Mark Peterson’s lawsuit claiming city officials retaliated against him for opposing a downtown plaza is on hold for the time being.
U.S. District Judge Rosanna Malouf Peterson ruled that the trial would remain on hold while Fire Code Inspector Tony Doan and former Deputy Fire Chief Mark Sopitch appeal her ruling denying them qualified immunity to the San Francisco-based Ninth Circuit Court of Appeals.
Attorneys for Mark Peterson, owner of H&H Furniture, sought to keep the trial on track for March, arguing that the men’s appeal was “frivolous,” as the ruling was not a final decision in the case.
But Judge Peterson, in her Feb. 4 ruling, allowed the case to be put on hold as Sopitch and Doan seek to resolve whether they can be punished for violating Mark Peterson’s right to free speech without knowing how he was exercising that right.
Mark Peterson is suing the city, Sopitch, Doan and former City Manager Tony O’Rourke, alleging he was subjected to a fire-code inspection days after speaking out against the downtown master plan, which included a now-dead plaza that was to be built across South Third Street from The Capitol Theatre. That inspection found Mark Peterson’s basement showroom violated fire-safety codes, and he was ordered to make the needed improvements within 90 days.
In court documents, Mark Peterson said the violations that Doan cited were initially pointed out in 2002, but that he passed subsequent code inspections.
City officials also charged him with refusing to allow Doan on the site for follow-up inspections, a charge that was dropped in Yakima Municipal Court after prosecutors said Doan never specified the scope of the follow-up review.
Mark Peterson sued for violations of his First, Fourth and 14th Amendment rights, as well as malicious prosecution and conspiracy. City officials sought to have the case dropped completely on grounds that the officials were immune from lawsuits while discharging their duties.
In her ruling, Judge Peterson found there was enough evidence of interference with Mark Peterson’s free-speech rights to warrant further examination at a trial. Likewise, she said the malicious prosecution and conspiracy issues should go to trial.
She also found that the city officials did not enjoy immunity on the free-speech violation allegations because the law was clear that such acts could chill speech, and a jury should determine how liable the officials were individually.
In arguing to delay the trial until the appeal is complete, Doan and Sopitch’s attorney, Robert L. Christie, argued that to do otherwise would mean conducting the trial twice, creating undue expense and possibly getting contradictory verdicts.
But Mark Peterson’s attorney, Casey Bruner, argued that the delay was a tactic to drive up his client’s costs, and since the denial of immunity was based on an issue that jurors must decide, the appeal was “frivolous” and should not delay the trial from proceeding.
The trial is now tentatively scheduled for September, according to court documents.