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State v. Thaut12/20/2004
ing party.
As to the injury requirement, we have stated that a plaintiff is required to allege "a personal stake in the outcome of the controversy. . . ." "They must allege an injury personal to themselves as distinguished from one suffered by the community in general." The requirement that a plaintiff demonstrate an injury "is most easily satisfied if a plaintiff alleges either a direct economic injury or alleges that she is confronted with the prospect of criminal prosecution." [Citations omitted.] Helena Parents Com'n v. Lewis and Clark County Com'rs (1996), 277 Mont. 367, 371, 922 P.2d 1140, 1142-43. This Court has further held the defendant must show a direct, personal injury resulting from application of the law in question in order to successfully challenge the constitutionality of a criminal statute. State v. Krantz (1990), 241 Mont. 501, 506, 788 P.2d 298, 301.
Thaut has not suffered any past, present or threatened injury to either his property interests or to his civil rights by the amended restitution statutes. Under the facts presented, any alleged injury is hypothetical or speculative. In fact, many of the constitutional violations Thaut alleges cannot directly affect him because restitution in his case was determined under the previous version of the statutes.
The record clearly indicates the District Court evaluated Thaut's ability to pay in establishing the amount of restitution under the statutes in effect at the time he was sentenced. Further, unlike in State v. Farrell (1984), 207 Mont. 483, 676 P.2d 168, and in Pritchett , the District Court did not establish the length of sentence based on the amount of time required for Thaut to pay restitution. Rather, the District Court established the length of sentence based on the plea agreement, and then determined $69,457 was a reasonable amount for Thaut to pay given the length of time he would have to pay it.
Additionally, only $2000 of the total restitution amount was awarded for damages to Meyer's property. The balance was awarded to cover medical expenses and a grant from the Montana Board of Crime Control in favor of Meyers. Therefore, Thaut cannot seriously claim he is in danger of being injured by the requirement of the amended statutes that full replacement value be used in determining the amount of restitution for property damaged as a result of criminal conduct.
Thaut's argument that he will remain indefinitely on probation or parole due to his inability to pay restitution is speculative at best. The District Court determined, based on Thaut's representations and his past employment history, that he should be capable of paying the full amount prior to the end of his sentence without any undue hardship. Even if it turns out that such is not the case, the restitution statutes, as amended in 2003, allow the District Court the discretion to require Thaut to perform community service in lieu of paying restitution if it determines he is unable to pay. See ยง 46-18-241(3), MCA.
Relying on this Court's holding in Gryzcan ("the fear of prosecution is sufficient [to establish standing], unless there are circumstances that make such fears 'imaginary' or 'wholly speculative'"), the dissent opines at 44 Thaut has standing to challenge the restitution statutes as amended in 2003 because "there is nothing 'imaginary' or 'wholly speculative' about the effects of the amendments enacted by HB 220 on Thaut."
Assuming the District Court did not err in setting the amount of restitution, and Thaut will continue to have the ability to make such payments, the only "effect" the amended statutes can have on Thaut is he will now be required to make such payments throug
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