INTRODUCTION

Mr. Wagner presents his Brief in Sup of Mot to Dismiss where in his introduction he refers to the appellant as the pltf and reports that she won the suit! Appellant is an undergrad and has been defending herself against appellee=s paid legal teams for almost four years pro se and may miss small procedural technicalities but those should pale in respect to the Constitutional laws which were violated by the lower Court in proceeding with this trial wherein the compl and c/a accuse appellant of having slandered appellee while making a report of public concern to proper authorities at UND and of having libeled and slandered and defamed appellee in the context of the subsequent public quasi-judicial administrative hearing held at UND. This is one way of getting rid of a witness. Appellant posted the Public Records of the UND hearing and this trial on a Web site, she and others giving the various moving papers written by former ND. Atty. Wm. McKechnie catchy titles. Appellee later amended his compl. to include the Internet.

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. Clearly, the report of public concern, the quasi-judicial administrative hearing, and the posting of public documents enjoy absolute privilege, however the lower Ct. as appellee admits in his Mot to Dismiss, refused to acknowledge the existence of these privileges, even issuing a very broad prior restraint order [Exhibit 1] ignoring Near, all other case law and ND Opines cited in three years of appellant=s moving papers .

Clearly, this case set a legal precedent in ND that should not be dismissed lightly. If witnesses coming forth are subject to civil suits for defamation, no one is safe making a report of public concern in North Dakota. In this case appellant repeated what appellee told her and for the good of the public, to authorities. There were no witnesses excepting appellant and appellee and they subsequently tried appellant pitting her reputation against his; her, an undergraduate against him a man with a doctoral degree. So, does this mean that in North Dakota, when for instance a boy says that he is molested by his priest, his word is tried by comparing the boy=s social standing to the priest=s? It has been proved recently that those whom enjoy prestige in the community may be guilty.

Except in character, appellee is not unfortunate as he would make himself seem. Appellee would have you believe he is pro se and unfortunate while he enjoys full support of UND staff with his secretary Connie Chica acting as his notary in this appeal [see letter to Clk of Ct.], UND Counsel Julie Evans et al at his disposal, free faxing/copying/printing which until recently he was doing from his UND physics office, and a full salary with which he admits he was able to spend at least $20,000 on Atty. McKechnie. (now under order of suspension from the ND Bar) .

Atty(s) f/P prolonged (milked) litig. which was dragged on for three years and whose underlying compl was embarrassing and humiliating to both parties. Appellant wrote many settlement letters (which are in evidence) and when she offered they both write similar letters of retraction and make each other whole, and even that in desperation to make this whole thing go away she would agree to a stipulated judgment that said whatever he wanted. Appellee himself insisted that appellant alone write letters and that she state in these letters that she was on hallucinogens or suffering from insanity! [Exhibit 2] This was not a nice or reasonable man, but a man bent on revenge.

LEGAL REPLY/ANSWERS

I..CLAIM OF US CONSTITUTIONAL PRIVILEGE, LACK OF STATE JURISDICTION

1. Here appellee states that although appellant pointed out all of the many privileges she enjoyed in moving papers for three years, the lower ct repeatedly denied that privilege existed and even ignored citations to and quoted ND Higher Ct. Opinion! The question remains then If absolute privilege existed should it not have been weighed first? And if all privileges were waived in this tort, was the trial not the fruit of the poisoned tree?

2. Appellants=s Mots in Limine  attachment (in appendix of app) did no good as they were both denied with the Ct stating in the first:

AOn the issue of privilege the defendant raises an issue as to administrative hearing privilege which allegedly prohibits the introduction of any part of those proceedings into this action. There is no such privilege recognized at law insofar as the legal authorities that the Court has examined...@

Appellant Moved to Dismiss [See Ex 4] this case citing every possible point of relevant case law she could find yet the lower Ct. said in the Pretrial Order and Second Motion in [Exhibit 5]  that the

AMot to Dismiss is DENIED as the points raised by defendant cannot be determined at this time as a matter of law.@

The Pretrial Order goes on to say that

AThe Court will not try the issues that have already been determined in the administrative action. The issues in this case are limited to the factual allegations stated in the complaint and the parties must limit the evidence to the issues raised in the amended complaint. However, the Court realizes that the evidence will overlap to some extent since some of the allegations of the amended complaint reference matters that were brought up at the administrative hearing...@

Atty(s) f/P chose to pursue a c/a which included (but was not limited to) their arguing and submitting into public record 1. whether or not appellee was masturbating or simply breathing hard when he spoke to appellant in private phone conversations; 2. whether appellee was emotionally damaged by mortification over his penis size being compared to that of a black man=s in a personal e-mail which he solicited, and whether solution of this case would prove clearly that his sexual performance, by a preponderance of evidence, was superior to black men was an indisputable fact; 3. whether hearing about normal bodily functions can emotionally damage a normal man; 4.and whether when appellee stated that he Awas attracted to small children and directed his efforts toward them at church@ his words were misinterpreted by appellant and a whether a preference for prepubescent children was not fair comment as to a question of pedophilia and whether the public had no right to know of such preferences by its public school teachers.

Appellant admits that she DID publish the Public moving papers in this case on the Internet, which in her opinion were ridiculous and a waste of taxpayers money and that she and others gave the moving papers catchy titles such as Wagner=s Complaint-Better Than Portnoy=s Complaint and If the Condom Does Not Fit-You Must Aquit! Wagner=s Dream Team, and WAGNER'S NEW COMPLAINT*ANTI-TRUST, ANTI-COMPETITION***BLACK MEN and Wagner=s XXX Rated Interactive Interrogatories , These titles are clearly hyperbole and also protected speech. Appellant also published a fair account of the UND hearing in which she was not afforded any representation nor any discovery, entitled Kinky Torrid Romance by Randy Physics Professor warning others that it is unsafe to make reports of public concern in North Dakota. The Web site UNDnews.com which appellant edits is not directed at North Dakota or its inhabitants. Contrary to appellee=s claims, this Web site is directed outside North Dakota warning others from coming there-especially those of color. UNDnews.com is an online newspaper with a regular readership of several thousand. Some of the sections are Indian News, Sports, Legal, Discrimination, Physics, and Aerospace. UNDnews.com also links to a discussion page where people may post their opinions of topics of public interest. The Ninth Circuit visits UNDnews.com regularly as well as editors from the Chronicle of Higher Ed, many universities from around the world, ABC, CBS, and Foxnews.

There is a major jurisdictional problem as well 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, the 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, California or Minnesota. The 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. UNDnews.com is on Yahoo in California while the other site she is blamed for is run by Vivian Nelson (who lives in Florida) is in Argentina. There is no North Dakota jurisdiction. Contrary to the appellee=s Dismissal Brief, this Web newspaper site is not aimed at North Dakota or UND staff, but at people outside the state warning of the mistreatment of those unfortunates whom might otherwise unknowingly stray toward the state with warnings and case examples of those whom have been abused or have left.

Moreover, the Appellee sought 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 preempts State law in this matter. Telecommunications Decency Act of 1996.

Recently, in a New York state trial court (Supreme Court) in Banco Nacional de Mexico v. Rodriguez, 603429/00, Justice Paula J. Omansky granted a motion to dismiss a similar libel case against The Narco News Bulletin, an Internet Web site based in Mexico that published an account of alleged drug trafficking involving Banco Nacional (doing business as CitiBank in NYC) director Roberto Hernáández-Ramíírez.

The Narco News, its publisher Al Giordano, and Mexican journalist Mario Renato Menééndez-Rodriguez were sued by Banco Nacional for their involvement in an account published on the Web site asserting that narcotics were regularly being transported to and from a property allegedly owned by Hernáández-Ramíírez. Giordano also printed a series of articles on Narco News that called Hernáández-Ramíírez a drug trafficker and portraying Banco Nacional as an institution involved in criminal activity.

After determining jurisdictional issues, including the dismissal of Menééndez-Rodriguez as a defendant for lack of personal jurisdiction, Justice Omansky determined that the format of The Narco News was similar enough to a news periodical to fall under the purview of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme Court case that held plaintiffs must prove actual malice or a reckless disregard for the truth in libel cases involving media defendants.

"A careful review of defendants' submissions on Narco News's Web site indicate that the Narco defendants' format is similar to a regularly published public news magazine or a newspaper except for the fact that the periodical is published 'on line' or electronically, instead of being printed on paper," Omansky wrote in her decision. "Since principles of defamation law may be applied to the Internet ... this court determines that Narco News, its Web site, and the writers who post information, are entitled to all the First Amendment protections accorded a newspaper/magazine or journalist in defamation suits ... ."

Unfortunately the Honorable Judge Bohlman, by appellee=s own admission in Wagner vs. Miskin :Brief in Sup of Mot to Dismiss , did not recognize any privilege or point of law that appellant brought up in any of her various moving papers and thus the ensuing trial was the fruit of the poisoned tree tainted by irreversible error.

These privileges are something appellant believes should be examined in the higher Ct. by judges whom have experience with and understand privilege

II. Confidential and Privileged Reports

Here appellee appears to be unaware of the importance of privilege in matters of public concern already discussed in this paper. Appellant had crossed, and has not actually been unsuccessful. Appellant=s 83 action was simply dismissed without prejudice and she was told to rewrite and refile it. Of course as there is no statute of limitation she will do this in due time.

III. Exemplary/Punitive Damages

Clearly appellant was punished for the many millions of hits on the Internet site und-fraud.com which is NOT HER SITE. This is a site whose Webmaster was Vivian Nelson and was the subject of another separate lawsuit. Compensary damages must be based on something other than plf=s Afeelings.@ One does not need a transcript to see in the docket that no actual evidence of damages are in the record.

IV LACK OF EFFECTIVE COUNSEL

Appellant was pro se and did not know she could object during McKechnie=s closing in which he lied repeatedly. Appellee, on the other hand enjoyed a legal TEAM. Further, appellee presented himself as a victim to every social service in town so that no low income legal help was available to appellant as there was now a conflict of interest. Appellant did get some friends to help her edit moving papers, however that was not effective in trial where she had to stand up alone against paid professionals. Now appellee finds himself in a similar situation. If this case were to be retried with both parties acting pro se, although appellee holds a doctorate and appellant is an undergrad, it would be fair.

V. FAILURE TO PROVIDE TRANSCRIPT OR TO PROVIDE SUPPORTING EVIDENCE

A transcript is not really necessary in this case as appellant is claiming that her pretrial mots. were ignored and that the substance of this hearing enjoyed absolute privilege. Appellee goes on to say that appellant=s statements are false and that this can be proved by looking at his second attachment which is POST TRIAL. See Mot to Strike. Officer Nelson, was the UND Police investigator 4-years-ago. Appellant submitted her report [xxx] which says that Atheir relationship went way beyond professor and student.@ and where appellee admits (under oath) to phoning appellant to answer the e-mails (he later complained were sexy.) Appellee solicited, opened and enjoyed and later complained about these letters, saying appellant had made him unchaste.

CONCLUSION

Appellant believes that this case should not be dismissed but should be weighed by the Court as to whether it should have been tried at all. Appellant=s brief contains much case law and sound legal argument which should be heard and decided in the higher ct which is more familiar with such complex issues.

.