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Bolinske v. North Dakota Supreme Court

United States District Court, D. North Dakota

June 20, 2019

Robert V. Bolinske, Plaintiff,
v.
North Dakota Supreme Court, State of North Dakota, Disciplinary Board of the N.D. Supreme Court, Office of Disciplinary Counsel, Inquiry Committee West, Dale Sandstrom, Gail Hagerty, Lisa K. McEvers, Daniel Crothers, Defendants.

          Robert V. Bolinske, Esq., Plaintiff, Pro Se.

          Andrew Moraghan, Esq., Attorney General's Office, Civil Litigation, and Matthew A. Sagsveen, Esq., Attorney General's Office, Natural Resources Division, counsel for Defendants.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This matter is before the Court on Plaintiff Attorney Robert V. Bolinske's (“Bolinske”) Motion to Amend his Complaint alleging, among other claims, that Defendants violated his substantive and Due Process rights (Doc. No. 24), and Defendants the North Dakota Supreme Court, the State of North Dakota, the Disciplinary Board of the North Dakota Supreme Court, the Office of Disciplinary Counsel, the Inquiry Committee West, North Dakota Supreme Court Former Justice Dale Sandstrom (“Justice Sandstrom”), North Dakota District Judge Gail Hagerty (“Judge Hagerty”), North Dakota Supreme Court Justice Lisa K. McEvers (“Justice McEvers”), and North Dakota Supreme Court Justice Daniel Crothers'(“Justice Crothers”) (together, “Defendants”) Motion to Dismiss (Doc. No. 7). For the reasons discussed below, the Court denies Plaintiff's motion to amend without prejudice and grants Defendants' motion to dismiss without prejudice.

         BACKGROUND

         Bolinske is an attorney admitted to practice law in North Dakota.[1] (Doc. No. 24-1, Ex. 1 Proposed Amended Complaint (“Am. Compl.”) ¶ 3.) Defendant State of North Dakota is a state by and existing within the United States of America. (Am. Compl. ¶ 3.) Defendant North Dakota Supreme Court is an entity of government created by the State of North Dakota. (Id.) Defendants Disciplinary Board of the North Dakota Supreme Court (the “Board”), Office of Disciplinary Counsel (the “Counsel”), and Inquiry Committee West (“Inquiry Committee”) are entities created by the North Dakota Supreme Court. (Id.) Defendants Justice McEvers and Justice Crothers are Justices of the North Dakota Supreme Court. (Id.) Defendant Justice Sandstrom is a former Justice of the North Dakota Supreme Court. (Id.) Defendant Judge Hagerty is a North Dakota District Court Judge. (Id.)

         In October 2016, Bolinske alleged in a press release that Justice Sandstrom tampered with public records and conspired with his wife, Judge Hagerty, to intentionally misfile Bolinske's Petition for Supervisory Writ, in which Bolinske criticized Judge Hagerty. (Id. ¶¶ 4-5.) On October 21, 2016, Judge Hagerty filed a Grievance Complaint against Bolinske for ethical violations of the North Dakota Rules of Professional Conduct. (Id. ¶ 13.)

         Pursuant to Judge Hagerty's Grievance, the Inquiry Committee held a hearing lasting 30 to 45 minutes, at the end of which it concluded that Bolinske's allegations were made “knowingly or with reckless disregard as to their truth or falsity, ” in violation of the Rules of Professional Conduct, and recommended that an admonition be issued. (Id. ¶¶ 14, 16.) The Inquiry Committee based its finding in part on a letter from Chief Justice Gerald Vande Walle that attributed the misfiling of the petition critical of Judge Hagerty to the entry of the wrong name during a data transfer. (Id. ¶ 15.) Bolinske appealed the Inquiry Committee's finding. (Id. ¶ 16.) On July 24, 2017, the Board affirmed the Inquiry Committee's decision to issue an admonition. (Id.)

         The North Dakota Supreme Court affirmed the Disciplinary Board's decision. (Id. ¶ 17; see also Matter of Bolinske, 908 N.W.2d 462, reh'g denied (N.D. 2018).) In its opinion, the North Dakota Supreme Court recounted the procedural history of the case, noting that Bolinske appeared before the Inquiry Committee and provided documentary evidence in support of his opposition. Bolinske, 908 N.W.2d at 463. The opinion further noted that the North Dakota Supreme Court granted Bolinske's appeal pursuant to the North Dakota Rules for Lawyer Discipline, which provide that “leave will not be granted unless the person seeking leave to appeal shows that the [B]oard acted arbitrarily, capriciously, or unreasonably.” Id. at 463-64 (citing N.D.R. Lawyer Discipl. 3.1(D)(8)). The North Dakota Supreme Court interpreted the Rule governing the initial decision to grant leave as applicable “only in reviewing procedural aspects of the [Board's] decision, rather than in reviewing the substantive evidence relied upon to support imposition of disciplinary actions.” Id. The North Dakota Supreme Court examined Bolinske's contentions that the Board's decision affirming the admonition was arbitrary, capricious, and unreasonable and that it additionally deprived him of adequate due process. Id. at 464. The North Dakota Supreme Court concluded that while an attorney subject to disciplinary proceedings is indeed entitled to procedural due process, “including fair notice of the nature of the charges and an opportunity to be heard, ” such due process “does not require a full dress adversary proceeding.” Id. (internal quotation omitted). In its opinion, the North Dakota Supreme Court found that Bolinske failed to establish a lack of due process in his “informal” disciplinary proceedings because he “received the process due to him under the [R]ules and had sufficient opportunity to be heard.” Id. at 465. As he acknowledged during oral arguments in this matter, Bolinske did not file a petition for a writ of certiorari to appeal the North Dakota Supreme Court's decision.

         Bolinske alleges that Justice McEvers, when participating in the North Dakota Supreme Court's deliberations, knew that Bolinske planned to run against her in an upcoming election and failed to recuse herself at an appropriate time.[2] (Am. Compl. ¶ 22.) Bolinske similarly alleges that Justice Crothers, who also took part in the North Dakota Supreme Court's deliberations, knew that Bolinske ran against him for a seat on the Court in 2008. (Id.) By way of showing pervasive bias, Bolinske also alleges that Justice Sandstrom and Judge Hagerty continually failed to recuse themselves from presiding over Bolinske's cases despite the longtime existence of adversarial political relationships. (Id. ¶ 25.) Further demonstrating bias and causing harms for which Bolinske intends to seek punitive damages, Justice Sandstrom made public statements about Bolinske's allegations of wrongdoing, telling a political commentator that Bolinske's claims were “bizarre and rather sad, ” and that Justice Sandstrom had been “aware of [Bolinske's] mental health problems for years.” (Id. ¶ 23.) Bolinske further alleges that Defendants conspired to cover up Bolinske's allegations and that no investigation into the matter was performed. (Id. ¶¶ 30, 32-33.)

         Bolinske argues that Defendants are repeating their wrongful conduct by once again subjecting him to disciplinary proceedings.[3] (Id. ¶ 42; see In the Matter of the Application for Disciplinary Action Against Robert V. Bolinske, File No. 6177-W-1708.)

         Bolinske commenced this action on October 22, 2018, alleging infringement of Bolinske's Due Process rights, defamation, malicious prosecution, intentional infliction of emotional distress, and negligent emotional distress. (Id. at ΒΆΒΆ 1, 26, 28, 34.) On November 15, 2018, Defendants filed a Motion to Dismiss on grounds that this Court lacks subject matter jurisdiction or personal jurisdiction over Justice Dale Sandstrom in his individual capacity, and the Complaint fails to state a claim. (Doc. No. 7.) On March 1, 2019, Plaintiff filed a motion to amend. ...


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