A lawsuit to help terminally ill patients with the right to assisted death will go before a Montana judge next month.

The suit was filed in October 2007 on behalf of two terminally ill patients, one from Billings and another from Livingston.

Both want the right to die with dignity.

Robert Baxter, 75, of Billings  Steven Stoelb, 53, from Livingston are both terminally ill.

Doctors should not be prosecuted for helping mentally competent adult patients who are facing terminal illnesses - choose when and how they die, they and four doctors said in the complaint.

The plaintiffs seek a declaratory judgment and injunctive relief to prevent Montana's criminal homicide statutes from being applied against physicians who wish to help their patients achieve a peaceful and human death by providing assistance in dying, the complaint states.

The complaint is based on rights guaranteed in the Montana Constitution, the right of privacy, individual dignity, due process, equal protection of the law and the right to seek safety, health and happiness in all lawful ways.

Attorney Mark Connell of Missoula said it is the patient's right to choose how and when they die, not the government's right to forbid it.

The case starts in Montana First Judicial Court in Helena on Oct. 10.