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In re Petition for Leave to Appeal of Bolinske

Supreme Court of North Dakota

March 20, 2018

In the Matter of the Petition for Leave to Appeal of Robert V. Bolinske
v.
Disciplinary Board of the Supreme Court of North Dakota, Respondent

         Appeal from the Disciplinary Board's decision.

          Robert V. Bolinske, Sr., Bismarck, ND, petitioner.

          Kara J. Erickson, Bismarck, ND, for respondent.

          PER CURIAM.

         [¶ 1] Attorney Robert V. Bolinske, Sr. appeals a decision of the Disciplinary Board of the Supreme Court, affirming the Inquiry Committee West decision to admonish him for violating the North Dakota Rules of Professional Conduct and the North Dakota Code of Judicial Conduct. Bolinske argues the disciplinary procedure violated his right to due process. We affirm.

         I

         [¶ 2] In 2016 Bolinske campaigned for a seat on the Supreme Court. As part of his campaign Bolinske issued a press release alleging in part that certain members of the judiciary hid court records from the public. He claimed a petition for a supervisory writ he filed with this Court against a district court judge was purposely hidden or misfiled under the docket number of another case on this Court's website.

         [¶ 3] A disciplinary complaint was filed against Bolinske, alleging his press release violated the North Dakota Rules of Professional Conduct. Bolinske denied that his conduct was unethical. Bolinske appeared at a March 2017 meeting before the Inquiry Committee West and provided the committee with documentary evidence he claimed supported his position. The Inquiry Committee found Bolinske violated N.D.R. Prof. Conduct 8.2(a), relating to making false statements concerning the qualifications or integrity of a judge, and N.D. Code Jud. Conduct 4.3(A)(1), requiring judicial candidates to act with impartiality, integrity and independence. The Inquiry Committee issued Bolinske an admonition, determining the allegations made in his press release were made knowingly or with reckless disregard as to their truth or falsity.

         [¶ 4] Bolinske appealed the Inquiry Committee decision to the Disciplinary Board of the Supreme Court, which affirmed the Inquiry Committee's admonition. Bolinske appealed to this Court.

         II

         [¶ 5] Our review of this proceeding is governed by N.D.R. Lawyer Discipl. 3.1(D), relating to informal district inquiry committee investigations and procedures. Under N.D.R. Lawyer Discipl. 3.1(D)(8), "[t]he determination of the board may be the subject of a petition for leave to appeal to the court, but leave will not be granted unless the person seeking leave to appeal shows that the board acted arbitrarily, capriciously, or unreasonably." "[W]e construe this provision to mean the arbitrary and capricious standard governs our initial decision to grant leave to appeal, and we apply it only in reviewing procedural aspects of the Disciplinary Board's decision, rather than in reviewing the substantive evidence relied upon to support imposition of disciplinary sanctions." Toth v. Disciplinary Bd., 1997 ND 75, ¶ 10, 562 N.W.2d 744.

         [¶ 6] Although Bolinske raises arguments relating to the substantive evidence and merits of his informal admonition, we granted leave to consider Bolinske's appeal of the Disciplinary Board's decision "on the procedural issue of whether the Disciplinary Board acted arbitrarily, capriciously or unreasonably, in affirming the issuance of an admonition by Inquiry Committee West."

         [¶ 7] Bolinske argues the Disciplinary Board's decision affirming the admonition is arbitrary, capricious and unreasonable because its decision does not discuss what facts it considered and contains no analysis. He contends the Board's decision did not afford him adequate due process because he was not able to argue his appeal in front of the Board or attend the Board's meeting at which it considered his appeal.

         [¶ 8] In Gerber v. Disciplinary Board, 2015 ND 217, ¶ 18, 868 N.W.2d 861, this Court addressed procedural ...


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