                             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.




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