exceeds 300% of the limitation for obtaining regular county general relief assistance . . . .”

Section 53-3-301, MCA (1983), delegated to the counties the power to determine who is eligible for assistance according to rules established by the county board and approved by SRS. Petroleum County established such rules in a county medical plan that was approved by SRS. Section 6.1.(A)(l)(a) of that plan contains a much lower income limitation than the ceiling income in the statute. Specifically, Section 6.1(A)(1)(a) of the county plan provides as follows:

“The maximum gross income level for an applicant or recipient is . . . current AFDC [Aid to Families with Dependent Children] benefit standard for family of same size.” Since Petroleum County provides for general county relief at 80 percent of the AFDC standard, the income ceiling in Section 53-3-103(3), MCA (1983), is nearly 2Vz -times greater than the income limitation in the county plan. Because of this great difference between the income limitation in the county plan and in the statute, we will consider their constitutionality separately.

There is another provision in the county plan that is important to our analysis of the constitutionality of the above-quoted income limitation. That provision, called a “spend-down provision” in the plan, allows medical expenses to be deducted from an applicant’s income in determining eligibility. See Section 6.1(A)(1)(b), Petroleum County Medical Plan. By Section 6.1(A)(1)(b) an applicant whose income exceeds the limit may still be eligible if his medical expenses are greater than his excess income.

Zane Wymore, the minor son of James D. Wymore, was hospitalized at Billings Deaconess Hospital from February 10 to April 6, 1983. The bill for the hospitalization came to $10,000. The Wymores were uninsured and unable to pay the bill. Mr. Wymore had applied to Petroleum County, where they resided, for county medical assistance on February 9, 1983.

At the time of application, Mr. Wymore drew unemployment compensation of $740 per month. The AFDC standard at that time for a family of six, like the Wymores, was $564 per month. ARM Section 46-10.403. Mr. Wymore’s income, therefore, exceeded the AFDC standard. Because the Petroleum County Medical Plan limits assistance to families with incomes less than the AFDC standard, the County denied assistance to the Wymores. In making this determination, the County did not reduce the Wymores’ income by the amount of medical expenses as allowed for in the spend-down provision in the county plan. In the meantime, on April 1, 1983, Wymore started a new job which paid $1,000 per month and provided housing for the family.

Deaconess, as the medical provider, challenged the County’s denial in a hearing before the SRS pursuant to ARM Sections 46-2.202(2) and 46-25.705. The hearing officer then determined that income criteria in the county plan did not violate Section 53-3-103(3), MCA (1983), because the plan did not authorize benefits for families whose income exceeded 300% of the general relief standard. The hearing officer then determined that the County was within its authority under Section 53-3-301, MCA (1983), to deny benefits based on criteria in its plan that had been approved by SRS. The hearing officer’s findings and decision were affirmed on appeal to the State Board of Social and Rehabilitative Services (Board).

Deaconess then filed a petition for judicial review of the Board’s decision by the District Court. Deaconess’s contention on review was that the income limitation in the statute and in the county plan were unconstitutional. Both Deaconess and SRS moved for summary judgment. The District Court did not rule on the constitutionality issue and instead remanded the matter to SRS for a determination of whether the Wymores are medically indigent and therefore entitled to public assistance. SRS responded that it was without authority to consider the matter further because Wymore’s income exceeded the 300% of general relief limitation in Section 53-3-103(3), MCA (1983). In making this contention, SRS considered Wymore’s income to be the $1,000 per month plus housing provided by his new job. We note that the Wymores’ income of $740 per month that they received while Mr. Wymore was unemployed and when Zane was in the hospital was under the 300% (or, $1,353 per month) limitation in the statute but greater than the straight AFDC standard (or $564 per month) limitation in the county plan. If SRS had looked to the earlier income, then it would have found that the statute did not prohibit aid to the Wymores.

Because SRS refused to consider the matter further, the District Court entered a final judgment affirming the denial of benefits. This appeal ensued.

We will test Section 53-3-103(3), MCA (1983), first. Deaconess contends that the provision in the statute that denies benefits to those with incomes in excess of 300% of the AFDC standard violates Article XII, Section 3(3), of the Montana Constitution. Deaconess further contends that the statute violates state and federal equal protection guarantees. These two contentions actually present only one issue because we use equal protection analysis to test the constitutionality of a classification by the legislature. In other words, if the classification in the statute does not violate equal protection, the statute is constitutional.

The case of Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 43 St.Rep. 65, is determinative of the level of scrutiny we will apply to the statute. In Butte Community Union we determined that welfare mandated by Article XII, Section 3(3), is not a fundamental right. Therefore, strict scrutiny does not apply and the State is not required to show a compelling interest to limit welfare. However, we further determined that since the Montana Constitution, unlike the United States Constitution, specifically mandates welfare benefits, an abridgment of welfare requires something more than a rational relationship to a governmental objective. We went on to adopt our own middle-tier test for classifications affecting the rights created by Article XII, Section 3(3). This test requires that the State must demonstrate two factors for us to uphold a classification of welfare benefit recipients. Those factors are: (1) that the State’s classification of benefit recipients is reasonable; and (2) that the State’s interest in classifying benefit recipients is more important than the peoples’ interest in obtaining those benefits. We will not apply this test to the 300% of general welfare assistance limitation in Section 53-3-103(3), MCA (1983).

Deaconess relies on the Saint Patrick Hospital line of cases to establish that denials of medical benefits based solely on income are unreasonable and therefore do not pass the first prong of the test. See Saint Patrick Hospital v. Powell County (1970), 156 Mont. 153, 477 P.2d 340; State ex rel. Hendrickson v. Gallatin County (1974), 165 Mont. 135, 526 P.2d 354; and Sisters of Charity, Etc. v. Glacier County (1978), 177 Mont. 259, 581 P.2d 830. These cases, however, are distinguishable from the case at bar. The Saint Patrick Hospital line of cases involved county denials of medical benefits to applicants with incomes above the state standard of eligibility for general assistance. In the case at bar, Section 53-3-103(3), MCA (1983), sets the maximum income at three times the income limitation for general assistance. As such, the statute allows twice again as much income beyond that needed for basic necessities by which a party can purchase medical insurance and pay other medical bills. It is therefore reasonable to assume that a person with an income of three times the general assistance level is not medically indigent. Thus, the income limitation in Section 53-3-103(3), MCA (1983), passes the first prong of the middle-tier test.

The second factor in our middle-tier analysis is a balancing test. Specifically, the interest of the State in limiting medical benefits is weighed against the interest of the people in receiving the benefits. We believe the State’ interest is greater.

If the State were not allowed to place a limit on the income of medical assistance recipients, there would be little incentive for anybody to purchase medical insurance. Given the high cost of medical care, most uninsured parties would be unable to pay their bill in the event of catastrophic injury. The cost to the State of paying these bills would be prohibitive. The State cannot afford to become the medical insurer for individuals, who can afford their own medical insurance. On the other hand, people with income that is more than 300% of the general assistance level can reasonably be expected to obtain their own insurance. We hold that the State’s interest in limiting medical assistance to those with incomes less than 300% of the limitation for general welfare outweighs the interest in obtaining benefits by those whose incomes exceed the limitation. Thus, the income limitation in Section 53-3-103(3), MCA (1983), passes middle-tier scrutiny and is constitutional.

Deaconess also challenges the constitutionality of the income limitation in the Petroleum County Medical Plan. We believe the limitation is constitutional on its face. However, we also believe the County misapplied the limitation to unconstitutionally deny the Wymores’ benefits.

We will first test the constitutionality of the income limitation as it was applied by the County — that is, we will test the limitation without the spend-down provision.

Section 6.1(A)(1)(a) of the county plan denies medical benefits to families whose incomes exceed the AFDC standard. The AFDC standard is the standard used by the State for determining eligibility for general assistance. As such, the Saint Patrick Hospital line of cases, supra, are applicable. In those cases, we held that it was unreasonable to deny relief to the medically indigent solely because their income exceeded State standards for general assistance. In applying the rule from Saint Patrick Hospital here, we find that denying medical benefits solely because the applicant’s income exceeds the AFDC standard is unreasonable.

We would reach the same conclusion without Saint Patrick Hospital. The AFDC standard was developed to set a maximum limitation on both the income of and the amount of benefits for recipients of general welfare assistance. The standard considers the cost of basic necessities but does not include medical costs. As such, it is unreasonable to assume that a person or family whose income equals the AFDC standard has the means to purchase medical insurance and pay medical bills in addition to the basic necessities. A denial of benefits based solely on the income limitation in 6.1(A)(1)(a) of the Petroleum County Medical Plan therefore fails under middle-tier scrutiny and is unconstitutional.

However, the county plan, if properly applied, would not deny benefits based solely on the income limitation in Section 6.1(A)(1)(a). Besides the income limitation, the plan also has a spend-down provision, Section 6.1(A)(1)(b), which allows medical expenses to be deducted from the income before comparison with the AFDC standard. We will now test the constitutionality of the income limitation with the spend-down provision.

As stated earlier in this opinion, the AFDC standard is set at the cost of basic necessities. The spend-down provision then allows additional income to go for medical insurance and expenses. Thus, unless the income exceeded 300% of the limitation for obtaining regular county general relief assistance, when properly applied the county plan would only deny benefits to applicants with incomes in excess of that required to pay for both basic necessities and medical expenses. It is reasonable to assume that a person with income enough to pay for basic necessities and medical expenses is not medically indigent. The county plan therefore passes the reasonableness prong of middle-tier analysis.

The income limitation with the spend-down provision also passes the second prong balancing test by the same reasoning we applied to the statute. The State’s interest in limiting medical assistance to those who cannot afford medical expenses outweighs the interest in obtaining benefits by those who can. The income limitation in the county plan is therefore constitutional on its face.

We will now consider whether or not the Wymores were properly denied benefits. The County and SRS originally denied the Wymores assistance based on an improper application of the income limitation in the county plan which we are now holding unconstitutional. When the District Court remanded to SRS, however, the Department switched to the statute as its basis for denial. Since we are upholding the limitation in the statute, this denial would have been proper unless the statute was improperly applied. The record convinces us that SRS’s denial of benefits to the Wymores was based on an improper application of the statute. SRS’s brief in support of its motion to amend the District Court order remanding the case reveals that SRS was utilizing the Wymores’ income from Mr. Wymote’s new job to find the family excluded by the statute. However, at the time Zane Wymore entered the hospital, the family’s only income was from unemployment compensation and was substantially less than the limitation in Section 53-3-103(3), MCA (1983).

We believe that SRS utilized the wrong income in considering the Wymores’ need on remand. The new general medical relief provisions of the Montana Code specifically provide that “[eligibility is determined as of the date medical service is first provided.” Section 53-3-206(2), MCA. Although this provision was not in effect at the time of the Wymores’ application, it is the only fair rule to apply now. It is unfair to assume the Wymores could have afforded medical insurance at the time Zane entered the hospital based on the income Mr. Wymore began to earn near the end of the hospitalization period. We hold that it was improper for SRS to determine the Wymores were ineligible for benefits based solely on the income from Mr. Wymore’s new job.

We remand for a determination of whether the Wymores were “medically needy” under Section 53-3-103(3), MCA (1983), with the instruction that need should be determined as of the date Zane was first hospitalized. We hold that the income limitation of Section 53-3-103(3), MCA (1983), is constitutional. A denial of benefits based solely on the income limitation in the Petroleum County Medical Plan, Section 6.1(A)l)(a), however, is unconstitutional. If the county plan is used in the need determination, the Wymores’ medical expenses must be deducted from their income.

MR. JUSTICES HARRISON, GULBRANDSON, WEBER, MORRISON, SHEEHY and HUNT concur.