RENDERED: FEBRUARY 9, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1283-MR
DAVID RAMLER APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE DANIEL J. ZALLA, JUDGE ACTION NO. 18-CI-01009
WILLIAM BIRKENHAUER AND STEVEN FRANZEN APPELLEES
OPINION AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND EASTON, JUDGES.
EASTON, JUDGE: William Birkenhauer (“Birkenhauer”) and Steven Franzen
(“Franzen”) (collectively “Appellees”) filed a complaint alleging defamation and
“false light” claims against Appellant David Ramler (“Ramler”). Birkenhauer is
the Chief of Police of the City of Highland Heights. Franzen is a “legal advisor,”
like a city attorney, for Highland Heights. Franzen also holds elective office as the
Campbell County Attorney. Highland Heights is a city within Campbell County. The positions of Birkenhauer and Franzen with Highland Heights are appointed.
Ramler was previously an elected city councilmember for Highland Heights.
The Appellees’ claims arise from pamphlets authored by Ramler and
distributed by him to the citizens of Highland Heights as part of his unsuccessful
campaign for mayor of Highland Heights. In these pamphlets, Ramler referred to
the Appellees as racist and sexist.1 Ramler filed a counterclaim, including a claim
for abuse of process, which was dismissed by the circuit court prior to trial.
At the conclusion of all evidence at the jury trial, Ramler made a
renewed motion for a directed verdict, which was denied by the circuit court, and
the case was submitted to the jury. The jury awarded Birkenhauer $100,000 in
compensatory damages and $100,000 in punitive damages and awarded Franzen $1
in compensatory damages and $100,000 in punitive damages. The punitive
damages awarded were one-fifth of what was demanded by the Appellees. Ramler
then moved for a judgment notwithstanding the jury’s verdict. This motion was
also denied. Ramler appealed, asking this Court to vacate the Judgment based on
the jury’s verdict and to reverse the circuit court’s order dismissing Ramler’s abuse
of process counterclaim.
1 Originally, the Appellees complained of additional statements but decided to take to trial only these two assertions.
-2- Upon our review, we conclude the circuit court erred in denying
Ramler’s motion for directed verdict and should have granted summary judgment
dismissing the Complaint. Ramler’s opinion statements regarding the Appellees
were non-actionable in the undisputed circumstances presented. The Judgment
based upon the claims made because of those statements is reversed with direction
to dismiss the Complaint. We agree that the circuit court properly dismissed
Ramler’s abuse of process counterclaim and affirm that decision.
FACTUAL AND PROCEDURAL HISTORY
Ramler was elected to serve on the Highland Heights City Council in
2014. Ramler had lived in the Harriet Avenue neighborhood of Highland Heights
and so he was familiar with it. This neighborhood is near the campus of Northern
Kentucky University (“NKU”). Because of this proximity, NKU students rent
apartments or houses in this area. During the school year, there could be issues
with how students maintained the properties. In a college community, there were
(not surprisingly) parties leading to public disturbance or noise complaints.
Because of constituent complaints, Ramler went out to this area to
observe behavior of the residents and the police when they were called to the
scene. Ramler supposedly even went up to people to question them about what
they were doing and talked with the police officers. This made Ramler a thorn in
-3- the side of Birkenhauer. Birkenhauer wanted a meeting to “get Dave Ramler under
control.”
The plan was to have a conversation about these issues before a city
council meeting on September 5, 2017. Before the city council meeting on that
date, another meeting took place. Mayor Greg Meyers (“Meyers”) sat at the head
of a table. To one side sat Franzen and Birkenhauer. On the other side sat Ramler
and Councilmember Debbie Ball (“Ball”). Franzen and Ramler were facing each
other across the table. Birkenhauer and Ball sat across from each other. Ramler
later explained that he and Ball were members of a safety committee of the city
council. Ramler refers to this interaction as a meeting of the safety committee,
while the Appellees refer to it as a “so-called” meeting.2
Franzen warned Ramler that his presence at police scenes could
escalate situations and lead to someone being hurt. Franzen warned that the danger
of an escalated situation due to Ramler’s appearances at police scenes could cause
unwanted protestors “like Black Lives Matter” to come to Highland Heights.
Ramler noted the way Franzen said the phrase “Black Lives Matter.” Shortly after
2 It is not clear if the safety committee keeps minutes of its meetings. If so, there are no minutes in the record. The Appellees apparently did not consider this an “official” committee meeting. The circuit court granted Appellees’ motion in limine to preclude Ramler from introducing evidence that the safety committee meeting violated the Open Meetings Act. If it was a meeting of that committee, it was subject to the legal requirements of notice to the public. See Kentucky Revised Statute (“KRS”) 61.805(2). We can only wonder what might have been said or not said if the public had been invited to observe the meeting.
-4- the meeting, Franzen apologized to Ramler for his tone. Franzen did not apologize
to Ball for his tone. Franzen would later explain that he was not directing his
comments during the meeting toward Ball. Franzen said he wished he would have
had the opportunity to speak with Ramler in private.
Ramler stopped showing up at police scenes on Harriet Avenue. A
year later, Ramler decided to run for mayor of Highland Heights in the 2018
election. He ran primarily to address the alleged lack of enforcement of ordinance
violations on Harriet Avenue. In October 2018, Ramler published a six-page
pamphlet to outline his platform. Ramler distributed around 1,200 pamphlets
around town. The content of the pamphlet no doubt also made its way to the ever
present internet.
Ramler’s pamphlet states there is “racism, sexism, discrimination
toward our residents by city attorney [Franzen], police chief [Birkenhauer], and
mayor [Meyers].” The pamphlet describes Ramler’s recollection of the events that
took place at the meeting on September 5, 2017. Ramler states the meeting was
started by Birkenhauer and immediately turned over to Franzen. The pamphlet
describes Franzen’s behavior at the meeting as “very unprofessional, yelling with
anger and hatred at council members Ball and [Ramler].” It then goes on to say
Franzen told Ramler and Ball they “interfered with police business and that an
officer could be shot.”
-5- The pamphlet states the “real reason” Birkenhauer and Franzen would
not resolve the problems on Harriet Avenue was because “[t]here are black as well
[as] white students and athletes living on Harriet Ave.” According to Ramler,
Birkenhauer and Franzen “singled out and grouped all black students at NKU and
judged them as a group not as individuals[.]” Ramler accuses Franzen and
Birkenhauer of saying the reason they have chosen not to enforce issues on Harriet
Avenue is “because they did not want any marches or protest[s] from . . . groups
‘like BLACK LIVES MATTER.’” In Ramler’s view, since Birkenhauer and
Meyers did not correct this comment, they supported it. Ramler writes that
Franzen’s statement about Black Lives Matter “is a very hateful and racist
statement and not acceptable coming from police chief and city attorney and
county attorney.”
Ramler’s pamphlet then discusses the aftermath of the meeting.
Ramler acknowledges that Franzen apologized to Ramler privately for the way
Franzen talked to him (but did not apologize for the agenda of the meeting).
Ramler states Franzen did not apologize to Ball, “demonstrating sexism toward
her.”
-6- Ramler lost the 2018 mayoral election to incumbent Meyers by a
more than two-to-one margin.3 Right after that election day in 2018, Franzen and
Birkenhauer (but not Meyers) filed the Complaint against Ramler for defamation
and false light based upon the contents of Ramler’s pamphlet.
Before his Answer was due, Ramler solicited a settlement offer from
Franzen and Birkenhauer. In response, Franzen and Birkenhauer tendered an
“Abeyance and Settlement Agreement” to Ramler. This proposed settlement
agreement called for Ramler to issue an apology letter to the Appellees, retracting
his statements in the pamphlet. Another provision of the settlement agreement
called for Ramler to sell his home in Highland Heights and remain outside
Campbell County for at least forty years. Ramler rejected the Appellees’
settlement offer.
After settlement negotiations failed, Ramler filed his original Answer,
Affirmative Defenses and Counterclaims. Appellees filed a Motion to Dismiss,
For More Definitive Statement and Sanctions. The circuit court granted leave for
Ramler to file an amended pleading, paring down his counterclaims. Ramler pled
that the Appellees’ settlement offer calling for Ramler to move out of the county
for forty years was evidence of the Appellees’ attempt to punish him and to
3 Taking judicial notice pursuant to Kentucky Rule of Evidence (“KRE”) 201, official results of the Kentucky State Board of Elections show Meyers with 1,091 votes (69.14%) to Ramler with 487 votes (30.86%).
-7- prevent future political challenges from him. This was the basis for the abuse of
process claim. The Appellees renewed their request for dismissal.
By Order entered on October 4, 2019, the circuit court dismissed
Ramler’s abuse of process counterclaim. The circuit court held that the Appellees’
settlement offer “was not an improper use of the legal process and was not a
method of extortion, a threat, or a club.” Although Ramler had made claims other
than for abuse of process, that is the only claim for which he seeks review on this
appeal.
Ramler filed a Motion to Change Venue. Ramler’s argument was that
he would not receive a fair trial in Campbell County because Birkenhauer was
Chief of Police of the City of Highland Heights and Franzen was both the legal
advisor for Highland Heights and the elected Campbell County Attorney. Ramler
also noted Franzen publicly supported the presiding circuit judge, who had been
elected to fill an unexpired term during the same 2018 election.4 The circuit court
denied Ramler’s Motion to Change Venue.5
4 Kentucky Board of Elections data also confirms the presiding judge’s election in a contested race in 2018. 5 We find no error in this decision by the circuit court. Judges in Kentucky are elected. The fact that an attorney or party supported a successful candidate for judge does not automatically require disqualification. See Dean v. Bondurant, 193 S.W.3d 744, 748 (Ky. 2006). Also, changes of venue are usually not appropriate until an effort has been made to seat a jury in the proper venue. See Hubers v. Commonwealth, 617 S.W.3d 750, 777 (Ky. 2020). There was no substantial difficulty seating a jury composed of jurors with proper indifference to who the parties were in this case.
-8- In late 2020, the Appellees filed a Partial Motion for Summary
Judgment on liability asserting they were entitled to judgment as a matter of law on
all their claims, and the only element left to be determined was that of damages.
Ramler filed an opposing Motion for Summary Judgment. Ramler’s main
argument was that the statements contained in his pamphlet were statements of
opinion which cannot be proven as true or false and thus are not actionable.
The circuit court denied both motions for summary judgment. The
circuit court ruled Ramler’s opinions that the Appellees are “racist” and “sexist”
implied facts that are provable as false. The circuit court stated Ramler’s opinions
about the Appellees implied they “have engaged in conduct that would lead one to
believe that they are racist or sexist.” The circuit court added Ramler’s opinions
“could be construed as defamatory if the facts implied are not true.”
Before trial, Ramler was granted leave to file a motion to dismiss the
case pursuant to the Uniform Public Expression Protection Act (“UPEPA”).6 KRS
454.460 et seq. This law provides protection from liability for statements made
about a matter of public concern and allows expedited relief in cases alleging
6 In 2022, Kentucky became only the third state (joining Washington and Hawaii) to adopt UPEPA.
-9- liability for such statements. The circuit court correctly denied Ramler’s UPEPA
motion. That law was not expressly made retroactive.7
On July 13, 2022, the three-day jury trial commenced. Franzen,
Ramler, Birkenhauer, and Ball were the only witnesses called. For completeness,
we will summarize the testimony in some detail.
Franzen was the first witness. He testified that he has been the legal
advisor to the City of Highland Heights for 35 years and Campbell County
Attorney since 2010. Franzen has known Birkenhauer on a professional basis for
decades. Franzen first became familiar with Ramler when Ramler attended several
city council meetings before his election to the council. Ramler’s complaints at
these meetings were about the noise on Harriet Avenue, as well as disturbances
relating to the adjacent soccer field on NKU’s campus.
Franzen testified Birkenhauer asked him to intervene because Ramler
was repeatedly “interfering with police work” after being elected to the city
council. Birkenhauer complained to Franzen about Ramler’s allegedly showing up
at police scenes on Harriet Avenue and antagonizing the student residents on the
street. Franzen testified Ramler would try to tell officers at the scenes who to
arrest. Franzen stated that Ramler’s “inject[ing] himself into an active scene” was
inappropriate as a councilmember.
7 KRS 446.080(3).
-10- Franzen set up the meeting with Ramler and Birkenhauer to be held
prior to a regularly scheduled city council meeting. Franzen planned to address
Birkenhauer’s concerns with Ramler. Franzen stated he anticipated only Ramler to
show up; instead, Meyers and Ball were also present. Franzen warned Ramler that
his presence at police scenes could lead to a lawsuit or someone being hurt.
Franzen testified he advised Ramler he did not want “protestors
coming into our city because somebody’s been hurt.” Franzen gave Black Lives
Matter as an example. He wanted Ramler to take the situation seriously. He did
not intend to indicate any racial animosity with the example given. Franzen stated
he would not want any protestor group coming to Highland Heights. Franzen
testified his concern was due to protests such as the ones in Ferguson, Missouri.8
Franzen had heard a presentation at a prosecutors’ conference and remembered
how “agitators” and others “causing trouble” were involved in that situation.
Franzen testified he did virtually all the talking at the meeting and
addressed all his comments directly to Ramler. According to Franzen, he never
addressed Ball at any point during the meeting. Franzen testified Ramler became
defensive during the meeting. Sometime after the meeting, Franzen apologized to
Ramler for his tone and stated he wished he could have spoken to Ramler one-on-
8 A series of events occurred in Ferguson, Missouri, after a white police officer, Darren Wilson, shot and killed an 18-year-old black man, Michael Brown, in August 2014.
-11- one rather than in front of others. Franzen testified he did not apologize to Ball as
he did not address her during the meeting. Franzen remembered that he and
Ramler were cordial with each other following the meeting, and that Ramler
stopped showing up at police scenes on Harriet Avenue.
Franzen believes he was defamed because of Ramler’s ambitions to
become mayor. Franzen stated he sought to “punish” Ramler. Franzen also filed
the defamation lawsuit to remove the “stain” from his reputation. Franzen
characterized the contents of Ramler’s pamphlet as “insulting.” Franzen was
worried about the hypothetical scenario of a terminated employee potentially
claiming racism or sexism on his part due to the contents of Ramler’s pamphlet.
When asked how he arrived at claiming $1.00 in compensatory damages and
$500,000.00 in punitive damages, Franzen replied he did not know, but that his
intent behind pleading a big number was to make an impression on Ramler and
“others who wanted to speak lies about people.”
When cross-examining Franzen, Ramler’s counsel attempted to
introduce into evidence the proposed settlement agreement from the Appellees in
which they offered to drop the lawsuit if Ramler sold his Highland Heights home
and moved outside Campbell County for a period of forty years. Ramler’s counsel
offered this to show the level of Franzen’s negative feelings against Ramler as an
element of his credibility, despite the evidence being subject to the general
-12- prohibition of introducing evidence about settlement negotiations.9 The circuit
court excluded this evidence.
The Appellees then called Ramler as a witness. Ramler testified
regarding what transpired during the meeting, as well as the contents of his
election pamphlet. Ramler stated the Appellees’ actions toward him and Ball
during and after the meeting were the sole basis for his claims of racism and
sexism on the part of the Appellees. Ramler believed Birkenhauer to have the
same beliefs as Franzen as Birkenhauer did not admonish Franzen for the
comments but instead showed silent agreement with Franzen’s comments and
behavior. Ramler believed Franzen to be sexist as he did not apologize to Ball.
Ramler testified he believed at the time of publishing, and continued to believe at
trial, that the Appellees acted in a racist and sexist manner.
Birkenhauer also wanted to “punish” Ramler. He wanted
“consequences” for Ramler’s statements. Birkenhauer stated he would have been
fired if Ramler won the mayoral election, and that the allegations of racism and
sexism would hinder Birkenhauer from finding a new job. Birkenhauer
occasionally serves as an expert witness in other cases, and he complained the
allegations could prevent him from serving as an expert witness in the future.
9 KRE 408.
-13- Birkenhauer has remained the Chief of Police since the publishing of Ramler’s
pamphlet.
Ball testified that she was “talked down to,” “demeaned,” and “put in
her place” by Franzen at the meeting. Ball remembered a prior occasion when she
first joined the city council. Ball believed Franzen talked down to her then too,
and she instructed him then never to do that again. Unlike Ramler, Ball did not
receive an apology from Franzen. Ramler informed Ball of his apology from
Franzen. Ball testified she then sent an email to Franzen, Birkenhauer, and Meyers
asking for an apology such as the one Ramler received. She specifically asked if
she was unworthy of an apology because she was a woman. She received no
response, much less any apology. Ball also believed that the Appellees’ conduct at
the meeting was racist as well.
At the end of the Appellees’ case and once again after the close of all
evidence, Ramler moved for a directed verdict. Both motions were denied.
Ramler’s post-trial motion for judgment notwithstanding the verdict was also
denied. This appeal followed.
STANDARD OF REVIEW
A circuit court considering a motion for directed verdict “must draw
all fair and reasonable inferences from the evidence in favor of the party opposing
the motion.” Belt v. Cincinnati Ins. Co., 664 S.W.3d 524, 530 (Ky. 2022) (citation
-14- omitted). The circuit court should grant a directed verdict only when “there is a
complete absence of proof on a material issue or if no disputed issues of fact exist
upon which reasonable minds could differ.” Id. (citation omitted). Upon review,
this Court will reverse the circuit court’s ruling only if we find that the jury could
not have “reasonably reached its verdict on the basis of the evidence before it.” Id.
(citation omitted). “In reviewing a trial court’s decision to deny a motion for a
judgment notwithstanding the verdict, we apply the same standard of review that
we use when reviewing a lower court’s decision to deny a motion for a directed
verdict.” Louisville and Jefferson Cnty. Metro. Sewer Dist. v. T+C Contracting
Inc., 570 S.W.3d 551, 576 (Ky. 2018) (internal quotation marks and citation
omitted).
But application of this standard for directed verdict of course assumes
there is a matter for the jury to properly determine as a question of fact. As we will
explain, there was no viable claim to submit to the jury. The Complaint should
have been dismissed by summary judgment, despite the stringent standard for such
motions. The same may be said for the counterclaim for abuse of process.
ANALYSIS
The seminal case of New York Times Company v. Sullivan, 376 U.S.
254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964), prohibits a public official
from recovering damages for defamatory statements relating to his or her official
-15- conduct, unless he or she can prove that “the statement was made with ‘actual
malice’ – that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.” Actual malice must be shown by clear and
convincing evidence. Welch v. Am. Publ’g Co. of Kentucky, 3 S.W.3d 724, 728
(Ky. 1999). As for the tort of false light, the actual malice standard must also be
met for a plaintiff to prevail at trial when the subject matter of the speech is of
public interest. Cromity v. Meiners, 494 S.W.3d 499, 505 (Ky. App. 2015). As we
shall see, opinions are not false statements of fact which may be a basis for
defamation under these standards.
The traditional elements of a defamation claim are: (a) a false and
defamatory statement concerning another; (b) an unprivileged publication to a third
party; (c) fault amounting at least to negligence on the part of the publisher; and (d)
either actionability of the statement irrespective of special harm or the existence of
special harm caused by the publication. Toler v. Süd-Chemie, Inc., 458 S.W.3d
276, 281-82 (Ky. 2014) (citing RESTATEMENT (SECOND) OF TORTS § 558). This
last element ties into the proof of damages necessary to demonstrate an injury to
reputation:
Generally, defamatory words written or spoken of another are divided into two classes in determining the extent to which they are actionable. Words may be actionable per se, or per quod. In the former class, damages are presumed and the person defamed may recover without allegation or proof of special damages.
-16- In the latter class, recovery may be sustained only upon an allegation and proof of special damages.
Hill v. Evans, 258 S.W.2d 917, 918 (Ky. 1953).
In other words, defamatory statements are actionable per se “when
there is a conclusive presumption of both malice and damage.” Stringer v. Wal-
Mart Stores, Inc., 151 S.W.3d 781, 794 (Ky. 2004), overruled on other grounds by
Toler, 458 S.W.3d 276 (citation omitted). Thus, when the language at issue is
determined to be defamatory per se, recovery is permitted without proof of special
damages, because injury to plaintiff’s reputation is presumed and the words are
“actionable on their face – without proof of extrinsic facts or explicatory
circumstances.” Id. (citation omitted).
“Special damages are those beyond mere embarrassment which
support actual economic loss[.]” Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d
270, 274 (Ky. App. 1981). In contrast to defamation per se, defamation per quod
is actionable only when the defamed person alleges and proves special damages.
Hill, supra, at 918. In the present case, the claim as pled was for defamation per
quod.10 The Appellees claimed specific elements of damages in their Complaint.
10 At oral argument, counsel for the Appellees conceded that the pleadings alleged defamation per quod, but counsel argued that the final judgment essentially amended the pleadings to the evidence (or rather lack of evidence) regarding damages pursuant to Kentucky Rules of Civil Procedure (“CR”) 15.02. Because damages are a secondary issue in this case, we choose not to comment further on this questionable excuse for the failure to plead defamation per se. Based on the pleadings, Ramler would have prepared for evidence of actual damages, which was not
-17- In New York Times, supra, at 256, 84 S. Ct. at 710, the United States
Supreme Court decided for the first time the extent to which the First Amendment
limits the government, specifically the courts, from awarding damages in
defamation cases to public officials against their critics. As previously mentioned,
New York Times requires a public official plaintiff to prove actual malice on the
part of the speaker of the defamatory statement. And ever since this ruling,
American courts have striven to strike the balance between the constitutional right
to free speech toward a public official in matters of public concern and the
common law right to seek recovery for damage to reputation due to a false factual
statement.
Ramler argues his pamphlet is “pure opinion,” which is absolutely
protected speech. In Yancey v. Hamilton, 786 S.W.2d 854 (Ky. 1989), the
Kentucky Supreme Court adopted the RESTATEMENT (SECOND) OF TORTS’
approach to opinion-based defamation claims. Pure opinion “occurs when the
maker of the comment states the facts on which he bases his opinion of the plaintiff
and then expresses a comment as to the plaintiff’s conduct, qualifications or
character.” RESTATEMENT (SECOND) OF TORTS § 566 cmt. b. A statement
consisting of pure opinion is absolutely protected. Yancey, supra, at 857. See also
forthcoming, and then, using CR 15.02, the whole nature of the defamation alleged would have been changed after the failure to produce required evidence for defamation per quod.
-18- Doe 1 v. Flores, 661 S.W.3d 1, 7-8 (Ky. App. 2022) (comments made about the
behavior of Covington Catholic students observed at a protest in Washington DC
were not actionable because they were opinions).
The other type of opinion, the mixed type, “is one which, while an
opinion in form or context, is apparently based on facts regarding the plaintiff or
his conduct that have not been stated by the defendant or assumed to exist by the
parties to the communication.” RESTATEMENT (SECOND) OF TORTS § 566 cmt. b.
A mixed opinion may open a defendant to liability if a listener draws a reasonable
inference that the defendant’s opinion must have been based on undisclosed
defamatory facts. Yancey, supra, at 857.
Soon after Yancey, the United States Supreme Court examined the
relationship between opinion and fact in defamation claims in Milkovich v. Lorain
Journal Company, 497 U.S. 1, 110 S .Ct. 2695, 11 L. Ed. 2d 1 (1990). The Court
concluded a statement on matters of public concern must be sufficiently factual so
that it may be proven false, or the statement must imply underlying facts which are
provable as false before there can be liability under state defamation law. Id. at 21,
110 S. Ct. at 2707. When reaching its decision, the Court provided the following
analogy:
If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those
-19- facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.”
Id. at 18-19, 110 S. Ct. at 2705.
In Cromity, supra, at 501, a police officer brought a defamation claim
against a radio program host arising out of statements made by the host after the
officer cited him for speeding, including calling the officer an “out and out liar,” a
“troubled public servant,” and “delusional.” The Kentucky Supreme Court found
the radio host’s statements addressed an issue of public concern – the integrity of a
local police officer. Id. at 504. The court ruled that, since the radio host fully
disclosed the facts supporting his opinion, and those facts were not provable as
false, his opinions were constitutionally protected. Id. Conversely, the court
reasoned that the radio host’s statements alleging the police officer was a liar could
have been actionable if the host failed to state the facts in support of his opinion,
failed to give a complete rendering of the facts, or gave facts that were provable as
false. Id. at 503.
Ramler’s pamphlet fully disclosed the facts supporting his opinion
regarding the Appellees, and those facts were not provable as false. The pamphlet
outlined the events that took place during, and immediately after, the meeting. The
-20- pamphlet explicitly disclosed the factual reasons behind Ramler’s assertions of
racism and sexism on part of the Appellees. Ramler opined the Appellees were
racist due to the Black Lives Matter statement, and he believed the Appellees were
sexist due to a lack of an apology to a female member of the city council.
The parties agree that the events surrounding the meeting is the sole
basis for Ramler’s claims of racism and sexism. There are no allegations that
Ramler omitted any material facts about the meeting from the pamphlet. There
were no substantial arguments about the events and who said what. We conclude
the contents of Ramler’s pamphlet were pure opinion pursuant to Cromity, and thus
the Appellees’ case should have been dismissed before presenting it to a jury.
Ramler also argues his pamphlet is nonactionable rhetorical
hyperbole. Separate from opinions, statements considered “rhetorical hyperbole,”
“vigorous epithet,” and “loose, figurative, or hyperbolic language” are provided
constitutional protection. Nat’l College of Kentucky, Inc. v. WAVE Holdings, LLC,
536 S.W.3d 218, 223 (Ky. App. 2017). The Kentucky Supreme Court analyzed
this issue in Welch v. American Publishing Company of Kentucky, 3 S.W.3d 724
(Ky. 1999). In Welch, an incumbent mayor sought re-election. Id. at 726.
Supporters of the incumbent’s challenger ran an advertisement in the local paper.
Id. This advertisement included the following statements about the incumbent:
“The City is Broke Because of His Management,” “Employees Have Been Paid
-21- Almost $100,000 because of Political Firings,” and “Frog Has Squandered Over
1½ Million Dollars of Surplus [City] Money.” Id. The incumbent sued the
supporters of his challenger, as well as the newspaper that ran the advertisement,
for defamation and false light. Id. The circuit court granted summary judgment to
the defendants. Id.
The court in Welch characterized many of the contested phrases in the
advertisement as being figurative, and that they employed rhetorical exaggeration
to accomplish their intended purpose of casting a political candidate in a negative
light. Id. at 730. The court found such language unactionable. “This type of
generalized rhetoric bandied about in a political campaign is not the language upon
which a defamation lawsuit should be based, but instead is political opinion solidly
protected by the First Amendment.” Id. The court cautioned their ruling “should
not be interpreted as condoning political advertising which appears to have no
purpose other than to sully the reputation of a candidate.” Id. However, the court
determined the evidence on record was insufficient to create an issue of fact for a
jury to consider. Id.
Ramler’s statements also constitute “rhetoric bandied about in a
political campaign.” Ramler’s statements were used in an election pamphlet as
part of his campaign for mayor. The pamphlet’s intended purpose was to cast
-22- incumbent Meyers and the city’s appointed employees in a negative light (which
was ultimately unsuccessful as Meyers easily won re-election).
Courts outside Kentucky have generally recognized that statements
labeling another person as “racist” are rhetorical hyperbole. In Stevens v. Tillman,
855 F.2d 394 (7th Cir. 1988), an elementary school principal filed suit against the
president of the school’s parent teacher association for calling the principal
“racist.” The principal had contended that the epithet “racist” was itself actionable
because it marked her as unfit for her job. Id. at 401. The Seventh Circuit held the
statement of the president of the parent teacher association calling the principal
“racist” was not defamatory. Id. The court added: “In daily life ‘racist’ is hurled
about so indiscriminately that it is no more than a verbal slap in the face[.]” Id. at
402. The court found the statement calling the principal a “racist” “fit comfortably
within the immunity for name-calling.” Id.
Other jurisdictions have further determined that characterizing
someone as “racist” is not actionable. See Garrard v. Charleston Cnty. School
District, 838 S.E.2d 698 (S.C. Ct. App. 2019), aff’d in part & vacated in part by
890 S.E.2d 567 (S.C. 2023) (ruling statements in a newspaper editorial
characterizing a local high school football coach and several of his players as
“racist douchebags” were not actionable because they were expressions of opinion
and rhetorical hyperbole); Silverman v. Daily News, L.P., 129 A.D.3d 1054 (N.Y.
-23- App. Div. 2015) (ruling newspaper’s report that plaintiff authored “racist writings”
was a statement of opinion, with full disclosure of the facts supporting the
opinion); Meissner v. Bradford, 156 So.3d 129, 131 (La. Ct. App. 2014) (ruling
statement made by a commissioner in a youth football league that the league’s
former president “has a problem with people of color” was a statement of opinion
in the nature of hyperbole); Ward v. Zelikovsky, 643 A.2d 972 (N.J. 1994) (ruling
defendant’s statement that plaintiffs “hate Jews” constituted nonactionable name-
calling).
Whether an offensive statement is couched as opinion or rhetorical
hyperbole, we recognize opinions are like . . . feet. Almost everybody has a
couple, and some of them stink. We will take a moment to show how easy it can
be to say something which can lead to a perhaps unfair but nonetheless
unactionable opinion.
In his testimony, Franzen referred to the events in Ferguson, Missouri,
and used words to describe people as “making trouble” and “agitating.” This same
wording was used to describe those “outsiders” who fought against segregation in
the infamous Southern Manifesto of 1956. The document was entitled a
Declaration of Constitutional Principles. It decried “agitators and troublemakers
-24- invading our States.”11 To their credit, no senator or representative from Kentucky
signed the document.
One could argue that use of this wording implies that the speaker is a
racist. This is the use of a single statement to label a person. Many in our society
today are weary of others permanently labeling others with reference to isolated
statements or events. Yet such labeling is an opinion based upon the fact of the
statement being made. It is not actionable as defamation.
The testimonies of the Appellees lend support to the notion that
racism is hard to define as an opinion much less as a matter of fact. Franzen
testified, “I don’t think that there’s anybody in the country that’s not a racist on
Mr. Ramler’s definition.” Birkenhauer similarly testified “by Mr. Ramler’s
definition [racism] could be anything.” When asked if he had ever told a racist
joke, Birkenhauer said that it “depends on your definition of racist.”
At the oral argument for this case, the Court asked the Appellees’
counsel to define the word “racism.” Counsel replied essentially that racism was
judgment of a person based on the color of their skin. The Merriam-Webster
dictionary lists three different definitions of “racism.” The first such definition
states racism is “a belief that race is a fundamental determinant of human traits
and capacities and that racial differences produce an inherent superiority of a
11 Congressional Record, Senate – March 12, 1956, at page 4460.
-25- particular race.” Merriam-Webster also lists multiple definitions of the word
“race,” and none of the definitions narrowly define “race” as simply based on skin
color. If the successors of Noah Webster and the Appellees cannot define a
“racist,” then how can the Appellees prove they are not or Ramler prove they are?
We may engage in a similar discussion about sexism. During the trial,
an attorney for one of the Appellees couched questions in terms of how something
made the witness feel “as a man.” But defamation does not discriminate based on
gender. At one point, Franzen explained one of the reasons he wanted to punish
Ramler was because Ramler was “not man enough” to make the statements to
Franzen’s face. Surely, there was no intent to suggest that women are subject to a
different standard when it comes to the courtesy of initiating difficult but
appropriate confrontations, rather than speaking about someone behind his or her
back.
Again, someone could use the fact that such statements were made to
form an opinion about sexism of the speaker. It would not necessarily be an
accurate or even fair opinion. Still, it is an opinion and is not actionable as a
factual mistruth under defamation law.
One of the prospective jurors understood the problem with this case.
He said he did not like politicians. He thought this was a case of two politicians
“duking it out.” He wondered that if politicians could sue each other for the things
-26- they say about each other these days, why were there not a lot more suits, and he
gave an example of numerous comments by a well-known national politician. This
juror was struck for cause. As it turns out, he got it. The First Amendment simply
does not allow lawsuits over every hostile thing a politician says.
Moving past the insufficient status of Ramler’s opinions as
defamation, Ramler also argues Appellees failed to introduce any evidence that
they suffered special damages from Ramler’s speech. The Appellees argue that
Ramler’s statements constitute defamation per se because they exposed the
Appellees to public hatred, ridicule, contempt, or disgrace. Thus, recovery is
permitted without proof of special damages because injury to plaintiffs’ reputation
is conclusively presumed.
We disagree. A jury cannot be “permitted to presume damages
without proof of injury[.]” Gertz v. Robert Welch, Inc., 418 U.S. 323, 352, 94 S.
Ct. 2997, 3013, 41 L. Ed. 2d 789 (1974). “As with any defamation claim against a
public official, [a plaintiff] must establish that statements have been made that hold
him up to public hatred, contempt or ridicule, or that caused him to be shunned or
avoided, or that injured him in his business or occupation; that the statements are
false; and that the statements were made with actual malice.” Doe v. Coleman, 497
S.W.3d 740, 749 (Ky. 2016).
-27- In this case, neither Appellee showed that Ramler’s statements
subjected them to public hatred, contempt, or ridicule. No witness was called to
establish this in the local community. Nor could the parties testify the statements
caused measurable harm to them. Franzen testified he was worried people in the
community would think he is racist or sexist, but he did not detail a specific
instance in which a person ridiculed him. Franzen’s occupation was also
apparently unharmed as he was elected without opposition as county attorney in
both 2018 and 2022. He still serves as the legal adviser to the City of Highland
Heights.
Birkenhauer also could not testify to specific acts of diminished
reputation. Birkenhauer testified he would have been fired if Ramler won the
mayoral election, and that the allegations of racism and sexism would hinder him
from finding a new job – not that he is looking for one. Birkenhauer also
complained the allegations could prevent him from serving as an expert witness in
the future. No witness was called to establish Birkenhauer was or would be denied
any job he sought. No witness was called to say Birkenhauer’s use as a paid expert
witness was in fact damaged. The evidence consisted only of Birkenhauer’s self-
serving statements of concern about this.
The damages claimed are speculative at best, and speculative damages
may not be recovered. Curry v. Bennett, 301 S.W.3d 502, 506 (Ky. App. 2009). A
-28- plaintiff must prove special damages to establish the element of injury to
reputation. Columbia Sussex Corp., Inc. v. Hay, supra, at 274. The Appellees did
not prove special damages, and thus failed to establish their reputation was injured.
This discussion about damages is academic anyway because the statements were
not actionable as we have explained.
The circuit court should not have let this case go to a jury as there was
a complete absence of proof on several elements necessary to sustain a public
concern defamation case. “An indispensable principle of free speech guaranteed
by the First Amendment to the United States Constitution is ‘that debate on public
issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials.’” Welch, supra, at 725-26 (quoting New York Times, supra, at
271, 84 S. Ct. at 721). Political figures often need thick skins when obtaining and
holding public office. Sharp criticisms can hurt feelings, but public officials know
what they are getting into when elected or appointed to serve the public.
Appellees’ false light claims also fail as a matter of law. False light
is part of the right to privacy. It can be difficult, although not impossible to apply
the claim when the person is a public figure. The Kentucky Supreme Court
recognized the cause of action of false light within the tort of invasion of privacy in
McCall v. Courier-Journal and Louisville Times Company, 623 S.W.2d 882, 887-
-29- 88 (Ky. 1981). False light and defamation are closely allied, and an injured party
may seek relief through both causes of action, arising out of the same publication,
but he is limited to only one recovery. Id. False light requires that (1) the false
light in which the other was placed would be highly offensive to a reasonable
person; and (2) the publisher had knowledge of, or acted in reckless disregard as to
the falsity of the publicized matter and the false light in which the other was
placed. Id. at 888.
The court in McCall recognized its past ruling in Sellers v. Henry, 329
S.W.2d 214 (Ky. 1959), that if a publication deals with a matter of public interest
or public concern, even if it invades a person’s privacy, it is not subject to the tort
of invasion of privacy. The court in McCall did not go so far regarding the specific
action of false light. Instead, the court held the defense of public interest should be
applicable to false light claims where the published statements are true, but it is not
available as a defense in cases of the publication of false statements. 623 S.W.2d
at 888.
As previously mentioned, the parties do not dispute the basic
underlying facts about what was said or done at the meeting – the disagreement is
whether Ramler’s opinion based on those facts was defamatory. The Appellees
have stated the Black Lives Matter statement was made and that Franzen did not
-30- apologize to Ball. Since the essential facts behind Ramler’s contested opinion
statements are true, the Appellees’ claim for false light also fails.
As we believe Ramler’s statements of opinion were on matters of
public concern and Ramler disclosed the underlying facts behind the statements,
the Appellees cannot sustain a defamation action. The circuit court should have
granted summary judgment to Ramler as his statements could not be proven to be
false at trial. At the very least, the circuit court should not have let the issue go to a
jury. The jury verdict against Ramler cannot stand and is therefore reversed.
RAMLER’S ABUSE OF PROCESS COUNTERCLAIM STANDARD OF REVIEW
When proceedings on a motion to dismiss include consideration of
evidentiary material outside the parameters of the pleadings themselves, the motion
often becomes one for summary judgment. CR 12.02. In this case, the circuit
court did not limit its review just to the pleadings themselves. Evidentiary
materials were in the record and part of the motion to dismiss process.
“The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.” Pearson
ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Summary judgment is only proper when “it would be impossible for the
respondent to produce evidence at the trial warranting a judgment in his favor.”
-31- Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
In ruling on a motion for summary judgment, the court is required to construe the
record “in a light most favorable to the party opposing the motion . . . and all
doubts are to be resolved in his favor.” Id.
Ramler believes his abuse of process counterclaim was the only claim
in this case that should have been tried. Ramler asserts the Appellees’ settlement
offer calling for Ramler to move out of Campbell County for forty years was a
textbook example of abuse of process. The counterclaim had more merit than the
Complaint, but it still fails as a matter of law.
An abuse of process claim is defined as “the irregular or wrongful
employment of a judicial proceeding.” Simpson v. Laytart, 962 S.W.2d 392, 394
(Ky. 1998) (citation omitted). The essential elements of this claim are: (1) an
ulterior purpose; and (2) a willful act in the use of the process not proper in the
regular conduct of the proceeding. Id. “Some definite act or threat not authorized
by the process, or aimed at an objective not legitimate in the use of the process is
required and there is no liability where the defendant has done nothing more than
carry out the process to its authorized conclusion even though with bad intentions.”
Id. at 394-95. An ulterior purpose “usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such as the
-32- surrender of property on the payment of money, by the use of the process as a
threat or a club.” Id. at 395 (citation omitted).
We do not believe the Appellees’ settlement offer to Ramler was an
abuse of process. They sued to punish Ramler. This was not an improper motive;
they wanted and obtained an award of punitive damages. Still, Ramler may have
been able to show the first element of an ulterior motive. The Appellees may have
wanted not to just punish Ramler with an award of damages but also get rid of him
by making him leave the community.
Historically, the tort of abuse of process must relate to some aspect of
the process of a suit (seeking an injunction, garnishment, or some other act by the
court) to achieve the improper purpose. We hesitate to approve the use of this tort
solely on the basis of a settlement offer. Such communications do not involve
process which may be issued by the court itself. Other states have similarly
cautioned against using settlement discussions as the sole basis for an abuse of
process claim. See Coleman v. Gulf Ins. Group, 718 P.2d 77 (Cal. 1986). In this
case, the Appellees responded to a request from Ramler. The fact that they did so
in a preposterous manner does not sustain an abuse of process claim when all the
circumstances of this case are considered.
Many may see the banishment demand as outrageous. In an almost
Biblical fashion, the Appellees emulate God to cast Ramler, like Moses, into the
-33- wilderness for the required forty years to achieve redemption. Kentucky does not
allow such a punishment of banishment, even for criminals. Weigand v.
Commonwealth, 397 S.W.2d 780, 781 (Ky. 1965).
Still, the Appellees filed a lawsuit which, if meritorious, could
properly seek to “punish” Ramler. They tendered a settlement offer only when
requested by Ramler. The filing of the lawsuit and the settlement offer were in the
natural course of litigation. The settlement negotiations did not actually involve
“process” to be issued by the court. Summary judgment dismissing the abuse of
process claim was proper.
CONCLUSION
The Appellees’ counsel challenged us to have the “courage” to create
a right for public officials to sue those who express opinions about them even
though based on factual observations. We instead find courage to uphold the
freedom enshrined in our Constitution. It is no accident that freedom of political
speech is protected by the First Amendment to the Constitution. That freedom was
particularly important to the founders who, if they had lost their battle for freedom,
could have been executed by a king for criticizing him.
In numbered paragraph 17 of his unsuccessful motion for a change of
venue, Ramler said: “This is a political case, involving political rivals, which
should have properly ended at the ballot boxes in November.” Indeed. Statements
-34- made during a campaign for elective office are at the pinnacle of the protection of
the First Amendment. Ramler’s opinions about racism and sexism are just that –
opinions. He stated the basis for them. He cannot be found liable for defamation
for these opinions.
The Judgment of the Campbell Circuit Court in favor of the Appellees
is REVERSED with direction to dismiss the Complaint. The Campbell Circuit
Court’s dismissal of the abuse of process counterclaim is AFFIRMED.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT BRIEF AND ORAL ARGUMENT FOR APPELLANT: FOR APPELLEES:
Michael Abate Nick Alig William R. Adams John Alig Louisville, Kentucky Wilder, Kentucky
-35-