No. 89-626 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

WILLIAM R. HILL and CAROL N. HILL, Plaintiffsand Respondents,

CLAUDE I. BURLINGAME, CHESTER LAMOREAUX, WAYNE KASWORK, DEPARTMENT OF FISH, WILDLIFE AND PARKS OF THE STATE OF MONTANA, Defendants and Appellants.

APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Sanders, The Honorable C.B. McNeil, Judgepresiding.

COUNSEL OF RECORD: For Appellant:

I- ~.~.~utchison, Agency LegalservicesBureau,Helena, a Montana 4 => 0 

# ," 4 cx For Respondent: .--I -1 .- € c;u Edward A. Cummings,Missoula, Montana a 

### cr: -2~ W -- PI-. -- 

### ri a, LT Lo &- CJ L90 a= Submitted on Briefs: June 20, 1990 

# z WIlf b Z o Decided: August 29, 1990 Fped: z

ClerkJusticeR. C. McDonough delivered the Opinion of the Court.
The defendants Chester Lamoreaux, Wayne Kasworm, and the Montana Department of Fish Wildlife and Parks (FWP) appeal the order of the Twentieth Judicial District Court, Sanders County, denyingtheirmotion forsummary judgment,and theDistrictCourt's subsequent judgmentandverdict awardingtheplaintiffs $107,000.00
on their malicious prosecution claim. The claim arose from an acquittal on criminal charges filed by FWP's warden Lamoreaux for the alleged illegal killing of a grizzly bear by the plaintiffs' hunting clients. We affirm. Defendants raise the following issues on appeal:

(1) Did the District Court err in denying the defendants' motion for summary judgment to dismiss the malicious prosecution claim on the grounds that game wardens are not entitled to prosecutorial immunity? (2) Did the District Court err in refusing to give the State'sproposed instructionon "adviceof counselu,anaffirmative defense to a malicious prosecution claim? The plaintiff William R. Hill is a self-employed guide and outfitter. While guiding two archery hunters on an elk hunt his huntingparty encountered a grizzlybear. Thebear had previously been trapped by defendant Kasworm of FWP for study purposes and
was released with abroken jaw. Hill andhis clients maintain that thebear charged themand that thehunters shotand killed thebear with their bows at close range in self defense. Hill immediately reported the incident to FWP and its game warden, defendant 2Lamoreaux. Lamoreaux filedandprosecuted criminal chargesagainst Hill's clients for illegally killing a grizzly and against Hill under the outfitter equal responsibility law. A jury acquitted Hill and his clients on all criminal charges. Hill fileda claim for malicious prosecutionagainstLamoreaux and FWP,a negligence claim against Kasworm for allegedly injuring and then releasing the grizzly, and a claim for libel and slander againstcounty attorneyClaudeBurlingame, amongother claims. The plaintiffs settled their claim against defendant Burlingame prior to trial. The State moved for summary judgment on the malicious prosecution claim on the grounds that defendant Lamoreaux was entitled to prosecutorial immunity because he consulted with the county attorney before filing charges against Hill. The District Court denied themotion. At trial the DistrictCourt also refused the State's proposed instructionNo. 15 on the affirmative defense of I1adviceof coun~el.~~ A jury returned a verdict in favor of the plaintiffs in the amount of $107,000.00 on the malicious prosecutionclaim against FWPand Lamoreaux,and foundno liability against defendant Kasworm. The defendants FWP and Lamoreaux now appeal. First, we note that the State's contention that Warden Lamoreaux is entitledto "prosecutorialimmunityniswithoutmerit. In Orser v. State (1978), 178 Mont. 126, 582 P.2d 1227, we held that a I1morelimited form of immunity, rather than the absolute immunity which is afforded to prosecutors 

# . . . applies to law enforcement officers, including state game wardens." Orser, 582P.2d at 1232. We also noted that "[tlhe common law has never granted police officers an absolute and unqualified immunity." Orser, supra, citinq Piersonv. Ray (1967), 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288, 295. The statutory provisions governing thepowers and duties of gamewardens limit thewarden's role to that of an investigator and enforcer of the fish and game laws; the statutes do not prescribe for the warden to function as a prosecutor. 

### See 88 87-1-501 through 514, MCA. Thus, prosecutorial immunity does not apply to game wardens. While a warden is not entitled to prosecutorial immunity, in
essence the State is actually arguing that Warden Lamoreaux is entitled to the affirmative defense of "advice of counselwwhich may be available to a defendant in a malicious prosecution case. 

### See senerallv Annotation, Reliance On Advice of Prosecutinq Attorney as Defense to Malicious Prosecution Action, 10 A.L.R.2d 1215. The State then alleges that the District Court erred in refusing to give an instruction on the elements of the affirmative defense. We disagree. In order to warrant an instruction on advice of counsel it is the defendant's burden to establish aprima facie defense: In order for the defendant to avail himself of the defense of advice of counsel, it must appear that he fully and fairly presented to counsel all of the facts within his knowledge. 

# . . . And it is a question of fact for the jury whether the defendant fairly communicated to his counsel all of the facts which he knew or ought to have known, and whether he acted in good faith upon the advise received, where different conclusionsmay be drawn from the evidence. When the facts in the case, and those laid before the attorney, are all in evidence,the jurymay determinewhether the statementwas full and fair. 

# . . . Cornner v. Hamilton (1922), 62 Mont. 239, 244, 204 P. 489, 491.

(Citationsomitted.) Thus, it is insufficient for the defendant todescribe the factual allegations underlying the prosecution and then to testify generally that all such factswere conveyed to the prosecutor. The defendant must specifically testify as to the details of the informationconveyed to theprosecutor at that time:

If the first question was intended 

# . . 

# . to elicit the answer that the complainingwitness made a full and fair disclosure of the facts, without stating what facts he disclosed, the objection was well taken, for a complaininswitness is not permitted to testify that he related all of the facts and circumstances, without statinswhat they were. Beadle v. Harrison (1920), 58 Mont. 606, 612, 194 P. 134, 135. SeealsoWisniski v. Ogg (1958),84Ariz. 372, 329 P.2d 1097, 1099; -- Crow v. United States (D.Kan. 1987), 659 F.Supp. 556, 575. In the case at bar,Warden Lamoreaux testified concerninghis investigation and what facts he believed might establish the necessary probable cause to charge Hill. Later, he testified concerninghis meeting with theprosecutor:



# . . .We went over thewhole evidence. We talked about everything. We went over the whole thing.

Q: So you told Mr. Burlingame everything that you knew about the case and all about your investigation? A: That's correct. 

### Q: Full disclosure of that to Mr. Burlingame? A: Thattscorrect.Such testimony is insufficient to warrant an instruction on the defense because Lamoreaux did not testify specifically about the factual details related to the county attorney. Thus the jury
was not afforded an opportunity to determine whether full and fair disclosure of the facts of the casewas actuallymade to the county attorney. The State failed to elicit the necessary facts to warrant giving an instruction on advice of counsel, thus the District Court properly refused the State's proposed instruction
on the affirmative defense. AFFIRMED.

We Concur: ,/"