She cites belief that Second District Court of Appeal would uphold Circuit Court judge’s decisions on basis of judicial precedent
Laurel Park resident Kelly Franklin has decided not to file an appeal of 12th Judicial Circuit Court Judge Stephen M. Walker’s ruling in favor of Sarasota city Commissioner Kyle Battie in an amended defamation complaint that Franklin filed in July.
In a Dec. 19 email to The Sarasota News Leader, Franklin pointed out that Battie’s attorney, Brian Goodrich, of the Bentley Goodrich Kison firm in Sarasota, initiated action on June 12 to seek legal fees from her; that was the same day that Walker ruled for Battie in her first complaint.
Goodrich formally filed a Defendant’s Notice of Offer of Judgment to Plaintiff, giving Franklin 30 days to respond.
Franklin noted in her Dec. 19 email that Goodrich’s action came in spite of the City Commission’s agreement “to defend Kyle Battie’s unmitigated right to defame with impunity,” as Franklin put it. She was referring to unanimous City Commission votes to pay for Battie’s legal fees through the conclusion of the case in Circuit Court.
On Feb. 25, Judge Walker is scheduled to conduct a hearing on Goodrich’s latest filing for attorney’s fees and costs.
Additionally, Franklin shared with the News Leader on Dec. 19 a copy of a Dec. 16 email she sent to Sarasota Observer reporter Andrew Warfield, in which she wrote, “[I]t would be fruitless to appeal.
“The best I could hope for is the next level court agreeing that the old Florida Supreme Court precedent the judge used to guide his absolute immunity finding was never meant to cover a government conspiracy to use the commission chambers to willfully or recklessly defame a private citizen for imaginary crimes.”
She added, “Then I’d need the Florida Supreme Court to agree. Then I could sue which would give me the ability to perform discovery — something the city has obstructed. But the problem is, at this point, no additional knowledge would offset the harm this has caused me or caused our local democracy.”
In both of his rulings for Battie, Judge Walker noted judicial precedent as the basis of his decisions.
“The law is clear,” Walker explained in his Nov. 7 ruling, citing, with emphasis, part of the 1977 Florida Third District Court of Appeal decision in Johnsen v. Carhart: “Absolute immunity of an official operates to relieve him from the necessity of being subjected to trial of an action based on his privileged conduct, notwithstanding 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 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 [italics added].”
In his initial, June, ruling for Battie, Walker pointed to a 1983 Florida Second District Court of Appeal decision, Grady v. Scaffe, in which the court found the following:
“As far as public officials are concerned, [i]t seems to be well settled in this State that words spoken or written by public servants in judicial and legislative activities are protected by absolute privilege from liability for defamation. However false or malicious or badly motivated the accusation may be, no action will lie therefore in this State. Nor is it questioned that such absolute immunity in this State extends to county and municipal officials in legislative or quasi-legislative activities as well as to members of the State Legislature and activities connected with State legislation [Walker noted that he had added the emphasis].”
He also explained that the Second District Court of Appeal had relied on the judicial precedent that the 1970 Florida Supreme Court set in Hauser v. Urchisin. The Supreme Court, Walker added, “rejected the proposition that if an officer in a legislative department of government departs from official duty and indulges in defamation statements wholly irrelevant and foreign to the scope of his duties, he is not entitled to protection [emphasis added].”
In a Dec. 18 post on the Citizens for Sarasota County Facebook page, Franklin pointed out, “The precedent the judge relied on in granting municipal elected officials the unfettered license to lie with impunity is based on case law from one 60-year old Florida Supreme Court case — not Florida statute.”
Franklin has stressed the fact that Walker’s rulings rely on judicial precedent, not on any section of the Florida Statutes.
In a Dec. 10 post on her personal Facebook page, Franklin wrote, “It is important to understand that the judge did not rule that Kyle Battie was innocent of the act of defamation, nor could he, because the offensive image falsely attributed to me was a fake, and it was published without verification, and its publication has harmed me and my reputation.”
“Now that Kyle Battie has gotten away with it,” Franklin added in her Dec. 18 post on the Citizens for Sarasota Facebook page, “there is literally nothing protecting anyone in this city from being lied about and attacked by their government in the same way I was.
“Yet it seems the city of Sarasota government is populated by people without the courage or conscience or judgment or decency to fulfill their basic responsibilities toward the public,” Franklin continued.
She further emphasized, “NO ONE at city hall has expressed any remorse.
“Nor have they changed their practices to prevent this from happening to anyone else.”
She added, “All I want for Christmas is the apology I’m owed in the same chambers where this baseless attack on my good name occurred — and for [Mayor] Liz Alpert to enforce the code of conduct the next time her colleague uses the bully pulpit to bully a constituent.”
‘A sick hoax’
Franklin has contended that Battie colluded with other parties to perpetrate what she called a “sick hoax and CAREFULLY PLANNED libel” in a March 9 email to City Attorney Robert Fournier.
As the News Leader has reported, on Jan. 16 Battie showed his City Commission colleagues, along with everyone else in the Chambers at City Hall and all of those watching the regular commission meeting that day via livestreaming, what appeared to be a Facebook post on Franklin’s page with the heading, “Gorillas in the midst of being gorillas are on my mind.” That heading was in a post that Franklin had published on her personal Facebook page, showing December 2022 photos that she had taken of gorillas in the African nation of Rwanda.
In the alleged Facebook post that Battie presented in the Commission Chambers on Jan. 16, the “Gorillas” heading was above a September 2023 photo taken while he was mayor. He was participating in a ribbon cutting for the Corona Cigar Co. on North Lemon Avenue in downtown Sarasota. Tanya Borysiewicz, co-owner of the business, was visible in the photo.
As he made his remarks, Battie identified Borysiewicz as half African American and half Scottish.
He asked her to join him at the table during that City Commission meeting. From that seat, she reported that her assistant had received a printed version of the purported Facebook post and initially had balled it up and thrown it away. Upon later reflection, Borysiewicz continued, the assistant decided to remove it from the trash can and give it to Borysiewicz.
Franklin emailed the city commissioners on Jan. 16 to tell them that she had had nothing to do with that alleged Facebook post.
She has maintained that “a forensic analysis of the metadata from [her] Facebook feed” shows how the hoax Facebook post was created, a comment she repeated to the News Leader in her Dec. 19 email.
In her March 9 email to City Attorney Fournier, she wrote, “I am attaching the portions of my Facebook feed that I believe were used as the base for the 3-part digital composite image (also known as a ‘mashup) displayed in city hall [on Jan. 16]:
- “part A — my name and likeness from one of my September 2023 posts on unrelated topics
- “part B — caption from a digital album of my safari photos
- “part C — still image of ribbon cutting taken from a comment regarding the Mayor’s Ball sponsorship in which I linked to advertisement/video of the opening Corona [Cigar Co.] posted on Instagram and Facebook.”