No. 89-626 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

WILLIAM R. HILL and CAROL N. HILL, 

Plaintiffs and 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

I- ~.~.~utchison, Agency Legal services Bureau, Helena, 

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4 cx For Respondent: 

.--I -1 .- € c;u Edward A. Cummings, Missoula, Montana 

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a= Submitted on Briefs: June 20, 1990 z WIlf 

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o Decided: August 29, 1990 Fped: z 

Clerk 
Justice R. 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, 

denying their motion for summary judgment, and the District Court's 

subsequent judgment and verdict awarding the plaintiffs $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's proposed instruction on "advice of counselu, an affirmative 

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 

hunting party encountered a grizzly bear. The bear had previously 

been trapped by defendant Kasworm of FWP for study purposes and 

was released with a broken jaw. Hill and his clients maintain that 

the bear charged them and that the hunters shot and killed the bear 

with their bows at close range in self defense. Hill immediately 

reported the incident to FWP and its game warden, defendant 

2 
Lamoreaux. Lamoreaux filed and prosecuted criminal charges against 

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 filed a claim for malicious prosecution against Lamoreaux 

and FWP, a negligence claim against Kasworm for allegedly injuring 

and then releasing the grizzly, and a claim for libel and slander 

against county attorney Claude Burlingame, among other 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 the motion. At trial the District Court also refused 

the State's proposed instruction No. 15 on the affirmative defense 

of I1advice of coun~el.~~ A jury returned a verdict in favor of the 

plaintiffs in the amount of $107,000.00 on the malicious 

prosecution claim against FWP and Lamoreaux, and found no liability 

against defendant Kasworm. The defendants FWP and Lamoreaux now 

appeal. 

First, we note that the State's contention that Warden 

Lamoreaux is entitled to "prosecutorial immunityn is without merit. 

In Orser v. State (1978), 178 Mont. 126, 582 P.2d 1227, we held 

that a I1more limited form of immunity, rather than the absolute 

immunity which is afforded to prosecutors . . . applies to law 

enforcement officers, including state game wardens." Orser, 582 
P.2d at 1232. We also noted that "[tlhe common law has never 

granted police officers an absolute and unqualified immunity." 

Orser, supra, citinq Pierson v. Ray (1967), 386 U.S. 547, 555, 87 

S.Ct. 1213, 1218, 18 L.Ed. 2d 288, 295. The statutory provisions 

governing the powers and duties of game wardens limit the warden'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 counselw which 

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 a prima 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 conclusions may be 

drawn from the evidence. When the facts in the case, 

and those laid before the attorney, are all in evidence, 
the jury may determine whether the statement was full and 

fair. . . . 

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

(Citations omitted.) Thus, it is insufficient for the defendant 

to describe the factual allegations underlying the prosecution and 

then to testify generally that all such facts were conveyed to the 

prosecutor. The defendant must specifically testify as to the 

details of the information conveyed to the prosecutor at that time: 

If the first question was intended . . . to elicit the 

answer that the complaining witness made a full and fair 

disclosure of the facts, without stating what facts he 

disclosed, the objection was well taken, for a 

complainins witness is not permitted to testify that he 

related all of the facts and circumstances, without 

statins what they were. 

Beadle v. Harrison (1920), 58 Mont. 606, 612, 194 P. 134, 135. 

-- See also Wisniski v. Ogg (1958), 84 Ariz. 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 concerning his 

investigation and what facts he believed might establish the 

necessary probable cause to charge Hill. Later, he testified 

concerning his meeting with the prosecutor: 

. . . We went over the whole 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: Thatts correct. 
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 case was actually made 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: ,/"