The move by Mayor Dyster to appeal the results of the Matt Anello free speech jury verdict raises a number of questions, not the least of which are: When is enough, enough and when is enough too much? The Niagara Gazette, in a story by Rick Pfeiffer on April 22 titled "City to appeal Anello verdict," reported that "Attorneys for two former members and one current member of the Niagara Falls City Council have asked a federal court to throw out a jury verdict that found the trio violated the First Amendment rights of Matteo Anello."
The result of the jury verdict means that the city is on the hook for $105,000 in punitive awards to Anello. That's $75,000 as the penalty for stopping his free speech and $30,000 for consideration of "pain and humiliation." The estimated Anello legal fees are said to be around $250,000. Anello's attorneys have requested that the city pay those fees. In short, after the city failed to settle out of court and then delayed, maneuvered and finally went to trial – and lost – they now want the federal court to vacate the jury decision and give the city, and city's law firm of Hodgson and Russ of Buffalo, another kick at the can…with all of this coming at added expense to the taxpayer.
If you take the city's legal fees estimated to be over $200,000 at this point and roll it up with the Anello legal fees of $250,000 and toss in $105, 000 in damages you reach $550,000.
Dyster wants to appeal which should cost another $20,000 to as much as $100,000, according to local lawyers familiar with federal appeals. The reversal rate in civil cases in federal appellate courts is, on average, less than 20 percent. However, the chances of increasing Hodgson Russ earnings with the city is 100 percent.
During the last few years, Hodgson Russ has earned more than $880,000 from legal work Dyster placed in their hands. Dyster's remark that "…the city has to protect the taxpayer" by pursuing an appeal ranks right up there with the Vietnam-era government policy of "destroying the village in order to save it" and the "war is peace" doublespeak of Orwell's classic novel, 1984. Exactly how many more tax dollars is Mayor Dyster going to fling out the proverbial window as he, and his favorite law firm, Hodgson Russ, tilt at this legal windmill, to save the honor, but not the dollar, of the taxpayer?
To the casual observer this appears to be a simple fool's errand: returning to the well of the court in an attempt to draw water when two previous trips - through the US Second Circuit Court of Appeals and an appearance before Judge Skretny - have failed. Legal long shot or slam-dunk His Honor is here to (giggle, snicker) "protect the taxpayer," even if he bankrupts the city in the process. And that's because the legal wrangling and appeal generates fees for a friendly law firm.
We feel confident in writing that if these fees were coming from Dyster's own pocket he'd say, with a nod to Kenny Rogers, "you have to know when to hold 'em and when to fold 'em. And we're willing to bet that somewhere among the many twists and turns of the Matt Anello case there was more than one opportunity for the city to settle out of court and significantly hold the line on total loss.
But that moment in time has come and gone and here it is six years later with the legal meter ticking faster and at greater cost. In the Gazette article the mayor said, "The proof (at the trial) is not proportionate to the (damages) award. The objective is to reduce the city's liability."
Mayor Dyster refuses to realize that the court has ruled, the jury has spoken, and that is, as they say, that. Get in line, Mr. Mayor, the court hallways are full of disappointed people and no amount of do-over and second guessing is going to get you any closer to the verdict you want. But that raises the only question worth asking to begin with: Is Dyster seeking that perfect verdict or is he only concerned with keeping the legal-fee meter ticking?