Krile v. Lawyer , 2022 ND 28 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 28Robyn Krile, Plaintiff and Appellant
v.
Julie Lawyer, in her official and individual
capacity as Assistant Burleigh County
State’s Attorney, Defendant and Appellee
No. 20210138
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Troy J. LeFevre, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Lynn M. Boughey, Mandan, ND, for plaintiff and appellant.
Bradley N. Wiederholt (argued) and Randall J. Bakke (on brief), Special
Assistant State’s Attorneys for Burleigh County, Bismarck, ND, for defendant
and appellee.
Krile v. Lawyer
No. 20210138
VandeWalle, Justice.
[¶1] Robyn Krile appealed from a judgment dismissing her defamation claims
against Julie Lawyer. Krile argues the district court erred by failing to consider
all of the materials the parties submitted and thereby treat the motion to
dismiss as a motion for summary judgment. She also argues the court erred in
dismissing her defamation claims. We affirm, concluding Krile failed to plead
a valid claim for defamation.
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. Lawyer reviewed the files of all active Bismarck police personnel.
Lawyer asserted her decision to review the 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.” Krile v. Lawyer,
2020 ND 176, ¶ 2, 947 N.W.2d 366 (quoting State v. Russell, 2016 ND 208, ¶ 6,
886 N.W.2d 677).
[¶3] During Lawyer’s investigation, she reviewed the file of Sergeant Robyn
Krile and concluded Krile had made false statements as a Bismarck police
officer. On March 22, 2017, Lawyer sent a letter (“Giglio letter”) to Bismarck
Police Chief Dan 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. The Bismarck Police Department
1 Lawyer has since been elected as Burleigh County State’s Attorney.
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terminated Krile’s employment because the Burleigh County State’s Attorney’s
Office was no longer willing to use Krile as a witness.
[¶4] 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. As part of the Department of Labor’s investigation, the Bismarck
Police Department submitted two affidavits of Lawyer in which she explained
the circumstances and her reasoning for issuing the Giglio letter. The
Department of Labor concluded the Bismarck Police Department did not
unlawfully discriminate against Krile.
[¶5] Lincoln Police Chief Joe Gibbs contacted Lawyer about potentially hiring
Krile after her employment with the Bismarck Police Department was
terminated. Lawyer disclosed the Giglio letter to Chief Gibbs.
[¶6] In March 2019, Krile sued Lawyer in her official and individual capacity
for 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 in the course of its
investigation. The complaint also alleged Lawyer defamed Krile by publishing
the Giglio letter to the Peace Officer Standards and Training (POST) Board
and by publishing the Giglio letter and related information to Krile’s
prospective employers.
[¶7] Lawyer moved to dismiss under N.D.R.Civ.P. 12(b)(6) for failure to state
a claim upon which relief can be granted. Krile opposed the motion. After a
hearing, 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, 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 Chief Gibbs.
[¶8] Krile appealed, and this Court affirmed in part, reversed in part, and
remanded. Krile, 2020 ND 176, ¶ 40. We affirmed the dismissal of the
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defamation claim related to the disclosure of the Giglio letter and Lawyer’s
affidavits to the Department of Labor because the communications were
absolutely privileged under N.D.C.C. § 14-02-05(2). Krile, at ¶ 40. We reversed
the dismissal of the defamation claim for the disclosure of the Giglio letter to
Chief Donlin, holding the communication to Chief Donlin was not an absolutely
privileged communication, but it may be entitled to a qualified privilege under
N.D.C.C. § 14-02-05(3). Krile, at ¶ 38. We also reversed the dismissal of the
defamation claim related to disclosure of the Giglio letter to the POST Board
because we were unable to determine from the record whether the alleged
disclosure was a privileged communication. Id. at ¶ 40. We said the district
court may decide on remand whether the communications to Chief Donlin and
the POST Board were entitled to a qualified privilege. Id. We also noted the
district court had not previously addressed Krile’s defamation claims related
to the Giglio letter to Chief Gibbs and instructed the court to address the issue
on remand. Id.
[¶9] On remand, Lawyer renewed her motion to dismiss under N.D.R.Civ.P.
12(b)(6). Both parties filed various materials in support of or in opposition to
the motion. After a hearing, the district court dismissed Krile’s defamation
claims ruling all of the claims are barred by either absolute or qualified
privilege under N.D.C.C. § 14-02-05 and are subject to dismissal under Rule
12(b)(6).
II
[¶10] Krile argues the district court erred by failing to consider all of the
materials the parties submitted and thereby treat Lawyer’s motion to dismiss
as a motion for summary judgment.
[¶11] A party may move for dismissal under N.D.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted. Under N.D.R.Civ.P. 12(d), “If,
on a motion under Rule 12(b)(6) . . ., 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.” The district court may consider the
pleadings, materials embraced by the pleadings, and materials that are part
of the public record in deciding a motion to dismiss under N.D.R.Civ.P. 12(b)(6).
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Krile, 2020 ND 176, ¶ 13. Materials that are embraced by the pleadings may
be considered without converting the motion to 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.” 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).
[¶12] We have said a motion to dismiss should be treated as a motion for
summary judgment when “matters outside the pleadings are presented to and
not excluded by the court.” Podrygula v. Bray, 2014 ND 226, ¶ 7, 856 N.W.2d
791 (quoting Livingood v. Meece, 477 N.W.2d 183, 187 (N.D. 1991)). However,
a motion to dismiss under N.D.R.Civ.P. 12(b)(6) does not automatically convert
to a motion for summary judgment when a party submits additional materials
outside of the pleadings, and the district court has discretion in deciding
whether to exclude the additional materials or convert the motion into a motion
for summary judgment. See N.D.R.Civ.P. 12(d) (indicating the court may
exclude submitted materials that are outside the pleadings); Casazza v. Kiser,
313 F.3d 414, 417-18 (8th Cir. 2002) (holding the court properly considered the
motion as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) when there was no
evidence the court relied on a party’s affidavit in granting the motion); Skyberg
v. United Food and Commercial Workers Int’l Union, AFL-CIO, 5 F.3d 297, 302
n.2 (8th Cir. 1993) (stating the district court has wide discretion in electing to
consider matters outside the pleadings); Aamot v. Kassel, 1 F.3d 441, 444-45
(6th Cir. 1993) (holding language of Rule 12(b) is directed at the court and
conversion of a motion to dismiss into a motion for summary judgment takes
place at the discretion of the court when the court decides not to exclude
extraneous matters).
[¶13] Here, the parties submitted numerous documents in support of or in
opposition to the motion to dismiss. The district court stated it would not
consider most of the documents because those documents were not “embraced
by the pleadings” and they were not a part of the public record. The court stated
it would consider the complaint, the Giglio letter, Lawyer’s affidavits to the
Department of Labor, the public notice of Lincoln City Council meeting
minutes dated August 6, 2020, Lawyer’s and Krile’s affidavits filed publicly in
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a related federal case, and certain documents provided to the POST Board. The
court found these documents were either a part of the public record or
embraced by the pleadings. The court stated it would not consider the parties’
remaining documents.
[¶14] We conclude the district court did not abuse its discretion by excluding
the additional materials and declining to convert Lawyer’s Rule 12(b)(6)
motion to dismiss to a motion for summary judgment.
III
[¶15] Krile argues the district court erred in dismissing her defamation claims
and concluding as a matter of law that it is impossible for her to prove a claim
upon which relief can be granted. She contends there are genuine issues of
material fact in dispute, the court did not consider the materials in the light
most favorable to her, and therefore it was improper to dismiss her claims.
[¶16] In an appeal from a motion to dismiss under N.D.R.Civ.P. 12(b)(6), the
complaint is construed in the light most favorable to the plaintiff and well-
pleaded allegations are accepted as true. Krile, 2020 ND 176, ¶ 15. “A court’s
scrutiny of pleadings should be deferential to the plaintiff, unless it is clear
there are no provable facts entitling the plaintiff to relief.” Schmitz v. N.D.
State Bd. of Chiropractic Exam’rs, 2021 ND 73, ¶ 6, 958 N.W.2d 496 (quoting
Rose v. United Equitable Ins. Co., 2001 ND 154, ¶ 10, 632 N.W.2d 429). Rule
12(b)(6) motions are viewed with disfavor and should be granted only if it is
disclosed with certainty the impossibility of proving a claim upon which relief
can be granted. Schmitz, at ¶ 6. The district court’s decision will be reviewed
de novo on appeal. Krile, at ¶ 15. The court’s decision dismissing the complaint
will be affirmed “if we cannot discern a potential for proof to support it.” Id.(quoting Nelson, 2017 ND 49, ¶ 20).
[¶17] Krile’s complaint alleged four separate defamation claims. Krile claimed
Lawyer defamed her by writing and publishing the Giglio letter to Bismarck
Police Chief Donlin and by publishing the Giglio letter and related information
to the Department of Labor, the POST Board, and Lincoln Police Chief Gibbs.
We previously held the disclosure of the Giglio letter and the submission of
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Lawyer’s affidavits to the Department of Labor were absolutely privileged
communications and the defamation claim related to the Department of Labor
was properly dismissed. Krile, 2020 ND 176, ¶ 40. In this appeal, Krile argues
the district court erred in dismissing the defamation claims related to Lawyer’s
communications with Chief Donlin and Chief Gibbs. She does not argue the
district court erred in dismissing her claims related to the POST Board, and
therefore our review is limited to reviewing the district court’s decision to
dismiss the defamation claims related to publication of the Giglio letter to
Chief Donlin and Chief Gibbs.
[¶18] “There is no liability for defamatory statements that are privileged.”
Krile, 2020 ND 176, ¶ 18 (quoting Richmond v. Nodland, 552 N.W.2d 586, 588
(N.D. 1996)). A privileged communication may be either absolute or qualified.
Krile, at ¶ 19. There is no liability for a defamatory statement that is absolutely
privileged, even if there is evidence of actual malice. Id. However, a qualified
privilege “may be abused and does not provide absolute immunity from liability
for defamation.” Id. (quoting Richmond, 552 N.W.2d at 588). Whether privilege
applies is a question of law. Krile, at ¶ 19. Communications under N.D.C.C. §
14-02-05(3) and (4) receive a qualified privilege. Krile, at ¶ 36.
[¶19] In the prior appeal we held Lawyer’s communication to Chief Donlin was
not absolutely privileged but may be entitled to a qualified privilege under
N.D.C.C. § 14-02-05(3). Krile, 2020 ND 176, ¶ 38. On remand, the district court
concluded the communications to Chief Donlin and Chief Gibbs were both
entitled to a qualified privilege under N.D.C.C. § 14-02-05(3).
[¶20] Communications are qualifiedly privileged under N.D.C.C. § 14-02-05(3),
when made “[i]n 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.” Malice is not inferred from the communication or
publication when the communication is qualifiedly privileged under N.D.C.C.
§ 14-02-05(3). N.D.C.C. § 14-02-05.
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[¶21] “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.” Krile, 2020
ND 176, ¶ 36 (quoting Khokha v. Shahin, 2009 ND 110, ¶ 26, 767 N.W.2d 159).
“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.” Krile, at ¶ 37 (quoting Fish v.
Dockter, 2003 ND 185, ¶ 13, 671 N.W.2d 819). “Actual malice depends on
scienter and requires proof that a statement was made with malice in fact, ill-
will, or wrongful motive.” Id. It is generally referred to as the common law
standard of malice and other courts have recognized it may be shown by
evidence of hostility, threats, improper motive, or an intent to causelessly and
wantonly injure the plaintiff. See Dolgencorp, LLC v. Spence, 224 So.3d 173,
186-87 (Ala. 2016); Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 873
(Minn. 2019). We have further explained:
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 inferences are such
that reasonable minds could not differ, factual issues are questions
of law.
Krile, at ¶ 37 (quotations and citations omitted).
A
[¶22] In this context, the actual malice a plaintiff must prove to defeat a
qualified privilege is not the same as the constitutional standard of actual
malice that a plaintiff must prove when the person is a public figure bringing
a defamation claim. See Riemers v. Mahar, 2008 ND 95, ¶ 19, 748 N.W.2d 714.
A public figure is required to prove the allegedly defamatory statements are
false and made with actual malice. Id.; see also New York Times Co. v. Sullivan,
376 U.S. 254, 279-80 (1964). In those cases, actual malice has been defined as
“knowledge that the statements are false or that the statements were made
with reckless disregard for whether they were false.” Riemers, at ¶ 19; see also
New York Times, at 279-80. The actual malice standard used in public figure
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cases is not the same and should not be confused with the actual malice
standard used to defeat a qualified privilege. See Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 510 (1991) (explaining “Actual malice under the
New York Times standard should not be confused with the concept of malice as
an evil intent or a motive arising from spite or ill will.”). To defeat a qualified
privilege under N.D.C.C. § 14-02-05(3), the plaintiff must prove actual malice
by showing the statement was made with malice in fact, ill will, or wrongful
motive.
[¶23] On remand, the district court concluded the publication of the Giglio
letter to Chief Donlin was entitled to a qualified privilege. The court also
determined Krile did not sufficiently allege the qualified privilege was abused.
The court determined nothing in the letter or affidavit suggested malice by
Lawyer in sending the letter to Chief Donlin, Krile’s complaint generally
asserted Lawyer acted maliciously but did not set out any factual matters that
would support a showing of malice, Krile’s malice allegations were formulaic
and conclusory and were not “well-pleaded,” and there was no indication in the
pleadings or in the material embraced by the pleadings of any abuse of the
privilege. The court concluded Krile failed to state a claim upon which relief
could be granted and dismissed the defamation claim for the publication of the
Giglio letter to Chief Donlin.
[¶24] A communication is entitled to a qualified privilege under N.D.C.C. § 14-
02-05(3) when the communication is made without malice to a person
interested therein by a person who is also interested. The attending
circumstances of the communication are not in dispute. We previously held
Lawyer’s decision to Giglio impair2 Krile and no longer use her as a witness
was an activity intimately associated with the judicial phase of the criminal
process and was entitled to absolute privilege or immunity. Krile, 2020 ND 176,
¶ 30. As Krile’s superior, Chief Donlin had an interest in Lawyer’s decision to
2“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.” Krile, 2020 ND 176, ¶ 5.
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Giglio impair Krile and the reasoning for the decision. The communication was
one that was made by a person interested in the subject matter to another
person who was also interested in the subject matter. We conclude the
communication was entitled to a qualified privilege under N.D.C.C. § 14-02-
05(3).
[¶25] Krile claims qualified privilege does not apply because any qualified
privilege was abused and she sufficiently alleged Lawyer acted with malice.
Krile argues she demonstrated malice in the affidavit she filed in opposition to
Lawyer’s motion to dismiss. She also contends she provided the district court
with an expert’s report concluding there was no basis in law for excluding Krile
as a witness and supporting her allegations of malice.
[¶26] We have already concluded the district court did not abuse its discretion
by excluding matters outside the pleadings. Krile’s affidavit was filed in
opposition to Lawyer’s renewed motion to dismiss and was not a document
embraced by the pleadings. The expert’s report also was not a document
embraced by the pleadings. The district court did not consider Krile’s affidavit
or the expert’s report.
[¶27] Because the communication is a qualifiedly privileged communication,
Krile was required to allege actual malice to state a claim upon which relief
can be granted. Krile alleged:
[Lawyer’s] statements were made without reasonable basis
for believing them to be true, and for no common good or public
purpose. [Lawyer’s] Giglio conclusion was patently afoul of
established guidance in the Burleigh County State’s Attorney’s
Office and inconsistent with other “non-Giglio” determinations for
much more severe conduct by other BPD officers. [Lawyer’s]
statements are malicious and false and/or made with a reckless or
intentional disregard for the truth.
Notwithstanding [Lawyer’s] defamatory statements that
[Krile] could no longer be used as a prosecutorial witness, since
[Krile’s] termination, prosecutors in multiple jurisdictions
continue to subpoena [Krile] to testify against defendants in
[Krile’s] current capacity as loss prevention manager.
Furthermore, not only have prosecutors continued to subpoena
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[Krile] from other jurisdictions, but [Krile] has continued to receive
subpoenas to testify from other prosecutors at the Burleigh County
State’s Attorney’s Office—an exemplar that the [Lawyer’s]
statements are knowingly false.
....
[Lawyer] forfeited any arguable qualified immunity when
she acted in complete defiance to prevailing facts and maliciously,
falsely stated evidence supported her position when in fact it ran
against. Specifically, [Lawyer] asserted several reports supported
[Lawyer’s] theory that [Krile] was lying regarding arrests without
backup, when in fact dispatch logs indicate otherwise, and one
report was for a time when the [Krile] was not even working patrol.
Additionally, [Lawyer] engaged in systemic confirmation bias
throughout her investigation and wholly misapplied prevailing
jurisprudence when issuing the Giglio letter to an officer who did
not even serve in her governmental unit.
Krile’s allegations consist of conclusory statements that Lawyer acted with
malice.
[¶28] Under N.D.R.Civ.P. 8(a), a pleading that states a claim for relief must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” “Although a concise and non-technical complaint is all that
is required by N.D.R.Civ.P. 8(a), a complaint nevertheless must be sufficient to
inform and notify the adversary and the court of the pleader’s claim.” Erickson
v. Brown, 2008 ND 57, ¶ 16, 747 N.W.2d 34. Rule 8 does not require the
complaint to have detailed factual allegations, but allegations that are merely
conclusory statements unsupported by factual allegations are not sufficient to
state a cause of action. See Brakke v. Rudnick, 409 N.W.2d 326, 333 (N.D.
1987); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Well-pleaded factual allegations are
entitled to an assumption of truth, but conclusions unsupported by factual
allegations are not. See Iqbal, at 679.
[¶29] Rule 9(b), N.D.R.Civ.P., governing the pleading of special matters, states,
“Malice, intent, knowledge, and other conditions of a person’s mind may be
alleged generally.” Although this provision of Rule 9 explicitly excuses a party
alleging malice from the heightened pleading standard required for fraud or
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mistake under Rule 9, the party is still required to comply with the
requirements of Rule 8. See Iqbal, 556 U.S. at 687. “Rule 8 does not empower
[a party] to plead the bare elements of his cause of action, affix the label
‘general allegation,’ and expect his complaint to survive a motion to dismiss.”
Id.[¶30] Malice is not inferred from the communication or publication. N.D.C.C.
§ 14-02-05. Conclusory allegations are not sufficient. Krile alleged that
Lawyer’s statements were malicious and false and made with a reckless or
intentional disregard for the truth. Krile’s allegations of malice were
conclusory and were not sufficient to allege actual malice. Cf. Laguerre v.
Maurice, 138 N.Y.S.3d 123, 128 (N.Y. App. Div. 2020) (holding former church
elder plaintiff sufficiently alleged malice to overcome the common-interest
qualified privilege when complaint alleged plaintiff had a disagreement with
pastor defendant, defendant stated he would “crumble” plaintiff if plaintiff “did
not submit to him,” and defendant stated he would make false statements
against plaintiff and have church membership vote to relieve plaintiff of his
responsibilities at the church).
[¶31] Because Krile did not support her claim with factual allegations that
Lawyer acted with actual malice, we are unable to discern a potential for proof
to support her defamation claim related to the publication of the Giglio letter
to Chief Donlin. Construing the complaint in the light most favorable to Krile
and accepting well-pleaded allegations as true, Krile failed to allege a legally
sufficient claim. We conclude the district court did not err by dismissing Krile’s
defamation claim related to the publication of the Giglio letter to Chief Donlin.
B
[¶32] The district court also dismissed Krile’s claim related to the publication
of the Giglio letter to Chief Gibbs. The court stated Krile’s complaint alleged
she was not hired by the Lincoln Police Department after it received the Giglio
letter, but she later admitted she was eventually hired by the Lincoln Police
Department, and the court concluded she therefore failed to state a claim. The
court also explained the result would be the same even if the complaint had
been amended to allege Krile was not initially hired by the Lincoln Police
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Department and suffered damages during the delay in her hiring, because the
same analysis that applied to the communication with Chief Donlin would
apply to the communication with Chief Gibbs and the communication was
protected by qualified privilege.
[¶33] The attending circumstances of the communication to Chief Gibbs were
not disputed. Chief Gibbs was deciding whether to hire Krile as an officer in
the Lincoln Police Department. The City of Lincoln is also located in Burleigh
County and Chief Gibbs had an interest in Lawyer’s decision to Giglio impair
Krile and the reasoning for the decision. The communication was one that was
made by a person interested in the subject matter to another person who was
also interested in the subject matter. The communication was entitled to a
qualified privilege.
[¶34] Krile did not allege any additional facts in support of her conclusory
allegation of malice for Lawyer’s communication to Chief Gibbs. We therefore
conclude Krile did not make sufficient factual allegations to allege malice.
Construing the complaint in the light most favorable to Krile and accepting all
well-pleaded allegations as true, she failed to allege a legally sufficient claim.
We conclude the district court did not err by dismissing Krile’s defamation
claim related to the publication of the Giglio letter to Chief Gibbs.
IV
[¶35] We affirm the judgment.
[¶36] Daniel J. Crothers, Acting C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Lee A. Christofferson, S.J.
[¶37] The Honorable Lee A. Christofferson, S.J., sitting in place of Jensen,
C.J., disqualified.
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