(dissenting).
[¶ 19] I dissent on the basis that the language of this opinion places the burden on Petersen to show that there is a genuine issue of material fact as to malice, when the burden should properly be upon the defendants to show the absence of genuine issues of material fact. Dept. of Revenue v. Thiewes, 448 N.W.2d 1, 2-3 (S.D.1989). If Cerny had no basis in fact to advise “interested persons” that “Petersen stole lottery tickets” rather than “mismanaged lottery sales on her shift,” there would be an issue of fact whether her conduct constitutes malice.3 The circuit court judge is jumping into the jury box and rushing to summary judgment. Whatever happened to court and jury trials?
. Cemy testified at the Department of Labor hearing that:
Q: Did you tell the other clerks why you dismissed Mrs. Petersen?
A: ... I think I probably did ...
Q: What did you tell them?
A: I told them that we were missing lottery tickets.
Q: And that you thought she stole them?
A: Yeah.
The tape recording of this hearing was included in the settled record.