IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 148

Robert V. Bolinske, Sr., Plaintiff and Appellant

v.

Dale V. Sandstrom, Gail Hagerty, Defendants and Appellees

and

Robert R. Port, Defendant

No. 20220016

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Michael P. Hurly, Judge.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND 

REMANDED.

Opinion of the Court by Tufte, Justice.

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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 27, 2022 

STATE OF NORTH DAKOTA
1

Bolinske v. Sandstrom

No. 20220016

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 
2

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.
3

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 (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’
4

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 
5

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 related issues. At this 

stage, it would be improper for this Court to weigh in on substantive legal 

questions that are properly before the North Dakota Supreme Court in 

Bolinske’s pending matter.” Bolinske v. N.D. Sup. Ct., Civil No. 18-213, 2019 

WL 2565672, *4-5 (D.N.D. June 20, 2019). The Eighth Circuit Court of Appeals 

affirmed. Bolinske v. N.D. Sup. Ct., 823 F. App’x 444 (8th Cir. 2020). “[W]hen a 

dismissal is for ‘lack of jurisdiction,’ the effect is not an adjudication on the 

merits, and therefore the res judicata bar does not arise.” Johnson v. BoydRichardson Co., 650 F.2d 147, 148 (8th Cir. 1981); see also Trottier v. Bird, 2001 

ND 177, ¶ 6 n.1, 635 N.W.2d 157 (stating dismissal for lack of subject matter 

jurisdiction is not an adjudication on the merits of a claim); Fettig v. Estate of 

Fettig, 2019 ND 261, ¶¶ 18, 21, 934 N.W.2d 547 (noting that the doctrines of 

claim and issue preclusion apply to judgments on the merits). Because the 

federal district court did not adjudicate the merits of these claims, instead 

concluding it lacked subject matter jurisdiction, which was affirmed by the 

Eighth Circuit, these claims are not barred by claim or issue preclusion as a 

result of the federal action.

[¶12] Bolinske’s procedural due process claim, however, attacks the process of 

his disciplinary action. Thus, because this Court concluded his procedural due 

process rights were not violated in Matter of Bolinske, 2018 ND 72, ¶ 11, 908 

N.W.2d 462, we conclude his procedural due process claim is barred by res 

judicata.

[¶13] Further, N.D.R. Lawyer Discipl. 6.5, provides, “Communications to the 

board and its secretary, district inquiry committees, hearing panels, or counsel 
6

relating to lawyer misconduct or disability, as well as testimony given in any 

disability or disciplinary proceeding, are privileged, and no lawsuit predicated 

thereon may be instituted against any complainant or witness.” (Emphasis 

added.) The State Defendants did not adjudicate Bolinske’s disciplinary 

matters, nor participate in the matters beyond witnessing or complaining of 

his actions. Thus, to the extent any of Bolinske’s claims are based upon the 

State Defendants’ communications related to the disciplinary process, those 

claims are barred under Rule 6.5 as the State Defendants are either a 

complainant or witness. We conclude the district court did not err in dismissing 

Bolinske’s due process claims.

V

A

[¶14] Bolinske argues the district court erred in dismissing his defamation 

claim under the statute of limitations. He asserts the State Defendants failed 

to properly raise a statute of limitations defense.

[¶15] Under N.D.C.C. § 28-01-39, “The objection that an action was not 

commenced within the time limited by law can only be taken by answer.” The 

State Defendants did not file an answer to the complaint, instead filing a Rule 

12(b) motion to dismiss. The State Defendants argue that requiring an answer 

to raise a statute of limitations defense would preclude a Rule 12 or Rule 56 

motion and such requirement is inconsistent with case law allowing the 

defense in a Rule 12 motion, citing In re Estate of Nelson, 2015 ND 122, 863 

N.W.2d 521. In Estate of Nelson, we reversed and remanded to the district court 

because we were unable to understand the basis for the court’s dismissal. 2015 

ND 122, ¶ 9. We did not analyze the issue of failing to raise the defense in an 

answer as provided under N.D.C.C. § 28-01-39 in Estate of Nelson.

[¶16] This Court has held that under N.D.C.C. § 28-01-39,

1 a statute of 

limitations defense “cannot be raised by demurrer, but must be pleaded by 

answer,” and “even though the fact is apparent upon the face of the complaint.”

1 Previously codified at N.D.R.C. § 28-0139 (1943).
7

Hagen v. Altman, 79 N.W.2d 53, 59 (N.D. 1956). A “demurrer” was similar to a 

motion to dismiss. See Black’s Law Dictionary 546 (11th ed. 2019) (stating that 

in most jurisdictions a demurrer is now termed a motion to dismiss).

[¶17] South Dakota has a similar statute and has likewise held that a statute 

of limitations defense must be pled by answer (or a responsive pleading) and 

cannot be raised by a motion to dismiss. See SDCL § 15-2-1 (“The objection that 

the action was not commenced within the time limited can only be taken by 

answer or other responsive pleading.”); Guthmiller v. Deloitte & Touche, LLP, 

2005 S.D. 77, ¶ 8, 699 N.W.2d 493 (concluding that lower court erred by 

granting a motion to dismiss on a statute of limitations defense because a “preanswer motion under Rule 12(b), such as a motion to dismiss for failure to state 

a claim, is not a responsive pleading”); see also Wis. Stat. § 893.01 (“An 

objection that the action was not commenced within the time limited may only 

be taken by answer or motion to dismiss . . . .”) (emphasis added).

[¶18] Because N.D.C.C. § 28-01-39 requires that a statute of limitations

defense “can only be taken by answer” and the State Defendants have not 

answered the amended complaint, we conclude the district court erred by 

dismissing the defamation claim under the statute of limitations. Nothing we 

say here would foreclose the district court from resolving any post-answer 

motion under Rule 12 or Rule 56.

B

[¶19] The State Defendants argue that even if they were required to plead 

their statute of limitations defense in an answer, the alleged statements are 

not defamatory as a matter of law.

[¶20] In North Dakota, every person “may freely write, speak and publish his 

opinions on all subjects, being responsible for the abuse of that privilege.” N.D. 

Const. art. I, § 4. Every person has the right to be protected from defamation, 

which includes either libel or slander. N.D.C.C. §§ 14-02-01, 14-02-02. “Libel is 

a false and unprivileged publication by writing . . . which exposes any person 

to hatred, contempt, ridicule, or obloquy, or which causes the person to be 

shunned or avoided, or which has a tendency to injure the person in the 

person’s occupation.” N.D.C.C. § 14-02-03. “Slander is a false and unprivileged 
8

publication other than libel, which . . . [t]ends directly to injure the person in 

respect to the person’s office, profession, trade, or business . . . or [b]y natural 

consequence causes actual damage.” N.D.C.C. § 14-02-04(3), (5). A privileged 

communication is one made:

1. In the proper discharge of an official duty;

2. In any legislative or judicial proceeding or in any other 

proceeding authorized by law;

3. In a communication, without malice, to a person interested 

therein by one who also is interested, or by one who stands 

in such relation to the person interested as to afford a 

reasonable ground for supposing the motive for the 

communication innocent, or who is requested by the person 

interested to give the information; and

4. By a fair and true report, without malice, of a judicial, 

legislative, or other public official proceeding, or of anything 

said in the course thereof.

N.D.C.C. § 14-02-05. Malice is not inferred from the communication or 

publication in the cases provided for in subsections 3 and 4. Id.

[¶21] Communications are qualifiedly privileged under N.D.C.C. § 14-02-05(3) 

and (4). Krile v. Lawyer, 2020 ND 176, ¶ 36, 947 N.W.2d 366. “The analysis of 

a qualified privilege requires a two-step process to determine: (1) if a 

communication’s attending circumstances necessitate a qualified privilege; 

and (2) if so, whether the privilege was abused.” Id. “If the circumstances for a 

communication are not in dispute, the determination of whether there is a 

qualified privilege is a question of law for the court.” Id. Abuse of a qualified 

privilege requires actual malice:

A qualified privilege is abused if statements are made with 

actual malice, without reasonable grounds for believing them to be 

true, on a subject matter irrelevant to the common interest or duty. 

Actual malice is required in order to defeat a qualified privilege. 

Actual malice depends on scienter and requires proof that a 

statement was made with malice in fact, ill-will, or wrongful 

motive. Actual malice is not inferred from the communication 

itself; the plaintiff must prove actual malice and abuse of the 

privilege. Generally, actual malice and abuse of a qualified 

privilege are questions of fact. However, where the facts and 
9

inferences are such that reasonable minds could not differ, factual 

issues are questions of law.

Id. at ¶ 37 (cleaned up).

[¶22] The Rob Port article quotes Sandstrom as saying 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.” The State Defendants argue this case is similar to Lieberman v. Fieger, 

338 F.3d 1076, 1080 (9th Cir. 2003), which concluded that an attorney referring 

to a psychiatrist as “Looney Tunes,” “crazy,” “nuts,” and “mentally imbalanced” 

was protected speech under the First Amendment as statements of opinion and 

could not form the basis for a defamation claim.

[¶23] The district court dismissed the defamation claim solely on statute of 

limitations grounds without addressing the merits of the claim. On appeal, 

Bolinske does not address this issue in his brief, and the State Defendants 

primarily focus on Lieberman, a Ninth Circuit case. As an appellate court, “we 

are a court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 

n.7 (2005). Therefore, we decline to consider this issue in the first instance on 

appeal. See Krile, 2020 ND 176, ¶¶ 38-40 (remanding to consider qualified 

immunity).

[¶24] We reverse the dismissal of the defamation claim and remand to the 

district court for further proceedings.

VI

[¶25] Bolinske contends the district court erred by dismissing his claims 

without allowing additional time to conduct discovery.

[¶26] The district court converted the State Defendants’ 12(b) motion to 

dismiss into a Rule 56 motion for summary judgment. Under N.D.R.Civ.P. 56(f), 

“If a party opposing the motion shows by declaration that, for specified reasons, 

it cannot present facts essential to justify its opposition, the court may: (1) deny 

the motion; (2) order a continuance to enable declarations to be obtained, 

depositions to be taken, or other discovery to be undertaken; or (3) issue any 

other just order.” Rule 56(f) is within the discretion of the district court and 
10

will not be reversed unless the court has abused its discretion. Choice Fin. Grp. 

v. Schellpfeffer, 2006 ND 87, ¶ 9, 712 N.W.2d 855. Strict compliance with the 

declaration requirement of Rule 56(f) is not fatal to a request for additional 

discovery. Id. at ¶ 12. However, a proponent of the request must “identify with 

specificity ‘what particular information is sought; how, if uncovered, it would 

preclude summary judgment; and why it has not previously been obtained.’” 

Id. (quoting Lunderstadt v. Colafella, 885 F.2d 66, 71 (3d Cir. 1989)).

[¶27] Bolinske argues the district court erred by not denying the State 

Defendants’ motion or ordering a continuance to allow declarations to be 

obtained and depositions to be taken of the State Defendants. Bolinske asserts 

he attempted to depose the State Defendants but was refused access by their 

attorney. Bolinske did not file an affidavit or declaration, instead stating in his 

response to the State Defendants’ motion to dismiss that he submits the 

response “in Affidavit form.” In his response, and now on appeal, Bolinske 

asserts discovery was needed to investigate his conspiracy claim; and to 

determine what Sandstrom told Port, why Sandstrom made the statements, 

and Sandstrom’s source of information regarding Bolinske’s mental health.

[¶28] Because Bolinske’s conspiracy claim has been dismissed for failure to file 

a timely notice of claim with OMB, further discovery would not avoid dismissal 

as to this claim. However, because we reverse the defamation claim and 

remand for further proceedings, the district court may reconsider whether 

there is a need for discovery on that claim.

VII

[¶29] Bolinske argues the district court erred in concluding his claims are 

frivolous and awarding attorney’s fees to the State Defendants.

[¶30] The district court awarded attorney’s fees under N.D.C.C. § 28-26-01(2), 

which provides:

In civil actions the court shall, upon a finding that a claim for relief 

was frivolous, award reasonable actual and statutory costs, 

including reasonable attorney’s fees to the prevailing party. Such 

costs must be awarded regardless of the good faith of the attorney 

or party making the claim for relief if there is such a complete 
11

absence of actual facts or law that a reasonable person could not 

have thought a court would render judgment in that person’s favor, 

providing the prevailing party has in responsive pleading alleged 

the frivolous nature of the claim.

The court has discretion under this statute to determine whether the claim is 

frivolous and how much to award. McCarvel v. Perhus, 2020 ND 267, ¶ 19, 952 

N.W.2d 86. However, the court must award costs and attorney’s fees if it finds 

the claim is frivolous. Id. “A court’s discretionary determinations under 

N.D.C.C. § 28-26-01(2) will not be overturned on appeal absent an abuse of 

discretion.” Sagebrush Res., LLC v. Peterson, 2014 ND 3, ¶ 15, 841 N.W.2d 705.

“A district court abuses its discretion if it acts in an arbitrary, unreasonable, or

unconscionable manner, its decision is not the product of a rational mental 

process leading to a reasoned determination, or it misinterprets or misapplies 

the law.” Tillich v. Bruce, 2017 ND 21, ¶ 7, 889 N.W.2d 899.

[¶31] The district court found Bolinske’s claims frivolous based on the res 

judicata effect of the federal action and undisputed facts that he had failed to 

meet the statutory deadlines and statutes of limitations. Bolinske contends,

because the allegations in this action and the federal action were effectively 

made simultaneously, there was no federal court decision in existence when he 

made the allegations in this case. He further argues the federal action has no 

res judicata effect because those claims were not dismissed on the merits, but 

for lack of jurisdiction.

[¶32] Because we have concluded the federal action does not preclude 

Bolinske’s claims, the district court abused its discretion by finding his claims 

frivolous on the basis of the federal action and application of res judicata. 

However, the undisputed facts show Bolinske failed to timely file a notice of 

claim under N.D.C.C. § 32-12.2-04(1), precluding any claims for money 

damages. See Larson v. Baer, 418 N.W.2d 282, 290 (N.D. 1988) (stating that a 

district court is “entitled to consider the frivolity of individual claims for relief 

when awarding attorney’s fees under NDCC § 28-26-01(2)”). Thus, the court 

did not abuse its discretion by finding the seven claims identified in Part III, 

¶ 9, frivolous for failing to timely file a notice of claim and awarding attorney’s 

fees on the frivolity of those claims. However, in light of our reversing the 

defamation claim and remanding for further proceedings, and the court’s 
12

partially erroneous reasoning for awarding attorney’s fees, we vacate the 

award of attorney’s fees and direct the district court to reconsider the issue 

after final resolution of the defamation claim.

VIII

[¶33] We affirm the judgment in part, concluding the district court properly 

dismissed the 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 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 consistent with this opinion.

[¶34] Jon J. Jensen, C.J.

Jerod E. Tufte

Allan L. Schmalenberger, S.J.

Norman G. Anderson, S.J.

David W. Nelson, S.J.

[¶35] The Honorable Allan L. Schmalenberger, Honorable Norman G. 

Anderson, and Honorable David W. Nelson, Surrogate Judges, sitting in place 

of VandeWalle, J., Crothers, J., and McEvers, J., disqualified.