PETITION IN SUPPORT OF REHEARING

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Supreme Court

Case No. 20020200

Grand Forks County

Case No. 00-C-672

Defendant-Appellant, Glenda Miskin presents this Petition for Rehearing for a reconsideration of the errors and omissions apparent in a reading of the subject opinion, as follows:

[¶1] Appellant Miskin attended the University of ND and was in her last semester when a professor, Wagner, the appellee, who began phoning her at night from his home to hers for hours at a time, telling her 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. Miskin reported such to some authorities at UND and Wagner replied by reporting to the Campus Police that Miskin had sent him e-mails over a six-month period some which contained sexual content. Wagner had enjoyed and replied to these emails and the content was never directed toward him excepting when Miskin refused a sexual advance by this professor stating in the email "Don’t fret Johnny I like my men like I like my espresso - hot sweet and dark but I will keep you in mind for semen should you ever win the Nobel prize." Wagner subsequently demanded her expulsion from the University as a student.

[¶2]. Miskin, was suspended from UND for whistle-blowing in a hearing where she was not afforded counsel, discovery, to speak about the charges leveled against her, or others while the university system allowed the faculty member Wagner, who was making charges of "Stalking by Email" to have, not only representation by a full time staff member of the University's Administration, but a seemingly unlimited budget with which the University on behalf of the faculty member could write, publish and distribute information damaging to the students case and career. This was a public hearing and the ACLU, the President of the American Association of University Professors, the Grand Forks Herald and many other attended and reported on what they observed. The hearing was the topic of many news articles in many newspapers and conversations and Wagner cannot complain about subsequent reports of the hearing or the later trial either for that matter for as most of us learned in high school history class public hearings enjoy absolute privilege even when republished by Miskin.

[¶3] Two weeks after Miskin was suspended from the University, Mr. Wagner served Miskin with a Complaint in which he accused her of libel, slander, defamation, having a loathsome disease (of pedophilia), interference with business relationships, emotional damage and of making him "unchaste" by comparing his amatory efforts to those of a black man. Later Wagner amended the complaint to include the Internet and made his accusations specific by naming the communications and the individual people on campus whom he was complaining received them and complained that Miskin posted already public moving papers on the Internet.

The ND Supreme Court states in its opinion

This Court has not heretofore recognized a judicially-crafted "quasi-judicial privilege" ... and continues with "yet the record does not demonstrate he claimed such damages."

In his amended Complaint, Wagner Complained that Miskin has contacted the police, the affirmative action officers Sally Page and Joy Johnson, the dean of students Jerry Bulisco, and the physics dept. secy. Connie Chica all in response to charges leveled at her by him and were Post-Complaint. These actual letters are in the trial record and in fact Miskin attached the UND Hearing Docket with the references to the exact letters Wagner complains of to her appellate brief. [see Appendix 11], This UND Hearing docket also includes the date of Wagner’s complaint to the university proving the letters were post-complaint and enjoyed absolute privilege. Wagner also Complains of being accused of a loathsome disease (pedophilia) again two weeks after the administrative hearing and all recorded evidence is post-complaint..

Wagner knew when he complained to UND and demanded a public hearing that his charges might reveal what had actually happened. Wagner had to expect that Miskin 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, Wagner chose to inject himself into this vortex of his own making. Wagner could have settled this matter or his alleged then problems with Miskin otherwise,. but he himself chose redress in public hearings at the University and in Municipal Court which enjoy absolute privilege.

[¶4] An allegation that Articles about Wagner, his trial attorney, and the litigation were the primary topics of the website UNDNews.com is factually erroneous and the allegation is not supported by any part of the record of the proceeding, and the opinion should be reheard for a correction and retraction of the allegation. Miskin is an editor of the online newspaper UNDNews.com. This is a full spectrum newspaper whose focus is to criticize publicly the ND area and to warn others, especially those of color, from making the mistake of coming to a rural enclave that is run with an ‘ol boy mentality and whose laws and biased attitudes predate the 1950's.

UNDNews.com is filled with links to public articles on many subjects mainly focusing on discrimination in ND, a state with no Human Rights Commission, no EOC, no voter’s registration, and a law school which due to a lack of diversity, the American Bar Association has refused to reaccredit for the past three years leaving the UND Law school which is the Alma Mater of most of the ND Supreme Ct. Justices that heard this case, in some sort of accreditation limbo

If the Justices would simply look at the online paper itself it would find articles from 1988 to the present, with a small portion, not a focus on Wagner or his ND atty., a UND Continuing Education Professor for that same UND law school, who was at the time running for public office and was criminally convicted of passing bad checks..

[¶5] The ND Supreme Ct. Affirms that it is not acceptable for Miskin to link to open court documents on the Web site she edits and in fact the court has shown bias by redacting the briefs that link to her own case on their site stating in writing

"This brief is available for inspection in the office of the Clerk of the Supreme Court. " while all other unsealed adult court cases on the ND Supreme Ct. web site remain intact for all the public to openly view.

[¶6] The ND Sup Ct. affirms that it is not a privilege for Miskin to repeat, publish or link to privileged public court information especially that which might be defamatory. It claims that Miskin’s interpretation of absolute privilege is "overly broad." and cites (out of context) a NY case based on commercial-speech doctrine under the Lanham Act which seems to refer to trademark law! (Miskin edits a web site that is non-commercial and we are not arguing trademarks.)

The ND Sup Ct. Justices confuse and do not seem to know the different between a privilege and a right. All communications Wagner complained about were in the scope of the quasi-judicial hearing. Public Commentary on Limited-Purpose Public Figures is Absolutely Privileged as are opinions, and the repeating of public records. This is our RIGHT as Americans under the First Amendment of the Constitution and should never be construed as a privilege. It is Miskin’s right under the first amendment to link to, report on, and reprint and post public court documents and to link to already public newspaper articles even if defamatory to the Complainant. Whether defamatory or not especially when in this situation the Complainant is a limited purpose public figure.

[¶7]. ND Sup. Ct. Claims personal jurisdiction and thus jurisdiction over the Internet. Claiming that "Articles about Wagner, his trial attorney, and the litigation were the primary topics’

If ND Justices would look at the site UNDNews.com they would find thousands of links to articles dating back ten years with most on unreported rape statistics, homophobia, antiquated laws, and racism, with few focusing on Wagner or his trial atty UND Continuing Ed Professor McKechnie, former ND President of Trial Lawyers who at the time was running for States Atty and was convicted the shortly after the verdict for passing bad checks and who was later ordered suspended from practice in ND. The fact that the title of the page has UND in it does not mean that it is directed at North Dakota and in fact most of the people looking at the site are from outside the state with many of the people visiting from outside the US. Personal jurisdiction is not a valid claim of jurisdiction over the Internet especially when the site is directed elsewhere and when Federal Ct. which has ruled otherwise supersedes North Dakota state law.

[¶8] ND Sup. Ct. Says that it needs a transcript to address further issues. Miskin claims that damages were punitive and were not allowed as the Motion for Punitive Damages that Mr. Wagner submitted was denied by the Court as it was legally defective and untimely. Pltf. 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. One can easily look in the record to see that nothing is there. You do not need a transcript to prove that nothing exists in the record. The entire judgment was based on Pltf’s "feelings" and the lack of evidence proves excessive award for Pltf.’s public moving papers being posted, his amatory efforts being rejected, and his feelings thus having been hurt. Miskin claims bias by the jury and again questions why her special jury instructions were ignored and why all privileges were waived in the lower Ct.

[¶9] Miskin claims ineffective Counsel. The judge allowed the retrying of the quasi-judicial hearing at UND for libel. The emails that Wagner Complains about were tried and IN THE SCOPE of the UND quasi-judicial hearing as were all letters Wagner complained of. More than half of the record in a libel case comes from the privileged quasi-judicial hearing and the justices cannot see from the record that the hearing was brought in and retried? The Justices claim that Miskin has not cited case law and that she waived all privileges in her Mot. in Lim.. Clearly after looking at her argument she never would have waived her rights if she had known this fine legal point and one does not need usually to cite case law on something that is as commonly known as quasi-judicial privilege.

Indeed, in Oral Argument Miskin had to define and to explain absolute privilege to the ND Sup. Ct. Justices who were incensed that lying held privilege and wanted to know where Miskin could cite this from. Again Miskin points the ND Justices to Gilbert Law Summaries: Torts by Marc A. Franklin, a manual for first-year law students.

This PETITION IN SUPPORT OF REHEARING should be granted, leaving no award as nothing was conclusively proven, no evidence of damage was provided and as constitutional rights and privileges are denied appellant. Wagner has shown this opinion and has threatened possible witnesses that he will sue them in ND Court and or have them fired if they dare speak to reporters at the MN Star Tribune or others about what happened in open court, or dare to express their opinions. This is what happened at the ND quasi-judicial hearing where witnesses were threatened by uniformed UND police who showed up in their offices and in the District Court Hearing where witnesses also were ordered not to speak by ND Special Assistant Attorney General. Julie Evans.

As this has always been the case in ND this is nothing new, only now this lies public and if it stands shall be presented to the US Supreme Ct for Hearing in the autumn session.

WHEREFORE, Appellant /Mov prays for judgment as follows:

1) for relief as above.

CERTIFICATE OF SERVICE IN PERSON OR BY MAILING

The undersigned does herein certify that they are an adult, a citizen of North Dakota, and am fully qualified to have delivered or served by electronic transmission of the PETITION FOR REHEARING on

Penny Miller, Clerk,

600 E. Blvd. Ave.,

Bismarck, ND 58505

PMiller@ndcourts.com

And one copy of the same on

John Wagner,

Plaintiff/Appellee

Dept. of Physics
P.O. Box 7129
University of North Dakota
Grand Forks, ND 58202

Either in person, or by placing a copy, or copies of the above referenced documents in an envelope properly addressed as above, which address is the last address of said known to the below named, with postage prepaid and deposited in the United States Mail at , Crookston MN, to be delivered by the United States Post Office Department as directed by the said envelope.

Dated this 20th day of May, 2003.

Travis E. Alexander

103 N. Nelson Rd. Crookston, MN, 56716