947 N.W.2d 366
N.D.2020Background
- In Feb 2017 an anonymous tip prompted Assistant Burleigh County State’s Attorney Julie Lawyer to review Bismarck police personnel files; she concluded Sergeant Robyn Krile’s file raised Giglio/Brady impeachment concerns.
- Lawyer sent a March 22, 2017 “Giglio letter” to Bismarck Police Chief Dan Donlin saying her office would no longer use Krile as a witness; Krile was subsequently terminated.
- Krile filed a discrimination complaint; during the Department of Labor and Human Rights investigation Lawyer submitted affidavits explaining the Giglio letter. Krile alleged the Department found no unlawful discrimination.
- In March 2019 Krile sued Lawyer (official and individual capacities) for defamation, alleging publication of the Giglio letter to Chief Donlin, the Department of Labor, the POST Board, and to Lincoln Police Chief Joe Gibbs (employment inquiry).
- Lawyer moved to dismiss under N.D.R.Civ.P. 12(b)(6) asserting absolute privilege under N.D.C.C. § 14-02-05; the district court relied on the Giglio letter and affidavits and dismissed. The court did not explicitly address the Gibbs disclosure.
- The North Dakota Supreme Court affirmed in part, reversed in part, and remanded: it held Dept. of Labor disclosures were absolutely privileged, Donlin disclosure was not absolutely privileged, POST Board disclosure unresolved on the record, and the Gibbs disclosure requires further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court relied on matters outside the pleadings and should have converted the 12(b)(6) motion to summary judgment | Krile: court considered outside materials and should have converted to Rule 56 | Lawyer: documents (Giglio letter, affidavits) were embraced by the pleadings/public record; no conversion required | Held: No conversion error — exhibits were embraced by the pleadings and properly considered on a 12(b)(6) motion |
| Whether disclosure of the Giglio letter to Bismarck Chief Donlin is absolutely privileged under N.D.C.C. § 14-02-05(1) (proper discharge of official duty) | Krile: publication to Donlin is not absolutely privileged | Lawyer: as a prosecutor she was acting within official duties and entitled to absolute privilege | Held: Not absolutely privileged — sending the Giglio letter to Donlin was administrative (not "intimately associated" with the judicial phase); dismissal reversed as to this disclosure (district court may consider qualified privilege on remand) |
| Whether disclosure of the Giglio letter and affidavits to the Department of Labor and to the POST Board are absolutely privileged under N.D.C.C. § 14-02-05(2) (proceeding authorized by law) | Krile: not privileged | Lawyer: submissions were made in response to formal statutory investigations and are absolutely privileged | Held: Dept. of Labor disclosures are absolutely privileged — dismissal affirmed. POST Board disclosure: record insufficient to show it was made in a Board investigation; if it was, it would be absolutely privileged; remanded for factfinding |
| Whether disclosure to Lincoln Police Chief Gibbs was adjudicated and whether privilege applies | Krile: Lawyer told Gibbs the Giglio letter, harming employment prospects | Lawyer: district court did not address this disclosure | Held: Not previously decided; claim preserved and must be addressed on remand |
Key Cases Cited
- Imbler v. Pachtman, 424 U.S. 409 (prosecutorial absolute immunity where acts are intimately associated with judicial phase)
- Buckley v. Fitzsimmons, 509 U.S. 259 (prosecutor not immune for investigative or administrative acts)
- Beck v. Phillips, 685 N.W.2d 637 (Iowa 2004) (Giglio letter to police chief not entitled to absolute immunity)
- Rykowsky v. Dickinson Pub. Sch. Dist. 1, 508 N.W.2d 348 (qualified vs. absolute privilege analysis)
- Richmond v. Nodland, 552 N.W.2d 586 (policy basis for privilege; privilege as defense to defamation)
- Brady v. Maryland, 373 U.S. 83 (prosecutor's duty to disclose exculpatory/impeachment evidence)
- Giglio v. United States, 405 U.S. 150 (prosecutorial impeachment disclosure rule)