From Rozanski v. Rocky Mountain Court System, Inc., decided Feb. 16, 2023 by the Colorado Court of Appeals (Judge Craig Welling, joined by Judges David Furman and Rebecca Freyre) but just recently posted on Westlaw:
The ICRME {Imperial Court of the Rocky Mountain Empire} is a nonprofit organization that serves Colorado's lesbian, gay, bisexual, transgender, queer, plus (LGBTQ+) community. Among other things, the ICRME holds functions and raises funds for related charities. The ICRME is a chapter of the International Court System (ICS) and the International Court Council (ICC).
Each year, members of the ICRME elect a leader for the organization's fundraising endeavors, which include charitable drag shows. The person so elected receives the honorary title of "Emperor" or "Empress." The events surrounding the 2018 election led to this dispute.
Haskett, Brendlinger, Whitley, and Menchaca were on the ICRME's eleven-member Board of Directors (the Board). Norrie Reynolds was a long-time member of the ICRME and a previous Empress. Reynolds and Rozanski were close friends.
Rozanski founded and owns a large retailer and distributor of comic books. {Rozanski uses "they," "them," and "their" pronouns.} As part of their business, they distribute a newsletter to over 120,000 people worldwide. They also distribute a national newsletter to over 10,000 people in the United States. They have profiles on websites such as IMDb and Wikipedia. Rozanski was also an ICRME member. They sometimes participated in ICRME drag shows using the alter ego "Bettie Pages."
On March 22, 2018, two days before the annual election, Reynolds—who is not a party to this appeal—told Whitley that Rozanski was organizing an "anti-gay rally." According to Reynolds, Rozanski's rally would occur during the election at the Capitol Hill United Neighborhoods facility in Denver, which was the polling location for the election. Whitley immediately relayed this information to the rest of the Board in an email. Haskett subsequently called Reynolds, who confirmed what she had reported to Whitley. Reynolds also told Haskett that "she was afraid"; that she was "feeling unsafe for herself and ICRME"; and that Rozanski "had a temper" and "was out to get" Whitley, Menchaca, and Haskett.
That same day, the Board held a closed emergency meeting to address the alleged threat. At Haskett's invitation, the candidates for Emperor and Empress also attended the emergency meeting. During the meeting, Haskett repeated Reynolds' statements about Rozanski's alleged threats to individual Board members. The Board unanimously approved significant changes to the 2018 election process. Such changes included moving the location of the polling station, hiring security, and limiting voting to paying ICRME members.
Without contacting Rozanski regarding the allegations, the Board released a public statement and posted it on the ICRME's website. We will refer to this as the "Public Statement." In the Public Statement, the Board announced the election changes and outlined the alleged threat in the following terms (without identifying Rozanski by name or description):
A concern was brought to the Board of Directors in regards to the safety for people on Voting Day, March 24th, 2018 …. The Board of Directors got information that there was going to be an Anti-Gay Rally on Voting Day ….
Whether this information may be true or not, the Board of Directors must take this matter seriously ….
Rozanski themself republished the Public Statement to about 11,000 people through their Facebook profile and their national newsletter. The day before the election, Rozanski publicly posted that they'd engaged a defamation attorney. On election day, they went to the original location of the voting polls and passed out copies of the Public Statement.
Many ICRME members saw the Board's decision to modify election procedures as a ploy to suppress votes and rig the election. Menchaca exchanged posts and comments with several ICRME members on Facebook. He defended the Board's decision to change the 2018 election process, reiterating his concerns about the risk of violent demonstrations. Menchaca didn't name Rozanski in any of his posts.
The day after the election, the Board had a private conference call with the national leaders of the ICS and ICC. The call was recorded. During this call, Brendlinger made comments about an alleged confrontation between Rozanski and Rob Surreal, one of the national leaders. During the same call, Haskett defended the Board's election changes despite criticism from the national leaders.
Rozanski sued Reynolds for providing false information. They settled with her after she provided an affidavit and compensation for attorney fees, emotional distress, reputational damages, and pain and suffering.
Rozanski subsequently sued the ICRME, as well as Haskett, Brendlinger, Whitley, and Menchaca in their individual capacities. Rozanski brought claims of defamation, civil conspiracy, intentional infliction of emotional distress (IIED), respondeat superior, and aiding and abetting against the defendants.
The court threw out Rozanski's defamation claims:
As a preliminary matter, we accept Rozanski's concession that they're a public figure. Hence, we focus our analysis on whether there's clear and convincing record evidence that the defendants acted with actual malice….
In contending that the defendants acted with actual malice, Rozanski argues that the defendants failed to investigate Reynolds' allegations before issuing the Public Statement. Rozanski maintains that the defendants—allegedly ignoring the prompting of several ICRME members—deliberately chose not to reach out directly to verify or corroborate the allegations. Rozanski asserts that the defendants, therefore, knowingly acted without supporting evidence….
[But] the defendants did have a basis for their statements: they received notice of threats from Reynolds, whom they all knew to be close to Rozanski. This isn't disputed. In addition, Reynolds had been sufficiently respected and trusted within the ICRME to have previously served as its Empress. Whereas the reporter in Burns knew that the sergeant was "frustrated" and "bitter," and that his comments should be viewed skeptically, our review of the present record reveals no similar evidence suggesting that the defendants—at the time Reynolds communicated the alleged threats—had cause for similar skepticism….
[T]he defendants here were [also] acutely time-pressured…. Reynolds communicated the threats on March 22, 2018, only two days before the election was scheduled. Given the complicated logistics of altering well-established election procedures along with the scale of election day, which could involve hundreds of ICRME members, any changes would need to be implemented immediately to take effect before the event on March 24, 2022 [likely should be 2018 -EV]. Additionally, even viewing the evidence in the light most favorable to Rozanski, as we must, the nature of the alleged threats in this case placed heightened pressure on the Board to respond effectively within a short timeframe: the allegations concerned an anti-gay rally on election day at the polling place, which, if true, posed the risk of violence and disorder at a large LGBTQ+ gathering….
Moreover, the tight timeframe here undermines the utility of pursuing the most obvious source of possible refutation—namely, Rozanski, who, for the purpose of resolving this summary judgment appeal, we presume would've denied making the threat. Meaningful investigation, therefore, would've required subsequent inquiries, such as thorough discussions with Rozanski, Reynolds, and several ICRME members; a deliberative balancing of the resulting information, which, based on the record before us, would've been conflicting; followed by consultations with ICS and ICC leadership.
Even if the two-day window afforded time for some of these inquiries, and the defendants negligently failed to pursue them, Rozanski has nonetheless failed to submit sufficient evidence to prove with convincing clarity that the defendants made the statements with actual malice….
The court also rejected Rozanski's claims of intentional infliction of emotional distress based on "misgendering":
To state a claim for IIED by outrageous conduct, a plaintiff must allege behavior by a defendant that is extremely egregious…. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Although the jury ultimately determines whether conduct is outrageous, a court must first determine if reasonable persons could differ on the question….
Rozanski highlights that extreme and outrageous conduct may also "arise from the actor's knowledge that the other is peculiarly susceptible to emotional stress, by reason of some physical or mental condition or peculiarity." They further emphasize that the "conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know."
Rozanski alleges that the defendants knew that Rozanski was susceptible to severe depression and suicidal urges, and that misgendering them would exacerbate these conditions. Yet, Rozanski claims, the defendants recklessly disregarded this and refused to let them present at ICRME events in conformity with their gender identity. Rozanski points to no concrete examples in the record of misgendering at ICRME drag shows and we can find none.
Instead, Rozanski's own affidavit suggests that they're referring to "various events" at "outside court[s]." For example, Rozanski alleges that misgendering occurred through the submission of their "protocol" with the "incorrect gender" at events in Las Vegas, New York, and Colorado Springs. Rozanski explains in their affidavit that "'[p]rotocol' is when a member of an outside court visits a court during coronation. Protocol is a moment of public recognition of title when a member of an outside court is announced to the home court."
Whitley's affidavit further supports the notion that Rozanski's misgendering claims arose under circumstances that were outside the direct control of the ICRME, its Board, or any other defendant:
Related to Mr. Rozanski walking at ICS events or events at other Courts, each event and Chapter has its own protocols that are beyond the control of ICRME. Neither ICRME nor myself have attempted to block or express views related to Mr. Rozanski walking at events as Mr. Rozanski and/or Bettie Pages. As I understand it, ICRME has worked with Mr. Rozanski in an attempt to provide assistance with issues [that] have arisen.
Thus, it appears that the incidents about which Rozanski complains occurred in compliance with other courts' or chapters' rules.
Even if we ignore that possibility and accept Rozanski's allegations as true—that Whitley and the ICRME Board blocked Rozanski's protocol, or otherwise caused it not to be submitted—without more, we fail to see how such conduct goes "beyond all possible bounds of decency" and can be regarded as "atrocious, and utterly intolerable in a civilized community." …
Tiffaney A. Norton and Kristin A. Lillie (SGR, LLC) and Colin C. Campbell and Rachel A. Wright (Campbell, Wagner and Frazier, LLC) represent defendants.
The post Drama and Misgendering at the Imperial Court appeared first on Reason.com.
