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
an 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
4
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
5
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. We fail to see how
respondent's investigation and recommendation were intimately
involved in the judicial phase of the criminal process.
6
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 would then
believe it appropriate to grant immunity even though no charges
were filed.
9