Bolinske v. Sandstrom

978 N.W.2d 72

Robert V. BOLINSKE, Sr., Plaintiff and Appellant

v. Dale V. SANDSTROM, Gail Hagerty, Defendants and AppelleesandRobert R. Port, Defendant

No. 20220016

Supreme Court of North Dakota.

FILED JULY 27, 2022

Rehearing Denied September 20, 2022

Robert V. Bolinske, Sr., self-represented, Bismarck, N.D., plaintiff and appellant.

Matthew A. Sagsveen, Solicitor General, Office of Attorney General, Bismarck, N.D., for defendants and appellees.

Tufte, Justice.

[¶1] Robert Bolinske appeals from a judgment dismissing his claims against former Supreme Court Justice Dale Sandstrom and former District Court Judge Gail Hagerty ("State Defendants") and awarding them attorney's fees. We affirm in part, concluding the district court properly dismissed Bolinske's claims of procedural and substantive due process, civil conspiracy, malicious prosecution, abuse of process, intentional and negligent infliction of emotional distress, governmental bad faith, and tortious outrage. We reverse in part, concluding the district court erred by dismissing the defamation claim under the statute of limitations. We vacate the award of attorney's fees, and remand for further proceedings.

I

[¶2] In October 2016, Bolinske alleged in a press release that the State Defendants conspired to misfile or hide a petition for supervisory writ that he submitted in a prior case and thus tampered with public records. A few days after this press release, Rob Port published an article on his "Say Anything" blog regarding Bolinske's press release. The article states that Port contacted Sandstrom and quotes Sandstrom as having said Bolinske's press release was "bizarre and rather sad" and that "[a]lthough I've been aware of his mental health problems for years, I don't recall ever having seen anything in his email before." Three days after the article was published, Hagerty filed a grievance complaint against Bolinske, alleging he violated the North Dakota Rules of Professional Conduct. Based on the complaint, a disciplinary action was brought against Bolinske. The Inquiry Committee found Bolinske violated the Rules of Professional Conduct and issued him an admonition. The Disciplinary Board of the Supreme Court affirmed, and we affirmed, concluding his procedural due process rights were not violated. Matter of Bolinske , 2018 ND 72, ¶ 11, 908 N.W.2d 462.

[¶3] In February 2019, Bolinske commenced this action and alleged the State Defendants denied him procedural and substantive due process, and committed defamation, civil conspiracy, malicious prosecution, abuse of process, intentional and negligent infliction of emotional distress, governmental bad faith, and tortious outrage. He sought money damages, and injunctive and declaratory relief. The case was stayed for resolution of Bolinske's similar federal action. After the federal action was dismissed, Bolinske v. N.D. Sup. Ct. , Civil No. 18-213, 2019 WL 2565672 (D.N.D. June 20, 2019), and affirmed by the Eighth Circuit Court of Appeals, Bolinske v. N.D. Sup. Ct. , 823 F. App'x 444 (8th Cir. 2020), the district court lifted the stay. The State Defendants moved to dismiss under N.D.R.Civ.P. 12(b). Bolinske responded that the motion was converted into a motion for summary judgment because matters outside of the pleadings were being presented. The district court converted the motion, granted the State Defendants’ motion for summary judgment, dismissed Bolinske's claims, and awarded the State Defendants’ attorney's fees.

II

[¶4] Our standard of review for a grant of summary judgment is well established:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Thompson-Widmer v. Larson , 2021 ND 27, ¶ 10, 955 N.W.2d 76.

III

[¶5] Bolinske argues he timely notified the office of management and budget (OMB) of his alleged injuries.

[¶6] "An action for an injury proximately caused by the alleged negligence, wrongful act, or omission of a state employee occurring within the scope of the employee's employment must be brought against the state." N.D.C.C. § 32-12.2-03(1). "A state employee is not personally liable for money damages for an injury when the injury is proximately caused by the negligence, wrongful act, or omission of the employee acting within the scope of employment." N.D.C.C. § 32-12.2-03(2). "A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded." N.D.C.C. § 32-12.2-04(1) (emphasis added). "Injury" includes "injury to a person's rights or reputation." N.D.C.C. § 32-12.2-01(2) and (4). The district court lacks subject matter jurisdiction absent a timely filing of a notice of claim under N.D.C.C. § 32-12.2-04(1). Ghorbanni v. N.D. Council on the Arts , 2002 ND 22, ¶ 8, 639 N.W.2d 507.

[¶7] Bolinske's press release, Sandstrom's alleged statements, and Hagerty's grievance complaint all occurred in October 2016. Bolinske alleged he demanded a retraction or correction from Sandstrom on or about January 14, 2017. Bolinske filed his notice of claim with OMB on September 19, 2017. Bolinske does not challenge the district court's conclusion that he discovered or reasonably should have discovered his injuries by at least January 14, 2017. Thus, even if the later date of January 14, 2017, is when Bolinske discovered his alleged injuries, he was required to file his notice of claim with OMB by July 13, 2017. Because he did not file it until September 19, 2017, his notice was over two months late. See Ghorbanni , 2002 ND 22, ¶ 8, 639 N.W.2d 507 (requiring strict compliance with N.D.C.C. § 32-12.2-04(1) ).

[¶8] Bolinske argues the State Defendants acted outside the scope of their employment when they committed these alleged acts. " ‘Scope of employment’ means the state employee was acting on behalf of the state in the performance of duties or tasks of the employee's office or employment lawfully assigned to the employee by competent authority or law." N.D.C.C. § 32-12.2-01(6). Bolinske alleged in his amended complaint that the State Defendants were acting under color of state law in committing the alleged acts. The only claim alleged to have occurred outside of the State Defendants’ scope of employment is the defamation claim against Sandstrom, where Bolinske alleged Sandstrom made defamatory statements to Port, who published the statements in an article. The State Defendants do not assert, nor does the record show, that the alleged statements from Sandstrom were made while he was acting on behalf of the State in performing his duties as a Justice of the Court. Thus, the defamation claim does not fail for lack of subject matter jurisdiction. Further, because Bolinske sought injunctive and declaratory relief—declaring the lawyer disciplinary process unlawful and enjoining the State Defendants from pursuing any further disciplinary action against him—his procedural and substantive due process claims challenging the lawyer disciplinary process survive the jurisdictional phase.

[¶9] Accordingly, Bolinske failed to comply with N.D.C.C. § 32-12.2-04(1) and the district court properly dismissed his claims of civil conspiracy, malicious prosecution, abuse of process, intentional and negligent infliction of emotional distress, governmental bad faith, and tortious outrage for lack of subject matter jurisdiction.

IV

[¶10] Bolinske argues the district court erred by concluding his claims are barred by claim and issue preclusion. "Res judicata, or claim preclusion, is the more sweeping doctrine that prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by final judgment in a court of competent jurisdiction." Hofsommer v. Hofsommer Excavating, Inc. , 488 N.W.2d 380, 383 (N.D. 1992). "[C]ollateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit." Id.

[¶11] The district court concluded Bolinske's claims of procedural and substantive due process, malicious prosecution, abuse of process, intentional infliction of emotional distress, governmental bad faith, and tortious outrage were barred by the federal action. The federal action does not preclude these claims. The federal district court determined it lacked subject matter jurisdiction and granted without prejudice the State Defendants’ motion to dismiss, concluding, "The Court declines the parties’ invitation to delve deeply into matters of immunity, governmental bad faith, and...