Kelman v. Losleben
894 P.2d 955
Mont.
1995
Check Treatment

*1 156

EVELYN KELMAN, Appellant, Plaintiff and v.

RICHARD LOSLEBEN, Respondent. Defendant No. 94-265. February 1995. Submitted on Briefs May Decided 1995. St.Rep. 387. 52 Mont. 156. 271 955. 894 P.2d *2 For Curtis G. Appellant: Thompson, Thompson & Jacobsen, Falls; Great Steven T. Potts, Jardine, Stephenson, Blewett & Weaver, Great Falls. Respondent:

For Maxon R. Davis Paul E. Haffeman, and Cure, Davis, Borer & Great Falls.

JUSTICE HUNT delivered the Opinion of the Comet. Evelyn Appellant appeals Kelman from an order Eighth Court, County, Judicial District Cascade granting respondent Rich- ard Losleben’s motion to dismiss. proceedings

We reverse and remand for further in accordance with this opinion. appeal issue on is: dispositive

Did err in granting respondent’s the District Court motion to dismiss?

Appellant applied Department to the Montana Gam- Division, gambling operator’s license in connection bling Control interest in two Great Falls casinos. The Depart- her contractual with investigate report Justice on respondent ment of 1993, August respondent In submitted a 37 application. appellant’s that the Report,” recommending “Offense Justice page addition, recommended In deny appellant’s application. prosecute appellant report and others listed in his for that the State criminal violations. alleged against respondent filed suit September appellant

On falsehood, privacy, injurious wrongful use of civil alleging invasion contract, actual tortious interference with fraud. proceeding, 12(b)(6), M.R.Civ.P., a motion to dismiss under Rule Respondent filed immunity, protective and a motion for a order claiming prosecutorial compel discovery. filed a discovery. Appellant from 15,1994, parties appeared argued both their motions April On 25,1994, Court. On the District Court issued April before the District motion to dismiss. The District Court granting respondent’s its order rendered parties’ discovery motions were moot concluded It from the motion to dismiss. District grant its appellant appeals. order that Court’s respondent’s motion to granting District Court err in

Did the dismiss? *3 to dismiss after granted respondent’s Court

The District a official entitled to government that was concluding immunity. The District Court reasoned that prosecutorial absolute irrelevant, unfounded is or not is [appellant’s] complaint “whether immunity is prosecutorial official entitled to government a because the the claim suit, regardless from merits of absolutely immune involved.” dismiss, the complaint a motion to we construe reviewing

“In allegations and take the plaintiff favorable to the light in the most (1994), 267 Realty, Inc. v. Monson as true.” Goodman complaint 393, 123; (1993), 259 Mont. 121, King v. State 228, 883 P.2d Mont. of review is broad and we examine 954, scope 955. Our 395, 856 P.2d our in accordance with make a determination entire case and 123; King, at 856 P.2d at 955. We will Goodman, 883 P.2d findings. entitled plaintiff is not only if we find the dismissal affirm in of the proved support could be any set of facts which relief under to 123; 856 P.2d at 955. Goodman, King, P.2d at 883 claim. by granting prose- Court erred that the District argues

Appellant asserts that prosecuto- immunity respondent. Appellant cutorial an performing who was respondent, shield immunity should not rial

159 function while investigating appellant’s application gambling license. Respondent is Department a of Justice investigator who acts agent Attorney as an of the General “to investiga conduct criminal perform pursuant 44-2-111, tions and related duties” to § MCA. The prosecutorial immunity doctrine of persons is not limited to who hold the title of It “prosecutor.” persons extends to in prosecuto involved or quasi-prosecutorial rial functions. State ex rel. Dept. Justice v. (1977), District Court 172 Mont. 560 P.2d 1328. The District Court determined that question the critical was whether respondent was acting authority within his as Department a employee Justice directly be involved with prosecution of a gambling violation when Report” he issued an “Offense recommending criminal prosecution of appellant, thereby entitling him to prosecutorial absolute immunity The District Court concluded that qualified conduct for immunity because the Report” “Offense was “more or responsibility less connected to his criminal to conduct perform related for duties of Justice.” In addi tion, the District Court concluded that the issuance of the “Offense Report” “intimately judicial associated with the phase of the process report since the contains a recommendation prosecution should occur.” We disagree. determining

When whether a defendant is to prose entitled immunity, cutorial we focus on alleged wrongful whether conduct occurred in the of filing course and maintaining criminal charges. Smith v. County (1994), Butte-Silver Bow 1, 6, 266 Mont. 878 P.2d Our approach analyzing 873. functional prosecuto claims of immunity rial is similar to the approach by taken the United States Supreme Court. In (1976), 409, 422-23, Imbler v. Pachtman 424 U.S. 984, 991, 47 128, 139, S. Ct. L. Ed. 2d Supreme Court held that a prosecutor liability was immune from civil when initiating a prosecu presenting Supreme tion and the state’s case. The Court reasoned that “intimately judicial phase this conduct was with the associated criminal process” prospect and should not be hindered of civil liability. However, prosecutor a engaged in administrative duties not immunity Smith, entitled to liability. from civil 878 P.2d at 874. *4 A review of the regulations statutes and administrative authority govern Department the of or approve reject Justice to gambling an for a application license demonstrates that as an inves tigator Department Justice, for the of an respondent performing was investigating function while reporting appel- administrative on in a Operating requires a casino Montana valid application. lant’s Justice, Gambling Department the of Control Divi issued license 23.16.102(1), An for a li application gambling ARM. sion. Section of to the Justice. Section Department cense must be submitted 23.16.102(2), receipt of an Upon application gambling ARM. license, thorough investiga make a Department of Justice must the 23.16.104, applicant. ofthe Section ARM. qualifications tion as to the investigation, applicant qualify, fails If, thorough to after a may may deny the of a license or it Department of Justice issuance 23-5-136, 23-5-176, any in MCA.See MCA. § action authorized § take 23-5-177, MCA, is authorized under to Department § of Justice to costs a fee cover administrative incurred charge applicant for a license. applicant qualifies determining in whether respondent’s of duties to conduct may scope within the it be While present in the Department for the criminal to task of investi- the administrative respondent case was prosecutorial to the func- opposed as application gating appellant’s maintaining charges against appellant. filing tion that at the time of the to demonstrate nothing in record There dismiss, or the respondent to hearing on the motion charges against appellant. or maintained Justice had filed investigation and recommendation fail to see how We process. intimately judicial phase ofthe criminal involved in were the relevant statutes and applying the record and reviewing After facts, that respondent to the we conclude regulations capacity investigating and while acting in an administrative agent of the Department as an appellant’s application on reporting capacity. result, As a Revenue, prosecutorial than in a rather immunity. prosecutorial not entitled respondent is the District immunity respondent, granting By prosecutorial upon claim appellant had stated a not determine whether did Court is not entitled to respondent Because granted. could be relief which erred in that the District Court immunity, we hold to dismiss. motion granting respondent’s appellant’s to strike 27,1995, filed a motion respondent On March 11, 1995, reply, April and on appellant We allowed reply brief. considering respondent’s response. After filed her appellant issues we conclude appeal, of this in the course appeal. of this the outcome did not affect raised in accordance with proceedings remand for further We reverse opinion. this *5 TRIEWEILER,

JUSTICES GRAYand LEAPHART concur. specially JUSTICE WEBER concurs as follows: join Based the record is I upon us, which before do in the result of opinion. However, opinion specifically states that may while it be within duty respondent’s to conduct for the Depart- ment of in the present case he was the adminis- trative task of investigating application as opposed to prose- cutorial function offiling maintaining criminal charges. Because nothing there is in the record to demonstrate that Justice had filed and maintained charges, the opinion con- cludes that nothing suggest there is investi- intimately gation judicial involved in the phase the criminal process. opinion next concludes that the respondent was acting in an capacity while investigating the application for the

license therefore not entitled to immunity. As I suggested, have I agree with that conclusion upon based the present record.

However, if the record before us demonstrated that upon based report given, the Department of Justice had proceeded with a crimi- nal investigation spent time and effort to determine whether or charges not criminal were I appropriate, would then believe it appro- priate grant immunity though charges even no were filed.