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Prescott City Council asks for full 9th Circuit review of Riley lawsuit

Pictured are former Humane Society employee KayAnne Riley, left, and former Prescott Mayor Marlin Kuykendall.

Pictured are former Humane Society employee KayAnne Riley, left, and former Prescott Mayor Marlin Kuykendall.

THE COST SO FAR: $188,844

This is the city’s costs for outside legal counsel, including outside attorney James Jellison’s costs of $4,797 for the 9th Circuit Appeal.

PRESCOTT – The entire 9th Circuit Court of Appeals is being asked by the City of Prescott to weigh in on a lawsuit involving a former Yavapai Humane Society employee.

One week after the San Francisco-based 9th Circuit ruled against the city in the long-running Riley vs. City of Prescott lawsuit, the Prescott City Council conducted a special meeting Tuesday, April 12, to discuss the case.

After considering the matter in a closed-door session for about a half-hour, the City Council returned to the public session and voted 6-1 to petition the 9th Circuit for an “en banc” ruling, which means the city is asking that the case be reviewed by all of the court’s judges (29 active).

The 9th Circuit’s hearing in March 2016 included a panel of three judges, who ultimately rejected the city’s appeal of an earlier U.S. District Court ruling.

The case involves former Yavapai Humane Society Marketing Director KayAnne Riley, who sued the City of Prescott in 2011, claiming that then-Mayor Marlin Kuykendall violated her constitutional right to free speech by contacting Humane Society (YHS) officials and threatening to end the city’s $49,335 contract with the organization over her participation in a 2010 protest against city “bullying” tactics involving former Elks Opera House employee Dawn Castaneda.

Riley ended up losing her job, and her lawsuit claims that Kuykendall’s interference led to her firing.

After the March hearing, the 9th Circuit ruled in early April that Riley’s side had shown a constitutional violation. The court also agreed with the 2014 U.S District Court ruling that Kuykendall was not entitled to qualified immunity – a protection, which, when applicable, shields government officials from liability.

The City Council conducted no public discussion on the matter on Tuesday, but simply voted on the recommended motion. Councilwoman Jean Wilcox cast the only vote against the motion.

Because all of the council discussion occurred in executive session, which is confidential, City Attorney Jon Paladini declined to comment afterward on the reason for the decision.

But he pointed out that the 9th Circuit’s earlier decision included a process for having a second hearing by the whole court. “We’re basically asking for another review,” Paladini said.

The city had 15 days after the April 5 decision in which to file for the en banc review, Paladini said, adding that he expects the city’s petition would be filed by about April 19.

The decision for the en banc petition comes after the city earlier asked District Court Judge James Teilborg to reconsider his 2014 ruling, and then appealed to the 9th Circuit on the qualified immunity matter. Paladini maintained this week that the appeals are not attempts by the city to delay the case.

“There is no benefit to us to delay,” he said, noting that the costs for the case soon would be covered by Travelers Insurance, which is responsible for any expenses in the case beyond $250,000.

Paladini earlier pointed out that the city’s self-insurance reserve is $250,000, which means the city pays the first $250,000, and then anything else is paid by Travelers.

The city’s costs for outside legal counsel currently total $188,844, which includes outside attorney James Jellison’s costs of $4,797 for the 9th Circuit Appeal, according to the city’s legal department.

Despite the ruling on qualified immunity, Paladini says Prescott City Code requires that public officials be “defended and indemnified” by the city.

The city code includes a number of exceptions to that, such as: if the act did not occur within the scope of the duty authorized or imposed by law, or if it was the result of actual fraud.

Paladini maintained that Kuykendall’s alleged actions in the case “do not fall within those exceptions.” In addition, he said, if the city failed to defend and indemnify a public official, “it exposes the city to liability.”

After the meeting, Mayor Harry Oberg also declined to discuss the reason for the petition for en banc review, but said the council opted to “listen to our attorneys” on the matter.

Attorneys for Riley were unavailable for comment Tuesday.

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