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9th Circuit denies city’s request in Riley case

KayAnne Riley, left, and Marlin Kuykendall

KayAnne Riley, left, and Marlin Kuykendall

PRESCOTT – The City of Prescott reportedly has now exhausted its options for appeal at the 9th Circuit Court of Appeals on a lawsuit involving a former Yavapai Humane Society employee.

The 9th Circuit in San Francisco issued an order Monday, May 16, denying the city’s request for an “en banc” review on an earlier ruling in the KayAnne Riley vs. City of Prescott lawsuit.

The city asked in mid-April for a review by a full 11-judge panel, after a three-judge 9th Circuit panel had upheld an earlier U.S. District Court ruling that found against the city.

The case involves Riley, a former marketing director for the Yavapai Humane Society, 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.

Riley’s attorney Daniel Bonnett said the 9th Circuit’s denial this week means the city has run out of options at the appellate level, with the only other possibility now involving a filing with the U.S. Supreme Court.

“As far as avenues for appeal in the 9th Circuit, they’ve exhausted those avenues,” Bonnett said Monday afternoon. And he maintains that attempting to take the matter to the U.S. Supreme Court “would be a real stretch,” adding, “We would hope they wouldn’t try.”

Rather, he said, the city should allow the case to go to trial at the U.S. District Court level, or pursue settlement talks.

The lawsuit dates back nearly five years, and Bonnett says the city’s repeated attempts for delays bring to mind the adage: “Justice delayed is justice denied.”

“This case has been around for a long time, and it needs to go to court,” he said in a telephone interview.

In fact, the lawsuit appeared headed that way a number of times in the past, but has experienced delays along the way.

First, in 2014, the city appealed U.S. District Court Judge James Teilborg’s ruling that Kuykendall was not entitled to qualified immunity (which, when applicable, shields government officials from liability).

That appeal resulted in a “stay” or postponement of the remainder of the lawsuit until the 9th Circuit could weigh in on the qualified immunity matter, and added about two years to the litigation process.

While the city’s appeal maintained that no evidence existed to show that Kuykendall had interfered with Riley’s employment with the Humane Society, the three-judge panel disagreed, ruling that Riley’s side had shown that a constitutional violation had occurred.

That ruling led to the city’s most recent action, asking for the en banc review.

Over the years, the case has generated hundreds of filings, as well a number of hearings and an August 2014 attempt at mediation. As of mid-April, the city had spent $188,844 on outside legal counsel.

City Attorney Jon Paladini was unavailable for comment Monday on the 9th Circuit’s en banc ruling.

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