978 N.W.2d 72
N.D.2022Background
- In October 2016 Bolinske issued a press release accusing former Justice Dale Sandstrom and former Judge Gail Hagerty of conspiring to misfile or hide a petition; blogger Rob Port published an article quoting Sandstrom as calling the release "bizarre and rather sad" and referencing Bolinske's mental health.
- Hagerty filed a grievance against Bolinske; the lawyer-discipline process admonished him, and the North Dakota Supreme Court affirmed that his procedural due-process rights were not violated in Matter of Bolinske.
- Bolinske sued Sandstrom and Hagerty in state court (Feb 2019) alleging procedural and substantive due process violations, defamation, conspiracy, malicious prosecution, abuse of process, emotional distress, governmental bad faith, and tortious outrage; he sought money damages and injunctive/declaratory relief.
- The case was stayed pending resolution of a related federal suit; after the federal proceedings concluded, the state defendants moved to dismiss (converted to summary judgment), the district court dismissed most claims and awarded attorney’s fees, and Bolinske appealed.
- The North Dakota Supreme Court affirmed dismissal of many claims for lack of subject-matter jurisdiction due to a late notice-of-claim filing, reversed dismissal of the defamation claim (procedural defect), vacated the attorney-fee award, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice-of-claim / subject-matter jurisdiction (N.D.C.C. § 32-12.2-04) | Bolinske says he timely notified OMB of injuries. | Notice was filed >180 days after discovery; strict compliance required; failure deprives court of jurisdiction for money damages. | Claims for money damages (conspiracy, malicious prosecution, abuse of process, emotional distress, governmental bad faith, tortious outrage) dismissed for lack of jurisdiction. |
| Scope-of-employment / immunity | State actors acted outside scope when making alleged statements/actions. | Acts were within official duties except alleged defamatory statements by Sandstrom to Port. | Only the defamation claim against Sandstrom avoided jurisdictional dismissal; other torts fall within scope-based immunity and notice requirements. |
| Claim/issue preclusion (effect of federal dismissal) | Federal dismissal should not bar state claims; arguments pending concurrently. | Defendants argued res judicata/collateral estoppel barred relitigation. | Federal dismissal was for lack of jurisdiction, not on the merits, so it does not preclude the state claims; but Bolinske's procedural due-process challenge to the disciplinary process is barred by the prior state-court decision in Matter of Bolinske. |
| Statute-of-limitations defense procedure | Defendants failed to properly preserve SOL defense; dismissal on SOL improper. | SOL can be raised in pre-answer motions or conversion to summary judgment. | Under N.D.C.C. § 28-01-39 a SOL objection "can only be taken by answer"; district court erred dismissing defamation on SOL grounds without an answer. |
| Defamation merits / qualified privilege | Sandstrom's quoted statements were false and defamatory. | Statements were nonactionable opinion/privileged; qualified privilege applies absent actual malice. | Court did not decide merits on appeal; reversed SOL dismissal and remanded for further proceedings (qualified-privilege and opinion issues left to district court). |
| Attorney's fees under N.D.C.C. § 28-26-01(2) (frivolous claims) | Claims were not frivolous; contemporaneous federal litigation created uncertainty. | Claims were frivolous given res judicata and undisputed procedural defects. | Court erred to the extent it found frivolity based on federal res judicata; but did not abuse discretion finding certain claims frivolous for failure to timely file notice of claim. Overall fee award vacated and remanded for reconsideration after resolution of defamation claim. |
Key Cases Cited
- Thompson-Widmer v. Larson, 955 N.W.2d 76 (summary-judgment standard)
- Ghorbanni v. N.D. Council on the Arts, 639 N.W.2d 507 (strict compliance with notice-of-claim required)
- Matter of Bolinske, 908 N.W.2d 462 (North Dakota Supreme Court decision rejecting procedural due-process challenge to disciplinary process)
- Johnson v. Boyd-Richardson Co., 650 F.2d 147 (dismissal for lack of jurisdiction is not an adjudication on the merits for res judicata)
- Krile v. Lawyer, 947 N.W.2d 366 (analysis of qualified privilege and actual malice)
- Lieberman v. Fieger, 338 F.3d 1076 (statements of opinion about mental competence may be nonactionable)
- In re Estate of Nelson, 863 N.W.2d 521 (procedural-context citation; court reversed where basis for dismissal unclear)
- Choice Fin. Grp. v. Schellpfeffer, 712 N.W.2d 855 (Rule 56(f) / discovery-necessity standards)
- McCarvel v. Perhus, 952 N.W.2d 86 (standard for awarding fees under NDCC § 28-26-01(2))
- Larson v. Baer, 418 N.W.2d 282 (district court may consider frivolity of individual claims when awarding fees)