                Filed 7/30/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 2020 ND 176

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

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Troy J. LeFevre, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

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.
                                         Krile v. Lawyer
                                          No. 20190367

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 Lawyer 1 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 (1963), and Giglio v. United States, 405 U.S. 150 (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 did not see the incidents
for which the letters of reprimand were issued as amounting to Giglio issues.




1   Lawyer has since been elected as Burleigh County State’s Attorney.


                                                   1
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, 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


                                         2
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
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


                                      3
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


                                          4
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 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 document upon which the complaint is
      based, without treating the motion as a Rule 56 motion, because a
      plaintiff “ought not be permitted to defeat a motion to dismiss
      through the artifice of not attaching the critical document to the
      complaint.” Brogren, 933 F. Supp. at 798.

Id.

[¶14] Lawyer attached sixteen exhibits to her motion to dismiss including her
affidavits submitted to the Department of Labor and Human Rights and the
Giglio letter provided to Bismarck Police Chief Donlin. The only exhibits the
district court considered in granting Lawyer’s motion were the Giglio letter
and Lawyer’s affidavits to the Department of Labor. Krile’s claims relied on
these exhibits. The Giglio letter and Lawyer’s affidavits were “embraced by the
pleadings,” and Krile cannot defeat Lawyer’s motion to dismiss by neglecting
to attach to the complaint the documents upon which she relies in support of
her claims. Under Rule 12(d), the district court did not consider “matters
outside the pleadings” and did not err by declining to convert Lawyer’s Rule
12(b)(6) motion to dismiss into a motion for summary judgment.

                                     III

[¶15] Krile contends the district court erred in granting Lawyer’s Rule
12(b)(6), N.D.R.Civ.P., motion to dismiss Krile’s defamation claims. “A motion
to dismiss a complaint under N.D.R.Civ.P. 12(b)[6] tests the legal sufficiency
of the claim presented in the complaint.” In re Estate of Nelson, 2015 ND 122,
¶ 5, 863 N.W.2d 521 (quoting Brandvold v. Lewis & Clark Pub. Sch. Dist. No.
161, 2011 ND 185, ¶ 6, 803 N.W.2d 827). “On appeal from a dismissal under


                                      5
N.D.R.Civ.P. 12(b)[6], we construe the complaint in the light most favorable to
the plaintiff and accept as true the well-pleaded allegations in the complaint.”
Id. A district court’s decision granting a Rule 12(b)(6) motion to dismiss a
complaint will be affirmed “if we cannot ‘discern a potential for proof to support
it.’” Nelson v. McAlester Fuel Co., 2017 ND 49, ¶ 20, 891 N.W.2d 126 (quoting
Kouba v. State, 2004 ND 186, ¶¶ 4-6, 687 N.W.2d 466). We review a district
court’s decision granting a motion to dismiss under N.D.R.Civ.P. 12(b)(6) de
novo on appeal. Estate of Nelson, at ¶ 5.

[¶16] Krile claimed Lawyer defamed her by writing and publishing the Giglio
letter to Bismarck Police Chief Donlin. Krile also claimed Lawyer defamed her
by publishing the Giglio letter and her affidavits to the Department of Labor
and Human Rights and the POST Board.

[¶17] Defamation includes either libel or slander. N.D.C.C. § 14-02-02. “Libel
is a false and unprivileged publication by writing . . . 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 publication other than libel,
      which:
      ....
      3.   Tends directly to injure the person in respect to the
           person’s office, profession, trade, or business, either by
           imputing to the person general disqualifications in those
           respects which the office or other occupation peculiarly
           requires, or by imputing something with reference to the
           person’s office, profession, trade, or business that has a
           natural tendency to lessen its profits;
      ....
      5.   By natural consequence causes actual damage.

N.D.C.C. § 14-02-04.

[¶18] Under N.D.C.C. § 14-02-05, certain communications are privileged:

      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;

                                        6
      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.
      In the cases provided for in subsections 3 and 4, malice is not
      inferred from the communication or publication.

“Privilege is based upon the sound public policy that some communications are
so socially important that the full and unrestricted exchange of information
requires some latitude for mistake.” Richmond v. Nodland, 552 N.W.2d 586,
588 (N.D. 1996) (quoting Rykowsky v. Dickinson Pub. Sch. Dist. 1, 508 N.W.2d
348, 351 (N.D. 1993)). “There is no liability for defamatory statements that are
privileged.” Id. (citing Rykowsky, 508 N.W.2d 348; Soentgen v. Quain &
Ramstad Clinic, P.C., 467 N.W.2d 73 (N.D. 1991)).

[¶19] Privileged communications may be either absolute or qualified. Id. “A
privilege is absolute when the free exchange of information is so important that
even evidence of actual malice does not destroy the privilege.” Id. (citing
N.D.C.C. §§ 14-02-05(1)-(2); Soentgen, 467 N.W.2d at 78; Emo v. Milbank Mut.
Ins. Co., 183 N.W.2d 508 (N.D. 1971); Farmers Educ. & Coop. Union v. WDAY,
Inc., 89 N.W.2d 102 (N.D. 1958)). “A qualified privilege, on the other hand,
‘may be abused and does not provide absolute immunity from liability for
defamation.’” Id. (quoting Soentgen, at 78; and then citing N.D.C.C. § 14-02-
05(3), (4)). “Whether privilege applies is a question of law for the courts.” Id.
(citing Soentgen, at 78).

                                       A

[¶20] Lawyer argues her statements were privileged under N.D.C.C. § 14-02-
05(1) and (2). “Subsections 14-02-05(1) and (2), N.D.C.C., provide an absolute
privilege for defamatory statements, even if made with malice.” Rykowsky, 508
N.W.2d at 351 (citing Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582


                                        7
(1941)). “Even in the case of an absolute privilege under § 14-02-05(1) or (2),
N.D.C.C., however, a communication must be pertinent to be free of liability.”
Id.

[¶21] The district court dismissed Krile’s claims after determining Lawyer’s
issuance and publication of the Giglio letter were part of her official duties as
a prosecutor and absolutely privileged under N.D.C.C. § 14-02-05. Lawyer’s
publication of the Giglio letter to Chief Donlin and publication of the Giglio
letter and her affidavits to the Department of Labor and POST board raises
issues under N.D.C.C. § 14-02-05(1) and (2).

                                       1

[¶22] Under N.D.C.C. § 14-02-05(1), certain communications are absolutely
privileged when made “[i]n the proper discharge of an official duty.” Section
11-16-01, N.D.C.C., provides the official duties of the state’s attorney:

      The state’s attorney is the public prosecutor, and shall:
      1.    Attend the district court and conduct on behalf of the state
            all prosecutions for public offenses.
      2.    Institute proceedings before magistrates for the arrest of
            persons charged with or reasonably suspected of public
            offenses when the state’s attorney has information that such
            offenses have been committed, and for that purpose, when
            the state’s attorney is not engaged in criminal proceedings
            in the district court, the state’s attorney shall attend upon
            the magistrates in cases of arrests when required by them
            except in cases of assault and battery and petit larceny.
      3.    Attend before, and give advice to, the grand jury whenever
            cases are presented to it for consideration.
      4.    Draw all indictments and informations.
      5.    Defend all suits brought against the state or against the
            county.
      6.    Prosecute all bonds forfeited in the courts of record of the
            county and prosecute all actions for the recovery of debts,
            fines, penalties, and forfeitures accruing to the state or to
            the county.




                                       8
7.    Deliver duplicate receipts for money or property received in
      the state’s attorney’s official capacity and file copies thereof
      with the county auditor.
8.    On the first Monday of January, April, July, and October in
      each year, file with the county auditor an account, verified
      by the state’s attorney’s oath, of all money received by the
      state’s attorney in an official capacity in the preceding three
      months, and at the same time, pay it over to the county
      treasurer.
9.    Give, when required and without fee, the state’s attorney’s
      opinion in writing to the county, district, township, and
      school district officers on matters relating to the duties of
      their respective offices.
10.   Keep a register of all official business in which must be
      entered a note of each action, whether civil or criminal,
      prosecuted officially, and of the proceedings therein.
11.   Act as legal adviser of the board of county commissioners,
      attend the meetings thereof when required, and oppose all
      claims and actions presented against the county which are
      unjust or illegal.
12.   Institute an action in the name of the county to recover any
      money paid upon the order of the board of county
      commissioners without authority of law as salary, fee, or for
      any other purpose, or any money paid on a warrant drawn
      by any officer to that officer’s own order or in favor of any
      other person without authorization by the board of county
      commissioners or by law.
13.   Institute an action in the name of the county to restrain the
      payment of any money described in any order or warrant of
      the kind described in subsection 13 when the state’s attorney
      secures knowledge of such order or warrant before the
      money is paid thereon.
14.   Assist the district court in behalf of the recipient of
      payments for child support or spousal support combined
      with child support in all proceedings instituted to enforce
      compliance with a decree or order of the court requiring such
      payments.
15.   Institute proceedings under chapter 25-03.1 if there is
      probable cause to believe that the subject of a petition for
      involuntary commitment is a person requiring treatment.



                                  9
        16.   Institute and defend proceedings under sections 14-09-
              12 and 14-09-19 and chapters 14-15, 27-20, and 50-01 upon
              consultation with the human service zone director or the
              executive director of the department of human services.
        17. Act as the legal advisor and represent a human service zone
              as set forth in a plan approved under section 50-01.1-03. The
              state’s attorney within the human service zone, by way of
              agreement, shall designate a singular state’s attorney’s
              office, within or outside the human service zone, to act as
              legal advisor of the human service zone. The host county
              state’s attorney shall serve as the legal advisor if no
              agreement is reached. The agreement may not limit a state’s
              attorney’s individual discretion in court filings and
              representation.
        18. Act as the legal advisor and represent the human service
              zone regarding employer actions, including grievances and
              appeals, taken against the human service zone team
              member. The state’s attorney of the county by which the
              human service zone team member is employed shall act as
              the legal advisor of the human service zone, unless a
              different agreement is established by the affected state's
              attorney.
        The state’s attorney shall not require any order of the board of
        county commissioners to institute an action under subsection 12 or
        13. 2

Assistant state’s attorneys have the same powers and perform the same duties
as the state’s attorney. N.D.C.C. § 11-16-02. 3 Any communication made by a
state’s attorney while performing an official duty as prescribed in N.D.C.C. §
11-16-01 is entitled to absolute privilege.




2 Section 11-16-01, N.D.C.C., was amended effective January 1, 2020. The amendments are irrelevant
to this case and have no impact on the outcome of our decision. The most current version of N.D.C.C.
§ 11-16-01 is quoted here.
3 Because the official duties of a state’s attorney and an assistant state’s attorney are the same,

references to the term “state’s attorney” in this opinion include both the state’s attorney and assistant
state’s attorney, and any discussion in this opinion using the term “state’s attorney” applies equally to
state’s attorneys and assistant state’s attorneys.


                                                  10
[¶23] The official duty of a state’s attorney implicated in this case is the duty
to “[a]ttend the district court and conduct on behalf of the state all prosecutions
for public offenses,” under N.D.C.C. § 11-16-01(1). Although N.D.C.C. § 11-16-
01(1) provides a general statement that state’s attorneys are to conduct
criminal prosecutions on behalf of the state, the statute is not sufficiently
specific to determine what conduct is within the scope of a state’s attorney’s
official duty to conduct criminal prosecutions so as to afford certain
communications absolutely privileged. To refine which acts are within the
scope of a state’s attorney’s official duty to conduct criminal prosecutions, we
look to the law of prosecutorial immunity. Although the protections afforded to
certain communications arising in the context of defamation have always been
referred to as “privileges,” the protections provide immunity to certain
individuals for certain communications. See Restatement (Second) of Torts ch.
25, topic 2, intro. note. This Court itself has previously referred to the
privileges provided in N.D.C.C. § 14-02-05 as immunities. See Riemers v.
Grand Forks Herald, 2004 ND 192, ¶ 6, 688 N.W.2d 167; Richmond, 552
N.W.2d at 588. Other authorities, including jurisdictions with privilege
statutes similar to North Dakota’s, have done so as well. See Kilgore v.
Younger, 640 P.2d 793, 800 (Cal. 1982); State ex rel. Oklahoma Bar Ass’n v.
Dobbs, 94 P.3d 31, 45 (Okla. 2004); Harris v. Riggenbach, 633 N.W.2d 193, 196
(S.D. 2001); 50 Am. Jur. 2d Libel and Slander § 269. Given the parallels of the
two doctrines, we see no distinguishable difference between those actions that
entitle a prosecutor to absolute immunity from those actions that constitute
the proper discharge of a prosecutor’s official duties shielding certain
communications with absolute privilege.

[¶24] At the outset, we acknowledge the actions of a prosecutor are not
absolutely immune merely because they are performed by a prosecutor.
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Prosecuting attorneys are
considered “quasi-judicial officers” entitled to absolute immunity granted
judges when their activities are “intimately associated with the judicial phase
of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Witzke
v. City of Bismarck, 2006 ND 160, ¶ 16, 718 N.W.2d 586; Perry Center, Inc. v.
Heitkamp, 1998 ND 78, ¶ 45, 576 N.W.2d 505; see 27 C.J.S. District and
Prosecuting Attorneys §§ 56, 59, 61; 8A American Law of Torts § 29:91; 4 Local

                                        11
Government Law § 27:11; 2 Modern Tort Law: Liability and Litigation § 17:13
(2d ed.); cf. Restatement (Second) of Torts § 586 (discussing absolutely
privileged communications made by a prosecuting attorney preliminary to a
proposed judicial proceeding); 50 Am. Jur. 2d Libel and Slander §§ 280, 282,
290 (discussing privileged communications by a prosecutor). Such
prosecutorial functions entitled to absolute immunity include, for example, the
initiation and pursuit of a criminal prosecution and the presentation of the
State’s case at trial. Witzke, at ¶ 17. However, when functioning in the role of
an administrator or investigative officer rather than in the role of an advocate,
prosecutors have only the protection of qualified immunity. Id.

[¶25] Guided by the standard applied in cases concerning prosecutorial
immunity, a state’s attorney’s official duties are those activities that are
“intimately associated with the judicial phase of the criminal process.”
Accordingly, a state’s attorney’s communications are absolutely privileged
under N.D.C.C. § 14-02-05(1) when made in the course of such activities. In at
least three cases, courts have concluded a prosecutor was not entitled to
absolute immunity for issuing a Giglio letter outside of a criminal proceeding.

[¶26] In Beck v. Phillips, 685 N.W.2d 637 (Iowa 2004), a case with facts nearly
identical to the present case, the Iowa Supreme Court decided a county
attorney was not entitled to absolute immunity for sending a Giglio letter
concerning a local police officer to the police chief. The prosecutor concluded,
after reviewing the Iowa Department of Criminal Investigation’s (DCI)
investigative files, the police officer had lied to the DCI during the
investigation of the officer’s wife’s death. Id. at 641. The prosecutor wrote a
letter to the police chief informing him the prosecutor’s office would not
prosecute any case in which the officer was involved due to Brady-Giglio
concerns. Id. Because of the letter, the officer’s employment was terminated.
Id. The officer sued the prosecutor for defamation and other state law claims.
Id.

[¶27] Applying the “intimately associated with the judicial phase of the
criminal process” standard set forth in Imbler, the Iowa Supreme Court
concluded the prosecutor’s decision not to prosecute cases involving the officer


                                       12
was entitled to absolute immunity, but the prosecutor’s writing of the letter to
the police chief was not entitled to absolute immunity. Id. at 644-45. The court
stated, “it strains reason too far to characterize [the prosecutor’s] writing of
[the] letter[ ] as an activity ‘intimately associated with the judicial phase of the
criminal process’” because, in writing the letter, the prosecutor “was not
deciding [whether] to prosecute a case, but instead merely advising local law
enforcement authorities on . . . how his office would deal with [future criminal
prosecutions].” Id. at 645. The court further stated that even though a
prosecutor’s duty to make Giglio determinations are “an integral part of a
prosecutor’s job” and “serve[ ] a vital public function,” the prosecutor’s letter to
the police chief was an administrative function entitled to only qualified
immunity because the letter did not “involve the initiation of a prosecution, the
presentation of the state’s case in court, or actions preparatory for these
functions.” Id.

[¶28] Most recently, the United States District Court for the Middle District of
Tennessee issued a memorandum opinion determining a prosecutor was not
entitled to absolute immunity for publishing an email to the city manager
“Giglio impairing” 4 a local police officer. Stockdale v. Helper, No. 3:17-cv-00241,
2020 U.S. Dist. LEXIS 31051, 2020 WL 887593 (M.D. Tenn. Feb. 24, 2020),
appeal docketed, No. 20-5269 (6th Cir. Mar. 11, 2020). The court determined
the prosecutor was entitled to absolute immunity for her decision to “Giglio
impair” the officer, but she was not entitled to absolute immunity for sending
the Giglio email to the city manager. Id., 2020 WL 887593, at *10. Reasoning
that the prosecutor’s Giglio email to the city manager related to staffing and
was not an activity intimately associated with her role as an advocate, the
court concluded the prosecutor’s communication of the Giglio impairment was
administrative rather than prosecutorial in nature. Id.

[¶29] The Stockdale court cited Beck and Singer v. Steidley, No. 13-CV-72-
GKF-TLW, 2013 U.S. Dist. LEXIS 204839 (N.D. Okla. Apr. 30, 2013), in




                                        13
support of its decision. In Singer, a district attorney presented Giglio material
concerning a local police officer to the supervising police chief. 2013 U.S. Dist.
LEXIS 204839, at *7. The district attorney also signaled her intention to
disclose the material to criminal defense counsel in cases in which the officer
was involved. Id. The officer was notified that his employment would be
terminated if the material in question was in fact Giglio material. Id. at *9.
The officer filed suit against the prosecutor, and the prosecutor filed a motion
to dismiss under Fed. R. Civ. P. 12(b)(6). Id. at *2-3. In deciding the
prosecutor’s motion, the court determined the prosecutor was entitled to
absolute immunity for disclosing the Giglio material to defense counsel in
criminal cases, but disclosure of the Giglio material to the supervising police
chief was “conceivably administrative and/or investigative rather than
prosecutorial in nature.” Id. at *20. Accordingly, the court denied the
prosecutor’s motion to dismiss on grounds of absolute prosecutorial immunity.
Id. at *20-21, *29.

[¶30] The cases discussed above raise two issues. The first issue is whether
Lawyer’s compilation of the Giglio letter and her decision to no longer use Krile
as a witness in criminal prosecutions was entitled to absolute immunity.
Courts have consistently held a prosecutor’s decision not to prosecute cases
involving certain police officers or use a certain officer’s testimony due to
Brady/Giglio concerns is an activity “intimately associated with the judicial
phase of the criminal process” entitled to absolute immunity. See, e.g., Savage
v. Maryland, 896 F.3d 260, 271-72 (4th Cir. 2018); Roe v. City & Cty. of San
Francisco, 109 F.3d 578, 583-84 (9th Cir. 1997); Barnett v. Marquis, 16 F. Supp.
3d 1218, 1222-23 (D. Or. 2014). Thus, Lawyer’s decision to Giglio impair Krile
and no longer use Krile as a witness in criminal proceedings was an activity
“intimately associated with the judicial phase of the criminal process” entitled
to absolute privilege or immunity.

[¶31] The second issue is whether Lawyer’s publication of the Giglio letter to
Chief Donlin was a communication made within the proper discharge of
Lawyer’s official duties as an assistant state’s attorney entitled to absolute
privilege. After considering the foregoing authority, we conclude Lawyer’s
publication of the Giglio letter to Police Chief Donlin was not made within the


                                       14
proper discharge of Lawyer’s official duties as an assistant state’s attorney. We
recognize prosecutors are required to disclose certain information to the
defense in a criminal proceeding under Brady and Giglio, and that the
diminished credibility of a police officer hindered by Brady and Giglio may
raise challenges for the prosecution. However, not every activity of a prosecutor
is within a prosecutor’s official duties simply because it is performed by a
prosecutor. See Buckley, 509 U.S. at 273; Imbler, 424 U.S. at 431 n.33. In this
instance, Lawyer was acting in an administrative capacity by informing Chief
Donlin of her opinion that Krile was Giglio impaired and of how her office
would proceed with cases in which Krile was involved. Lawyer’s publication of
the Giglio letter to Chief Donlin was not an absolutely privileged
communication under N.D.C.C. § 14-02-05(1).

                                        2

[¶32] The district court determined “Lawyer also ha[d] absolute immunity in
regard to the POST Board and the Department of Labor as she was acting in
her capacity as a prosecutor.” We disagree with the district court that Lawyer’s
publication of the Giglio letter and her affidavits to the POST Board and
Department of Labor were absolutely privileged communications made within
the proper scope of her official duties as an assistant state’s attorney. Lawyer’s
communications in these instances were, however, absolutely privileged
communications made in a “proceeding authorized by law.”

[¶33] Under N.D.C.C. § 14-02-05(2) certain communications are absolutely
privileged when made “[i]n any legislative or judicial proceeding or in any other
proceeding authorized by law.” A “proceeding” under subsection (2) includes
“some form of governmental process.” Emo, 183 N.W.2d at 514. We have held
federal administrative proceedings, see Fish v. Dockter, 2003 ND 185, ¶ 14, 671
N.W.2d 819, Parole Board meetings, see Pulkrabek v. Sletten, 557 N.W.2d 225,
228 (N.D. 1996), and school board meetings, see Rykowsky, 508 N.W.2d at 351,
are all proceedings authorized by law under N.D.C.C. § 14-02-05(2). See also,
Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 1017 (D.N.D. 2006)
(holding unemployment compensation hearing conducted by Job Service North
Dakota was “proceeding authorized by law”); Stafney, 71 N.D. 170, 299 N.W.


                                       15
at 589 (stating communication required by the Workmen’s Compensation
Bureau and the Social Security Act pursuant to statute was made in a
“proceeding authorized by law”).

[¶34] Under N.D.C.C. §§ 14-02.4-22, 23, the Department of Labor and Human
Rights has the authority to investigate claims of discrimination. This authority
includes requesting documents and holding a hearing. Id. The investigation
conducted by the Department of Labor into Krile’s discrimination claims was
a formal government process authorized by statute. During its investigation,
the Department of Labor requested certain materials regarding Krile’s
employment termination. The submission of Lawyer’s affidavits and the Giglio
letter were in response to the Department of Labor’s request. The disclosure of
the Giglio letter and Lawyer’s affidavits during the course of the Department
of Labor’s investigation were absolutely privileged communications made
during a “proceeding authorized by law” under N.D.C.C. § 14-02-05(2).

[¶35] Lawyer’s disclosure of the Giglio letter to the POST Board may have also
been an absolutely privileged communication under N.D.C.C. § 14-02-05(2).
Section 12-63-01.1, N.D.C.C., establishes the POST Board. Under N.D.C.C. §
12-63-04(2)(a), the Board may “[i]ssue subpoenas, examine witnesses,
administer oaths, and investigate allegations of practices violating the
provisions of this chapter or rules adopted by the board.” Consistent with our
past precedent, POST Board investigations are “proceeding[s] authorized by
law” conducted by a statutorily created entity. We are unable to determine
whether Lawyer’s alleged disclosure of the Giglio letter to the POST Board was
an absolutely privileged communication because the evidence in the record is
insufficient to determine whether Lawyer disclosed the Giglio letter to the
POST Board or whether the Giglio letter was disclosed as part of a Board
investigation. But as a matter of law, if Lawyer did in fact disclose the Giglio
letter to the POST Board as part of a Board investigation, Lawyer’s disclosure
was an absolutely privileged communication under N.D.C.C. § 14-02-05(2).

                                      B

[¶36] Communications under N.D.C.C. § 14-02-05(3) and (4) are not absolutely
privileged. See Soentgen, 467 N.W.2d at 78. Rather, the privilege afforded

                                      16
under subsections (3) and (4) “is a qualified privilege to prevent abuse.”
Riemers, 2004 ND 192, ¶ 6, 688 N.W.2d 167 (citing Richmond, 552 N.W.2d at
588; Soentgen, at 78). “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.” Khokha v. Shahin, 2009 ND 110, ¶ 26, 767 N.W.2d 159 (citing
Soentgen, at 78). “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.

[¶37] “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.” Fish, 2003 ND 185, ¶ 13,
671 N.W.2d 819 (citing Richmond, 552 N.W.2d at 589). “Actual malice is
required in order to defeat a qualified privilege.” Soentgen, 467 N.W.2d at 79
(citing WDAY, 89 N.W.2d 102; Haldeman v. Total Petroleum, Inc., 376 N.W.2d
98 (Iowa 1985); Frankson v. Design Space Int’l, 394 N.W.2d 140 (Minn. 1986);
50 Am. Jur. 2d Libel and Slander § 199; Prosser & Keeton on Torts § 115;
Restatement (Second) Torts § 600). “Actual malice depends on scienter and
requires proof that a statement was made with malice in fact, ill-will, or
wrongful motive.” Id. (citing Sibley v. Lutheran Hosp. of Md., Inc., 709 F. Supp.
657 (D. Md. 1989); De Leon v. St. Joseph Hosp., Inc., 871 F.2d 1229 (4th Cir.
1989); Haldeman, 376 N.W.2d 98; Frankson, 394 N.W.2d 140). Actual malice
is not inferred from the communication itself; the plaintiff must prove actual
malice and abuse of the privilege. Id. “Generally, actual malice and abuse of a
qualified privilege are questions of fact.” Fish, at ¶ 13 (citing Soentgen, at 79).
“However, where the facts and inferences are such that reasonable minds could
not differ, factual issues are questions of law.” Id.

[¶38] Although Lawyer’s publication of the Giglio letter to Chief Donlin was
not absolutely privileged, Lawyer’s publication of the letter to Chief Donlin
may be entitled to a qualified privilege under N.D.C.C. § 14-02-05(3). Lawyer’s
disclosure of the Giglio letter to the POST Board may also be entitled to a
qualified privilege under N.D.C.C. § 14-02-05(3). But determining whether



                                        17
these communications are entitled to a qualified privilege is not appropriate in
this appeal when the issue was not addressed in the proceedings below.

                                       C

[¶39] The district court did not address whether Lawyer’s disclosure of the
Giglio letter to Lincoln Police Chief Gibbs was a privileged communication
under N.D.C.C. § 14-02-05. Krile claimed defamation for Lawyer’s disclosure
of the Giglio letter to Lincoln Police Chief Gibbs in her complaint and has
preserved the claim by raising it in her response to Lawyer’s motion to dismiss
and on appeal. Krile’s claim must be addressed on remand.

                                       D

[¶40] To summarize our determination of whether Lawyer’s communications
were privileged, Lawyer’s publication of the Giglio letter to Chief Donlin was
not an absolutely privileged communication under N.D.C.C. § 14-02-05(1).
Although there may be little evidence to support Krile’s claims, we construe
the complaint in the light most favorable to Krile. We reverse the district
court’s dismissal of Krile’s defamation claims against Lawyer for Lawyer’s
disclosure of the Giglio letter to Chief Donlin. We affirm the district court’s
dismissal of Krile’s defamation claims for Lawyer’s disclosure of the Giglio
letter and her affidavits to the Department of Labor and Human Rights
because the communications were absolutely privileged under N.D.C.C. § 14-
02-05(2). We reverse the district court’s dismissal of Krile’s defamation claims
against Lawyer for Lawyer’s alleged publication of the Giglio letter to the
POST Board because we are unable to determine from the existing record
whether Lawyer’s alleged disclosure of the Giglio letter to the POST Board was
a privileged communication. If Lawyer did in fact disclose the Giglio letter to
the POST Board as part of a Board investigation, Lawyer’s disclosure was an
absolutely privileged communication under N.D.C.C. § 14-02-05(2), and Krile’s
defamation claims for publication of the Giglio letter to the POST Board should
be dismissed. On remand, the district court may decide whether Lawyer’s
communications to Chief Donlin and the POST Board are entitled to a qualified
privilege. Krile’s defamation claims for Lawyer’s disclosure of the Giglio letter



                                       18
to Lincoln Police Chief Gibbs were not previously addressed by the district
court, and must also be addressed on remand.

                                       IV

[¶41] The district court order is affirmed in part, reversed in part, and
remanded.

[¶42] Gerald W. VandeWalle
      Lisa Fair McEvers
      Jerod E. Tufte
      Steven L. Marquart, D.J.
      Daniel J. Crothers acting C.J.

[¶42] The Honorable Steven L. Marquart, D.J., sitting in place of Jensen, C.J.,
disqualified.




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