From Rozanski v. Rocky Mountain Court docket System, Inc., determined Feb. 16, 2023 by the Colorado Court docket of Appeals (Choose Craig Welling, joined by Judges David Furman and Rebecca Freyre) however only recently posted on Westlaw:
The ICRME {Imperial Court docket of the Rocky Mountain Empire} is a nonprofit group that serves Colorado’s lesbian, homosexual, bisexual, transgender, queer, plus (LGBTQ+) neighborhood. Amongst different issues, the ICRME holds capabilities and raises funds for associated charities. The ICRME is a chapter of the Worldwide Court docket System (ICS) and the Worldwide Court docket Council (ICC).
Every year, members of the ICRME elect a pacesetter for the group’s fundraising endeavors, which embrace charitable drag exhibits. The particular person so elected receives the honorary title of “Emperor” or “Empress.” The occasions surrounding the 2018 election led to this dispute.
Haskett, Brendlinger, Whitley, and Menchaca have been on the ICRME’s eleven-member Board of Administrators (the Board). Norrie Reynolds was a long-time member of the ICRME and a earlier Empress. Reynolds and Rozanski have been shut associates.
Rozanski based and owns a big retailer and distributor of comedian books. {Rozanski makes use of “they,” “them,” and “their” pronouns.} As a part of their enterprise, they distribute a e-newsletter to over 120,000 individuals worldwide. Additionally they distribute a nationwide e-newsletter to over 10,000 individuals in the US. They’ve profiles on web sites resembling IMDb and Wikipedia. Rozanski was additionally an ICRME member. They generally participated in ICRME drag exhibits utilizing the alter ego “Bettie Pages.”
On March 22, 2018, two days earlier than the annual election, Reynolds—who shouldn’t be a celebration to this attraction—advised Whitley that Rozanski was organizing an “anti-gay rally.” In accordance with Reynolds, Rozanski’s rally would happen through the election on the Capitol Hill United Neighborhoods facility in Denver, which was the polling location for the election. Whitley instantly relayed this info to the remainder of the Board in an e-mail. Haskett subsequently known as Reynolds, who confirmed what she had reported to Whitley. Reynolds additionally advised Haskett that “she was afraid”; that she was “feeling unsafe for herself and ICRME”; and that Rozanski “had a mood” and “was out to get” Whitley, Menchaca, and Haskett.
That very same day, the Board held a closed emergency assembly to deal with the alleged risk. At Haskett’s invitation, the candidates for Emperor and Empress additionally attended the emergency assembly. Through the assembly, Haskett repeated Reynolds’ statements about Rozanski’s alleged threats to particular person Board members. The Board unanimously accredited important modifications to the 2018 election course of. Such modifications included transferring the situation of the polling station, hiring safety, and limiting voting to paying ICRME members.
With out contacting Rozanski relating to the allegations, the Board launched a public assertion and posted it on the ICRME’s web site. We’ll discuss with this because the “Public Assertion.” Within the Public Assertion, the Board introduced the election modifications and outlined the alleged risk within the following phrases (with out figuring out Rozanski by title or description):
A priority was delivered to the Board of Administrators regarding the security for individuals on Voting Day, March twenty fourth, 2018 …. The Board of Administrators acquired info that there was going to be an Anti-Homosexual Rally on Voting Day ….
Whether or not this info could also be true or not, the Board of Administrators should take this matter significantly ….
Rozanski themself republished the Public Assertion to about 11,000 individuals by way of their Fb profile and their nationwide e-newsletter. The day earlier than the election, Rozanski publicly posted that they’d engaged a defamation lawyer. On election day, they went to the unique location of the voting polls and handed out copies of the Public Assertion.
Many ICRME members noticed the Board’s determination to switch election procedures as a ploy to suppress votes and rig the election. Menchaca exchanged posts and feedback with a number of ICRME members on Fb. He defended the Board’s determination to alter the 2018 election course of, reiterating his considerations concerning the threat of violent demonstrations. Menchaca did not title Rozanski in any of his posts.
The day after the election, the Board had a personal convention name with the nationwide leaders of the ICS and ICC. The decision was recorded. Throughout this name, Brendlinger made feedback about an alleged confrontation between Rozanski and Rob Surreal, one of many nationwide leaders. Throughout the identical name, Haskett defended the Board’s election modifications regardless of criticism from the nationwide leaders.
Rozanski sued Reynolds for offering false info. They settled along with her after she supplied an affidavit and compensation for lawyer charges, emotional misery, reputational damages, and ache and struggling.
Rozanski subsequently sued the ICRME, in addition to Haskett, Brendlinger, Whitley, and Menchaca of their particular person capacities. Rozanski introduced claims of defamation, civil conspiracy, intentional infliction of emotional misery (IIED), respondeat superior, and aiding and abetting towards the defendants.
The court docket threw out Rozanski’s defamation claims:
As a preliminary matter, we settle for Rozanski’s concession that they are a public determine. Therefore, we focus our evaluation on whether or not there’s clear and convincing document proof that the defendants acted with precise malice….
In contending that the defendants acted with precise malice, Rozanski argues that the defendants failed to research Reynolds’ allegations earlier than issuing the Public Assertion. Rozanski maintains that the defendants—allegedly ignoring the prompting of a number of ICRME members—intentionally selected to not attain out on to confirm or corroborate the allegations. Rozanski asserts that the defendants, due to this fact, knowingly acted with out supporting proof….
[But] the defendants did have a foundation for his or her statements: they acquired discover of threats from Reynolds, whom all of them knew to be near Rozanski. This is not disputed. As well as, Reynolds had been sufficiently revered and trusted inside the ICRME to have beforehand served as its Empress. Whereas the reporter in Burns knew that the sergeant was “pissed off” and “bitter,” and that his feedback must be seen skeptically, our evaluation of the current document reveals no related proof suggesting that the defendants—on the time Reynolds communicated the alleged threats—had trigger for related skepticism….
[T]he defendants right here have been [also] acutely time-pressured…. Reynolds communicated the threats on March 22, 2018, solely two days earlier than the election was scheduled. Given the difficult logistics of altering well-established election procedures together with the dimensions of election day, which might contain tons of of ICRME members, any modifications would have to be carried out instantly to take impact earlier than the occasion on March 24, 2022 [likely should be 2018 -EV]. Moreover, even viewing the proof within the mild most favorable to Rozanski, as we should, the character of the alleged threats on this case positioned heightened strain on the Board to reply successfully inside a brief timeframe: the allegations involved an anti-gay rally on election day on the polling place, which, if true, posed the danger of violence and dysfunction at a big LGBTQ+ gathering….
Furthermore, the tight timeframe right here undermines the utility of pursuing the obvious supply of doable refutation—specifically, Rozanski, who, for the aim of resolving this abstract judgment attraction, we presume would’ve denied making the risk. Significant investigation, due to this fact, would’ve required subsequent inquiries, resembling thorough discussions with Rozanski, Reynolds, and several other ICRME members; a deliberative balancing of the ensuing info, which, based mostly on the document earlier than us, would’ve been conflicting; adopted by consultations with ICS and ICC management.
Even when the two-day window afforded time for a few of these inquiries, and the defendants negligently did not pursue them, Rozanski has nonetheless did not submit adequate proof to show with convincing readability that the defendants made the statements with precise malice….
The court docket additionally rejected Rozanski’s claims of intentional infliction of emotional misery based mostly on “misgendering”:
To state a declare for IIED by outrageous conduct, a plaintiff should allege conduct by a defendant that’s extraordinarily egregious…. “Legal responsibility has been discovered solely the place the conduct has been so outrageous in character, and so excessive in diploma, as to transcend all doable bounds of decency, and to be considered atrocious, and totally insupportable in a civilized neighborhood.” Though the jury finally determines whether or not conduct is outrageous, a court docket should first decide if affordable individuals might differ on the query….
Rozanski highlights that excessive and outrageous conduct may “come up from the actor’s data that the opposite is peculiarly prone to emotional stress, by motive of some bodily or psychological situation or peculiarity.” They additional emphasize that the “conduct could change into heartless, flagrant, and outrageous when the actor proceeds within the face of such data, the place it might not be so if he didn’t know.”
Rozanski alleges that the defendants knew that Rozanski was prone to extreme melancholy and suicidal urges, and that misgendering them would exacerbate these circumstances. But, Rozanski claims, the defendants recklessly disregarded this and refused to allow them to current at ICRME occasions in conformity with their gender id. Rozanski factors to no concrete examples within the document of misgendering at ICRME drag exhibits and we will discover none.
As an alternative, Rozanski’s personal affidavit suggests that they are referring to “varied occasions” at “exterior court docket[s].” For instance, Rozanski alleges that misgendering occurred by way of the submission of their “protocol” with the “incorrect gender” at occasions in Las Vegas, New York, and Colorado Springs. Rozanski explains of their affidavit that “‘[p]rotocol’ is when a member of an outdoor court docket visits a court docket throughout coronation. Protocol is a second of public recognition of title when a member of an outdoor court docket is introduced to the house court docket.”
Whitley’s affidavit additional helps the notion that Rozanski’s misgendering claims arose underneath circumstances that have been exterior the direct management of the ICRME, its Board, or every other defendant:
Associated to Mr. Rozanski strolling at ICS occasions or occasions at different Courts, every occasion and Chapter has its personal protocols which can be past the management of ICRME. Neither ICRME nor myself have tried to dam or categorical views associated to Mr. Rozanski strolling at occasions as Mr. Rozanski and/or Bettie Pages. As I perceive it, ICRME has labored with Mr. Rozanski in an try to supply help with points [that] have arisen.
Thus, it seems that the incidents about which Rozanski complains occurred in compliance with different courts’ or chapters’ guidelines.
Even when we ignore that chance and settle for Rozanski’s allegations as true—that Whitley and the ICRME Board blocked Rozanski’s protocol, or in any other case induced it to not be submitted—with out extra, we fail to spot how such conduct goes “past all doable bounds of decency” and might be considered “atrocious, and totally insupportable in a civilized neighborhood.” …
Tiffaney A. Norton and Kristin A. Lillie (SGR, LLC) and Colin C. Campbell and Rachel A. Wright (Campbell, Wagner and Frazier, LLC) signify defendants.
