David Sidoff v. Roger Merry

2023 WI App 49

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP1871

Complete Title of Case:

DAVID SIDOFF,

PLAINTIFF-APPELLANT,

V.

ROGER MERRY,

DEFENDANT-THIRD-PARTY
PLAINTIFF-RESPONDENT.

Opinion Filed: August 3, 2023
Submitted on Briefs: April 13, 2023

JUDGES: Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Kurt R. Anderson, of Zimmerman & Steber Legal Group,
S.C., of Delafield.

Respondent
ATTORNEYS: On behalf of the defendant-third-party plaintiff-respondent, the cause
was submitted on the brief of Brent Eisberner and Dailey Johnson, of
Levine Eisberner LLC of Madison.
2023 WI App 49

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 3, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP1871 Cir. Ct. No. 2020CV674

STATE OF WISCONSIN IN COURT OF APPEALS

DAVID SIDOFF,

PLAINTIFF-APPELLANT,

V.

ROGER MERRY,

DEFENDANT-THIRD-PARTY
PLAINTIFF-RESPONDENT.

APPEAL from an order of the circuit court for Rock County:
JEFFREY KUGLITSCH, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

¶1 KLOPPENBURG, P.J. David Sidoff appeals an order granting
Roger Merry’s motion for summary judgment dismissing Sidoff’s defamation
claim. Sidoff alleges in this civil action in Rock County circuit court that a book
No. 2022AP1871

that Merry wrote contains false statements, specifically that Sidoff committed a
murder. Merry’s book, published in 2020, discusses the events relating to the
murder of Ardelle Sturzenegger, whose body was found in 2005 in a field behind
the home that Sidoff and his then-wife, Mary Sidoff, were renting in Green County. 1
Mary Sidoff was found guilty of Sturzenegger’s murder at a jury trial in 2006.
Merry is the attorney who represented Mary Sidoff at the trial, and in his book he
states that it was Sidoff, not Mary Sidoff, who killed Sturzenegger.

¶2 The issue on appeal is whether Sidoff is a limited purpose public
figure for purposes of Wisconsin defamation law and, therefore, is required to make
the constitutionally required showing that Merry made the allegedly defamatory
statements with actual malice. We affirm the circuit court’s order granting Merry’s
motion for summary judgment dismissing Sidoff’s defamation claim because:
(1) the undisputed facts establish that Sidoff is a limited purpose public figure with
respect to Sturzenegger’s murder and, therefore, Sidoff must show actual malice;
and (2) Sidoff does not dispute that he cannot point to evidence that Merry made the
allegedly defamatory statements with actual malice.

BACKGROUND

¶3 The following facts are undisputed for purposes of summary
judgment.

1
We refer to David Sidoff and Roger Merry by their last names, and to Mary Sidoff by
her full name.

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No. 2022AP1871

¶4 In October 2005, Sturzenegger’s body was found wrapped in a tarp in
a field behind the home that Sidoff and Mary Sidoff were renting.2 In September
2006, at a jury trial, Mary Sidoff was found guilty of first-degree intentional
homicide of Sturzenegger, hiding a corpse, and theft from a person or corpse. Merry
represented Mary Sidoff at the trial.

¶5 In 2020, Merry published a book that he wrote entitled Lies for Her
Master. In this book Merry states that it was Sidoff, not Mary Sidoff, who murdered
Sturzenegger.

¶6 In this action, Sidoff has sued Merry for defamation, alleging that
Merry’s statements in the book that Sidoff committed the murder and other crimes
are false.

¶7 Merry moved for summary judgment dismissing Sidoff’s defamation
claim. Merry argued that: (1) Sidoff is a limited purpose public figure and,
therefore, must show that Merry made the allegedly defamatory statements with
actual malice; and (2) Sidoff did not allege actual malice in his complaint and the
summary judgment materials do not support a claim that Merry made the statements

2
The parties refer in their briefing to the details regarding Mary Sidoff’s trial and
conviction based on Wisconsin’s CCAP (Consolidated Court Automation Programs) records
pertaining to Green County Circuit Court Case No. 2005CF000149. CCAP is a case management
system provided by the Wisconsin Circuit Court Access program, which “provides public access
online to reports of activity in Wisconsin circuit courts.” State v. Bonds, 2006 WI 83, ¶6, 292
Wis. 2d 344, 717 N.W.2d 133; see also Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1,
346 Wis. 2d 635, 829 N.W.2d 522 (taking judicial notice of CCAP records where the details
regarding an action were not in the record). Because the details of Mary Sidoff’s conviction are
not in the summary judgment materials, we take judicial notice of the CCAP records pertaining to
the Green County action. See WIS. STAT. § 902.01 (2021-22).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

3
No. 2022AP1871

with actual malice. Sidoff opposed the motion, arguing that he is not a limited
purpose public figure with respect to Sturzenegger’s murder.

¶8 The circuit court determined that Sidoff is a limited purpose public
figure with respect to Sturzenegger’s murder. The court concluded that, because
Sidoff did not claim actual malice, Merry’s motion for summary judgment must be
granted.

¶9 Sidoff appeals.

DISCUSSION

I. Applicable Standard of Review and Legal Principles

¶10 We first present the standard of review governing Sidoff’s appeal of
the circuit court’s decision granting Merry’s motion for summary judgment. We
next provide context by summarizing basic background principles of defamation
law. We then present the legal principles pertinent to the issue on appeal: whether
Sidoff is a limited public purpose figure.

¶11 “Summary judgment is appropriate to determine whether there are any
disputed factual issues for trial and to avoid trials where there is nothing to try.”
Bay View Packing Co. v. Taff, 198 Wis. 2d 653, 672, 543 N.W.2d 522 (Ct. App.
1995) (quoted source omitted). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2). We review whether a party is entitled to summary judgment
independently of the circuit court. Bay View Packing, 198 Wis. 2d at 672.

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¶12 Summary judgment “may be particularly appropriate in defamation
actions in order to mitigate the potential ‘chilling effect’ on free speech and the press
that might result from lengthy and expensive litigation.” Id. (quoting Time, Inc. v.
Hill, 385 U.S. 374, 401-02 (1967)).

¶13 A plaintiff alleging defamation under Wisconsin law must generally
prove three elements: (1) a false statement; (2) that is communicated by speech, by
conduct, or in writing to a person other than the person defamed; and (3) which is
unprivileged and tends to harm one’s reputation so as to lower the person in the
estimation of the community or to deter third persons from associating or dealing
with the person. Donohoo v. Action Wisconsin Inc., 2008 WI 56, ¶37, 309 Wis. 2d
704, 750 N.W.2d 739.3

¶14 “In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the United
States Supreme Court added a constitutional element to defamation actions that is
dependent on the status of the plaintiff.” Bay View Packing, 198 Wis. 2d at 674.
Under the First and Fourteenth Amendments to the United States Constitution, a
plaintiff who is a “public official” must prove, by clear and convincing evidence
that the defamatory statement was made with “actual malice.” New York Times,

3
For additional context, we observe that our supreme court noted that some court of
appeals opinions had listed four elements of defamation, following the Restatement (Second) of
Torts § 558 (1981). Donohoo v. Action Wisconsin Inc., 2008 WI 56, ¶37 n.8, 309 Wis. 2d 704,
750 N.W.2d 739 (citing Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis. 2d
905, 912, 447 N.W.2d 105 (Ct. App. 1989)); see also Bay View Packing Co. v. Taff, 198 Wis. 2d
653, 673, 543 N.W.2d 522 (Ct. App. 1995). However, since 2008, this court has consistently listed
the three elements listed in Donohoo. See e.g., Laughland v. Beckett, 2015 WI App 70, ¶22, 365
Wis. 2d 148, 870 N.W.2d 466 (citing Ladd v. Uecker, 2010 WI App 28, ¶8, 323 Wis. 2d 798, 780
N.W.2d 216); Terry v. Journal Broadcast Corp., 2013 WI App 130, ¶14, 51 Wis. 2d 479, 840
N.W.2d 255 (citing Mach v. Allison, 2003 WI App 11, ¶12, 259 Wis. 2d 686, 656 N.W.2d 766).
In Donohoo, our supreme court also noted that, “if the two sets of elements are at all different, such
distinctions are not important in the present case” in which the analysis focused on the actual malice
requirement. Donohoo, 309 Wis. 2d 704, ¶¶36, 37 n.8. Here too, any such distinctions do not
matter to our analysis of the issue on appeal.

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No. 2022AP1871

376 U.S. at 279-80; Donohoo, 309 Wis. 2d 704, ¶38 (citing Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 510 (1991)); Wiegel v. Capital Times Co., 145
Wis. 2d 71, 76, 426 N.W.2d 23 (Ct. App. 1988) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255-56 (1986)). The actual malice standard “requires that the
allegedly defamatory statement be made with ‘knowledge that it was false or with
reckless disregard of whether it was false or not.’” Donohoo, 309 Wis. 2d 704, ¶38
(quoting New York Times Co., 376 U.S. at 279-80); Bay View Packing, 198 Wis. 2d
at 674. Pertinent here, the United States Supreme Court has extended the
constitutional actual malice standard to apply also to “public figure” plaintiffs.
Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967).

¶15 An individual may be deemed a “public figure” plaintiff for “general”
or “limited” purposes: “‘[The person] may be a public figure for all purposes due
to general fame or notoriety. More commonly, however, one assumes that status by
involvement in a particular public issue or controversy and thereby becomes a
public figure for a limited range of issues.’” Bay View Packing, 198 Wis. 2d at 675
(quoting Wiegel, 145 Wis. 2d at 82). A public figure for general purposes is a
person who is a well-known celebrity or whose name is a “household word” and the
person’s words and deeds are followed by the relevant portion of the public because
that portion of the public deems the person worthy of its attention. Bay View
Packing, 198 Wis. 2d at 676. Merry does not argue that Sidoff is a public figure for
general purposes.

¶16 People who are “‘not generally famous or notorious,’ [] may become
public figures for a ‘limited purpose’ because of their involvement in a ‘particular
public controversy.’” Bay View Packing, 198 Wis. 2d at 676 (quoting Wiegel, 145
Wis. 2d at 82). Such a person is known as a “limited purpose public figure.” Bay
View Packing, 198 Wis. 2d at 676 (citing Van Straten v. Milwaukee Journal

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No. 2022AP1871

Newspaper-Publisher, 151 Wis. 2d 905, 913-14, 447 N.W.2d 105 (Ct. App. 1989));
see also Biskupic v. Cicero, 313 Wis. 2d 225, 239, 756 N.W.2d 649 (Ct. App. 2008)
(“Limited purpose public figures [] are otherwise private individuals who have a
role in a specific public controversy.”) A person may become a limited purpose
public figure because the person “voluntarily thrust” himself or herself into a
particular public controversy, or because the person’s activities “almost inevitably”
“thrust [the person] into a central role in a controversy.” Wiegel, 145 Wis. 2d at
85-86; Erdmann v. SF Broad. of Green Bay, Inc., 229 Wis. 2d 156, 164, 599
N.W.2d 1 (Ct. App. 1999) (stating that a person who is drawn into or injects himself
or herself into a particular public controversy becomes a public figure for a limited
purpose because of the person’s involvement in the controversy).

¶17 Our supreme court has established a two-prong test to determine
whether a defamation plaintiff is a limited purpose public figure: “(1) there must
be a public controversy; and (2) the court must look at the nature of the plaintiff’s
involvement in the public controversy.” Bay View Packing, 198 Wis. 2d at 678
(citing Denny v. Mertz, 106 Wis. 2d 636, 649-50, 318 N.W.2d 141 (1982)). “[T]his
court expanded on Denny and provided a three-step analysis to be used when
considering the second prong of the Denny test”: (1) isolate the controversy at
issue; (2) examine the plaintiff’s role in the controversy to determine whether it is
more than trivial or tangential; and (3) determine whether the alleged defamation
was germane to the plaintiff’s participation in the controversy. Bay View Packing,
198 Wis. 2d at 678 (citing Wiegel, 145 Wis. 2d at 82-83).

¶18 The Wiegel court derived this three-step analysis under the second
prong of the Denny test from federal case law interpreting language by the United
Stated Supreme Court. Wiegel, 145 Wis. 2d at 82-84. Under this approach, a person
may become a limited purpose public figure either by “voluntary injection” into a

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controversy or by being “‘drawn into a particular public controversy.’” Id. (quoting
Gertz v. Robert Welch, Inc., 418 U.S. 323, 351). The Wiegel court explained that
the focus in Denny was on the “voluntariness” of the plaintiff’s entry into the public
fray at issue and, thus, the court was concerned only with the “voluntary injection”
aspect. Wiegel, 145 Wis. 2d at 88. In order to address both aspects of the issue, the
three-step analysis presents an objective test that assesses the facts about the
plaintiff’s relationship to the controversy. See id. at 85 (the three-step analysis
focuses on “the plaintiff’s role in the public controversy rather than on any desire
for publicity”).

¶19 The determination of whether a person is a limited purpose public
figure is a question of law for the court to decide on summary judgment, if there are
no genuine issues of material fact, or after an evidentiary hearing before trial. Bay
View Packing, 198 Wis. 2d at 676; see also Erdmann, 229 Wis. 2d at 165
(“Because a plaintiff’s status controls whether [the person] must prove actual
malice, the question whether a person is a limited purpose public figure should be
resolved first and is a question of law.”) (citing Lewis v. Coursolle Broad., 127
Wis. 2d 105, 119, 377 N.W.2d 166 (1985)).

¶20 “If the plaintiff is determined to be a limited purpose public figure,
the court must then determine whether the evidence in the summary judgment
record could support a reasonable jury finding that plaintiff has shown actual
malice.” Erdmann, 229 Wis. 2d at 165; Bay View Packing, 198 Wis. 2d at 677 (If
a plaintiff is determined to be a limited purpose public figure, “the dispositive
factual dispute then becomes whether the plaintiff’s summary judgment materials
show ‘actual malice’ on the part of the defendant.”). “If the plaintiff does not meet
this burden [to show actual malice], the defamation claim should be dismissed as

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legally insufficient because it is quite clear that under no circumstances can the
plaintiff recover.” Id.

II. Analysis

¶21 As stated, Sidoff does not claim actual malice. Rather, Sidoff
challenges only the circuit court’s determination that he is required to prove actual
malice because he is a limited purpose public figure. We first present additional
undisputed facts pertinent to that issue and then explain our conclusion that,
applying the legal principles articulated above, the undisputed facts establish that
Sidoff is a limited purpose public figure in connection with the topic of Merry’s
book, the murder.

A. Additional Undisputed Facts

¶22 In the investigation that followed the discovery of Sturzenegger’s
body on property rented by Sidoff and Mary Sidoff, Sidoff was interviewed at least
two to three times by police. Sidoff owned the firearm that was used to murder
Sturzenegger. Sidoff was subpoenaed to appear at Mary Sidoff’s trial and, when he
took the stand to testify, he invoked his Fifth Amendment right.

¶23 In June 2007, Sidoff pleaded no contest to two misdemeanor offenses
relating to the murder and the investigation: obstructing an officer and receiving
stolen property.

¶24 The events surrounding Sturzenegger’s murder, including the above
facts, were reported in local and regional publications between 2005 and 2007. The
local press covered both the investigation and Mary Sidoff’s trial. Local and
regional publications also reported on Mary Sidoff’s testimony at trial that it was
Sidoff, not she, who murdered Sturzenegger. The local press further reported that

9
No. 2022AP1871

Mary Sidoff wrote a letter to the circuit court after her conviction stating that she
had lied at trial and that Sidoff “had nothing to do with” the murder. The local press
also reported on the charges brought against Sidoff and his pleas to the two offenses.

¶25 Sidoff was never approached by members of the press, nor did he
provide any interviews or statements regarding the murder to the press. Sidoff
moved away from the area after the murder and did not attend the trial of Mary
Sidoff.

B. Whether Sidoff is a limited purpose public figure

1. A public controversy

¶26 Under the first prong of the Denny test we examine whether the
defamation claim here involves a “public controversy.” Denny, 106 Wis. 2d at
649-50. “Dispositive of this factor is whether the dispute or controversy has ‘an
impact outside of those immediately interested’ in the dispute.” Bay View Packing,
198 Wis. 2d at 679 (quoting Denny, 106 Wis. 2d at 650). The controversy at issue
must be one that “‘was being debated publicly’” and that “‘affects the general public
or some segment of it in an appreciable way.’” Id. (quoting Waldbaum v. Fairchild
Publ’ns, Inc., 627 F.2d 1287, 1296-97 (D.C. Cir. 1980)).

¶27 Here, the undisputed facts establish that Sturzenegger’s murder
affected more than just the individuals immediately involved in the crime and their
families, and was being publicly discussed throughout and after the subsequent
investigation and trial. The articles written about the murder that were submitted
on summary judgment date from October 2005 to June 2007 and appeared in both
online and print publications and in the local and regional press. At least one of the
articles published online, headlined “Mary Sidoff found guilty of murder,” included

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a comment section in which individuals engaged in a public discussion about the
contents of the article. Some of the comments specifically mentioned Sidoff and
relayed the commenters’ differing opinions regarding Sidoff’s possible involvement
in the crime. The articles also reported that there was, not surprisingly, significant
police activity in the investigation of the murder.

¶28 The articles reflect extensive public interest in, concern over, and
discussion of the murder and the people who were potentially or actually involved
in the murder. The articles also indicate the effect of this dramatic crime on the
local and regional communities. The public would naturally have been concerned
first when Sturzenegger was reported missing and then when her body was found in
the field, continuing through the identification of a suspect and her trial and
conviction. The public would equally naturally have been concerned when Sidoff
was charged with and then pleaded to crimes connected with the murder. All of
these aspects created the public interest in this particular crime.

¶29 “Criminal activity can generate a controversy which is at the height of
public consciousness and which causes significant public reaction.” Erdmann, 229
Wis. 2d at 160-63, 166 (concluding that a person was a limited public figure when
he had been accused of and subsequently arrested for shooting a teenager, but was
released the day after the arrest when the teenager confessed to shooting himself).
The Erdmann court rejected the argument that “there is no public controversy when
the issue is solely an allegation and investigation of criminal conduct.” See id. at
166-67. In that case, the charges, arrest, investigation, and release generated an
intensive response by law enforcement, aroused concern and interest among the
communities in the area, and were widely reported in the media. Id. at 166.
Similarly here, although Sidoff was not arrested or charged with Sturzenegger’s
murder, he was a subject of law enforcement’s investigation of the murder, was

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accused of being the killer by Mary Sidoff at trial, invoked the Fifth Amendment
when called to testify at trial, and was charged with and pleaded no contest to
criminal conduct related to the murder, all of which was subject to public reporting
and discussion. The articles establish that Sidoff’s connection to the crime was “at
the height of public consciousness” and “cause[d] significant public reaction.” See
id. We conclude that, based on these undisputed facts, the first prong of the Denny
test, whether there is a public controversy, is met.

¶30 Sidoff argues that Erdmann is inapposite because it involves a “media
defendant.” We assume that Sidoff is referring to language in Denny adopting the
constitutional “actual malice” standard for public official and public figure plaintiffs
and stating that “[t]he supreme court has not ruled as to whether [that standard] …
appl[ies] to all defendants, or just media defendants.” Denny, 106 Wis. 2d at 660.
While the court in Denny did not define “media defendant,” it did suggest that the
term embraces any entity that publishes or broadcasts an alleged defamatory
statement. Id. (explaining that the constitutional actual malice standard properly
applies when “[a] defamation … is published or broadcast” because it “gets
infinitely greater circulation and can do the defamed person much greater harm”).
Sidoff does not explain why Merry, by publishing the book that contains the
allegedly defamatory statements, is not also entitled to the same protection of the
constitutional actual malice standard as is a media defendant. More simply stated,
Sidoff does not explain why the term “media defendant” does not include a book
publisher nor does he provide any legal authority to support such a proposition.

¶31 Further, assuming without deciding that Merry is a non-media
defendant, the court in Denny did not reach the issue of whether the constitutional
actual malice standard that applies when a plaintiff is a public figure does not apply
when the defendant is a non-media defendant. The court concluded only that a

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private person’s defamation claims against another private person should be
adjudicated without applying the constitutional actual malice standard. Id. at
660-66. Thus, the court did not address the effect of the defendant’s status as a
media or non-media defendant when the plaintiff is a public official or public figure.
Id. That is, the ruling in Denny was only that the plaintiff was a private person
suing another private person, which took the actual malice issue out of the case.

¶32 In addition, we consider persuasive an opinion of the United States
Court of Appeals for the Seventh Circuit, which concludes that, under Wisconsin
law, at least certain non-media defendants are entitled to the same actual malice
protection as media defendants. In Underwager v. Salter, 22 F.3d 730, 732 (7th
Cir. 1994), the defamation plaintiffs sued a psychologist who had been interviewed
as part of a television program and a prosecutor who presented the tape of that
program at workshops for other prosecutors. The plaintiffs argued that they need
not establish actual malice because neither of the defendants “is a reporter or the
publisher of a newspaper.” Id. at 734. The court disagreed. Id. at 734-35. The
court reviewed Wisconsin case law and stated that, “Cases since Denny have made
it clear that a public figure must establish that the defendant acted with actual
malice.” Underwager, 22 F.3d at 734. The court continued, “None of the cases we
could find suggests that Wisconsin imposes a lesser burden on a public figure suing
a psychologist or prosecutor than on one suing a reporter.” Id.

¶33 The court noted that the plaintiffs “offer[ed] no reasons to suppose”
that Wisconsin courts would establish a distinction between media and non-media
defendants for purposes of applying the actual malice standard in public figure
cases. Id. The court concluded that the public interest in providing reporters with
the actual malice protection when reporting on public controversies extends equally
to “scholars and prosecutors.” Id. at 735. The court reasoned that exposing such

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persons to large damage awards may be more likely to lead to silence on public
controversies than would comparable awards against defendants in the media
business. Id.

¶34 Similarly here, Sidoff offers “no reasons to suppose” that, under
Wisconsin law Merry, who was the defense attorney at the trial of a dramatic crime
and who has published a book about that trial and crime, is not entitled to the actual
malice protection afforded media defendants in public figure cases. See id. at
734-35.

¶35 In sum, Sidoff fails to provide us with a definition of “media
defendant,” which in 2023 would presumably be considerably more difficult to
provide than it would have been before the digital age. Sidoff does not explain why
Merry, the publisher of the book that contains allegedly defamatory statements, is
not a media defendant under any possible definition. Sidoff also does not explain
how the distinction could matter to our analysis of whether there is a public
controversy, or cite binding authority that conditions the application of the
constitutional actual malice standard on the status of the defendant rather than only
on the status of the plaintiff. For all of these reasons, we reject whatever argument
Sidoff means to make as unsupported by legal authority. See Industrial Risk
Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148,
769 N.W.2d 82 (“Arguments unsupported by legal authority will not be considered,
and we will not abandon our neutrality to develop arguments.” (citation omitted)).

¶36 Sidoff also bases an argument on timing. He argues that, even if there
was a public controversy in 2005 to 2006, there is not presently a public controversy
because Merry has not shown that “the alleged public controversy lasted beyond the

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time of the trial of Mary Sidoff in 2006.”4 In support of this argument, Sidoff cites
to Denny, 106 Wis. 2d 636, and Wiegel, 145 Wis. 2d 71. However, we do not
discern, and Sidoff does not cite, any language in Denny or Wiegel that creates a
limit on the amount of time that events may remain public controversies for
purposes of determining who is a limited purpose public figure.

¶37 Sidoff’s citations to both of those cases address different issues.
Sidoff cites language in Denny that “a person may not be made into a public figure
by the very publication which defames him.” Denny, 106 Wis. 2d at 651 (citing
Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979)). However, in Hutchinson
there was no public controversy before the allegedly defamatory statement was
made. Hutchinson, 443 U.S. at 135; Denny, 106 Wis. 2d at 647. Here, we do not
rely on the fact of Merry’s publication of the book in 2020 to determine that a public
controversy exists; rather, as explained above, the public controversy at issue long
predated that publication. Sidoff also cites language in Denny and Wiegel that
addresses the second factor, Sidoff’s involvement in the controversy, which we
discuss below, considering whether the plaintiffs in those cases had access to the
media to rebut the alleged defamation. Denny, 106 Wis. 2d at 650; Wiegel, 145
Wis. 2d at 83-84. In neither case does the court state that the passage of time
following a public controversy dissipates or nullifies the existence of a public
controversy in this context.

¶38 Sidoff also supports his timing argument by citing to the court’s
statement in Lewis, 127 Wis. 2d at 115-16, that, “We by no means conclude that
‘once a public official, always a public figure.’” However, Sidoff’s reliance on that

4
We note that Sidoff appears to disregard that he entered his pleas to crimes related to the
murder in February 2007 and was sentenced for those crimes in June 2007.

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language is misplaced. The court in that case concluded that the plaintiff, who
engaged in misconduct while serving in the state assembly, had achieved a
widespread level of “notoriety” that made him a general purpose public figure (“a
public figure for all purposes”). Id. at 117. The court explained that the public
interest in the plaintiff which arose when he held public office, regarding his
conduct while in public office, continued after he left public office. Id. at 116-17.
Here, we conclude that Sidoff is a limited purpose public figure with respect only
to Sturzenegger’s murder. As in Lewis, the notoriety from Sidoff’s association with
that widely publicized murder in 2005 to 2007 brings with it public scrutiny and
discussion that remain relevant.

¶39 Furthermore, we consider persuasive the following observation of a
federal appellate court: “The Supreme Court has explicitly declined to address the
question ‘whether or when an individual who was once a public figure may lose that
status by the passage of time.’ The [federal circuit courts] addressing the issue have
indicated that an individual who was once a public figure with respect to a
controversy remains a public figure for latter commentary on that controversy.”
Milsap v. Journal/Sentinel, Inc., 100 F.3d 1265, 1269 (7th Cir. 1996) (quoting
Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166 n.7 (1979)).

¶40 In sum, we conclude that, on the summary judgment record here,
Sidoff remains a limited purpose public figure for purposes of the specific
controversy at issue, even though the main events of the controversy occurred in
2005 to 2007.

2. Sidoff’s involvement in the public controversy

¶41 The second prong of the Denny test addresses the nature of Sidoff’s
involvement in the public controversy. Denny, 106 Wis. 2d at 650. As stated above,

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Wiegel provides a three-step analysis for addressing this prong. Wiegel, 145
Wis. 2d at 82-83.

¶42 First, we isolate the public controversy with respect to the alleged
defamatory statements. Id. at 83. This case involves the controversy centering on
Sturzenegger’s murder along with the ensuing investigation, trial, and post-trial
events, and what role Sidoff played in those events. Sidoff makes no argument to
the contrary.

¶43 Second, we address whether Sidoff’s role in the controversy is more
than trivial or tangential. Id. at 83. As stated, one way by which people may become
limited purpose public figures is by “thrust[ing] themselves to the forefront of
particular public controversies in order to influence the resolution of the issues
involved.” Gertz, 418 U.S. at 345; Denny, 106 Wis. 2d at 645-46. In addition, “as
the Supreme Court recognized in Gertz, ‘it may [also] be possible for someone to
become a public figure through no purposeful action of [the person’s] own.’” Bay
View Packing, 198 Wis. 2d at 682 (quoting Gertz, 418 U.S. at 345). For example,
persons may become involuntary public figures without their consent or will, purely
through bad luck, or by being drawn into public controversies. Bay View Packing,
198 Wis. 2d at 682-83. In Bay View Packing, the plaintiffs did not want publicity
about, nor did they thrust themselves into, a controversy concerning the
contamination of water that ultimately contaminated their food products. Id. at 683.
This court concluded that a plaintiff’s desire for publicity or voluntary acts are not
the focus of the analysis; rather, the focus of the analysis is on the plaintiff’s role in
the public controversy. Id.

¶44 Here, as Sidoff argues, it is undisputed that Sidoff did not willingly
thrust himself into the controversy, assuming without deciding that he did not play

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any role in the murder or its cover up. He did not provide statements to the press or
engage in interviews beyond what was requested by the police, and he left the area
of the murder and moved to a different city after the murder took place. As Sidoff
argues, it is undisputed that all of these facts support the conclusion that he “made
no attempt to involve himself in the controversy or publicity surrounding the murder
of Sturzenegger.”

¶45 However, Sidoff’s reliance on these facts fails to take into account the
possibility that Sidoff is an involuntary limited purpose public figure. The
undisputed facts demonstrate that, even though Sidoff avoided publicity related to
the controversy, he was the subject of multiple articles and public discussion over
the course of the discovery of the murder, the investigation, the trial, and post-trial
events. The following are facts closely related to the controversy that render
Sidoff’s role more than trivial or tangential to the overall controversy, even though
he did not invite public attention to them: he rented with Mary Sidoff the property
where Sturzenegger’s body was found; he owned the gun that was used in
Sturzenegger’s murder; he pleaded no contest to the charges of obstructing and
receiving stolen property related to the murder; and Mary Sidoff accused Sidoff of
the murder at the trial and then recanted that accusation post-trial. See Wiegel, 145
Wis. 2d at 73, 85-86 (concluding that Wiegel’s activities relating to erosion and
pollution problems at Yellowstone Lake “inevitably put him into the vortex of a
public controversy” even if he did not “voluntarily thrust himself into the dispute,”
and that his “desire—or lack of desire—to draw attention to himself is irrelevant”);
Bay View Packing, 198 Wis. 2d at 683 (concluding that the plaintiffs were
involuntary limited purpose public figures, even though they were reluctant
participants and the events underlying the public controversy could be considered
just “sheer bad luck”); Van Straten, 151 Wis. 2d at 915 (“that [plaintiff] never

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intended to draw public attention to himself … is irrelevant” to whether his role was
more than trivial or tangential to the overall controversy).

¶46 Sidoff argues that he has not had access to the press to rebut the
defamation and that this weighs against determining that his role in the controversy
surrounding Sturzenegger’s murder is more than trivial or tangential. We now
explain why we conclude that this argument rests on an unproven premise and that
this factor does not count in his favor.

¶47 Sidoff quotes passages in Denny, Wiegel, and Gertz stating that
access to the press is one factor to consider in deciding whether an individual is a
limited purpose public figure. See Denny, 106 Wis. 2d at 648 n.17 (“Access to the
media, although often an accout[re]ment of public figure status and part of the
rationale for distinguishing a public figure from the more vulnerable private
individual who generally lacks access, is certainly not determinative of public figure
status.”); Wiegel, 145 Wis. 2d at 84-85, 88 (discussing the applicable limited
purpose public figure analysis as including factors other than access to the media,
and subsequently noting only that access to the media to rebut the alleged
defamation is relevant to but not “the touchstone” in the determination).

¶48 However it directly undermines Sidoff’s argument that the undisputed
facts in the summary judgment materials, summarized above, show that he has
intentionally avoided the media and actively chosen not to make public statements
related to the murder. Indeed, it would appear that over the years since 2005 Sidoff
has had any number of channels through which he could have made public
statements. The entire premise of his argument appears to be without support. It is
undisputed that he never approached the press, but there is no reason to think that if
he had he would not have been able to give his version of relevant events.

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¶49 The cases Sidoff cites do not support his position on the access-to-
media point. In Denny, the allegedly defamatory publication addressed Denny’s
role in a corporate dispute and the court concluded that Denny’s business decisions
did not give him access to the media. Denny, 106 Wis. 2d at 650. Here, Sidoff
gained public attention due to his connection with a murder investigation and he
was the subject of multiple front page print articles and online articles over the
course of more than one year by virtue of that connection.

¶50 Similarly, Gertz was the lawyer for an individual in a highly
publicized murder but Gertz was not at the forefront of the public controversy and
provided only typical legal services. Gertz, 418 U.S. at 327.

¶51 In Wiegel, Wiegel was contacted by the press and took the opportunity
to make public statements multiple times, and this court determined that this
voluntary engagement in the controversy was relevant to show that Wiegel had
access to the media. Wiegel, 145 Wis. 2d at 88-89. Wiegel made a different
decision than Sidoff and chose to engage with the press, but that does not mean that
Sidoff could not have provided statements that would have been reported in the
press.

¶52 The third step in our analysis of the involvement prong of the Denny
test addresses “whether ‘the alleged defamation was germane to the plaintiff’s
participation in the controversy.’” Bay View Packing, 198 Wis. 2d at 684 (quoted
source omitted). Sidoff does not identify the specific statements in Merry’s book
that he alleges are defamatory beyond the first sentence of the book. That sentence
reads, “David Sidoff murdered Ardelle Sturzenegger on Friday, October 14th,
between the hours of 8:30 p.m. and 10 p[.]m.” This sentence clearly pertains to
Sidoff’s participation in the controversy regarding Sturzenegger’s murder. Sidoff

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points to no evidence in the summary judgment materials that shows that the other
allegedly defamatory statements in the book do not similarly pertain to his alleged
connection with the murder. Accordingly, we conclude that the undisputed facts
establish that the allegedly defamatory statements are germane to Sidoff’s
involvement in the controversy.

¶53 In sum, we conclude that the undisputed facts establish that Sidoff is
a limited purpose public figure and, therefore, he must show that the alleged
defamatory statements were made with actual malice. Because Sidoff does not
contest that the summary judgment materials do not show “actual malice,” Sidoff
cannot recover under the circumstances present here and the circuit court properly
granted Merry’s motion for summary judgment. See Bay View Packing, 198
Wis. 2d at 686-87.

CONCLUSION

¶54 For the reasons stated, we conclude that Merry is entitled to summary
judgment and, therefore, we affirm.

By the Court.—Order affirmed.

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