IN THE SUPREME COURT

00-C-672

BRIEF IN SUPPORT OF APPEAL OF $3 MILLION JUDGMENT & AWARD

Appellant moves the Court for an order for an order

dismissing with prejudice the Judgment and Award against

her. This motion is supported by the attached brief in Support

of Motion for Appeal and all papers on file with this Court and

is made on the following grounds:

1. The Causes of Action in the Complaint against the

appellant are protected by the Constitutional law of the

United States and contradicts the foundation upon which

American government was built

1. The Court lacks jurisdiction over the Internet

1. Exemplary damages awarded by the jury were not allowed

TABLE OF CONTENTS

I. TABLE OF AUTHORITIES Page 3

II. INTRODUCTION ii Page 7

III. STATEMENT OF FACTS Page 8

IV. LEGAL ARGUMENT Page 13

V. ARGUMENT Page 33

VI. APPENDIX

I. TABLE OF AUTHORITIES

FEDERAL CASES

Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). Page 32

Gertz v. Robert Welch, Inc., 418 U.S. 323, 343, 94 S.Ct. 2997, 3008-09, 41 L.Ed.2d 789 (1974) Page 21

.

Hustler Magazine vs. Falwell 485 US 46, 108S.Ct.876, 99LEd.2d 41 page 27

New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).Page 20, Page 21

Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) Page 31

Rosenblatt v. Baer, 383 U.S. 75 (1966) Page 20, Page 30

Silvester v. American Broadcasting Co., Inc. 839 F.2d 1491, 1493 (11th Cir.1988) Page 21

United States v. Dellinger, 472 F.2d 340, 358 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973) Page 32

United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Page 31

United States v. Mississippi Valley Generating Co., 364 U.S. 520 Page 20, page 25

Waldbaum v. Fairchild Publications, Inc. 627 F.2d 1287 (D.C.Cir.1980), Page 21, Page 22

STATE CASES

ND cases

Minor v. Novotny, 498 A. 2^nd 269 (Md. 1985) Page 18

Criminal Nos. 910171 - 910192] 477NW2nd 830 City of Jamestown v. Beneda et al Page 31

Rykowsky v. Dickinson Pub. Sch. Dist. No. 1, 508 N.W.2d 348, 351 (N.D. 1993) Page 19

Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73 (N.D. 1991). at 78 Page13

---------------------------------------------other state cases

Susan A. v. County of Sonoma (1991) 2 Cal. App. 4th 88, 93 [3 Cal. Rptr. 2d 27) ;, 2 Cal. App. 4th at p. 93.) page 17

-5-

Albertson v. Raboff (1956) 46 Cal. 2d 375, 380-381 [295 P.2d 405 Page 18

Barker v. Huang, 610 A.2d 1341, 1351 (Del. 1992) Page 23

Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 487, 724 P.2d 562, 573 (1986).page 16

Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 771 [234 Cal. Rptr. 653 page 17

Fridovich v. Fridovich, 598 So.2d 65, 70 (Fla. 1992) Page 23

Franklin, Torts, 23^rd Ed.(2002) Gilbert's series. Page 13

Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624.Green (1984) Page 14

Hope v. National Alliance of Postal and Federal Employees, Jacksonville Local No. 320, 649 So.2d 897 (Fla. Dist. Ct. App. 1995) Page 19

Kirschstein v. Haynes,, 788 P.2d at 954 page 23

LaPlante v. United Parcel Service, Inc., 810 F.Supp. 19 (D.Me. 1993) Page 19

Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal. App. 3d 573, 579 [131 Cal. Rptr. 592]) page 17

Moore v. Conliffe (Moore v. Conliffe, 7 Cal. 4th at p. 641 Page 18

(Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1123, 1132 [270 Cal. Rptr. 1, 791 P.2d 587] page 17, page 28

Prosser, Torts (4th Ed.), §§ 114, pp. 779-80. Page 18

Ramstead v. Morgan, 219 Or. 383, 388-89, 347 P.2d 594 (1959) Page 20

Ribas v. Clark (1985) 38 Cal. 3d 355, 364 [212 Cal. Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417 page 17

Rubin v. Green, (1993) 4 Cal. 4th 1187, 1194 [17 Cal. Rptr. 2d 828, 847 P.2d 1044, 4 Cal. 4th at p. 1194; page 17, page 25

Selby v. Savard, 134 Ariz. 222, 225, 655 P.2d 342, 345 (1982) page 16

Silberg v. Anderson (1990) 50 Cal. 3d 205, 210-212,215,219-220 ,266 Cal. Rptr. 638, 786 P.2d 365, 50 Cal. 3d at p. 215) page 17, Page 18, page 28

Smith, 476 A.2d at 24-25.Page 19

Stiles v. Chrysler Motors Corp., 89 Ohio App.3d 256, 624 N.E.2d 238 (1993) Page 19

Story v. Shelter Bay Company, 52 Wash.App. 334, 760 P.2d 368 (1988) Page 19

Julien J. Studley, Inc. v. Lefrak, 50 App.Div.2d 162, 376 N.Y.S.2d 200 (1975), aff'd on other grounds, 41 N.Y.2d 881, 393 N.Y.S.2d 980, 362 N.E.2d 611 (1977) Page 20

Vallinoto v. Disandro, No.93-379 .(R.I.Feb11, 1997). RI, ;{688 A.2d 830, 839} (R.I. 1997).

Page 30

Walker v. Gibson, 633 F.Supp. 88 (N.D.Ill., E.D. 1985)46Cal 2d375 (1956) Page 19

STATE STATUTES

NDCC 14-02-05(1) Page 13

N.D.C.C. §§§§ 14-02- 05(2), Page 16 ii.

1. Appellant Glenda Miskin moves to appeal Appellee John Wagner's Judgment and

Award of damages for libel, slander and interference with business relations also solely arising on the grounds that they are barred absolutely by US Constitutional privileges or a lack of State jurisdiction over Internet publication from outside the State, especially when not particularly and exclusively directed toward the State, or so overwhelmingly defective as to be incurably and conclusively barred by similar qualified privileges. 2. Appellant responding to Appellee's Judgement essentially alleging that Appellant defamed him, puts this decision in the context of her defense of an administrative quasi-judicial disciplinary action brought at Appellee's behest before an admitted State of North Dakota agency, the University of North Dakota, where she was a student, and other factors entitling her to absolute privileges, which make the issues of malice or lying irrelevant, and qualified privileges, which under the circumstances effectively preclude Appellee from prevailing.

3. Appellant , responding to Appellee's Judgment essentially alleging that Appellant

slandered him, puts this decision in the context of a confidential and privileged report to a licensed Counselor:

4. That the jury acted in error. All damages awarded are exemplary and not compensory and Appellant moves that all damages be set aside as the Motion for Exemplary Damages that

Appellee submitted was denied by the Court as it was legally defective and untimely and because no actual evidence of damage was submitted into evidence and the entire $3 million damage award was based upon "feelings";

4.That the District Court in Grand Forks ND, lacked jurisdiction to proceed with the charge

of libel, slander and intentional interference with business relations in the context of a quasi-judicial hearing and a confidential privileged report to a therapist and that the ensuing District Court bench trial was contrary to and in violation of the Constitution of the United States and

the Constitution of the State of North Dakota. The District Court was without

jurisdiction, clearly erroneous, and amounted to an abuse of discretion by the Trial Court.

5. ThatAppellant  who is a pro se who provided representation to Appellant  did not meet the standard of providing effective assistance of counsel.

III. STATEMENT OF FACTS

Appellee, Assistant UND Prof. John Wagner, a romantically and sexually inexperienced and similarly inept person developed a similar relationship with his Physics 171 student

Appellant  Glenda Miskin at the University of North Dakota. As he admitted at a public

hearing, he talked to her over the telephone extensively for hours many times (41 hours total) and received and sent numerous e-mails. These were reciprocally personal and dealt with sexual subjects often raised by him. When Appellee started to tell Appellant very frightening and bizarre ideas and plans, including, but not limited to his graduate teaching assistant Blaise Mibeck repeatedly

threatening suicide, his graduate student Blaise Mibeck having a gun and having

threatened to "kill that Bitch (Appellant  Miskin,)" his own predilection for

prepubescent children, believing persons were out to poison him, and other apparent

paranoid ideations, Appellant reported such to some appropriate persons at UND.

At the same time Appellee began to tell unsolicited others matters personally deprecating of Appellant  Appellant was asked by those persons to respond and told them her version.

Appellant  wrote Appellee a settlement letter proposing that each of them mutually retract in writing the unpleasant comments that they had disseminated about each other.

Appellee replied by reporting to the Campus Police that Appellant  had been stalking him by

e-mail and subsequently demanding her expulsion from the University as a student.

The Police investigation confirmed the existence of the romantic relationship.

On behalf of the University, the Dean of Studnet office spent a small fortune (the in-house

cost probably exceeded $100,000,) gathering 750 pages of mostly useless evidence against

Appellant over a three-month period. Appellant was under a directive that she must not

speak about her charges and UND did not allow her to have an attorney. If Appellant  did

not obey the UND directive, she was to be suspended immediately and evicted from student housing with her young children within three days. It is hard to collect witnesses and

evidence on your behalf when they do not allow you to contact anyone or speak.

Although everything Appellant said was found to be true at the hearing Appellant  was found guilty. This was because the University presented a Century Code to the Committee which is

tailored toward abused women. Appellee took the position of an abused woman and said that

although there was no evidence of stalking, he nevertheless "felt" stalked. As the committee that judged

Appellant had no formal training and were misinformed as to the flavor of that particular law, they voted improperly. Later when Appellant spoke to the States Attorney, he said that this section of the Century Code was never used because it was not clear enough for any Court.

The acts of UND officials appear to have been motivated by the desire to get rid of a

whistle-blower a "troublemaker" according to UND, by distorting the professor's misconduct

over a failed would be sexual relationship into a harassment and stalking case against the

unwilling party.

Appellant contends that she was denied due process at the public UND administrative

hearing that found her guilty by a slight majority after she was denied assistance of counsel

or others. The public hearing elicited much controversy and outcry against violations of due process and fundamental unfairness. The Grand Forks Herald was there, the ACLU, the ND representative of the AAUP (American Association of University Professors) and many others.

Appellee was aware or should have been that Appellant was entitled to a public hearing of

the charges he had made against her and that they would call him as a witness against her. A

limited purpose public figure is "an individual [who] voluntarily injects himself or is drawn

into a particular public controversy and by that becomes a public figure for a limited range of

issues. Appellant alleges and will prove that appellee. meets all criteria of a limited purpose

public figure and reports about his actions by her and by others were based on public record and are and were privileged.

Subsequently, Appellee served Appellant with a Complaint that she libeled, defamed, emotionally damaged, and made unchaste Dr. Wagner.

Thereafter, criticism of the University in this and other unrelated matters, and of Appellee , various opinions, and other privileged matters were posted to an Internet site located in the

State of Florida and one in California and apparently according to Appellee others discussed

this matter. Even Appellee himself has contributed to the sites both his opinions and some

factual falsehoods. Appellee and McKechnie reported their opinions about the hearings to

the news media. At this point Appellee clearly thrust himself into the center of controversy and became a limited purpose public figure.

Judge Bruce Bohlman, however, issued a very broad prior restraint injunction, enjoining ANYONE from speaking or writing about Appellee on Any Web site. [Exhibit iii] Appellee attempted to intimidate the Internet service providers (ISP) with this injunction into shutting down the sites for a few days until his intimidating was shown to be based on a theory contrary to the Federal Telecommunications Decency Act of 1996, and the ISP's restored carrying these sites.

Much later Appellee's actual Complaint was amended to include the Internet Web site UNDnews.com and und-fraud.com. The Web site articles and other expressions of opinion and hyperbole, etc. complained of by Appellee were a fair report of the hearing at UND and of the ongoing public Court hearing and contained Public Court Documents. In fact, as Appellee submitted the entire Web page into Court evidence the entire Web page enjoys privilege as a public document!

Although Appellee presented a Motion to Seal this information, the Court sealed only his Motion to Seal. Appellee brought a laptop to Court and presented the Web site. The Court could not find anything on the site that ought to be sealed as everything on it was public and privileged.

What ensued was subsequent trial in which the judge waived all privileges guaranteed Appellant as a U.S. citizen.

Although the Court did not allow exemplary damages as opposing Counsel Mr. McKechnie, ( a convicted criminal currently on six months' criminal probation for passing bad checks) wrote

a paper that was defective and untimely, Mr. McKechnie told the jury during selection and on closing that he intended to ask for the "highest award in North Dakota History to make a statement." If this is not exemplary, what is?

The judge failed to inform the jury the important instruction that when one catches a person

in a falsehood one may assume he is guilty. Although the Appellee was caught lying on the

stand several times about his saying at the UND disciplinary hearing that he inflated

Appellant's grade and the grades of other students and about how long he had spent talking

with Appellant,he prevailed after his atty Mr. McKechnie said to the all-white typically

prejudiced North Dakota jury that they must disregard the testimony of those people and he

pointed (Most of Appellant's witnesses were African-American) and that although the

advisor to the UND hearing was a jolly ol' fellow (African-American as well,), one must

disregard his testimony. Appellee. himself denied the testimony of his own physics chair who

said that he (Dr. Chen) had been told by Appellee. that Appellee. had inflated Appellant's

grade. Appellee testified that Dr. Chen (who has resided in the U.S. for decades) was Chinese and did not have a clear understanding of the English language and did not

know what he was saying.

Lastly, Appellant. was denied a fair trial as Mr. McKechnie, clearly acting as a stalking horse for the University of North Dakota enjoyed full cooperation from them. They quashed witnesses' subpoenas (from UND) for Appellant. and UND Counsel Julie Evans told witnesses they would not allow them to speak about the hearing. Witnesses had to be directly ordered by the Court to speak. Appellant did not have the funds to offer expenses to UND Witnesses while they did not require witnesses' expenses of Appellee. UND officials also assigned witnesses for the defense alternate required appearances after we served them so they could not appear in Court such as "annual evaluations" or "trips out of

town."Further, Mr. McKechnie was caught tampering with evidence when he admitted supposedly certified (by Julie Evans UND Counsel) tapes of the UND hearing that were "edited" and where statements Appellee made about how he inflated grades was edited out. Several witnesses spoke on Appellant's behalf that what was on the tapes was not what had occurred at the UND hearing and that they had heard Appellee make these statements including

Dr. Jon Lindgren, Dr. Cheryl Saunders, and Mr. M. C. Diop the UND judicial advisor to the administrative hearing.

McKechnie also submitted letters on CVIC (Community Violence Intervention Center) letterhead, postmarked to Appellee that CVIC denies having written, telling the jury that Appellant had warrants for her arrest and that she had been arrested.

States Attys Peter Welte and Warren Johnson stood up in Appellant's defense as well to say that neither was ever true. Judge Bohlman told Appellant and the jury that this is clearly another case and implied that it was to be disregarded and thus demonstrates to the Higher Court how the business of law was conducted in that trial.

IV. LEGAL ARGUMENT

A. Claims That Are Privileged Must Be Dismissed

1. Absolute Privileges-Matters of Public Interest.

Absolute privilege is a complete defense to any defamatory action, i.e., is not affected by a showing of malice, lying, abuse or excessive publication as in the case of conditional privileges. Franklin, Torts, 23^rd Ed.(2002) Gilbert's series.

A privilege is absolute when the free exchange of information is so important that even evidence of actual malice does not destroy the privilege. See NDCC 14-02-05(1)

A privilege from liability for a defamatory statement "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." [Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73 (N.D. 1991). at 78] The qualified or conditional privilege is based on the societal value of protecting statements made in response to a legal, moral, or social duty. [Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624]. Appellantstated in a privileged conversation to UND Psychologist Dr. Dick Grosz that appellee.'s GTA (graduate teaching assistant) had graphically threatened suicide to several physics staff members and Appellant. Appellantherself, after his grandparents who had raised him had died in November 1998. Mibeck said to Appellant that he intended to fake a car accident and saw himself covered in blood with his teeth scattered around him on the highway. Mibeck stated that he had taken out a $100,000 life insurance policy and that this would go to his wife and small child. [During the UND Disciplinary Hearing, secretary Connie Cicha, Chris Milford, John Wagner, and Blaise Mibeck himself affirmed that he had made these threats.] Appellantreported the suicide threat that Blaise Mibeck made to her to UND Psychologist Dr. Dick Grotz. Thereafter, when appellee. began threatening her that he (appellee.) had told his GTA that she (Appellant) had reported his suicide threats to authorities and that the unbalanced GTA was now threatening to kill her she contacted Grosz again and the UND Police, and UND Housing.Appellant spoke to UND Police and UND authorities⁽¹⁾ when acting in her own defense and for the community's benefit that Appellee had phoned her warning her that his GTA Blaise Mibeck seemed to be about to go postal and had stated to the physics secretary Connie Cicha "I am going to kill that Bitch" for reporting his threats of suicide. Appellee cited an incident that had happened recently at Iowa state where a GTA in the physics department there had gone postal and had killed several people in the department. Appellee. stated that he had more to worry about as the GTA would probably go after him first. This was actually several months before the Columbine incident and UND administration did not react except to put GTA Blaise on suicide watch. Part of this no doubt was Appellee's playing both sides, first scaring Appellant  to death in repeated phone calls to her house at night, then saying she was overreacting to faculty.

Appellant  was in fear for her life and Appellee arranged subsequently to give her labs personally one on one. Appellee. said to authorities that this would keep Mibeck from contact with Appellant  It was at this point when Appellee.'s behavior toward Appellant began to change and is when appellee. Appellee became very sexually open and began telling Appellant  his fantasies about children, asked her to get drunk with him etc.

Appellant  at this point suspected that something was up (other than appellee.'s sexuality) and asked the physics secretary if the GTA had actually made threatening comments about Appellant . The secretary was adamant that this had never happened. Now Appellant  realized that she was having one on one classes with a "nut" who was manipulating her by causing her to fear.

Appellant  again contacted Dr. Grotz to be fair to the GTA. Although it was true that GTA Mibeck was suicidal, the homicidal threats were now questionable, and it appeared that Appellee was just enjoying tweaking with Appellant . to get her attention or for another twisted reason.

As it was too late to drop the class decided with Dr. Grotz that she would finish the last two weeks of the course work and would complain later. Appellee has charged in his complaint that Appellant  "disrupted GTA Mibeck's life." Appellant  is not sure whether she interrupted his life or death, but is sure in any case that 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." her actions were absolutely privileged.

Later when she told Dr. Grotz that she was concerned that her professor might be targeting children for his own sexual satisfaction as he had implied and stated, she was acting with the same absolute privilege.

Appellee. manipulated Appellant  with exaggerations and lies in order to place himself in a

position of power. Appellant  reacted to those lies and made reports to officials in good faith.

To overcome a conditional privilege, a plaintiff must prove by clear and convincing evidence that the defendant knew the statement was false, or acted in reckless disregard as to its truth or falsity. [ Selby v. Savard, 134 Ariz. 222, 225, 655 P.2d 342, 345 (1982)]. In other words, a plaintiff must show actual malice by clear and convincing evidence.[ Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 487, 724 P.2d 562, 573 (1986).]

As Appellant was acting in her defense and in the defense of the community based on what appellee. had told her that her actions are absolutely privileged and appellee.'s complaint should never have gone to trial.

2. Absolute Privilege-Judicial .

Under N.D.C.C. §§§§ 14-02- 05(2), a communication is privileged when it is made "[i]n any legislative or judicial proceeding or in any other proceeding authorized by law." Such a statement is protected by absolute privilege; thus, even if the statement were made with actual malice or is accused of lying, the speaker is protected from liability . Anything someone says during such proceedings is not actionable for libel, defamation or slander even if the statements are false, malicious, or damaging. Legistlators, for example, can't be sued for anything they choose to say on the legislators floor. Whether Appellant was speaking falsely, misinformed, or misinterpreting she had a right to defend herself at the UND hearing and is protected by absolute privilege.

3.Course of judicial proceeding privileged.

The defamation need not occur at the trial itself, but it may be in a pretrial hearing, deposition, etc. Judicial proceedings are generally deemed to start when the complaint is filed, and hence defamations in the complaint or any document filed in conjunction therewith (eg.a lis pendens) are absolutely privileged.[Albertson v Raboff, 46Cal 2d375 (1956)]

Therefore, when Appellant sent these e-mails to public officials after Appellee made

formal charges against her in her defense, her actions were absolutely privileged and Appellee 's complaint of libel and everything that hangs on this libel is absolutely privileged and must be dismissed;

4. Proposed Judicial Proceedings Are Privileged

Some authority extends the privilege to communications preliminary to a proposed judicial proceeding (e.g., demand letters by counsel prior to filing suit charging misconduct by opposing party, or a complaint to public officials designed to prompt the investigation of a plaintiff). [Lerette v. Dean Witter, 60 cal. App 3^rd 573 (1976).] The privilege also applies to statements made in dialogues preliminary to litigation. [(Rubin v. Green (1993) 4 Cal. 4th 1187, 1194 [17 Cal. Rptr. 2d 828, 847 P.2d 1044].)] The privilege, if applicable, would preclude not only a defamation action, but also any actions by Appellant for intentional interference with existing and prospective economic relationships [ (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1123, 1132 [270 Cal. Rptr. 1, 791 P.2d 587]; [(Silberg v. Anderson (1990) 50 Cal. 3d 205, 210 ,266 Cal. Rptr. 638, 786 P.2d 365, 50 Cal. 3d at p. 215) ]and intentional infliction of emotional distress [(Ribas v. Clark (1985) 38 Cal. 3d 355, 364 [212 Cal. Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417]; [Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal. App. 3d 573, 579 [131 Cal. Rptr. 592]).] Only malicious prosecution actions are exempt from section 47, subdivision (b). (Rubin v. Green, (1993) 4 Cal. 4th 1187, 1194 [17 Cal. Rptr. 2d 828, 847 P.2d 1044, 4 Cal. 4th at p. 1194; Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 771 [234 Cal. Rptr. 653].)

The privilege is generally described as applying to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action."[ (Silberg v. Anderson, supra, 50 Cal. 3d at p. 212];[ Susan A. v. County of Sonoma,(Susan A. v. County of Sonoma (1991) 2 Cal. App. 4th 88, 93 [3 Cal. Rptr. 2d 27) ;, 2 Cal. App. 4th at p. 93.) ]

The Supreme Court has characterized the third prong of the foregoing test, the requirement that a communication be in furtherance of the objects of the litigation, as being "simply part of" the fourth, the requirement that the communication be connected with, or have some logical relation to, the action. [(Silberg v. Anderson, supra, 50 Cal. 3d at pp. 219-220.)] The high court has specifically disapproved any interpretation of the "furtherance" requirement as a test of the motives, morals, ethics or intent of the person claiming the privilege. (Id. at p. 220.)

As noted above, a communication is privileged under section 47, subdivision (b) if made in, or in anticipation of, litigation by litigants or other authorized participants to achieve the objects of the litigation, and if the communication has some connection or logical relation to the action. (Moore v. Conliffe, supra, 7 Cal. 4th at p. 641; Silberg v. Anderson, supra, 50 Cal. 3d at p. 212; Albertson v. Raboff, supra, 46 Cal. 2d at pp. 380-381.) The communications at issue here were obviously made in anticipation of litigation -- indeed, of a potential criminal prosecution -- and were made by potential participants.

Therefore, when Appellant sent these response e-mails Appellee complains about, after Appellee

made initial accusations and threats against her in her defense, her actions were absolutely privileged and Appellee 's complaint was not actionable and never should have been tried.

5. Quasi-Judicial Proceedings are Privileged

Similarly, absolute privilege applies in the case of quasi-judicial proceedings (e.g. administrative hearings). [Minor v. Novotny, 498 A. 2^nd 269 (Md. 1985) ]

Quasi-judicial proceedings been defined to include any hearing before a tribunal which performs a judicial function, including many administrative officers, boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or "quasi-judicial" in character. Prosser, Torts (4th Ed.), §§ 114, pp. 779-80.

In Rykowsky v. Dickinson, the N.D. Supreme Court affirmed summary judgment in favor of the defendant. It was alleged that defamatory statements were made during a meeting of the Dickinson School Board by the defendant. It was held that school board meetings have been recognized as "official proceedings authorized by law" within the meaning of a statute similar to N.D.C.C. 14-02-05(2) and that the statements were privileged. Id. at 351. [ Rykowsky v. Dickinson Pub. Sch. Dist. No. 1, 508 N.W.2d 348, 351 (N.D. 1993)]

It is clear that the UND disciplinary hearing was absolutely privileged and that the hearing should have been excluded from any actions or trial requested by Appellee.

In fact, Superior Court of Pennsylvania has previously held that the absolute privilege accorded communications pertinent to a judicial proceeding applied to letters written by counsel, on behalf of his client, to a "quasi-judicial" officer appointed to hear certain divorce issues. Smith, 476 A.2d at 24-25.

Superior Court of Pennsylvania further notes that the majority of jurisdictions apply absolute privilege to defamatory statements which are made in relation to a "quasi-judicial" proceeding. See e.g., LaPlante v. United Parcel Service, Inc., 810 F.Supp. 19 (D.Me. 1993) (employer's response to report of Maine Human Rights Commission's investigator was absolutely privileged); Walker v. Gibson, 633 F.Supp. 88 (N.D.Ill., E.D. 1985) (allegedly defamatory statements made before grievance committee were entitled to absolute judicial immunity); Hope v. National Alliance of Postal and Federal Employees, Jacksonville Local No. 320, 649 So.2d 897 (Fla. Dist. Ct. App. 1995) (allegedly defamatory statements made in course of collective bargaining grievance process when made in connection to the quasi-judicial proceeding are absolutely privileged); Stiles v. Chrysler Motors Corp., 89 Ohio App.3d 256, 624 N.E.2d 238 (1993) (allegedly defamatory statements were absolutely privileged where statements were made in relation to National Labor Relations Act grievance proceeding); Story v. Shelter Bay Company, 52 Wash.App. 334, 760 P.2d 368 (1988)

(allegedly defamatory statements made in complaint to Department of Housing and Urban Development and state department of licensing were made in the context of quasi-judicial proceedings and, thus, were absolute privileged); Julien J. Studley, Inc. v. Lefrak, 50 App.Div.2d 162, 376 N.Y.S.2d 200 (1975), aff'd on other grounds, 41 N.Y.2d 881, 393 N.Y.S.2d 980, 362 N.E.2d 611 (1977) (absolute privilege applied to defamatory statements made by witness before a licensing board in a proceeding to revoke a real estate license); Ramstead v. Morgan, 219 Or. 383, 388-89, 347 P.2d 594 (1959) (collection of cases recognizing absolutely privileged statements made before various administrative boards and commission acting in a quasi-judicial manner); "Defamation Administrative Proceeding," 45 A.L.R.2d 1296, 1303.

Clearly the administrative hearing at the State operated University of North Dakota was privileged so any damage that Appellee claimed came out of that must be dismissed.

6. Public Persons Defined-Absolute Privilege

It was the majority opinion of the court with Justice Stewart concurring and stating:

" [ Rosenblatt v. Baer, 383 U.S. 75 (1966)] that "in

New York Times Co. v. Sullivan, 376 U.S. 254, we dealt with elected officials. We now have the question as to how far its principles extend, or how far down the hierarchy we should go.

The problems presented are considerable ones. Maybe the key man in a hierarchy is the night watchman responsible for thefts of state secrets. Those of us alive in the 1940's and 1950's witnessed the dreadful ordeal of people in the public service being pummeled by those inside and outside government with charges that were false, abusive, and damaging to the extreme. Many of them, unlike the officials in New York Times who ran for election, rarely had opportunity for rejoinder. [383 U.S. 89]

Yet if free discussion of public issues is the guide, I see no way to draw lines that exclude the night watchman, the file clerk, the typist, or, for that matter, anyone on the public payroll. And how about those who contract to carry out governmental missions? Some of them are as much in the public domain as any so-called officeholder. And how about the dollar-a-year man, whose prototype was publicized in United States v. Mississippi Valley Generating Co., 364 U.S. 520? And the industrialists who raise the price of a basic commodity? Are not steel and aluminum in the public domain? And the labor leader who combines trade unionism with bribery and racketeering? Surely the public importance of collective bargaining puts labor, as well as management, into the public arena so far as the present constitutional issue is concerned."

Clearly Appellee is on the public payroll and the cause of much discussion about state spending⁽²⁾, judicial procedures⁽³⁾ and sexual discrimination⁽⁴⁾ at the University. Certainly discussion of the travails of Appellee and the University are of public interest especially as North Dakota trails into the 21^st Century.

7. Public Commentary on Limited-Purpose Public Figures Absolutely Privileged

Plaintiffs in defamation cases can be characterized as either: 1) public officials or public figures, 2) limited purpose public figures, or 3) private individuals. The Supreme Court has struck a "balance between the needs of the press and the individual's claim for wrongful injury" by establishing different tests for different defamation plaintiffs. Gertz v. Robert Welch, Inc., 418 U.S. 323, 343, 94 S.Ct. 2997, 3008-09, 41 L.Ed.2d 789 (1974). A limited purpose public figure is "an individual [who] voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." Id. at 351, 94 S.Ct. at 3013. Public figures "must prove that the defendant acted with actual malice to establish liability" when the "defamatory material involves issues of legitimate public concern." Silvester v. American Broadcasting Co., Inc. 839 F.2d 1491, 1493 (11th Cir.1988). To show that the Press-Register acted with "actual malice" by publishing defamatory material, Little must show that they acted "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).

Later, Justice Powell, writing for the majority, outlined the basic distinction between public and private figures, and justified their different treatment in libel law. The definition of public figure:

"In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such person assume special prominence in the resolution of public questions."

In Wagner v Miskin, we can adopt the three part test set forth in Waldbaum v. Fairchild Publications, Inc. 627 F.2d 1287 (D.C.Cir.1980), to determine if the plaintiff is a limited purpose public figure. Under this analysis, we must "(1) isolate the public controversy, (2) examine the plaintiff's involvement in the controversy, and (3) determine whether the alleged defamation [was] germane to the plaintiff's participation in the controversy."Clearly, Appellee, an employee of the State operated University of North Dakota, made allegations and charges and created the controversy as to what had happened in appellee. and Appellant 's adult relationship, his inflating of grades, and chose to air both his own and UND's dirty laundry in public. Appellee insisted that an administrative hearing be held, attended the hearing that was open to the public and cast himself in the limelight. Appellee then filed a public complaint in the Grand Forks Court. In her defense Appellant  while responding to charges leveled by Appellee , in the interest of the community and while representing herself in a quasi-judicial proceeding and then in a public courtroom revealed appellee.'s predilection for prepubescent children. Appellee filed an amended public complaint against Appellant in Grand Forks County and both he and his atty Bill McKechnie have solicited and performed several public interviews for an international newspaper the Chronicle of Higher Education and the Grand Forks Herald and local News stations as well. Therefore, Appellee meets the criteria of Waldbaum v. Fairchild Publications, Inc. Supra and cannot complain when after becoming the "vortex figure" after having thrust himself into the "vortex" of public debate he not like the result of his own foolhardy action.

Those who sow the wind must reap the whirlwind. Appellee created a vortex and threw himself in. Now he wishes to collect damages as the situation spins out of control. Whether a appellee. is a public figure or a public person, Appellant 's freedom to speak about what is happening to her when asked and/or to state her opinion is absolutely protected so appellee.'s complaint is defective and must be dismissed.

8. CLAIMS FOR EMOTIONAL DISTRESS ARE ALSO BARRED BY PRIVILEGE

In Wagner v Miskin, Appellee , who has been dubbed "the Nutty Professor" by an bemused public, except when considering that it is paying for his exploits, appears to be afraid of sex, claiming that Appellant  inflicted great emotional stress upon him when she spoke openly about ; 1) menstruation; 2) the lesbian lifestyle in Grand Forks; 3) kissing a strange man; 4) by calling him "my love" in one e-mail; 5) and that she was sorry but she preferred her men hot and dark and that she would keep him (Appellee) in mind for semen only should he ever win the Nobel prize.

b. Appellee also claims that Appellant  had frightened him when she threatened to set him afire by lighting a match and igniting the fumes emanating from the Hugo's Our Family generic aftershave which he liberally applied;

c. And Appellee complains that his hurt feelings continue.

In the following Opinion of the N.D. Supreme Court by Vande Walle, Chief Justice [Civil No. 930102] signed by Justices Herbert L. Meschke, Dale V. Sandstrom, William A. Neumann, and Beryl J. Levine as follows:

We agree with the Delaware Supreme Court that "the great weight of foreign precedent that an independent action for intentional infliction of emotional distress does not lie where, as here, the gravamen of the complaint sounds in defamation." Barker v. Huang, 610 A.2d 1341, 1351 (Del. 1992). See also Fridovich v. Fridovich, 598 So.2d 65, 70 (Fla. 1992) {"the successful invocation of a defamation privilege will preclude a cause of action for intentional infliction of emotional distress if the sole basis for the latter cause of action is the defamatory publication"}; Kirschstein v. Haynes, supra, 788 P.2d at 954 {a "claim for intentional infliction of emotional distress . . . based on the same factual underpinnings as a defamation claim for which the privilege applies, . . . is also barred by the reach of the absolute privilege"}; Brody v. Montalbano, supra, 151 Cal.Rptr. at 215 {"California permits no cause of action based upon the defamatory nature of a communication which is itself privileged under the defamation laws"}.

If a cause of action for intentional infliction of emotional distress is barred by the successful invocation of a defamation privilege, it is even more logical that a cause of action for negligent infliction of emotional distress is also barred by the successful invocation of a defamation privilege. Rykowsky's claims for negligent or intentional infliction of emotional distress are based upon the statements made by Cook and Staudinger at the January 16, 1990, school board meeting. Those statements were privileged and not subject to Rykowsky's defamation claim. Therefore Rykowsky's claims for emotional distress are also barred by the privilege, and the defendants were entitled to dismissal of the emotional distress claims as a matter of law.

Affirmed. Gerald W. VandeWalle, C.J.

It would follow that any emotional damage that Appellee might claim from slander, libel or defamation is superceded by absolute privilege therefore the complaint must be denied.

The remaining allegations, that Appellee, a grown man in his late thirties was so offended by Appellant  e-mailing him over a period of six months (68 times or two times a week) the arguments remain;

1) many of these referred to class or obvious ongoing conversations;

2) if these e-mails were so disturbing why did he open and enjoy and respond to them⁽⁵⁾;

3) why did he not tell a supervisor or someone trained in these areas until after the "break-up?"

4) why did he continue this relationship in relative secrecy for six months?

If the defamation is barred then emotional damage that came from privileged communication is barred as well. Appellee.'s complaint then is defective and must be dismissed.

9. DEFENSES: ABSOLUTE PRIVILEGE-MEDIA AND THE INTERNET

Appellant has NOT spoken about Appellant  except for to a therapist and in hearings. Appellee's Complaint states that Appellant  as identifies supra (via Internet) communicated and continues to communicate false statements to third parties via spoken word which statements were and are false and without privilege

However, The Fair Report privilege is a common law defense that protects statements -- even statements that are false and that damage reputations -- made during official proceedings or meetings open to the public and dealing with matters of public concern.

It also protects reporting about such meetings and public records. This privilege enables reporters, for example, to quote what people say during a council meeting or from the witness stand during a trial or to quote from public records. The rationale behind this is that a democratic society works best if citizens are able to engage in robust and open debate without fear of being sued for defamation.If the offending material does not pertain to public matters, then the media defendant has to prove that the published statement is true. Appellee complains that the story Kinky Torrid Romance by Randy Physics Professor remains on the Web site UNDnews.com to this day. Yet anyone may publish an account that is an accurate and complete or a fair abridgement of the proceedings or public records. Appellee has submitted the facts and the article Kinky Torrid Romance by Randy Physics Professor into public court records long ago and this article therefore enjoys privileged status as a report of a public record as clearly do the judicial procedures of a State run institution the University of North Dakota. Further, Appellee

, whether a public figure or person [United States v. Mississippi Valley Generating Co. Supra. ] may be reported on with absolute privilege. Therefore any and all attempts in Appellee's complaint toward prior restraint or the quashing of expression is against the U.S. Constitution and the complaint must be dismissed.

10. Fair Comment and Criticism are Privileged.

The common law defense of fair comment protects opinion about matters of public interest or things that have been put on public display.

As it was clearly Appellant opinion that

1) Appellee was masturbating as he phoned her about sexual topics by the loudness and quickness of his breathing as he appeared to her to be "panting" ;

2) Appellee was interested in her as more than a student when he asked her to get drunk with him;

3) Appellee. and Appellant  engaged in sexually-oriented phone calls (from Appellee to herself) when he asked if women had orgasms when they breast fed, spoke about premature ejaculation, the sex he had had with his two girlfriends in his twenties (assuring Appellant  that they had done everything), and when Appellee asked whether her boyfriend was 'bisexual'.

Dr. Wagner clearly was not speaking to her on the phone for an hour and a half on at least ten occasions (that he admits to remembering although Appellant claims at least 20 times) about "Natural Physics⁽⁶⁾,"

4) She and Appellee in her simple opinion appeared to be having an improper sexual relationship when he suggested she come to his office and deliver her class papers ala Monica Lowinski;

5) Appellee perhaps suffers the loathsome disease, that being an interest in sexual acts with children when he told her that when children reached the age of 14 they were ruined for him, that he looked for children at church, when he looked as if he were breathless for 10-year-old Angela Springer and made comments to Appellant as to whether she thought that 10-year-old Angela might "like" him;

6) and that in def.'s opinion, when plf. Appellee told the stories of sexual intercourse he engaged in his twenties with aggressive women that Appellee himself confirmed his want of chastity.

As opinion is protected and privileged plf.'s complaint must be dismissed.

11. Hyperbole is protected by privilege.

Some statements are so outlandish that no reasonable person would believe them to have a factual basis. Such obviously unbelievable statements are seen as opinion and not defamatory. Hyperbole is protected [Privileged under Hustler Magazine vs. Falwell 485 US 46, 108S.Ct.876, 99LEd.2d 41].

The article Kinky Torrid Romance by Randy Physics Professor is absolutely privileged as are the entire Web sites UNDnews.com and und-fraud.com. Fair comment and public interests are absolutely privileged. Anything said in the course of public meetings, public documents, reports about such meetings and public records are privileged. The article Kinky Torrid Romance by Randy Physics Professor by title alone is obviously humorous as plf. Appellee's demeanor is anything but Torrid.

Hyperbole or humor is absolutely privileged . Further, if Appellee claims that this article title is not hyperbole and is true then it is not libelous. Appellee cannot have it both ways. As it appears to be protected by the hyperbole clause it is absolutely protected. Appellee, a self acclaimed non-virgin who has never been married who speaks of wanton sex acts is not chaste. And Appellee apparently suffers the loathsome disease, that being an interest in sexual acts with children, as he stated to Appellant that "when girls pass the age of 14 they are ruined for him." As truth is an absolute defense against libel and plf. has the burden of proof to prove otherwise, reports on the Web site UNDnews.com are absolutely privileged and the complaint must be dismissed

11. COMMENTS MADE FOR LEGITIMATE PURPOSES ARE ABSOLUTELY PRIVILEGED

Comments made by a person for a good or legitimate purpose, such as informing the public about what a public employee has said about "prepubescent children," serve the public purpose and are therefore privileged. Franklin, supra/..

12. INTENTIONAL INTERFERENCE WITH A BUSINESS RELATIONSHIP BASED ON PROTECTED ACTIVITIES MUST BE BARRED

This is an independent tort cause of action. It cannot be an automatic add on to defamation claims or be a substitute for them when they must fail for lack of proof or because of being barred by privilege Appellant . claims that any state claims of intentional interference with a Business Relationship are overruled by Federal Privilege she enjoys as a U.S. citizen which also applies to statements made in dialogues preliminary to litigation. (Rubin v. Green (1993) 4 Cal. 4th 1187, 1194 [17 Cal. Rptr. 2d 828, 847 P.2d 1044].) The privilege would preclude not only a defamation action, but also any actions by Appellant for intentional interference with existing and prospective economic relationships (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1123, 1132 [270 Cal. Rptr. 1, 791 P.2d 587] ; (Silberg v. Anderson (1990) 50 Cal. 3d 205, 210 ,266 Cal. Rptr. 638, 786 P.2d 365, 50 Cal. 3d at p. 215)

Appellant  claims that any state claims of intentional interference with a Business Relationship are overruled by Federal Privilege she enjoys that started even before litigation at UND and continue as she reports on her experiences and opinions of such.

Appellant  is participating in protected activity and plf. who has stirred the pot and now wants to complain that he is ashamed while conducting business. Appellee. has only himself to blame. Now he tries to attribute responsibility to Appellant when

1. Appellee alleges in his Complaint that Appellant has gotten a copy of his resume and used it to defame him. Appellant got a copy of his public resume for one of her advisors before the hearing and until then was not even aware of the fact that these were public nor much cared. If Appellee wishes to complain that his public resume has defamed him perhaps he should have done a better job preparing it..

The fact that after a year of these types of harassment Appellant  began posting Appellee's antics on the Internet for the public to see and to question, that a public UND employee , a public figure or a public person continues to act improperly, using UND administration and a UND continuing education professor (McKechnie) as his atty to further his causes, and if people are indeed laughing and/or are disgusted at plf. at his place of business, he should stop his idiotic and insanely obsessive actions, begin acting like a normal person and perhaps then people will stop laughing and things will settle down for him at his job.

2. Appellee complains " that Ms. Miskin published these (previous) statements by way of the written word as E-mail messages to others (in her own defense to litigation to Police and affirmative action officers) Ms. Miskin's allegations that Dr. Appellee has sexual interests in prepubescent children and had an improper sexual relationship with herself, a student of his, were wholly false, and has exposed Dr. Appellee to hatred, contempt, ridicule, and has caused him injury in his occupation;

Again Appellant  actions in responding to charges made against her were privileged. Appellee claimed no specific damages and def. wonders what the damages are for a broken heart or hurt feelings one might suffer when one is rejected by the only one he claims who has ever written him a personal letter or been honest and close enough to tell him that those persons unfortunate to be in physical proximity to him could taste his cologne?

Further Appellee seems not to have suffered at work and in fact seems much more focused securing a second paid position on the N.D. EPSCoR Board, in charge of doling out millions of dollars in grants to prospective researchers, getting expensive equipment from the National Science Foundation, and though he admitted to inflating grades plf. sits on an academic board at UND that discusses grades! Appellee has not suffered any financial loss and in fact has gained financially since meeting Appellant.

In addition, Appellee has been lecturing continually in different states and held a Conference called the 48th Annual Midwest Solid State Conference and Solid State Theory Symposium on October 13-15, 2000.

Plf. appears to enjoy a high standard of professional respect in the UND physics department and his business relations do not seem to have suffered. Appellee produced a part-time Social Worker who said that Appellee had filled out a form in which he stated that he had fewer sexual feelings than before and that he felt "sleepless." A Rhode Island Appellate Ct. reversed an unsupported conpensory dame judgment similar to the one in Wagner vs. Miskin stating "The Court said that while the social worker might have been qualified to relate the facts concerning the psychotherapy session itself, she "certainly was not qualified to expand upon those facts nor give an expert medical opinion..."' Said the Court, the origin and causal connection of these physic and physical complaints...required expert medical opinions.a plaintiff must prove physical symptomatology resulting from the alleged improper conduct. The Court granted that Vallinoto was competent to testify that she suffered psychic problems and experienced physical symptomatology therefrom, but neither she nor her social worker were qualified to testify that it was proximately caused by DiSandro's actions. The Court said that while the social worker might have been qualified to relate the facts concerning the psychotherapy session itself, she ""certainly was not qualified to expand upon those facts and to give an expert medical opinion."" Said the Court, the origin and causal connection of these psychic and physical complaints to her affair with DiSandro required expert medical opinions.[Vallinoto vs. DiSandro, No. 93-379(R.I. February 11, 1997).] Appellee was not able to produce any bills, specific evidence of lost grant monies, loss of income because of an injury, medical expenses, or business losses. Therefore the award is excessive.

13. DEFENSES: PRIVILEGED COMMUNICATION-BURDEN OF PROOF IS ON THE PLAINTIFF

i. Truth. Recall that the definition of defamation includes falsity. A true statement, no matter how hurtful it may be to one's reputation, is not defamatory. For stories that concern public matters, the plaintiff in a defamation lawsuit has to prove that the offending statement is false.

ii. Motive to Harm Insufficient. It is not enough that defendant be shown to have acted with spite, hatred, ill will, or intent to injure plf. Unless "knowing or reckless falsity" is established there is not the requisite "malice" for constitutional purposes. [Rosenblatt v Baer, supra]

As this entire complaint is based on "he said she said" and there is no hard evidence as to what exactly was said during these phone conversations between plf. and def. proving malice is impossible so and the complaint must be found defective and must be dismissed.

14. RIGHTS OF FREE SPEECH AND PEACEABLE ASSEMBLY-EXPRESSIVE ACTIVITY ARE PROTECTED

On June 26, 1997, the United States Supreme Court in

Reno, Attorney General of the United States, et al. v. American Civil Liberties Union, et al., issued a sweeping reaffirmation of core First Amendment principles and held that communications over the Internet deserve the highest level of Constitutional protection. ⁽⁷⁾

The Court's most fundamental holding was that communications on the Internet deserve the same level of Constitutional protection as books, magazines, newspapers, and speakers on a street corner soapbox. The Court found that the Internet ""constitutes a vast platform from which to address and hear from a world wide audience of millions of readers, viewers, researchers, and buyers,"" and that ""any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.""

North Dakota Supreme ct. opinion [Criminal Nos. 910171 - 910192] agree that

i) The First Amendment forbids the enactment of laws "abridging the freedom of speech . . . or the right of the people peaceably to assemble."

ii) First Amendment's guarantees of free speech and peaceable assembly.[Peaceful picketing and leafleting are examples of expressive activities involving speech protected under the First Amendment. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). A restriction on the right to engage in protest or picketing on an issue of public concern "operates at the core of the First Amendment" and such restrictions on public-issue picketing are traditionally subjected to careful scrutiny. Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The scope of protected speech was discussed by the Seventh Circuit Court of Appeals in United States v. Dellinger, 472 F.2d 340, 358 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973)].

The Court further states":Ideally the analysis should begin with a delineation of the scope of speech protected by the first amendment. . . . All expression of ideas is effected by, or is, itself, conduct, and all conduct necessarily expresses some idea, emotion, or thought. Perhaps we can do no better than a generalization which equates. first amendment 'speech' with conduct which makes an offer in the market place of ideas. Indeed we need no more precise delineation for the purpose of considering the statute here, for it is clear that individual or group conduct for the dominant and virtually sole purpose of expressing views on public questions is well within the concept of speech protected by the first amendment."

As the Internet is comparable to a street corner and those on the street are guarded by absolute privilege the right to free speech and peaceable assembly, clearly the information on the Web sites UNDnews.com and und-fraud.com are absolutely protected by the law of the United States Constitution and appellee's complaint must be found defective and must be dismissed.

15.The Court and State of North Dakota Have No Jurisdiction Over the Internet

Lastly, North Dakota has no jurisdiction over the Internet. [See Exhibit 5. This is especially so when the originating site is outside the State of North Dakota and the communications are not directed uniquely toward the State of North Dakota (the site "UNDnews.com" has a tracer that shows that its audience is largely national and international, as might be expected from the efforts of the University of North Dakota to recruit students nationally and internationally to its well-known aeronautics and certain other schools and colleges). The required State of North Dakota jurisdiction nexus is absent.

V ARGUMENT

A. IN THE UNITED STATES OF AMERICA PRIVATE REPORTS TO COUNSELORS ARE PRIVILEGED AND ARE NEVER SLANDER. A $500,000 award for slander where Appellant made a private privileged report to a therapist, a licensed Doctor of Psychology after Appellee made dangerous and bizarre statements to her is excessive, unwarranted, and Unconstitutional. Further this sets a terrible precedent in North Dakota which has one of the highest rates of child abuse in the United States. Now we can be assured that if we report suspected incidents of abuse they can sue us for reporting.
Appellant  defended herself as she did not have money for a lawyer. Appellee hired Grand Forks Attorney William E. McKechnie, a continuing ed professor at the University of North Dakota, who has had lots of practice defending sexual deviants. Does this mean that these types of lawyers who defend these types of people can now get their clients off by attacking the person who made the report in Court for libel and slander? In an already "North Dakota Nice" Norwegian society where people are reluctant to report anyway, now they can be successfully sued . This is one way to get rid of a witness.

B. PLTF'S CLAIMS TO INTERFERENCE WITH BUSINESS ARE INADEQUATELY SUPPORTED AND THE AWARD IS EXCESSIVE

First, Appellee's proof of damages consisted solely of his conclusionary declaration as to his feelings. He offered no independent or corroborative proof of his conclusions or statements. In fact Pltf himself stated in trial that grant monies fluctuate and agreed that, in 1998, when the incidents occurred he had $93,000 in grants and Pltf now has $500,000! Appellee also stated that he did not know if he had lost money but "thought that he might have and may in the future. Future damages awarded on thoughts and feelings should be denied as well.

Second, it does not follow that because an anonymous writer or publisher favors or believes that the position of Appellant that that person was Appellant  Many persons were upset by what they regard as the denial of due process to Appellant at the Univ. of North Dakota and its apparent prejudice toward women. Besides such are expressions of opinion, which expressions are privileged.

Third, Appellee's opinions and feelings are not objective or relevant evidence.

Fourth, a Social Worker is not an expert witness nor is a Social Worker qualified to assess psychological damages. Appellant objects to the opinion of a Social Worker as to how much damage Mr. Appellee has suffered who is not a doctor but is a part-time Social Worker employed by UND. Appellant  does not disagree that the testimony of a social worker might be helpful in a child neglect or abuse trial (as Appellee' s Counsel is well aware) but it seems that in these circumstances, if Appellee wanted to prove that his mental condition had declined and that he was depressed and could not sleep or perform sexually it seems that he should have sought a mental health professional who perhaps could have prescribed medication. Further it does not seem as if these damages have been ongoing, but have arisen at the expectation of trial as Appellee began seeing this Social Worker only three months before trial when the trial date was set and has only visited with her on eight occasions although his alleged damage has been going on for 3 1/2 years. The Social Worker did not appear to know much about Appellee and even said on the stand that she did not know even if he were sexually attracted to women. Appellant  would like to see records as to whether subsequent visits have been required as Appellant suspects his visits were simply a ruse created by atty for Appellee to document otherwise unprovable damages;

Lastly McKechnie brags on the ND Trial Lawyers Assn. page that he has gotten the largest judgment in ND history for libel and in fact in the U.S.

The whole sordid case is being looked at nationally thanks to McKechnie's bragging to legal media across the Nation. McKechnie's winning a $3 Million judgment against a pro se for making a report to a counselor makes ND a laughing stock to the Nation and makes people wonder whether ND has successfully ceded from the rest of the country.

C. ACTS OF LIBEL COMPLAINED OF ARE PRIVILEGED SO JUDGEMENT AND AWARDS MUST BE DENIED

1. A $2 million dollar award for damages for alleged libel that occurred in circumstances which were absolutely privileged should be denied.

a. SOLICITED RESPONSES ARE PRIVILEGED

1. 68 E-mails sent over a five-month period during a mutual adult relationship before January 1999 contrary to the Complaint (composed in error by Mr. McKechnie) and in response to lengthy visits and nightly phone calls from Appellee's residence to Appellant  residence and mutual e-mails should not be considered for trial as they are absolutely privileged;

2. Damages by libel in four letters to the police, the UND Asst. Dean of Students Jerry Bulisco, Physics Secy. Connie Cicha and affirmative action officers Sally Page and Joy Johnson which Appellant  replied to in her defense of a criminal and judicial charge against her by Appellee should be denied;

3. Letter sent by others to third parties and those using anonymous e-mail remailers should not be attributed to Appellant  were never recognized in Court, and in any case are privileged opinion as are anonymous postings to a Web discussion group in which Appellee himself was participating!

b. QUASI-JUDICIAL HEARINGS ARE ABSOLUTELY PRIVILEGED Libel that occurred in response to or within a judicial setting are absolutely privileged so damages that occurred due to the hearing Appellee requested should be denied.

c. FAIR REPORTS OF COURT PROCEEDINGS AND THE SUBMISSION OF COURT DOCUMENTS ENJOY PRIVILEGE Unsealed public Court documents and the true reports of what happened in open Court are privileged and when posted on the Internet do not lose privilege.

d. HYPERBOLE IS PRIVILEGED. Appellant and his atty with a straight face try to argue that the headline "Kinky Torrid Romance" [with a photograph of the lanky balding Appellee (Don Quixote or Ichabod Crane) and his later second the voluminous Wm. McKechnie] was meant to be an objectively credible description of Appellee's amorous efforts. Thus, Appellee's claim fails the first prong of the Hustler test, creditibility.

Second, as he admits, if he is a public figure, he has to meet that test, namely actual malice, which he does not and cannot allege. His defense that he is not a public figure because is not a vortex figure falls short because admittedly he started all of this, pursued Appellant  from State to State, and will not stop until he defeats her everywhere. The crazy/obsessed are like that.

e. Public Commentary on Limited-Purpose Public Figures Absolutely Privileged

Appellee knew when he complained to UND and demanded a public hearing that his charges might reveal what had actually happened. He had to expect that Appellant  would defend herself, including interviewing potential witnesses, and relating her story to the public and exercising her First Amendment rights to petition her government for a redress of grievances. Yet, he chose to inject himself into this vortex of his own making. He could have settled this matter or his alleged then problems with Appellant otherwise. There was no need to initiate a guerrilla war against her, whose current status he now regrets and whines about. She was agreeable to having no future contact with him. Indeed, she sought advice about his bizarre statements to her. And the professional advice she received was to run away from him as fast as she could. Even if she were interested in working in a psychiatric hospital with such patients, she would expect appropriate compensation. Not Plaintiff Appellee himself.

Appellant has repeatedly offered to compromise and settle this matter, but Atty McKechnie has sought to attach ridiculous conditions to sabotage his meal ticket for a fool with a checkbook.

Prior to the filing of the UND complaint, Appellee enjoyed tweaking Appellant with the Blaise Mibeck purported suicide-murder threat incident. Then he made bizarre statements to Appellant  He could reasonably anticipate that she would be terrified and seek advice or help. Then to protect himself he engaged in a peremptory strike, using his professorial prestige to manipulate UND to abuse Appellant's due process rights while not banning her from the campus. After stirring the pot further after UND justice had been served Appellee cannot and should not complain about the contents spilling over and the ensuing publicity.

D. EXEMPLORY DAMAGES MUST NOT BE AWARDED Appellant also asserts that all damages awarded are EXEMPLORY and not compensory and moves that all damages be set aside as the Motion for Punitive Damages that Mr. Appellee submitted was denied by the Court as it was legally defective and untimely.

Appellee's closing in which his atty requested exemplary damages as he set up a board with untrue figures of 'hits on the Web sites' and said that this was the number of people who had read about appellee. UNDnews.com is not about appellee, but racial discrimination and due process issues such as the Sioux nickname, Vietnamese Prof Ben Thong, and dozens of other mishaps at UND and in the lower Courts in the last several years. UNDnews.com is a full newspaper with many sections-even a sports section. One cannot assume that people are as consumed with Appellee as he is and all 200,000 hits went on his trifling legal page.

Appellant  however, a pro se, did not know she could object during Appellee's closing and claims inept Counsel as the jury was tainted by lies..

E. LACK OF AREA AND SUBJECT MATTER JURISDICTION WAIVED

Jurisdiction may not be created by the parties to an action when the law does not provide for such jurisdiction. An objection to jurisdiction is timely at any time and is never waived.

Here, Appellee took relief in a North Dakota State Court for acts that allegedly by implication took place, if at all, in the States of Florida or Minnesota. Appellant is domiciled and a resident of Minnesota and a private individual. She does not own or operate any business in the State of North Dakota. There is no North Dakota jurisdiction.

Moreover, Appellee seeks to set a national precedent covering a national, indeed Federal project, the Internet, in a State Court, by using its local libel and slander law! If Federal supremacy means anything, it means that this was exclusively an issue to be tried in the Federal Courts, according to Federal law, especially where the Federal statute deals exclusively with and perempts State law in this matter. Telecommunications Decency Act of 1996.

F. CONCLUSION

This Motion of Appeal should be granted, leaving no award as nothing was conclusively proven, no evidence of damage was provided and all Constitutional privileges were denied Appellant

WHEREFORE, Appellant /Mov prays for judgment as follows:

1) for relief as above.

1. When asked for a response separately from each: Sally Page Affirmative Action Officer, Joy Johnson Affirmative Action Officer/Secretary, Jerry Bulisco Asst. Dean of Students and prosecutor of case, Ms. Connie Cicha Secretary of Physics who solicited information from Appellant regarding the ensuing public case -Appellant responded.

2. The administrative hearing and the subsequent 3-month investigation Appellee caused at UND had an in-house cost of over $50,000.

3. Until Atty Bahr spoke up and proved his case in Appellant's Cross-Complaint, UND was claiming that it was not entirely public and did not have to afford fair hearings

4. After Appellee's attack on Appellant for whistle-blowing John Schneider (then U.S. Atty, Fargo) became involved at Appellant's request. A separate and private agency now takes complaints at UND [Nelson, Janet Campus Violence Intervention Advocate Unit: Community Violence Intervention Center Address: Box 9029 Phone: 777-9003 janet_nelson@operations und.edu] so retaliation against the victim for whistle-blowing or reporting sexual improprieties are less likely.

5. In other words, his claim is barred by the doctrine of assumption of the risk and the doctrine of the last clear chance [of avoidance].

6. Although in looser terms perhaps he was talking about the Nature of Physical Relationships

7. Even if all of the statements or publications Appelleef attributes to Appellant were privileged, Appellee still faces the perhaps impossible task of proving that Appellant was the author of all of the "mocking" words on the site or elsewhere. The Federal Telecommunications Act of 1996 grants the publisher of all alleged defamations absolute privilege and preempts all State law on the matter to the contrary. Thus, Appellee would have to prove that the anonymous contributors to the Web sites were indeed Appellant.

As for the other alleged instances, even if Appellee could show abuses of qualified privileges or the non-existence of any privilege, it is not enough to allege merely that the defamations were malicious. Actual facts showing malice must be alleged and proved.. Pltf Appellee has done neither, nor can he be expected to from the mass of documents that he has flooded the record already or anything that he has not yet inserted into an already overfilled record. It is very difficult generally to show malice, which is a state of mind, and if he has not yet even been able to formulate a description of instances generally thereof for his Complaint, how can he hope to provide at the last moment proof of malice.

Finally, the burden of proof of the falsity of the statement against Appellee rests on him, and on a mere even draw of the evidence or testimony between two witness of equal probity, namely the only two witnesses to the same key conversations, the party carrying the burden of proof, that is, in this instance Appellee, must lose..