Opposition Brief — Underwager v. Salter

Pregame Court, Uni

» st es ew

No. 93-314 SEP 23 1994

, i oe © ik CLERK

In The .

Supreme Court of the United States

October Term, 1994

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RALPH UNDERWAGER and HOLLIDA WAKEFIELD,

Petitioners,

ANNA SALTER, PATRICIA TOTH, MIMI ROSE,

NATIONAL CENTER FOR PROSECUTION OF

CHILD ABUSE, AMERICAN PROSECUTORS

RESEARCH INSTITUTE, NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, CHARLES VAUGHAN,

and JAMES PETERS, SR.,

Respondents.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

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RESPONDENT’S BRIEF IN OPPOSITION

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JoHN M. Moore

JOHN W. Markson

Counsel of Record

TerRESA A. MUELLER

Bett, METZNER, GIERHART

& Moore, S.C.

44 East Mifflin Street

Suite 1000

Madison, WI 53703

(608) 257-3764

Attorneys for Respondent

Dr. Anna Salter

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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BEST AVAILABLE COPY:

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QUESTIONS PRESENTED

1. In a defamation case based on diversity jurisdic-

tion, does the court of appeals’ decision pursuant to state

law raise an issue appropriate for this Court’s discretion-

ary review?

2. As a matter of Wisconsin law, does a public fig-

ure plaintiff in a defamation case have the burden of

proof of “actual malice?”

3. Does republication of allegedly defamatory mat-

ter constitute “actual malice” under Wisconsin law?

Pee

li

THE PARTIES

Petitioners Ralph Underwager and Hollida Wakefield

are licensed psychologists and citizens of Minnesota.

They have co-authored the books Accusations of Child

Sexual Abuse and The Real World of Child Interrogations.

Respondent Dr. Anna Salter is a citizen of New

Hampshire. She is a certified psychologist who treats

both child and adult victims of sexual abuse and sexual

abuse offenders.

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TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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THE LOWER COURT PROCEEDINGS.............. 4

SE Saag ba Kk ES KAS eae bac an eset eS 6

I. THE WRIT SHOULD NOT BE GRANTED

BECAUSE THIS CASE PRESENTS NO ISSUE

APPROPRIATE FOR SUPREME COURT

BRT Sea Mera een cop ee PoE CY 6

Il. THE SEVENTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH DECISIONS OF THE

pep Bat hs 5. rare cere er 7

A. Wisconsin Law Applies The Actual Malice

Standard To Public Figures................ 7

B. The Seventh Circuit Correctly Determined

That Republication of Defamatory Matter Is

Not Evidence Of Actual Malice............ 12

8 8 ok 8 Pe reer reer rrr ere 15

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Braxton v. United States 111 S.Ct. 1854, 114 L.Ed.

BE ne ano aks oe hoa tke Oe EEN a we va oes 6

Erie Railway Co. v. Tompkins 304 U.S. 64, 58 S.Ct.

Ee Se RE IS isis bcs ks ob a oh 8s we 7

Gertz v. Robert Welch, Inc. 418 U.S. 323, 94 S.Ct.

PRPS IO ST rrr ant Oe ore yr re re 9

Harte-Hanks, Inc. v. Connaughton 491 U.S. 657, 109

Ee ee a RB ee ee re 13

New York Times Co. v. Sullivan 376 U.S. 254, 84 S.Ct.

ig. eS Oe | ees peers ee eee 8, 12

Woods v. Evansville Press Co., Inc. 791 F.2d 480 (7th

ee Nk 5 so wk We ea sg ko ee ee ees 13

WISCONSIN CASES

Calero v. Del Chemical Corp. 68 Wis. 2d 487, 228

i Oe Ri SOE OCE Re ee Pe he eee ore 3

Dalton v. Meister 52 Wis. 2d 173, 188 N.W.2d 494

(1971) cert. denied, 405 U.S. 934, 925 Ct. 947

PO Gs 54 Kane Cab ade eee eee aL Raker ees 10

Denny v. Mertz 106 Wis. 2d 636, 318 N.W.2d 141

CR i ak oo ks eee ee ar a Se hess 8

Louis v. Coursolle Broadcasting 127 Wis. 2d 105, 377

Pe ps hs cian Fou henae le while 4 ope a 9

Polzin v. Helmbrecht 54 Wis. 2d 578, 196 N.W.2d

WE ek a a ara ee 11

Van Straten v. Milwaukee Journal 151 Wis. 2d 905,

447 N.W.2d 105 (Ct. App. 1989), cert. denied, 496

Sk ee CRE ob: euas ch sediaise toes was 13, 14

Vv

TABLE OF AUTHORITIES —- Continued

Page

STATUES

a0 UDA. ] BSS hk kite eek ee ae ee 1

RULES

en ee | 8 er ry eres Spr are ry 6

OTHER CITATIONS

Hinerman v. Daily Gazette Co., Inc. 423 $.E.2d 560

CUR WR nos oc 5 oh aven cdo vaae ince van aeee 13

WUIS. FEI Oe wa dh bn 054 cn vas hae seee eee 9, 10

TO THE HONORABLE SUPREME COURT:

The Respondent, Anna Salter, respectfully requests

the Court deny the Petition for Writ of Certiorari submit-

ted by Petitioners, Ralph Underwager and Hollida Wake-

field.

JURISDICTION

Petitioners seek certiorari pursuant to 28 U.S.C.

§ 1254(1) of a decision of the United States Court of

Appeals for the Seventh Circuit, which affirmed the dis-

trict court’s decisions on April 25, 1994.

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitu-

tion is involved in this diversity action.

+

STATEMENT OF THE CASE

It is undisputed that Ralph Underwager has testified

in over 220 cases throughout the United States and in

Australia, Canada, England, Holland, and New Zealand

on behalf of defendants accused of child sexual abuse in

both criminal and civil cases. Petitioners have consulted

in approximately 200 additional cases concerning child

sexual abuse. They have given 30 presentations regarding

child sexual abuse in the United States, England, Austra-

lia, and New Zealand, and have been interviewed on at

least 15 radio and/or television shows in the United

States, Australia, London, Canada, and New Zealand

concerning child sexual abuse. Petitioners are prominent

proponents of the “leading and suggestive questioning”

defense in child sexual abuse cases.

THE MONOGRAPH

Due to her concerns about the increasing use of the

“leading and suggestive questioning” defense and dis-

crediting of children’s testimony in child sexual abuse

cases, Dr. Salter proposed to the New England Associa-

tion of Child Welfare Commissioners and Directors (New

England Association) to develop a bibliography on child

sexual abuse interviewing skills, and rebuttal materials to

support the testimony of children in child sexual abuse

cases he New England Association is composed of the

directors of social service agencies for the states of Maine,

Vermont, New Hampshire, Massachusetts, Connecticut,

and Rhode Island.

Dr. Salter decided to focus her monograph on the

petitioners’ book, Accusstions of Child Sexual Abuse,

because it included an extensive bibliography useful to

proponents of the “leading and suggestive questioning”

defense in child abuse cases, and because petitioners

were prominent proponents of that defense.

In May, 1988, the New England Association agreed to

fund the study and Dr. Salter began compiling and

reviewing over 500 articles which were cited in peti-

tioners’ book, Accusations of Child Sexual Abuse. She

reviewed the original source of the articles cited by the

petitioners before drawing any conclusions. The mono-

graph challenges petitioners’ findings in their book Accu-

sations of Child Sexual Abuse, and is critical of the “leading

and suggestive questioning” defense. Dr. Salter did not

doubt the truth of any of her statements in the mono-

graph at the time she authored it and, in fact, she still

believes that all of her statements in the monograph are

true.

Dr. Salter’s monograph, entitled “Accuracy of Expert

Testimony in Child Sexual Abuse Cases: A Case Study of

Ralph Underwager and Hollida Wakefield,” was submit-

ted to the New England Association in January, 1990. The

monograph was never traditionally published and has

only been formally presented to the New England Asso-

ciation.

Dr. Salter provided the National Center for the Pros-

ecution of Child Abuse (NCPCA) with a copy of her

completed monograph in late 1990 or early 1991, for use

in its role as a national clearing house and resource center

on the investigation and prosecution of child abuse. The

NCPCA has made copies of the monograph available to

persons upon request at a cost which covers the copying

and mailing expenses.

THE “60 MINUTES” TAPE

In the spring of 1990, Dr. Salter was approached by

Mike Munro, a reporter for the television program “60

Minutes” of Australia, to be interviewed for a “60 Min-

utes” of Australia program regarding a child sexual abuse

case in Australia known as the “Mr. Bubbles” case. The

defendant in the “Mr. Bubbles” case was accused of sexu-

ally abusing children who attended a nursery school run

by his wife. He retained Dr. Underwager as one of his

expert witnesses to testify at the pretrial hearing. The

defendant was not committed for trial.

“60 Minutes” of Australia produced a story on the Mr.

Bubbles controversy entitled “Witness for Mr. Bubbles”

which concentrated on the testimony of Dr. Underwager.

Dr. Salter was one of several persons interviewed for the

program concerning her knowledge of Underwager’s

research and history as an expert witness in child sexual

abuse cases. The program was originally broadcast in Aus-

tralia on August 5, 1990, and includes interviews with Dr.

Underwager, Attorney Charles Vaughan, Assistant United

States Attorney James Peters, Sr., and Dr. Salter.

On October 31, 1990, a portion of the videotape of the

“60 Minutes” of Australia program, “Witness for Mr.

Bubbles,” was played by Patricia Toth at a workshop at

the Midwest Conference on Child Sexual Abuse and

Incest in Madison, Wisconsin (Madison Seminar). Her

workshop was directed at professionals involved in child

abuse intervention and prosecution, including social

workers, case workers, prosecutors, physicians, psycholo-

gists, and law enforcement personnel. Dr. Salter did not

replay the videotape of that program or suggest that the

videotape of that program be played at the Madison

Seminar.

THE LOWER COURT PROCEEDINGS

Petitioners filed a defamation action against Dr.

Salter, and others, on March 19, 1992 in the Western

District of Wisconsin. Petitioners assert that Dr. Salter’s

monograph and statements she made during the inter-

view for the “60 Minutes” of Australia program defamed

them.

On February 1, 1993, Dr. Salter moved for summary

judgement. In a memorandum and order dated April 6,

1993, the District Court for the Western District of Wis-

consin determined that petitioners were limited purpose

public figures, but that there was an issue of fact as to

whether Dr. Salter acted with actual malice.

On April 15, 1993 Dr. Salter filed a motion for recon-

sideration of the court’s decision on the grounds that

petitioners offered no evidence which demonstrated that

a genuine issue existed as to actual malice. By order

dated June 4, 1993, the Western District of Wisconsin

court granted Dr. Salter’s motion to reconsider and

motion for summary judgment on the grounds that peti-

tioners had failed to demonstrate clear and convincing

evidence of actual malice and that no genuine issue

remained for trial.

Petitioners filed a notice of appeal with the United

States Court of Appeals for the Seventh Circuit on June

10, 1993. The appeal was argued on December 10, 1993

and the Seventh Circuit rendered a decision on April 25,

1994, affirming the decision of the lower court. Peti-

tioners now seek review from this Court.

¢

ARGUMENT

I. THE WRIT SHOULD NOT BE GRANTED

BECAUSE THIS CASE PRESENTS NO ISSUE

APPROPRIATE FOR SUPREME COURT REVIEW.

The United States Supreme Court is a court of discre-

tionary jurisdiction. “A petition for writ of certiorari will

be granted only when there are special and important

reasons therefor.” Sup. Ct. R. 10.1. Although not inclu-

sive, Rule 10.1 enumera’*s several considerations author-

izing review of a petition.

Under that rule, Supreme Court review is appropri-

ate when a United States court of appeals renders a

decision in conflict with another court or has departed

from the accepted and usual course of judicial proceed-

ings. Additionally, review is considered when a state

court of last resort has decided a federal question in a

way that conflicts with another court or when a court has

decided an important question of federal law which has

not been settled by the United States Supreme Court. Id.

A principle purpose for which the United States

Supreme Court uses certiorari jurisdiction is to resolve

conflicts among Circuit Courts of Appeals and state

courts concerning the meaning of provisions of federal

law. Braxton v. United States, 111 S.Ct. 1854, 114 L.Ed.2d

385 (1991).

No such conflict is present in this case.

Petitioners assert that the rationale of the Seventh

Circuit is in direct conflict with Wisconsin law. However,

petitioners are in error. The Seventh Circuit’s decision is

in conformity with Wisconsin law on all points.

Therefore, this case presents no issue appropriate for

Supreme Court review and the petition should be denied.

Il. THE SEVENTH CIRCUIT’S DECISION DOES NOT

CONFLICT WITH DECISIONS OF THE WISCON-

SIN COURTS.

A. Wisconsin Law Applies The Actual Malice

Standard To Public Figures.

Petitioners would have the Court believe that the

Seventh Circuit’s decision violates Erie Railway Co. v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1983),

asserting that it is in direct conflict with the case law

precedent of Wisconsin. Petitioners are mistaken. The

Seventh Circuit’s decision was squarely on point with

Wisconsin defamation law. It is noteworthy that peti-

tioners do not argue that the Seventh Circuit erred in

determining that they are limited purpose public figures

for purposes of their defamation action. Rather, they

claim that the court erred in applying the “actual malice”

standard to non-media defendants asserting a privilege

under Wisconsin common law. Petitioners analysis is

flawed in two respects.

First, it is the plaintiff’s status, not the defendant's,

which determines the burden of proof applied in a defa-

mation case. Second, in this case, the defendant’s conduct

is not to be examined under common law concepts of

express malice, but the actual malice standard applicable

to constitutional conditional privileges.

Petitioners erroneously declare that the actual malice

standard is inapplicable to this case because the Wiscon-

sin Supreme Court has “clearly asserted” that the New

York Times standard does not apply to non-media defen-

dants, citing Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d

141 (1982). In truth, Wisconsin courts have acknowledged

that the actual malice standard is applicable to defama-

tion actions by public figure plaintiffs, such as peti-

tioners.

Petitioners seemingly suggest that Denny, supra,

stands for the proposition that the “actual malice” stan-

dard only applies to media defendants. This is incorrect.

In Denny, the first question before the court was

whether plaintiff was a public figure. Id., at 643. After

determining plaintiff was not a public figure for purposes

of maintaining a defamation action, the court stated:

We view the Mertz communication to Santry as

coming within the standards applicable to pri-

vate defamation actions. . . . We reaffirm our

holding in Calero that purely private defamations

are not entitled to constitutional protection... .

106 Wis. 2d at 660-61, [emphasis added]. Therefore, the

court was considering the protection available to a pri-

vate defendant who defamed a private plaintiff about a

matter of purely private concern. However, the Denny

court noted that different protections would apply to

defendants in defamation actions by public figure plain-

tiffs about matters of public concern. Id. at 643-651.

In New York Times Co. v. Sullivan, 376 U.S. 254, 84

S.Ct. 710, 11 L.Ed.2d 686 (1964), this Court held that a

public figure may only recover for a defamation by pro-

ving actual malice. In Gertz v. Robert Welch, Inc., 418 U.S.

323, 94 S.Ct. 2997, 3008 (1974), the Court expanded the

actual malice standard to cover persons who were “lim-

ited purpose” public figures.

Similarly, the Wisconsin Supreme Court has agreed

that whether a plaintiff is “a ‘public figure for all pur-

poses’ or a ‘public figure for a particular controversy,’ ”

he or she must establish that the defendant acted with

actual malice in order to prevail in a defamation action.

Louis v. Coursolle Broadcasting, 127 Wis. 2d 105, 119, 377

N.W.2d 166 (1985) (citation omitted).

Therefore, petitioners’ assertion that Wisconsin law

has concluded that the actual malice standard is not

applicable to persons other than media defendants is

inaccurate.

Second, petitioners claim that the Seventh Circuit

applied the wrong standard of proof under Wisconsin

common law. It is true that Wisconsin law recognizes that

some communications are subject to non-constitutional

conditional privileges. See, Wis.J.I.Civil, § 2500, at 9.

It is also true that Wisconsin has determined that

proof of “express malice” is evidence of abuse of a non-

constitutional conditional privilege. Calero v. Del Chemical

Corp., 68 Wis.2d 487, 500, 228 N.W.2d 737 (1974). How-

ever, the Calero court stated:

The problem of actual malice arises in the cases

involving First Amendment protection afforded

to the media, such as newspapers, television,

and radio, or comments made about public officers

or public figures.

10

68 Wis. 2d at 500 [emphasis added]. It was in concluding

that the actual malice standard did not apply to purely

private defamation communications between private

individuals that the Calero court applied the express mal-

ice test.

Additionally, under Wisconsin law, common law con-

ditional privileges are distinguished from constitutional

conditional privileges:

A constitutional conditional privilege refers to

the protection afforded media sources (and also

non-media persons, where the statement involves a

matter of public interest or concern) under the first

amendment. . . . Where the plaintiff is a private

individual, only negligence by the defendant

media source or individual is required to be

shown. Denny v. Mertz, supra. However, where

the plaintiff is a public official or public figure, a

higher level of fault must be shown. In this type

of case, the plaintiff must show that the defamatory

statement was published with “actual malice,” i.e.,

actual knowledge or with reckless disregard of

whether the statement was true or false.

Wis.].I.Civil, § 2500, p. 10-11 [emphasis added].

Further, Dalton v. Meister, 52 Wis. 2d 173, 188 N.W.2d

494 (1971) cert. denied, 405 U.S. 934, 925 S. Ct. 947 (1972),

involved a defamation action brought by an assistant

attorney general against a private businessman, not a

media defendant. The court, noting that although the case

was tried under defamation law concerning “conditional

privilege,” recognized that it could have been tried under

the actual malice standard applicable to public figures.

The court stated:

11

The Times/Sullivan rule is not confined to news

media and free press, but also applies to private

individuals and free speech in some cases. See St.

Amant v. Thompson (1968), 390 U.S. 727, 88 S.Ct.

323, 20 L.Ed.2d 262 .... Neither that question

nor the burden of proof issue was raised in this

case, but we might observe that even a casual

reading of this record would lead one to believe

as a matter of law that the proof of malice and

knowledge of falsity or the reckless disregard of

the truth was by clear and convincing evidence.

52 Wis. 2d at 183-184 [emphasis added].

Similarly, in Polzin v. Helmbrecht, 54 Wis.2d 578, 196

N.W.2d 685 (1972), the Wisconsin Supreme Court held

that a private citizen, acting as a critic of the media, was

entitled to the same protections as provided the media in

the New York Times case, where the matter involved a

public concern. In that case, defendant-appellant wrote a

personal letter to an editor of the Fond du Lac Common-

wealth Reporter expressing her opinion that articles con-

cerning a local sewage controversy written by plaintiff-

respondent, who was a reporter for the paper, were inac-

curate and biased. The court stated:

Clearly, [defendant] has the same constitutional

right to express her opinion as the reporter.

Thus, we concluded that the appellant is

entitled to have the protection of the higher

level of proof requiring plaintiff to convince the

jury by clear and convincing evidence. She is

also entitled to a jury determination of whether

what was stated was published with “knowl-

edge that it was false or with reckless disregard

of whether it was false or not.” Thus appellant is

12

entitled to the protection of the standards

required in the New York Times case.

Id., at 586.

The Seventh Circuit accurately noted that no Wiscon-

sin cases involved an action by a public figure plaintiff

against a non-media defendant. However, as the Seventh

Circuit acknowledged, Wisconsin courts have clearly rec-

ognized that the actual malice standard articulated in

New York Times is applicable to defamation actions

brought by public figures against private individuals.

Further, petitioners presented no arguments in either

lower court suggesting that Wisconsin would impose a

lesser burden on a public figure suing a psychologist or

prosecutor than on one suing a media defendant. The

Seventh Circuit correctly concluded that the “actual mal-

ice” standard was the proper burden of proof in this case.

B. The Seventh Circuit Correctly Determined That

Republication Of Defamatory Matter Is Not

Evidence Of Actual Malice.

Petitioners allege that they submitted ample evidence

which demonstrated the existence of actual malice on the

part of Dr. Salter. They claim Dr. Salter’s deposition testi-

mony that she made copies of the “Mr. Bubbles” tape and

sold it to interested persons for $12 a copy is “direct

compelling evidence” of actual malice. A review of the

actual malice standard is necessary to show why peti-

tioners’ “evidence” is insufficient to prove actual malice.

Actual malice has been defined as knowledge

that the statement was false, or reckless disre-

gard as to whether it was false. . . . The focus is

13

upon the defendant’s attitude pertaining to the

truth or falsity of the published statements

rather than upon any hatefulness or ill will [cita-

tion omitted]. The plaintiff must show “that the

defendant, in fact, entertained serious doubts as

to the truth of his publication.”

Van Straten v. Milwaukee Journal, 151 Wis. 2d 905, 917, 447

N.W.2d 105 (Ct. App. 1989), cert. denied, 496 U.S. 929

(1990). “Proof of actual malice, therefore, depends upon

the defendant’s actual state of mind.” Woods v. Evansville

Press Co., Inc., 791 F.2d 480, 489 (7th Cir. 1986). In Harte-

Hanks, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678,

105 L.Ed.2d 562 (1989) the court stated:

The actual malice standard is not satisfied

merely through a showing of ill will or “malice”

in the ordinary sense of the term. . . . We have

made clear that the defendant must have made

the false publication with a “high degree of

awareness of . . . probably falsity.”

Id. at 2685-86 [citation omitted].

Petitioners argue that republication of a defamation

demonstrates “ill will” and that “ill will” is evidence of

“actual malice.” In support of this assertion, petitioners

cite the West Virginia Supreme Court decision Hinerman

v. Daily Gazette Co., Inc., 423 S.E.2d 560 (W.Va. 1992).

However, this case does not support petitioners’ position.

In Hinerman, supra, the court stated:

The greatest obstacle that a public official libel

plaintiff must overcome is the First Amendment

requirement that the publisher of a libel against

a public official have a subjective appreciation at

the time of the publication that either (1) the

14

defamatory statement is false or (2) the defama-

tory statement is being published in reckless

disregard of whether it is false.

423 S.E.2d at 572.

This case clearly requires that a public figure plaintiff

demonstrate that the publisher had a subjective apprecia-

tion that statements he or she made were false. Further, in

Van Straten, supra, the Wisconsin court specifically held

that the defendant newspaper’s continued publication of

allegedly defamatory statements did not constitute

“actual malice.” 151 Wis. 2d at 917-918. Therefore, under

Wisconsin law, republication of defamatory matter is not

evidence of “actual malice.” The Seventh Circuit correctly

found that petitioners did not meet their burden.

Similarly, petitioners’ allegation that Dr. Salter’s dis-

tribution of the “Mr. Bubbles” tape begs the question

whether Dr. Salter acted with “actual malice.” Petitioners

do not specify why Dr. Salter’s distribution of the tape to

other persons supports a finding of actual malice. That

Dr. Salter provided the tape to others does not support

the conclusion that Dr. Salter made statements which she

knew were untrue or acted with the reckless disregard as

to their truth. In fact, if Dr. Salter doubted the veracity of

her statements, there would be no point in providing

copies of the tape to persons having a legitimate use for

that tape.

In support. of her motion for summary judgment, Dr.

Salter offered evidence demonstrating that she entertained

no doubts as to the truth of any of her statements in her

monograph or on the “60 Minutes” tape. Dr. Salter testi-

fied that in preparing her monograph, she spent over 18

15

months reviewing over 500 articles cited by the peti-

tioners in their book Accusations of Child Sexual Abuse. She

reviewed each original study or article cited by the peti-

tioners before drawing any conclusions as to each article.

Forty-five pages of Dr. Salter’s monograph document the

facts she relied upon in making her allegedly defamatory

statements. In fact, Dr. Salter testified that she still

believes every comment she made in the monograph is

true.

Second, Dr. Saiter testified that every comment she

made during the “60 Minutes” interview was made in

good faith and that she entertained no doubts as to their

truth. She made the statements based on her professional

opinion and scholarly conclusions after extensive

research and investigation of Dr. Underwager’s work,

research, court testimony and the relevant professional

literature. Dr. Salter still believes that each of those com-

ment are true.

CONCLUSION

The decisions of the Seventh Circuit and the United

States District Court for the Western District of Wisconsin

are correct. This case merely involves the application of

Wisconsin law to a standard defamation claim and is not

an appropriate candidate for review by the United States

Supreme Court. Thus, this respondent respectfully

16

requests that the Court deny the Petition for Writ of

Certiorari.

Respectfully submitted,

Bett, METZNER, GIERHART

& Moore, S.C.

JoHN M. Moore; No. 1010235

JoHN W. Marxson; No. 1018620

(Counsel of Record)

TerESA A. Muestier; No. 1019539

44 East Mifflin Street

Suite 1000

P.O. Box 1807

Madison, WI 53701

(608) 257-3764

Attorneys for Respondent

Dr. Anna Salter

September 23, 1994