Walker says Franklin provided no facts demonstrating that she suffered emotional distress
Mirroring his action in June, 12th Judicial Circuit Court Judge Stephen Walker has ruled for Sarasota city Commissioner Kyle Battie on an amended complaint that Laurel Park resident Kelly Franklin and her attorney filed, contending that Battie defamed her in remarks that he made during the Jan. 16 City Commission meeting regarding an alleged racist Facebook post that appeared to have been created by Franklin.
Battie never mentioned Franklin’s name during his remarks, but he showed those attending the meeting — and those viewing online — the alleged post that he was referencing. Her name clearly could be seen on it.
In response to the amended complaint, Brian Goodrich, Battie’s attorney, had argued — once again — that Battie’s remarks in January were protected by state law.
Walker had allowed Franklin’s attorney, Richard A. Harrison of Tampa, to file 40 pages of materials in September to emphasize that Battie’s January assertion that Franklin had placed the post on her Facebook page had caused Franklin emotional distress. Harrison had cited numerous judicial precedents to underscore the latter point.
Nonetheless, Walker wrote in his Nov. 7 order that none of the new information that Franklin had included in her amended complaint against Battie served “to cure the defects within the original complaint …”
“The law is clear,” Walker continued, 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].”
Walker added, “There is simply no persuasive argument that a City Commissioner, expressing disgust and concern for blatant and offensive racism in our community, is not acting in the interest of the public good.”
Franklin had argued that what has been characterized in the court documents as the “Hoax Post” was a mash-up of a Facebook post she had created in December 2022, with a photo of gorillas that she had observed on a trip to Africa, along with a photo of a ribbon cutting in September 2023, when Battie was serving as mayor. The “Hoax Post” carried the same heading that Franklin had used in her post: “Gorillas in the midst of being gorillas are on my mind.”
Battie, who is African American, and Tanya Borysiewicz, o-owner of the Corona Cigar Co. on Lemon Avenue in downtown Sarasota, are clearly visible in the ribbon-cutting photo. During his Jan. 16 presentation before the City Commission, Battie noted that Borysiewicz is half African American and half Scottish.
Referencing Franklin again, Walker noted in his Nov. 7 ruling, “Plaintiff urges this Court to draw unreasonably narrow boundaries on the scope of [Battie’s]’s duties and responsibilities during a Commission meeting. That position is inconsistent with controlling authority,” he added, referring to the 1977 Court of Appeal decision.
Moreover, Walker pointed out, “[Franklin’s] argument neglects the important policy behind immunity based upon absolute privilege. The Fourth [District Court of Appeal] provides a well-reasoned justification for this privilege in Cameron v. Jastremski,” on which that court ruled in 2018: “ ‘[A]bsolute 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 an 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 lor misconduct in their position. Therefor[e] 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.”
Walker also cited the 1983 ruling of the Second District Court of Appeal in Grady v. Scaffe: “Even where an officer in a legislative department of government departs from official duty and indulges in defamatory statements wholly irrelevant and foreign to the scope of his duties, he is entitled to protection.”
As for Franklin’s allegations that Battie’s conduct caused her emotional distress, Walker noted that she offered no facts while alleging that Battie’s actions regarding the “Hoax Post” dated back “ ‘to at least as early as December 2023.’ ”
Walker added, “The threshold question for this Court is whether Plaintiff is recasting [Battie’s] conduct (comments at a City Commission meeting) in an effort to avoid absolute immunity? As explained in this Court’s initial Order [in June], the Second District [Court of Appeal] answered this question in Stephens v. Geoghegans.
Then Walker quoted from that opinion: “[I]f the tort count accompanying the one alleging defamation is simply a restatement, or recasting, of the defamation action, it is subject to the same immunity protections.” That ruling referenced Goetz v. Noble, which was a 1995 decision of the Fourth District Court of Appeal.
“The [Geoghegans’] attempt to salvage their emotional distress action by arguing that the defendants’ memorandum to police personnel, which serves as a partial basis for the defamation claim, was ‘intentionally drafted to deceive’ those who read it, setting it apart from the defamation claim,” the Stephens v. Geoghegansopion said. “This argument emasculates the notion of absolute immunity — letting survive a claim that the offending speech or writing was intentionally designed to provoke a given response,” the opinion continued, “while protecting the [person who committed a tort] from the substantive tort of defamation itself.”
(The Cornell Law School’s Legal Information Institute explains, “A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”)
Then Walker put in bold the last line he quoted from that ruling: “We hold that the defendants’ writings and comments, for which they are immune from suit for defamation, are likewise protected against a retooling of the claim couched in terms of intentional infliction of emotional distress …’ ”
Accepting Franklin’s new allegations as true, Walker pointed out, “does not alter the fact that [Franklin] relies almost exclusively on [Battie’s] statements at the Commission meeting. Consequently, the Court finds the holding in [the Stephens v. Geoghegans case] controls.”
Further, Walker referenced a 2007 Florida Second District Court of Appeal decision in Liberty Mutual Insurance Co. v. Steadman as having guided his decision on Franklin’s allegation that Battie intentionally inflicted emotions distress on her: “Behavior claimed to constitute the intentional infliction of emotional distress must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.’ ” The Appeals Court was quoting from the 1985 Florida Supreme Court decision in Metropolitan Life Insurance Co. v. McCarson, Walker noted.
“In applying that standard,” the Appeals Court continued, “the subjective response of the person who is the target of the actor’s conduct does not control the question of whether the tort of intentional infliction of emotional distress occurred. … Rather, the court must evaluate the conduct as objectively as is possible to determine whether it is ‘atrocious, and utterly intolerable in a civilized community.’ ” Once more, Walker added the emphasis to the latter quote from the Metropolitan precedent, he made clear.
Moreover, Walker wrote, “This Court understands that accusing someone of being (or insinuating that someone might be) racist carries serious consequences. The accused may find themself subjected to ridicule and shame. However, the indignity of that accusation, even if false, does not descend to a level that would support a claim for [intentional infliction of emotional distress].”
Responses from the parties
In response to a Sarasota News Leader request, Battie’s attorney, Goodrich of the Sarasota firm Bentley Goodrich Kison, referenced Walker’s “decisive final order” in dismissing, with prejudice, all claims against Commissioner Battie. He also referred to Franklin as a “vocal critic” of Battie.
“With prejudice” is a legal term meaning Walker has not allowed any possibility that Franklin could file another amended complaint in the case in the Circuit Court.
Goodrich also emphasized “that [the order] reinforces the commissioner’s actions as well within the boundaries of his official role effectively protecting him under long-standing legal immunities.”
Goodrich added, “We appreciate the Court’s ruling and remain committed to recovering taxpayer dollars wasted on defending this lawsuit clearly contrary to well settled Florida law from the start.”
Battie, who won re-election on Nov. 5 by a margin of more than 11%, also expressed his satisfaction with the decision, Goodrich noted.
”With this resolution, I hope we can all move on to other issues that matter to our residents,” Battie said in a statement that Goodrich included in his email to the News Leader.
Responding to the News Leader’s request for her comments, as well, Franklin wrote in a Nov. 8 email, “Neither the timing, nor the outcome come as a great surprise given the election results.
“I have 30 days to determine whether to appeal, and will take the time to do so,” she added.
If she does opt to appeal, that action would be filed with the Florida Second District Court of Appeal, which has a long record of issuing per curiam decisions after its review of Circuit Court decisions. A per curiam ruling, legal experts have told the News Leader, makes it practically impossible to pursue an appeal to the Florida Supreme Court, as the Appeals Court has provided no illumination for its decision.
“However,” Franklin continued in her comments to the News Leader, “I will say this — my lawsuit was never about money, but about clearing my name after the authorship of the faked racist Facebook post was falsely and publicly attributed to me.”
She also wrote, “It would be in the best interests of everyone if Kyle Battie acknowledged publicly that his accusation against me was in error, and that he should have investigated the authenticity of the hoax post more thoroughly before accusing me in public of creating it, and that he regrets the way he has handled this matter.”