April 30 hearing scheduled on motion to dismiss defamation complaint filed against Commissioner Battie

Circuit Court Judge Walker to preside

Circuit Judge Stephen Walker Image from the 12th Judicial Circuit Court website

At 3:30 p.m. on Tuesday, April 30, 12th Judicial Circuit Court Judge Stephen Walker has scheduled a hearing on a motion to dismiss the complaint that Sarasota resident Kelly Franklin has filed against city Commissioner Kyle Battie, alleging that Battie defamed her during the Jan. 16 City Commission meeting.

The hearing will be conducted via Zoom, the case docket says, but no other details had been provided as of the deadline for this issue of The Sarasota News Leader.

Battie’s attorney, Brian D. Goodrich of the Bentley Goodrich Kison firm in Sarasota, filed a motion on Feb. 27, contending that Battie was acting within his official capacity on Jan. 16 when he made a presentation to his colleagues about a racist action directed at him and the co-owner of the Corona Cigar Co. on North Lemon Avenue in downtown Sarasota.

In his Motion to Dismiss, Goodrich wrote, “As a public official, Commissioner Battie possesses absolute immunity from defamation claims (and related torts) relating to his scope of office. It would not matter if Commissioner Battie defamed Franklin, if he acted with ill will, or if he acted maliciously,” Goodrich continued, citing a 1992 Florida Supreme Court decision.

“It would not matter if Commissioner Battie knew his allegedly defamatory statements were made up out of whole cloth,” Goodrich added. “The onlyquestion that matters for purposes of evaluating Commissioner Battie’s entitlement to absolute immunity is whether Commissioner Battie’s statements made at the January 16, 2024 City Commission meeting were within the scope of his office.” With the latter statement, Goodrich cited the 2007 decision of the Florida Fourth District Court of Appeal in Cassell v. India.

Referencing the Cassell ruling, Goodrich pointed out that it is up to the court to determine whether “an alleged defamatory statement is absolutely privileged. … In answering this question, the court is to broadly define and liberally construe an official’s ‘scope of office.’ ” As stated in the Cassell decision, he continued, “An official’s scope of office is ‘not confined to those things required of the officer, but rather extends to all matters which he is authorized to perform.’ ”

Goodrich also wrote, “Absolute privileges are important. The Florida Supreme Court has explained why [the emphasis is his]:

“These ‘absolute privileges’ are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability, but also from the danger of even un unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefore the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor.’ ”

Brian Goodrich. Image from the Bentley Goodrich Kison law firm website

Further, Goodrich noted that “Franklin draws generous self-serving legal conclusions endeavoring to portray Commissioner Battie as acting outside the scope of his office. … Those conclusions alone hold no weight, and the court need not and should not accept them as true.” He cited a 1977 Florida Third District Court of Appeal case, Johnsen v. Carhart: “[N]otwithstanding that a complaint for libel which is filed against him may allege, as a conclusion, that he is without such immunity or was acting beyond the scope of his duty or office, where, as in this case, the complaint and its exhibits disclose the action of the official was taken in the interest of the public good and thereby within the scope of his duties and responsibilities, notwithstanding the allegations in the complaint to the contrary.”

“Under any interpretation,” Goodrich asserted, “addressing instances of racism within the City of Sarasota falls squarely within Commissioner Battie’s scope of office.”

Moreover, Goodrich argued that Franklin’s goal with her complaint is “to smear Commissioner Battie’s name before this Court and during an election year and to imply wildly speculative, and untrue, allegations which Franklin does not have the facts to support.”

‘The Racist Post’

In his Motion to Dismiss, Goodrich explained that, on Dec. 19, 2023, “Battie received a picture of an obscenely racist social media post appearing to be from Franklin’s Facebook (the ‘Racist Post’).” That post “contains a picture of Commissioner Battie at a ribbon-cutting event for a minority-owned business in the City of Sarasota [the Corona Cigar Co.] standing next to the owner, who is half African American. Above the photos are the words: ‘Gorillas in the midst of being gorillas are on my mind,’ ” Goodrich continued.

The post was sent to the Corona Cigar Co., whose owner forwarded it to Battie, Goodrich pointed out. The owner Goodrich referenced is Tanya Borysiewicz, whom Battie called forward during his Jan. 16 presentation at the City Commission meeting.

“Battie displayed the Racist Post on the projector [during that Jan. 16 meeting], denounced it, called for a dialogue on civility in the City of Sarasota, and asked the Commission to disavow this sort of racist language,” Goodrich added.

“Franklin shamelessly brands Commissioner Battie as having perpetrated an elaborate race hoax,” Goodrich contended in his Motion to Dismiss. “Franklin, who ironically claims that Commissioner Battie’s conduct was ‘outrageous so as to go beyond all bounds of decency,’ herself ventures as far as to claim that Commissioner Battie orchestrated this ‘race hoax’ to garner sympathy for himself and attack Franklin.”

Goodrich proceeded in the complaint to relate the fact that, following the commission’s lunch break on Jan. 16, “Mayor Liz Alpert suggested that the discussion regarding the Racist Post be reopened, noting that Franklin sent an email to the commissioners stating she did not create the Racist Post.” Goodrich quoted Battie during that portion of the meeting as telling his colleagues, “Like I said, this is how I came by this information. I’m not saying that it’s true or that it’s fact, but this is what it is.’”

This is the alleged Facebook post that Commissioner Kyle Battie showed his colleagues on Jan. 16. File image

On March 7, The Sarasota News Leader found that City Auditor and Clerk Shayla Griggs had sent Battie — “Per your request,” she noted — a series of emails generated in the aftermath of Battie’s Jan. 16 presentation.

At 10:05 a.m. on Jan. 16, one email shows that Franklin wrote Donna Moffitt, chair of the Steering Committee of the nonprofit CityPAC, along with the city commissioners, City Manager Marlon Brown, Griggs, and CityPAC Steering Committee member Eileen Normile, a former city commissioner. In that communication, Franklin pointed out that she was not responsible for the Facebook post that Battie had shown everyone on the projector earlier that day.

She explained that the photo in the alleged Facebook post that Battie had displayed was a photo she had taken on a trip to Kenya and Rwanda the previous year. “I also posted about [the Corona Cigar Co.], she continued. “It takes 2 seconds to mashup two photos in Photoshop, and that is what was done.”

Franklin is a member, too, of the CityPAC Steering Committee.

During his Jan. 16 remarks, Battie also had presented, on the projector, a list of the advisers for CityPAC, which regularly publishes summaries of City Commission action following meetings. Those newsletters use symbols for sun and storms to rate the individual commissioners on their decisions during the meetings.

CityPAC provides this information about itself on its website.

“[T]his is sick,” Franklin added in an email sent at 10:07 a.m. that day to Moffitt, again copying the commissioners, the CityPAC Steering Group, City Manager Brown, Griggs and Normile.

Then, at 10:33 a.m. on Jan. 16, Moffit wrote the following to Franklin and copied the city commissioners, the CityPAC Steering Group, City Manager Brown, Griggs and Normile: “First order of business” is to seek an explanation and “apology to our advisors. Second,” Moffitt added, “is our campaign to prove this was faked. The easiest way to discredit someone is to say they are racist … there is little defense after that without looking smarmy and racist even if it isn’t true.”

Moffitt added, “We need to be as clever as they have been. This was brilliant! They managed to discredit us and cut us off with one move. We just have to make sure this is only Check and not Checkmate.”

Objection to use of magistrate and case management details

In other court action in the case, on Feb. 29, attorney Goodrich filed a formal objection to the use of a magistrate, asking “that all further matters … be heard by the presiding Judge.”

In the meantime, a mandatory case management conference has been scheduled for 1:30 p.m. on July 29, court records show. That also has been planned as a Zoom session, according to a document that Judge Walker signed on Feb. 19. The case is on what is known as a “streamlined track,” the Case Management Order says.

The Judge Lynn N. Silvertooth Judicial Center, located on Ringling Boulevard in downtown Sarasota, is the venue for 12th Judicial Circuit Court cases in Sarasota. File photo

“Based on the Case Management Report [issued after the July 29 proceeding], the Court will enter a Case Management Order, a Trial Order, or both,” the Case Management Order continues. “The Case Management Order … will set various deadlines that will govern the progression of the case. The parties must adhere to these deadlines unless changed by the Court upon a showing of good cause. Procrastination in completing discovery or the known unavailability of counsel not timely addressed will not constitute good cause for a change to these deadlines,” the order points out.

“Discovery” is the process through which parties in litigation work to gather documents and information in an effort to prove their arguments.

As a “streamlined track” case, the order further notes, it is “expected to be resolved well within the timeframes established by Florida Rule of General Practice and Judicial Administration 2.250(a)(1)(B).”

That rule says that civil litigation involving juries should be concluded with 18 months after the filing of the initial complaint. For non-jury cases, the timeline is 12 months.

Moreover, the order says, “The Court refers certain matters to a general magistrate as permitted by Florida Rule of Civil Procedure 1.490(a). The Court will refer all motions directed to the pleadings and all discovery motions. The parties may agree to additional matters to be referred.”