August 15, 2023 – An attorney who wrote a book about a 2005 murder that his client was convicted of committing has successfully defended a defamation claim brought by the client’s husband, under a decision issued by the Wisconsin Court of Appeals.

In Sidoff v. Merry, 2022 AP 1871 (Aug. 3, 2023), a three-judge panel ruled that David Sidoff was considered a “limited public figure” and could not meet his burden to prove that his wife’s attorney published allegedly false statements with actual malice.

A Body in Their Backyard

In October 2005, Ardelle Sturzenegger’s body was found in a field behind a house in Monticello rented by David Sidoff (Sidoff) and his wife Mary.

Sturzenegger, an 88-year-old unhoused woman who was known to carry a large amount of cash on her person, had been shot. Her body was wrapped in a tarp.

The police interviewed Sidoff several times. They determined that he owned the gun that was used to kill Sturzenegger.

In September 2006, a Rock County jury convicted Mary Sidoff of first-degree intentional homicide in connection with Sturzenegger’s death.

The jury also convicted Mary Sidoff, who was represented by attorney Roger Merry, of hiding a corpse and theft from a person or corpse.

Book Implicates Sidoff

Sidoff appeared as a witness at his wife’s trial but invoked his right against self-incrimination and didn’t testify. In June 2007, Sidoff pled no contest to obstructing an officer and receiving stolen property.

The events related to the murder of Sturzenegger were widely reported in the local media – including Mary Sidoff’s testimony that it was her husband who’d killed Sturzenegger (she recanted after the trial).

However, Sidoff gave no press interviews and never issued a statement about the murder.

After Mary Sidoff’s trial, Merry wrote and then published in 2020 a book in which he claimed that David Sidoff, rather than Mary Sidoff, murdered Sturzenegger.

Defamation Suit Follows Book’s Release

Sidoff sued Merry in Rock County Circuit Court for defamation. He alleged that Merry’s statements in the book that he’d murdered Sturzenegger were false.

Merry moved for summary judgment.

Merry argued that: 1) Sidoff was a limited purpose public figure, and as such was required by law to prove that Merry had made the allegedly false statements with actual malice; and 2) Sidoff failed to allege actual malice in his complaint and failed to submit summary judgment evidence supporting the claim that Merry made the statements with actual malice.

The circuit court determined that Sidoff was a limited purpose public figure and granted Merry’s motion. Sidoff appealed.

Public Controversy

Writing for a three-judge panel, Presiding Judge JoAnne Kloppenburg began her opinion by explaining that under U.S. Supreme Court caselaw, a public figure alleging defamation must show that the defendant made the allegedly false statement with actual malice, defined as: 1) knowledge that the statement was false; or 2) reckless disregard of whether the statement was false.

She also explained that under that caselaw, a defamation plaintiff can be either a general or limited public figure. Under Wisconsin Court of Appeals caselaw, a person who’s not a household name can become a limited public figure by being involved in a particular public controversy.

Kloppenburg concluded that the widely reported events surrounding Sturzenegger’s murder were undisputedly a public controversy – one that Sidoff was deeply involved in.

“Although Sidoff was not arrested or charged with Sturzenegger’s murder, he was a subject of law enforcement’s investigation of the murder, was 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,” Judge Kloppenburg wrote.

Media Defendant?

Sidoff argued that the court of appeals case holding that person can be drawn into a controversy such that he or she becomes a limited purpose public figure didn’t apply because that case involved a media defendant, and Merry was not a member of the media.

But Kloppenburg concluded that that argument lacked merit.

“Sidoff does not explain why Merry, by publishing a book that contains the allegedly defamation, is not also entitled to the same protection of the constitutional actual malice standard as is a media defendant,” Judge Kloppenburg wrote. 

In any event, Kloppenburg pointed out, the supreme court has never reached the issue of whether only media defendants are entitled to employ the actual malice standard as a shield against defamation claims.

Significant Role in Controversy

Judge Kloppenburg also concluded that while it was undisputed that Sidoff hadn’t thrust himself into the controversy surrounding Sturzenegger’s murder, he had involuntarily played more than a minor role in that controversy.

The fact that Sidoff, along with his wife, rented the property where Sturzenegger’s body was found, owned the gun that killed Sturzenegger, and pled guilty to crimes related to the murder, Kloppenburg wrote, “are facts closely related to the controversy that render Sidoff’s role more than trivial or tangential.”

Statement Was Germane

Judge Kloppenburg also concluded that the allegedly defamatory statement was germane to Sidoff’s participation in the controversy surrounding Sturzenegger’s murder.

Kloppenburg wrote that the statement – “David Sidoff murdered Ardelle Sturzenegger on Friday, October 14^th, between the hours of 8:30 p.m. and 10 p.m.” – “clearly pertains to Sidoff’s participation in the controversy surrounding Sturzenegger’s murder.”

Consequently, Sidoff was a limited purpose public figure, and his failure to counter Merry’s argument that the summary judgment materials failed to show that Merry had made the statement with actual malice meant the circuit court was correct in granting Merry summary judgment.