                                      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:

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     €     c;u           Edward A. Cummings, Missoula, Montana
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           a =                          Submitted on Briefs:    June 20, 1990
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      b        o                                       Decided: August 29, 1990
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                                        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 I1adviceof c o u n ~ e l . ~ ~jury returned a verdict in favor of the
                              A
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.

-- Wisniski v. Ogg (1958), 84 Ariz. 372, 329 P.2d 1097, 1099;
See also
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:       ,/"
