Walker references judicial precedents cited by Battie’s attorney in Battie’s defense
In a six-page ruling filed on June 12, 12th Judicial Circuit Court Judge Stephen Walker ruled in favor of Sarasota City Commissioner Kyle Scott Battie in a defamation complaint that Laurel Park resident Kelly Franklin filed on Feb. 12.
However, he granted the motion to dismiss Franklin’s February complaint against Battie without prejudice, meaning that it would be possible for Franklin’s Tampa attorney, Richard A. Harrison, to file a modified lawsuit.
Walker did note, “It may be unlikely that [Franklin] will be able to cure the defects addressed [in the ruling this week]. Still,” he added, “prudence dictates that dismissal without prejudice is the appropriate course.”
Walker gave Franklin 20 days from June 12 to file an amended complaint.
The focus of Franklin’s action was a presentation that Battie made during the Jan. 16 Sarasota City Commission meeting. Battie showed those present — and those viewing the session online — an alleged Facebook post from Franklin with the heading, “Gorillas in the midst of being gorillas are on my mind.” Below the heading was a photo of Battie, while he was serving as mayor in September 2023, and other people assembled for the formal ribbon cutting to open the Corona Cigar Bar on North Lemon Avenue in downtown Sarasota.
Among the people whose faces were visible in that photo was that of Tanya Borysiewicz, co-owner of the Corona Cigar Co., whom Battie described during the City Commission meeting as half African American and half Scottish.
Battie’s presentation focused on racism in the city. He never named Franklin, though her Facebook photo was visible in the document he placed on the overhead projector.
Borysiewicz, whom Battie had asked to join him at the table facing the commission dais, tearfully explained that her assistant had received the document in the mail and initially had thrown it away before reconsidering and deciding to give it to her. That was why the paper was wrinkled.
Franklin emailed the commissioners, maintaining that she had had nothing to do with the document and that she never had created such a Facebook post. She pointed out that she had taken numerous photos of gorillas in Africa while on a photography safari with her husband in 2022. The heading on the alleged Facebook post sent to Borysiewicz appeared to be a mash-up that used one of her posts about that safari, Franklin added.
In her February complaint against Battie, Franklin contended that the “ ‘Hoax Post’ is blatantly, inherently, and offensively racist,” Walker noted in his ruling.
However, Battie’s attorney, Brian Goodrich, of the Bentley Goodrich Kison firm in Sarasota, pointed to a 1983 decision of Florida’s Second District Court of Appeal, Grady v. Scaffe, in which the court found the following, which Walker included in his ruling:
“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 [emphasis added].”
Walker pointed out that Franklin’s attorney, Richard A. Harrison of Tampa, had contended that the Grady decision was not the controlling factor in Franklin’s case because, “Battie was acting beyond the scope of his employment or function as a City Commissioner …”
However, Walker continued, “The facts in Grady are important to illustrate the court’s [ruling].” The appellant in that case, Walker noted, was John L. Grady, “the developer of Suncoast Estates, a residential development in Lee County. Appellee, Wade Scaffe, served as a member of the Lee County Board of County Commissioners. The issue before the Commission was an application by a Suncoast Estates homeowner for a permit allowing her to move a mobile home onto her lot. After the Commission concluded the vote on that permit request. and wholly unrelated to that matter, Commissioner Scaffe made derogatory and defamatory statements about Mr. Grady,” Walker explained.
“Grady asserted that Commissioner Scaffe’s remarks were not germane to any matter then being discussed by the County Commission; that any discussion concerning Suncoast Estates had terminated and the Commission had moved on to other business,” Walker pointed out. “Mr. Grady’s position aligns with the argument [Franklin] now asserts in her Complaint and the Response [filed by attorney Goodrich on Battie’s behalf].”
Walker also explained that the Second District Court of Appeal 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].”
Again referencing the Grady case, Walker wrote, “[T]he decisive question in the [Franklin] case was whether the statement by the defendant was made in connection with the performance of his duty and responsibility as a city commissioner. The court confirmed that ‘the public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged.’ ”
He noted that Franklin had acknowledged “that all the allegedly actionable statements were made during the [Jan. 16] Commission meeting. Thus,” Walker continued, the decisive question is whether Battie made the statements in connection with the performance of his duty and responsibility as a City Commissioner. The Grady opinion, he wrote, “addressed this issue in an identical context: ‘[Scaffe] made his remarks while acting as County Commissioner in the process of a County Commission meeting.’ ”
Walker then pointed out, “The District Court was unmoved by the fact that Scaffe’s remarks were wholly unrelated to the matter of business pending before the Commission. Ultimately, absolute privilege protected Scaffe from any liability.”
In response to a request for comment about the ruling, Battie’s attorney, Goodrich, wrote in a June 13 email, “Ms. Franklin’s lawsuit against Commissioner Battie was misdirected from the start. Commissioner Battie did not create the racist social media post; he was victimized by it. Rather than do nothing, he chose to denounce the racist message and proclaim that ‘this does not represent’ the City of Sarasota.”
Goodrich added, “We are pleased with Judge Walker’s ruling affirming that Commissioner Battie is not liable for the defamation Ms. Franklin alleged. Ms. Franklin may appeal or attempt to amend her Complaint, but we hope that the Court’s resounding Order concludes Ms. Franklin’s unnecessary litigation.”
Franklin provided The Sarasota News Leader this statement about the decision: “Public office is a public trust, and does not come with a license to lie to the public about the public in order to advance private business interests.”
She continued, “Kyle Battie knowingly participated in a plot to publicly defame a private citizen on completely fabricated and racially-incendiary grounds.
“The obstruction from city hall and their refusal to investigate, discuss, and resolve the defamatory behavior, which had forced proceeding through legal channels, continues.
“From a single [public records] request, there is documentation that there were additional forces behind Battie’s unconscionable actions,” she concluded.
A consideration of other arguments
Walker also noted in his ruling that, in her complaint, Franklin relied on a state statute — (166.021(1) — and Article IV, Sections 1(a), 2(a) and 2(b) of the Sarasota City Charter to narrowly define the duties and responsibilities of city commissioners. “While this Court agrees that the City Charter describes the duties of Commissioners,” Walker continued, “ ‘the Florida Supreme Court has decided that the scope of an official’s duties extends beyond, enumerated, required tasks, and includes discretionary duties that are associated with a given position.’ ” He was citing part of the 1997 Florida Second District Court of Appeal opinion in the Stephens v. Geoghegan case.
Further, Walker pointed to the 2023 Florida Fourth District Court of Appeal decision in Harrison v. S. Broward Hospital Dist., in which the court ruled that “[b]ecause the balancing of interests favors the public official, it is considered better to leave unredressed the wrongs done by dishonest [public officials], than to subject those who try to do their duty to the constant dread of retaliation [emphasis added].”
Additionally, he wrote, the Sarasota City Code says the following in Article IV, Section 18-1:
“It is the desire of the city commission to foster and encourage the growth and development of the city in a manner that will assure all persons an equal opportunity to live free of discrimination imposed by age, color, disability, gender, marital status, national origin, race, religion, sexual orientation or veterans status. Discriminatory practices are contrary to the public policy of the city and are a menace lo the public peace and welfare of our citizens. The city shall direct its efforts and resources toward eliminating discriminatory practices within the city in the areas of housing, employment and public accommodations where they exist [emphasis added].”
During an April 30 hearing on attorney Goodrich’s motion to dismiss Franklin’s complaint against Battie, Walker noted, Franklin’s attorney, Richard A. Harrison of Tampa, argued that Battie “takes the position that a City Commissioner, by virtue of that office, is some kind of racism police or morality police patrolling the city and can deal with instances of racism wherever they occur. … And we say that’s not possibly correct because … it is a statement purportedly made by a citizen on a personal Facebook page. There is nothing in the role of the City Commissioner that reaches that speech.”
Referencing the City Code again, Walker added that he did not find that argument to be valid. “The fact that the Commission cannot prohibit offensive speech is not the controlling factor. The City Code is clear; discriminatory practices are contrary to the public policy of the city and are a menace to the public peace and welfare of our citizens. It is the responsibility of the Commission to direct its efforts and resources toward eliminating discriminatory practices.”
Walker also pointed out that Battie’s “allegedly actionable statements occurred at a Commission meeting pursuant to an agenda item titled: Discussion Re: Civility, Respect and Rhetoric. [Battie] prompted a discussion bearing directly upon at least one stated policy for the City Commission. This Court, consistent with [the Grady judicial precedent], finds that [Battie] clearly acted within the scope of his official duties.
As to the defamation counts [in Franklin’s complaint], absolutely immunity applies.”