IN THE US SUPREME COURT Petition for Writ of Certiorari

State of North Dakota Supreme Court Case No. 20020200-Opinion # 69

Grand Forks County District Case No. 00-C-672

On Petition for Writ of Certiorari

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

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.

A North Dakota District Court jury has awarded Dr. John Wagner $3 million and has asked that Glenda Miskin publish a public apology on the online newspaper she edits. Miskin cannot apologize for to do so would deny the all the work she has done in changing the laws of a state which seems to operate in the 1940's. It is true that the good state of North Dakota as a sovereign state has a right to follow the laws agreed upon by the majority of its people. Unfortunately, the people of ND have agreed to keep their state "ethnically pure." Miskin published public information on a state with no Human Rights Commission (it was last voted down by legislature Feb. 17, 2003 so any hate crime goes unreported); a law school which due to a lack of diversity, the American Bar Association has refused to reaccredit it 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; no E.O.C. ; No Voter's Registration; where Cohabitation remains Illegal if you are not married; and where Regressive and Homophobic Law  makes North Dakota the first state to confine people suspected of having HIV.

Miskin, who is a one of several newspaper editors for UNDNews.com and was blamed for and tried for everyone’s actions. All of the statements or publications Wagner attributes to Miskin were privileged, and Wagner faced the perhaps impossible task of proving that Miskin 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, Wagner would have to prove that the anonymous contributors to the Web sites were indeed Miskin. Special jury instructions informing the jury of this privilege was not given to them. Instead, the district court judge waived all privileges.

The North Dakota Supreme Court has upheld this verdict, ruling that Miskin, may not repeat, any public information which might be defamatory. Miskin argues that as a publisher of a newspaper, this ruling is unconstitutionally vague and that the ND Sup. Ct knowingly took the situation out of context. If Miskin were a private person writing about other private people perhaps this could be constitutional. Miskin however is a newspaper editor who has been tried for posting, linking to, and repeating public information. The subjects of the articles she posted were all public persons or figures. Miskin argues that this judgment is contrary to the Federal Telecommunications Act of 1996, and begs the U.S. Supreme Court to hear her appeal and characterizes herself as a whistle-blower who has been persecuted for exposing problems at the university and in that state. Also, this opinion affects journalists who write fair reports about what they have heard in ND open court who now may be prosecuted for defamation..

This case is bifurcated with the first part dealing with Miskin being sued by Wagner in district court for libel, defamation, slander, emotional damage, and of making Pltf. unchaste in reports of misconduct to public officials and in the context of a quasi - judicial university hearing. North Dakota does not recognize quasi-judicial privilege nor does it follow its own rules of privilege in reports of public concern. Witnesses dare not come forth in North Dakota as they may be sued or worse.

The second part of the case is the Internet. Wagner amended his Complaint two years later when Miskin questioned the constitutionality of North Dakota law, and posted some of the public moving papers she wrote in the case on the Internet newspaper UNDNews.com an online Minnesota Newspaper that parodies and criticizes North Dakota. At all times the Web newspaper has operated, Miskin has been a resident of MN and the Internet Service Provider Yahoo, is located in California. This Web site is not directed at North Dakota, rather it seeks to warn people from elsewhere, especially those of color, who might otherwise be unfortunate enough to stray to a state which operates in the 1940's and which seems to have ceded from the rest of the country. Most of the site’s visitors come from outside the state of North Dakota and in fact many come from outside the country. The paper is directed outside the state of North Dakota. The ND Supreme Ct. has upheld a decision where Miskin, a MN. newspaper editor, and has written the she might not repeat, any North Dakota public information which might be defamatory. This decision should not be taken lightly as it sets a precedent and sends a clear message that anyone who dares to report on the unjust legal system of North Dakota may now be prosecuted for speaking.

Miskin has learned that if you dare to speak out the good State of ND will trump up a case against you where the State sends uniformed police to the doors of your witnesses, the Attorney General's Office orders your witnesses not to speak in court, and the North Dakota Supreme Court has now opined that Miskin, a newspaper editor may be sued for posting, linking to, and repeating public information which might be defamatory- even when the subjects are public figures and persons.

After Pltf. Wagner and his then Atty. McKechnie went to the press and began doing interviews about the case, Miskin put up links to the interviews in the Grand Forks Herald, the Chronicle of Higher Education, ESPN and others. Miskin also linked to Atty McKechnie’s Supreme Ct. cases which were similar and disgusting. Wagner and his Atty’s response to this Web newspaper was to get a prior restraint injunction from the district court trial judge, in which they were able to shut down both Web newspapers for several days until the Web host Espire (in Maryland) and Yahoo (in California) found the order to be contrary to the Federal Communications Act, and put the sites back up. Later, the State of North Dakota, on behalf of UND, was unsuccessful in removing the site UND-Fraud.com in Federal Ct. under Judge Goldberg.

Miskin was tried for defaming both Wagner and his Atty. McKechnie who were at all times employed at a public university, McKechnie was running for States Atty. and was accused (and later convicted) of passing bad checks, while Wagner had been made a committee member of the ND. EPSCoR Board and though he admitted in open court to inflating grades was in charge of doling out $22 million in science grants each year! Both were being scrutinized in greater media and were conducting public interviews. Both Wagner and his Atty. were in the public forum which makes them at least public figures and probably public persons at this point. The common law defense of fair comment protects opinion about matters of public interest or things that have been put on public display. But North Dakota has made a habit of quashing free speech they don’t agree with in their State.

III. STATEMENT OF FACTS

1. On or about August 27, 1998, Glenda Miskin enrolled as an undergraduate student in a physics course taught by Prof. John L. Wagner at the Univ of North Dakota (hereinafter and before "UND"). She enrolled in that course in order to satisfy a graduation requirement and learn the

subject matter. The course consisted of two parts: 1) lectures by Prof Wagner and 2) laboratory

work originally supervised by Graduate Asst. Blaise Mibeck.

As he admitted at a public hearing, in May of 1999, Wagner (now under the constant care of a psychiatric social worker) 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 some dealt occasionally with sexual subjects raised by him. When Wagner began telling Miskin 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 (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. These were reports of public concern and were absolutely privileged. Wagner subsequently demanded her expulsion from the University as a student.

[¶2] Miskin wrote Wagner a letter offering to settle all differences between him and her for mutual retractions; Wagner then complained to UND that Miskin was stalking him by e-mail; and she was so charged after a brief Campus Police investigation .The UND Dean of Students filed an administrative complaint against Miskin seeking her expulsion on the basis of Wagner's complaint.

The Dean of Students and the other employees of UND denied at the hearing Miskin her fundamental due process rights of the assistance of counsel, the right to confront witnesses against her and present witnesses for her and to prepare fully for her case by denying her all discovery and finally used the introduction of "profiling evidence," (that is, "evidence" about characteristics of others to show that the subject must be culpable), unbiased criers of fact, intimidation of favorable witnesses, denial of access to favorable witnesses, and otherwise; such due process rights were and are guaranteed her by the Due Process Clauses of Fifth and Fourteen Amendments of the United States Constitution and the parallel provisions of the North Dakota Constitution. At the time complained Miskin was a resident of the State of North Dakota and a citizen of the United States; she now resides in the State of Minnesota and is a citizen of the United States; UND also denied the mediation that it offered everyone else, in violation of Miskin's Equal Protection Clause of the Fourteen Amendment to the US Constitution rights.

Miskin was told by University officials that she must not speak about the charges leveled against her or she would be immediately expelled from school and she and her two minor children would be removed from student housing within three days and they would be made homeless.

[¶3] Although she was found not guilty of falsifying information to these officials, Miskin, was suspended from UND for whistle-blowing in a hearing where she was accused of "causing trouble" in different departments of the school.

This trouble brought up in the hearing included Miskin’s ending of the school’s policy of forcing of poor people and Indians to prepay third party payments in order to register for classes, Miskin’s ending the large stamp of HEBREW on the front of all Jewish school registration forms, Miskin forcing the UND Music Dept. to accept older than average students, Miskin’s reporting of an 3 foot square hole in the ground that was 8 ft. deep at the UND playground and her insisting it be filled, and the reports of two earlier confirmed suicide attempts by UND students.

Miskin 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 now making charges of "Stalking by E-mail" 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 unfair quasi-judicial hearing was public 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. North Dakota however does not recognize quasi-judicial hearing privilege and although she had been under oath, the district court allowed the professor to retry the quasi -judicial hearing in district court for defamation, slander and libel.

[¶4] Two weeks after Miskin was suspended from the University, Wagner served Miskin with a Complaint in which he accused her of libel, slander, defamation, having said to others that he (Wagner) had 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 in a personal responsive email to him.

In his Complaint in Wagner v Miskin, Wagner, who has been dubbed "the Nutty Professor" by a bemused public, except when considering that it is paying for his exploits, appears to be afraid of sex, claiming that Miskin inflicted great emotional stress upon him when she spoke openly about; 1) menstruation; 2) the lack of a gay bar 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 (Wagner) in mind for semen only for reproductive purposes should he ever win the Nobel prize.

[¶5] Miskin responded to Wagner’s Complaint and went to the deposition on 09/9/99 for two ½ hours where she was questioned by Wagner’s Atty., a UND Professor of Law and a stalking horse for the university, about African - American men in her life and what she and the professor had bantered about in personal telephone conversations from his home to her home at night. What followed was a plethora of moving papers from Wagner, all based on sex and on how Miskin had made Wagner unchaste by mentioning common adult topics often in response to his own questions.

[¶6] An account of this lawsuit was published in the local newspaper and was picked up by the Chronicle of Higher Education. This was picked up by the Associated Press and went all over the country. Vivian Nelson, a professor in Florida, who is the Web master for the site UND-Fraud.com wrote to Miskin and asked her questions about what had happened to her at UND. Nelson, a flight tester for the FAA had also been suspended from UND Medical School for whistle-blowing. Miskin wrote a letter to Vivian about what had happened to her and Vivian posted the letter on her Web page UND-fraud.com. Miskin did not know that Nelson was going to post her letter. The letter Miskin wrote was a fair account of the UND hearing in which she was not afforded any representation nor any discovery, later entitled by others Kinky Torrid Romance by Randy Physics Professor warning others that it is unsafe to make reports of public concern in North Dakota.

A year later, Miskin, now a resident of MN, became the editor of another Web Newspaper that the case rests upon UNDNews.com. UNDNews.com 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 North Dakota. Most of the site’s visitors come from outside the state of North Dakota and in fact many come from outside the country.

The ND Sup Ct. however claims jurisdiction and incorrectly wrote that

Here the ND Supreme Court appears not to understand that in order to claim personal jurisdiction the newspaper must be targeted toward a ND Audience, not that information about nd or public persons or institutions thereof be reported on or linked to ! UNDNews.com is not directed uniquely toward the State of North Dakota The required State of North Dakota jurisdiction nexus is absent. If Miskin were to post a picture of the Empire State Building on this MN Newspaper, would that give the State of New York jurisdiction as well?

The ND. Sup. Ct. has also claimed jurisdiction over the newspaper because UND is in its title The state of North Dakota is trying to shut down our Web newspapers so that we and others might not speak about what has happened to us there. North Dakota is losing 5% of its population each year. There are hundreds of us who wish to tell our horror stories. Under their state law they can claim jurisdiction, that I am defaming them, and sue me for writing this paper as well.

If the Justices would simply look at the online paper itself they would find articles and links to articles from 1988 to the present, with a small portion, not a focus on Wagner nor 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 passing bad checks.

[¶7] Miskin admits that she DID publish and link to some of the public moving papers on the Internet, which in her opinion were unconstitutional 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 Acquit! Wagner’s Dream Team], and [ WAGNER'S NEW COMPLAINT*ANTITRUST, ANTI-COMPETITION***BLACK MEN] and [Wagner’s XXX Rated Interactive Interrogatories, ]. These titles are clearly hyperbole and also protected speech. Miskin also posted the original letter she had written to Vivian Nelson entitled Kinky Torrid Romance by Randy Physics Professor. The article had been long ago submitted into Court evidence and enjoyed privilege as part of the public moving papers. The article Kinky Torrid Romance by Randy Physics Professor had been referred to and portions had been repeated countless times on the news and in newspapers.

Two years later, in 2002, Wagner amended his complaint to include the Internet and the article Kinky Torrid Romance by Randy Physics Professor . In his amended Complaint, Wagner also Complained that Miskin had contacted the police, the affirmative action officers, the dean of students, and the physics dept. secy. These letters were all in response to charges leveled at her by him and were Post-Complaint and within the scope of the quasi - judicial hearing. Wagner also complained of emotional distress caused by emails he entered into evidence and which he, himself made public!

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 right to petition her government for a redress of grievances. Yet, Wagner chose to inject himself into this vortex of his own making. Those who sow the wind must reap the whirlwind. Wagner created a vortex and threw himself in. Now he wishes to collect damages as the situation spins out of control. Whether Wagner is a public figure or a public person, Miskin 's freedom to speak about what is happening to her when asked and/or to state her opinion is absolutely protected so Wagner's complaint was defective and should have been dismissed.

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.

The ND Supreme Ct. further wrote 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 of her own case on their ND Sup. Court Web site 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 from 1988 until present remain intact for all the public to openly view. Miskin v. Wagner was redacted from the Sup. Ct. page so that Miskin may not link to nor may the public hear what is happening in her case.

[¶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. Wagner'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. Wagner’s opinions and feelings are not objective or relevant evidence. Wagner 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 Wagner’s "feelings" and the lack of evidence proves excessive award for Wagner’s public moving papers being posted, his amatory efforts being rejected, and his feelings thus having been hurt.

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 pltf. and def. proving malice is impossible. Miskin was tried on fact but there was no evidence at all presented at trial. There were no witnesses excepting appellant and appellee and they subsequently tried Miskin pitting her reputation against his; her, an undergraduate against him a man with a doctoral degree. She, a pro se and he with a large legal team. 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 who enjoy prestige in the community may be guilty. Further, when Miskin went to get excerpts of the transcripts the transcriber could not find large parts of it. An inaccurate or missing transcript is a cause for rehearing.

[¶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 waived all privileges in her Mot. in Lim. where she states that she will bring parts of the quasi-judicial hearing only to prove that Wagner lied time and time again. Clearly after looking at her argument she never would have waived her rights if she had known this fine legal point and clearly the Court agreed that Miskin was incompetent in trial as a pro se.

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]. Miskin stated in a privileged conversation to UND Psychologist Dr. Dick Grosz that Wagner’s GTA (graduate teaching assistant) had graphically threatened suicide to several physics staff members and Miskin herself, after his grandparents who had raised him had died in November 1998. Miskin reported the suicide threat that Blaise Mibeck made to her to UND Psychologist Dr. Dick Grotz. and Mibeck’s subsequent alleged death threat toward her. Wagner charged in his Complaint that Miskin "disrupted GTA Mibeck's life." Miskin 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. Wagner said these things to Miskin on the phone and manipulated Miskin with exaggerations and lies in order to place himself in a position of power. Miskin 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 Miskin was acting in her defense and in the defense of the community based on what Wagner had told her that her actions are absolutely privileged and Wagner’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. Legislators, for example, can't be sued for anything they choose to say on the legislators floor. Whether Miskin 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 (e.g. a lis pendens) are absolutely privileged.[Albertson v Raboff, 46Cal 2d375 (1956)]. Therefore, when Miskin sent e-mails to public officials after Wagner made formal charges against her in her defense, her actions were absolutely privileged and Wagner 's complaint of libel and everything that hangs on this libel is absolutely privileged and must be dismissed, however the ND. Sup. Ct. wrote the State of North Dakota has not yet recognized quasi-judicial priv..

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 Miskin 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 Miskin sent these response e-mails Wagner complains about, after Wagner made initial accusations and threats against her in her defense, and in logical relation to the action, her actions were absolutely privileged and Wagner 's complaint was not actionable and never should have been tried. ND. Sup. Ct. however wrote that there was no or logical relation to the actions of Miskin and that she could be tried for defending herself in litigation.

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 Wagner

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 Wagner 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 Wagner is on the public payroll and made himself the cause of much discussion about state spending, judicial procedures and sexual discrimination at the University. Certainly discussion of the travails of Wagner 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, Wagner, an employee of the State operated University of North Dakota and a key member of the ND EPSCoR Board in charge personally of doling out many millions of dollars made allegations and charges and created the controversy as to what had happened in Wagner and Miskin 's adult relationship, his inflating of grades, and chose to air both his own and UND's dirty laundry in public. Wagner insisted that an administrative hearing be held, attended the hearing that was open to the public and cast himself in the limelight. Wagner then filed a public complaint in the Grand Forks Court. In her defense Miskin while responding to charges leveled by Wagner , in the interest of the community and while representing herself in a quasi-judicial proceeding and then in a public courtroom revealed Wagner's predilection for prepubescent children. Both Wagner and his atty McKechnie have solicited and performed several public interviews on the subject for an international newspaper the Chronicle of Higher Education and the Grand Forks Herald and local news stations as well. Therefore, Wagner 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. Wagner created a vortex and threw himself in. Now he wishes to collect damages as the situation spins out of control. Whether a Wagner is a public figure or a public person, Miskin 's freedom to speak about what is happening to her when asked and/or to state her opinion is absolutely protected so Wagner's Award is in error.

In Wagner v Miskin, Wagner , 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 Miskin 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 (Wagner) in mind for semen only should he ever win the Nobel prize.

b. Wagner also claims that Miskin had frightened him when she threatened to set him afire by lighting a match and igniting the fumes emanating from the generic aftershave which he liberally applied;

c. And Wagner 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 Wagner might claim from slander, libel or

defamation is superceded by absolute privilege therefore the judgment must be denied.

The remaining allegations, that Wagner, a grown man in his late thirties was so offended by Miskin

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;

3) why did he not tell a supervisor or someone trained in these areas?"

4) how can he sue in district court when he has already entered these letters into evidence at the UND hearing and the letters he had entered have already been tried line-by-line in public?

If the defamation is barred then emotional damage that came from privileged communication is barred as well. Wagner's complaint was defective and the resulting trial and judgment are in error.

9. DEFENSES: ABSOLUTE PRIVILEGE-MEDIA AND THE INTERNET. Miskin has NOT spoken about Wagner except for to a therapist and in hearings. Wagner's Complaint states that Miskin 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. Wagner 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. Wagner 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, Wagner , 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 Wagner's complaint toward prior restraint or the quashing of expression is against the U.S. Constitution and his Judgment and Award should be reversed.

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.

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 Wagner's demeanor is anything but Torrid. Hyperbole or humor is absolutely privileged . Further, if Wagner claims that this article title is not hyperbole and is true then it is not libelous. Wagner cannot have it both ways. As it appears to be protected by the hyperbole clause it is absolutely protected.

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/..

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. Miskin 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 Miskin 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)

Miskin 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.

Miskin is participating in protected activity and Wagner who has stirred the pot and now wants to complain that he is ashamed while conducting business. Wagner has only himself to blame. Now he tries to attribute responsibility to Miskin when it spills over.

1. Wagner alleges in his Complaint that Miskin has gotten a copy of his resume and used it to defame him. Miskin got a copy of his public resume for one of her advisors before the hearing and used it in a Court setting to prove Wagner was lying.

2. Wagner 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. Wagner 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. Wagner to hatred, contempt, ridicule, and has caused him injury in his occupation;

Again Miskin actions in responding to charges made against her were privileged. Wagner claimed no specific damages and Miskin 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 Wagner 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 Wagner sits on an academic board at UND that determines grades! Wagner has not suffered any financial loss and in fact has gained financially since meeting Miskin. In addition, Wagner 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.

Wagner appears to enjoy a high standard of professional respect in the UND physics department and his business relations do not seem to have suffered. Wagner 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.

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.

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 tainted by irreversible error.

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.

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 writes":

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 Wagner's Judgment must be found defective.

15.The Court and State of North Dakota Have No Jurisdiction Over the Internet Lastly, North Dakota has no jurisdiction over the Internet. 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.

A. IN THE UNITED STATES OF AMERICA PRIVATE REPORTS TO COUNSELORS ARE PRIVILEGED AND ARE NEVER SLANDER. A $500,000 award for slander where Miskin made a private privileged report to a therapist, a licensed Doctor of Psychology after Wagner 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 North Dakotans can be assured that if they report suspected incidents of abuse they can be sued for reporting. This is one way to get rid of a witness.

First, Wagner'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 Wagner himself stated in trial that grant monies fluctuate and agreed that, in 1998, when the incidents occurred he had $93,000 in grants and Wagner now has $500,000! Wagner 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 Miskin that that person was Miskin Many persons were upset by what they regard as the denial of due process to Miskin at the Univ. of North Dakota and its apparent prejudice toward women. Besides such are expressions of opinion, which expressions are privileged.

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

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 tried in a quasi-judicial setting should not be considered for trial as they are absolutely privileged;

2. Damages by libel in four letters to the authorities in which Miskin replied to in her defense of a criminal and judicial charge against her by Wagner should be denied;

3. Letter sent by others to third parties and those using anonymous e-mail remailers should not be attributed to Miskin were never recognized in Court, and in any case are privileged opinion as are anonymous postings to a Web discussion group in which Wagner 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 Wagner 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. Miskin and his atty with a straight face try to argue that the headline "Kinky Torrid Romance" [with a photograph of the lanky balding Wagner (Don Quixote or Ichabod Crane) and his later second the voluminous Wm. McKechnie] was meant to be an objectively credible description of Wagner's amorous efforts. Thus, Wagner'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 Miskin from State to State, and gave his story to the media on multiple occasions.

Wagner 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 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, he chose to inject himself into this vortex of his own making. He could have settled this matter or his alleged then problems with Miskin 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 Wagner himself.

Miskin repeatedly offered to compromise and settle this matter, but Wagner sought to attach ridiculous conditions such as Miskin must say she has been on hallucinogens for the past few years and is insane.

Prior to the filing of the UND complaint, Wagner enjoyed tweaking Miskin with the Blaise Mibeck purported suicide-murder threat incident. Then he made bizarre statements to Miskin 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 Miskin's due process rights while not banning her from the campus. After stirring the pot further after UND justice had been served Wagner cannot and should not complain about the contents spilling over and the ensuing publicity.

Miskin also asserts that all damages awarded are EXEMPLARY and not compensory and moves that all damages be set aside as the Motion for Punitive Damages that Mr. Wagner submitted was denied by the Court as it was legally defective and untimely. Wagner'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 Wagner UNDnews.com is not about Wagner, but racial discrimination and due process issues such as the Sioux nickname, Vietnamese Prof Ben Thong being accused of stealing chicken under a snowmobiling law, 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 Wagner as he is and all 200,000 hits went on his trifling legal page.

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

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, Wagner 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. Miskin 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, Wagner 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 preempts State law in this matter. Telecommunications Decency Act of 1996.

This Motion of Cert should be granted, leaving no award as nothing was conclusively proven, no evidence of damage was provided and all Constitutional privileges were denied Miskin If this judgment is allowed to stand, it poses an ongoing threat to the rights of North Dakotans and others to make reports to public officials and to come forth as witnesses to criminal acts. Further, this opinion sends a clear message that North Dakota does not tolerate criticism. In a good ol’ boy state where last February 17, the legislature voted down a Human Rights Commission yet again, and where Indians are told to leave the State if they don’t like it, where child abuse and domestic violence is the highest in the country, people dare not report as they will be sued or punished for coming forth.

Through these two Web newspapers, past victims of racism at UND were able to meet and congregate on the Internet, an official complaint was made to the Office of Civil Rights in Kansas and UND was forced to write racism into their policies. An open forum discussion of atty. Mckechnie caused almost a dozen people to come forth to complain to the ND disciplinary board, he was ordered suspended from practice for a year. Wagner, in a panic, has since shown this opinion and has threatened possible witnesses that he will sue them in ND Court and or have them fired from UND 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.

Miskin refuses to apologize for reporting to authorities a public school teacher (Wagner) who admitted a predilection for young schoolchildren who he met in church and for making a subsequent unjust ND legal system public. The burden of proof of the falsity of the statement against Wagner 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 Wagner, must lose.
VERIFICATION

STATE OF MINNESOTA )

SS'

COUN'T'Y OF POLK )

I, GLENDA MISKIN, declare that I am the Defendant in the above entitled matter, that I

have read the foregoing Answer and know the contents thereof, and that the facts stated therein are true of my own knowledge and if called upon and sworn, I could competently testify thereto.

I declare under penalty of perjury under the laws of the States of North Dakota and

Minnesota that the foregoing is true and correct.

Executed this 02th day of Sept, 2003, at Crookston, Minnesota.

________________________________________

GLENDA MISKIN, declarant