Krile v. Lawyer

• Citation: 947 N.W.2d 366
• Decision Date: 30 July 2020
• Docket Number: No. 20190367,20190367
• Parties: Robyn KRILE, Plaintiff and Appellant v. Julie LAWYER, in her official and individual capacity as Assistant Burleigh County State's Attorney, Defendant and Appellee
• Court: United States State Supreme Court of North Dakota

947 N.W.2d 366

Robyn KRILE, Plaintiff and Appellant
v.
Julie LAWYER, in her official and individual capacity as Assistant Burleigh County State's Attorney, Defendant and Appellee

No. 20190367

Supreme Court of North Dakota.

Filed July 30, 2020

Lynn M. Boughey, Mandan, ND, for plaintiff and appellant.

Randall J. Bakke (argued), and Bradley N. Wiederholt (appeared), Special Assistant State's Attorneys, Bismarck, ND, for defendant and appellee.

VandeWalle, Justice.

¶1] Robyn Krile appealed from a district court order granting defendant Julie Lawyer's motion to dismiss under N.D.R.Civ.P. 12(b)(6). We affirm in part, reverse in part, and remand.

I

[¶2] On February 8, 2017, Assistant State's Attorney Julie Lawyer¹ received an anonymous letter concerning a Bismarck police officer's destruction of evidence. The letter prompted Lawyer to review the files of all active, sworn Bismarck police personnel, which included approximately 100 officers at the time. Lawyer asserts her decision to review the officer files was to ensure the state's attorney's office was fulfilling its disclosure obligations under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). "The Brady - Giglio line of cases requires the government to disclose to the defendant exculpatory material and impeachment evidence." State v. Russell , 2016 ND 208, ¶ 6, 886 N.W.2d 677.

[¶3] As part of her investigation, Lawyer reviewed the file of Sergeant Robyn Krile. In Krile's file, Lawyer discovered two letters of reprimand and several performance evaluations, which Lawyer believed raised Giglio issues. Lawyer further investigated the incidents for which the letters of reprimand were issued, and concluded Krile had made false statements as a Bismarck police officer.

[¶4] Lawyer shared her belief that the letters of reprimand and performance evaluations raised Giglio concerns with Bismarck Police Chief Dan Donlin. Chief Donlin disagreed and advised Lawyer that he

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did not see the incidents for which the letters of reprimand were issued as amounting to Giglio issues. Despite Chief Donlin's pleas, Lawyer continued to believe Krile's conduct amounted to a Giglio issue.

¶5] On March 22, 2017, Lawyer sent a letter (the " Giglio letter") to Chief Donlin summarizing her investigation into Krile's file and stating her belief that Krile had made false statements as a Bismarck police officer. Lawyer informed Chief Donlin that such information would have to be disclosed to the defense in cases in which Krile was involved pursuant to Giglio and, as a result, the Burleigh County State's Attorney's Office would no longer use Krile as a witness in its cases. A prosecutor's decision not to allow a law enforcement officer to testify in criminal trials because the prosecutor would be required to disclose to the defense existing information about the officer's prior misconduct or other grounds to attack the officer's credibility is often referred to as " Giglio impairment" of the officer. Haynes v. Dep't of Public Safety , 460 P.3d 565, 566 n.3 (Utah Ct. App. 2020) (quoting Stockdale v. Helper , No. 3:17-cv-241, 2017 U.S. Dist. LEXIS 90678, 2017 WL 2546349, at *2 n.3 (M.D. Tenn. June 13, 2017) ); see Hogan v. City of Fort Walton Beach , No. 19-12294, ––– Fed.Appx. ––––, –––– n.1, 2020 WL 2843469, at *1 n.1 (11th Cir. June 1, 2020).

[¶6] Because the Burleigh County State's Attorney's Office was no longer willing to use Krile as a witness in its cases, the Bismarck Police Department terminated Krile's employment. Krile filed a complaint with the Department of Labor and Human Rights claiming the Bismarck Police Department discriminated against her based on race and sex. The Department of Labor commenced an investigation into Krile's claims. As part of its investigation, the Department of Labor requested the Bismarck Police Department submit information regarding the termination of Krile's employment. In its response, the Bismarck Police Department submitted two affidavits of Lawyer in which Lawyer explained the circumstances and her reasoning for issuing the Giglio letter. After conducting its investigation, the Department of Labor and Human Rights concluded the Bismarck Police Department did not unlawfully discriminate against Krile.

[¶7] In March 2019, Krile filed a complaint in state district court against Lawyer in her official and individual capacity claiming defamation. The complaint alleged Lawyer defamed Krile by publishing the Giglio letter to the Bismarck Police Department, specifically Chief Donlin, and by publishing her affidavits to the Department of Labor and Human Rights in the course of its investigation. The complaint also alleged Lawyer published the Giglio letter to the Peace Officer Standards and Training (POST) Board. Finally, the complaint alleged Lawyer published the Giglio letter and related information to Krile's prospective employers. Krile did not attach any exhibits to the complaint supporting her allegations.

[¶8] In response to the filed complaint, Lawyer filed a motion to dismiss under N.D.R.Civ.P. 12(b)(6). Lawyer argued her publication of the Giglio letter to Chief Donlin was an absolutely privileged communication made within the proper discharge of her official duties as an assistant state's attorney under N.D.C.C. § 14-02-05(1). Lawyer further argued that submission of her affidavits to the Department of Labor and Human Rights during the course of its investigation was an absolutely privileged communication under N.D.C.C. § 14-02-05(2). Lawyer did not admit that she published the Giglio letter to the POST Board, but argued that if she had published the letter to the Board, it

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also would have been an absolutely privileged communication under N.D.C.C. § 14-02-05(2). Lawyer attached sixteen exhibits to her motion including submissions and communications made during the course of the Department of Labor's investigation, the Giglio letter, and Lawyer's affidavits.

¶9] Krile responded to Lawyer's motion arguing that publication of the Giglio letter and Lawyer's affidavits were not absolutely privileged communications. Attached as an exhibit to her response, Krile submitted an email conversation between Lawyer and Lincoln Police Chief Joe Gibbs. The email conversation revealed Chief Gibbs had contacted Lawyer regarding potentially hiring Krile after Krile's employment with the Bismarck Police Department had been terminated. In response, Lawyer disclosed the Giglio letter to Chief Gibbs.

[¶10] After a hearing was held, the district court granted Lawyer's motion to dismiss. Relying solely on the Giglio letter and Lawyer's affidavits submitted to the Department of Labor and Human rights, the district court determined Lawyer's publication of the Giglio letter and her affidavits were absolutely privileged communications because Lawyer was acting in her official capacity as a prosecutor when she disclosed the alleged defamatory materials. The district court did not explicitly address Lawyer's disclosure of the Giglio letter to Lincoln Police Chief Gibbs.

[¶11] On appeal, Krile argues the district court erred in dismissing her complaint because Lawyer's disclosure of the alleged defamatory material to Chief Donlin, the Department of Labor and Human Rights, the POST Board, and to Lincoln Police Chief Gibbs were not absolutely privileged communications under N.D.C.C. § 14-02-05. Krile further argues the district court erred in dismissing her complaint because there are disputed material facts and the district court relied on materials outside the pleadings in dismissing her complaint. Krile contends that because the district court relied on materials outside the pleadings in dismissing her complaint, the court should have converted Lawyer's Rule 12 motion into a motion for summary judgment and allowed the parties to submit additional evidence.

II

[¶12] We first address Krile's argument that the district court considered matters outside the pleadings and, therefore, should have treated Lawyer's motion to dismiss as a motion for summary judgment and allowed the parties to submit additional evidence.

[¶13] Rule 12(d), N.D.R.Civ.P., states:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

In deciding a motion under Rule 12(b)(6) or 12(c), district courts "may consider, in addition to the pleadings, materials embraced by the pleadings and materials that are part of the public record, without converting the motion to a summary judgment under Rule 56." Nelson v. McAlester Fuel Co. , 2017 ND 49, ¶ 22, 891 N.W.2d 126 (quoting Riemers v. State , 2007 ND APP 4, ¶ 8, 739 N.W.2d 248 ). We have recognized the rationale for this rule:

When a plaintiff chooses not to attach to the complaint, or incorporate by reference, a document upon which the plaintiff relies, and the document is integral to the complaint, the defendant may produce the document in support of a motion

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to dismiss on the pleadings. Jakobe v. Rawlings Sporting Goods Co. , 943 F. Supp. 1143, 1149 (E.D. Mo. 1996) ; Brogren v. Pohlad , 933 F. Supp. 793, 798 (D. Minn. 1995). In deciding a Rule 12 motion, the court can consider a

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