NO. 94-265

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

EVELYN KELMAN,

Plaintiff and Appellant,

v.

RICHARD LOSLEBEN,

Defendant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Curtis G. Thompson, Thompson & Jacobsen,

Great Falls, Montana

Steven T. Potts, Jardine, Stephenson,

Blewett & Weaver, Great Falls, Montana

For Respondent:

Maxon R. Davis and Paul E. Haffeman,

Cure, Borer & Davis, Great Falls, Montana

Submitted on Briefs: February 28, 1995

Decided: May 12, 1995

Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant Evelyn Kelman appeals from an order of the Eighth

Judicial District court, Cascade county , granting respondent

Richard Losleben's motion to dismiss.

We reverse and remand for further proceedings in accordance

with this opinion.

The dispositive issue on appeal is:

Did the District Court err in granting respondent's motion to

dismiss?

Appellant applied to the Montana Department of Justice,

Gambling Control Division, for a gambling operator's license in

connection with her contractual interest in two Great Falls

casinos. The Department of Justice assigned respondent to

investigate and report on appellant's application. In August 1993,

respondent submitted a 37 page "Offense Report," recommending that

the Department of Justice deny appellant's application. In

addition, respondent recommended that the State prosecute appellant

and others listed in his report for alleged criminal violations.

On September 24, 1993, appellant filed suit against respondent

alleging invasion of privacy, injurious falsehood, wrongful use of

civil proceeding, tortious interference with contract, and actual

fraud. Respondent filed a motion to dismiss under Rule 12(b) (61,

M.R.Civ.P., claiming prosecutorial immunity, and a motion for a

protective order from discovery. Appellant filed a motion to

compel discovery.
On April 15, 1994, both parties appeared and argued their

motions before the District Court. On April 25, 1994, the District

Court issued its order granting respondent's motion to dismiss.

The District Court concluded that the parties' discovery motions

were rendered moot by its grant of respondent's motion to dismiss.

It is from the District Court's order that appellant appeals.

Did the District Court err in granting respondent's motion to

dismiss?

The District Court granted respondent's motion to dismiss

after concluding that respondent was a government official entitled

to absolute prosecutorial immunity. The District Court reasoned

that "whether [appellant's] complaint is unfounded or not is

irrelevant, because a government official entitled to prosecutorial

immunity is absolutely immune from suit, regardless of the merits

of the claim involved."

"In reviewing a motion to dismiss, we construe the complaint

in the light most favorable to the plaintiff and take the

allegations of the complaint as true." Goodman Realty, Inc. v.

Monson (Mont. 1994), 883 P.2d 121, 123, 51 St. Rep. 1074, 1075;

King v. State (1993), 259 Mont. 393, 395, 856 P.2d 954, 955. Our

scope of review is broad and we examine the entire case and make a

determination in accordance with our findings. Goodman, 883 P.2d

at 123; Kinq, 856 P.2d at 955. We will affirm the dismissal only

if we find that the plaintiff is not entitled to relief under any
set of facts which could be proved in support of the claim.

Goodman, 883 P.2d at 123; Kinq, 856 P.2d at 955.

Appellant argues that the District Court erred by granting

prosecutorial immunity to respondent. Appellant asserts that

prosecutorial immunity should not shield respondent, who was

performing an administrative function while investigating

appellant's application for a gambling license.

Respondent is a Department of Justice investigator who acts as

a n agent of the Attorney General 'I to conduct criminal

investigations and perform related duties" pursuant to 5 44-2-111,

MCA. The doctrine of prosecutorial immunity is not limited to

persons who hold the title of "prosecutor." It extends to persons

involved in prosecutorial or quasi-prosecutorial functions. State

ex rel. Dept. of Justice v. District Court (1977), 172 Mont. 88,

560 P.2d 1328. The District Court determined that the critical

question was whether respondent was acting within his authority as

a Department of Justice employee to be directly involved with the

prosecution of a gambling violation when he issued an "Offense

Report" recommending criminal prosecution of appellant, thereby

entitling him to absolute prosecutorial immunity. The District

Court concluded that respondent's conduct qualified for

prosecutorial immunity because the "Offense Report" was "more or

less connected to his responsibility to conduct criminal

investigations and perform related duties for the Department of

Justice." 1n addition, the District Court concluded that the

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issuance of the "Offense Report" was "intimately associated with

the judicial phase of the criminal process since the report

contains a recommendation that criminal prosecution should occur."

We disagree.

When determining whether a defendant is entitled to

prosecutorial immunity, we focus on whether the alleged wrongful

conduct occurred in the course of filing and maintaining criminal

charges. Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 6,

878 P.2d 870, 873. Our functional approach to analyzing claims of

prosecutorial immunity is similar to the approach taken by the

United States Supreme Court. In Imbler v. Pachtman (19761, 424

U.S. 409, 422-23, 96 S. ct. 984, 991, 47 L. Ed. 2d 128, 139, the

Supreme Court held that a prosecutor was immune from civil

liability when initiating a prosecution and presenting the state's

case. The Supreme Court reasoned that this conduct was "intimately

associated with the judicial phase of the criminal process" and

should not be hindered by the prospect of civil liability.

However, a prosecutor engaged in administrative duties is not

entitled to immunity from civil liability. Smith, 878 P.2d at 874.

A review of the statutes and administrative regulations that

govern the authority of the Department of Justice to approve or

reject an application for a gambling license demonstrates that as

an investigator for the Department of Justice, respondent was

performing an administrative function while investigating and

reporting on appellant's application. Operating a casino in

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Montana requires a valid license issued by the Department of

Justice, Gambling Control Division. Section 23.16.102(l), ARM. An

application for a gambling license must be submitted to the

Department of Justice. Section 23.16.102(2), ARM. Upon receipt

of an application for a gambling license, the Department of Justice

must make a thorough investigation as to the qualifications of the

applicant. Section 23.16.104, ARM. If, after a thorough

investigation, the applicant fails to qualify, the Department of

Justice may deny the issuance of a license or it may take any

action authorized in 5 23-5-136, MCA. See § 23-5-176, MCA. The

Department of Justice is authorized under § 23-5-177, MCA, to

charge the applicant a fee to cover the administrative costs

incurred in determining whether the applicant qualifies for a

license.

While it may be within the scope of respondent's duties to

conduct criminal investigations for the Department of Justice, in

the present case respondent was assigned to the administrative task

of investigating appellant's application as opposed to the

prosecutorial function of filing and maintaining criminal charges

against appellant. There is nothing in the record to demonstrate

that at the time of the hearing on the motion to dismiss,

respondent or the Department of Justice had filed or maintained

criminal charges against appellant. W e fail to see how

respondent's investigation and recommendation were intimately

involved in the judicial phase of the criminal process.

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After reviewing the record and applying the relevant statutes

and administrative regulations to the facts, we conclude that

respondent WZIS acting in an administrative capacity while

investigating and reporting on appellant's application as an agent

of the Department of Revenue, rather than in a prosecutorial

capacity. As a result, respondent is not entitled to prosecutorial

immunity.

By granting prosecutorial immunity to respondent, the District

Court did not determine whether appellant had stated a claim upon

which relief could be granted. Because respondent is not entitled

to prosecutorial immunity, we hold that the District Court erred in

granting respondent's motion to dismiss.

On March 27, 1995, respondent filed a motion to strike

appellant's reply brief. We allowed appellant to reply, and on

April 11, 1995, appellant filed her response. After considering

respondent's motion in the course of this appeal, we conclude that

the issues respondent raised did not affect the outcome of this

appeal.

We reverse and remand for further proceedings in accordance

with this opinion.

Justice
j
Justice Fred J. Weber specially concurs as follows:

Based upon the record which is before us, I do join in the

result of the opinion.

However, the opinion specifically states that while it may be

within respondent's duty to conduct criminal investigations for the

Department of Justice, in the present case he was assigned to the

administrative task of investigating the application as opposed to

the prosecutorial function of filing and maintaining criminal

charges. Because there is nothing in the record to demonstrate

that the Department of Justice had filed and maintained criminal

charges, the opinion concludes that there is nothing to suggest

that the respondent's investigation was intimately involved in the

judicial phase of the criminal process.

The opinion next concludes that the respondent was acting in

an administrative capacity while investigating the application for

the license and is therefore not entitled to prosecutorial

immunity. As I have suggested, I agree with that conclusion based

upon the present record.

However, if the record before us demonstrated that based upon

the report given, the Department of Justice had proceeded with a

criminal investigation and spent time and effort to determine

whether or not criminal charges were appropriate, I

believe it appropriate to grant immunity even though

were filed.

would then

no charges

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