Gazing into the legal crystal ball

Will DiBello v. Charlestown really go to court?

By Will Collette

In the articles I’ve written since Council member Lisa DiBello filed her lawsuit against Charlestown, I’ve laid out problems DiBello will need to resolve to move her case forward.

One is whether she can continue to serve on the Town Council while suing the Town she was elected to serve and not violate Rhode Island’s ethics law. DiBello’s lawsuit is unprecedented.

There’s the problem that DiBello has sued two of her fellow Council members, Marge Frank and Gregg Avedisian, forcing them to recuse themselves from any consideration of her claims. Since DiBello must also recuse herself, the two remaining Council members are forbidden by the Town Charter from taking any action on her claims – the Charter requires three votes for any Council action.

Then there’s the problem that many of DiBello’s key claims would have to be backed up by wiretap evidence. If so, such wiretap evidence is certainly to be challenged for legality and admissibility. DiBello has a long-standing reputation among her former co-workers in the town as being frequently “wired.”

But more fundamental is the question of how far DiBello is willing to take her lawsuit? Assuming the barriers I’ve listed above are overcome, is she ready to go to court?

DiBello "sued" her room mate Deborah Dellolio for $4200
on the Sept 29, 2008 episode of the Judge Mathis show.
The show actually paid the $4200.
At that time,  Dellolio wasa town contractor
working under DiBello's jurisdiction.

Most Americans believe what they see on television and in movies. There they see the real drama as the clash of brilliant lawyers before the jury.

But in the real world, this kind of drama hardly ever happens. Less than one out of every 20 legal actions ever goes to trial. In the federal court system, 98% of all cases are settled. If you factor in state and local courts and the criminal system, 95% of all cases don’t ever see the inside of a court room.

Indeed, most lawyers have never, ever done a trial. Ever. Many lawyers would mess their pants if they ever faced the prospect of going to trial. It’s why “trial lawyers” are often spoken of as special, and for good reason, since true trial lawyers are an elite within the profession, although that also bring with it a lot of hate, especially from the right.

Councilor DiBello is represented by Robert Savage of Warwick. Savage has gone to court, though not always successfully. I found ten records of decisions in the Westlaw database for cases litigated by Mr. Savage. By my reading of the decisions, Savage clearly won three, clearly lost five and had split decisions on two.

But one case is especially noteworthy and that’s Mageau v. Schiedler, et al. “Et al.” means “and others,” and the others in this classic 1994 Jim Mageau lawsuit are the members of the Town Council serving at the time.

Mageau took this case all the way to the Rhode Island Supreme Court with Savage as his lawyer. Mageau lost.

Here is the text of the Supreme Court decision:

Supreme Court of Rhode Island.

James M. MAGEAU

v.

Robert J. SCHIEDLER et al.

No. 93-596-Appeal.

Nov. 10, 1994.

Robert Savage, Warwick.

Philip Sloan, Jr., Charlestown.

ORDER

This case came before the Supreme Court for oral argument on October 31, 1994, pursuant to an order that directed both parties to show cause why the issues raised in this appeal should not be summarily decided. The plaintiff, James M. Mageau, has appealed from a Superior Court order that granted the motion to dismiss of the defendants, Robert J. Schiedler, Charles W. Beck, Charlene Q. Dunn, J. Michael Downey, Forrester C. Safford, in their official capacities as members of the Charlestown Town Council and Zallee Rosso, in her official capacity as Treasurer of the Town.

After reviewing the memoranda submitted by the parties and after hearing the arguments of counsel, we are of the opinion that cause has not been shown, and the issues will be summarily decided at this time.

The plaintiff, in an amended complaint, asserted that defendant Town Council violated the Charter of Charlestown in respect to its provisions regarding open meetings and the notice requirements thereof, and the procedures delineated in the Charter for approving unbudgeted expenditures. This court concludes that defendants' motion to dismiss pursuant to Super.R.Civ.P. 12(b)(6) was appropriately granted by the trial justice, who determined that plaintiff did not have standing to bring suit to challenge such expenditures.

In Ianero v. Town of Johnston, 477 A.2d 619 (R.I.1984), this court held that, in the specific context of a taxpayer's standing, “it is well settled in this jurisdiction that where a taxpayer brings an action to restrain government*1227 action, he or she must demonstrate an injury that is distinct from that of the public in general.” Id. at 621.

Consequently, we hold that the trial justice properly determined that the plaintiff lacked standing to bring the instant suit because the plaintiff alleged no specific personal injury as a result of the defendants' actions. In addition, moneys advanced by the Town were subsequently returned, thus rendering moot the issue of improper appropriation of funds. Therefore, we deny and dismiss the appeal and return the papers in the case to the Superior Court. (R.I. 1994. Mageau v. Schiedler. 651 A.2d 1226)

I doubt it is a coincidence that Councilor Lisa DiBello has chosen Robert E. Savage to represent her. Employment law is, indeed, his specialty. But there are quite a few Rhode Island lawyers who do employment cases. I believe the deciding factor was that Savage represented Jim Mageau, DiBello’s mentor and only major public supporter.

Mageau is famous for going to extreme lengths in his legal battles, regardless of the merits, especially when the target is the town of Charlestown. He will probably encourage his protege Councilor DiBello to adopt the same attitude. 

The principle target of DiBello’s legal ire is not so much the town or even most of the other defendants, but Town Administrator William DiLibero. However, he has been through the legal wringer more than once while Town Manager for Hopkinton and prevailed.

He was the target of legal actions after he fired Hopkinton interim tax assessor Margaret Hardiman for cause in 2006. That firing was upheld as proper.

DiLibero was also one of many town officials sued by fired Hopkinton building inspector Charlie Mauti. After an arbitrator ruled that Mauti's firing was proper, he filed Mauti v. Scuncio against the town and numerous town officials, including DiLibero. Doesn't this sound familiar? That case is still lingering in the court system. 

DiBello had Mohegan Sun take this shot of
her putting on her "Jackpot Face"

In just about every lawsuit, each side tries to predict what the other side will do and play the odds. Because you never know what will happen when a case goes before a judge or a jury, most cases get settled. In DiBello v. Charlestown, the town can't even consider settling until DiBello takes the necessary action to break the gridlock that prevents the Town Council from even considering her demands.

But even if that matter gets resolved, does Charlestown want to settle? DiLibero was involved in two high-profile firings for cause while in Hopkinton, and the decisions were upheld. In the Mauti case, the arbitrator's ruling supporting DiLibero's actions has been challenged in court but still stands. 

DiBello has Mageau's former lawyer on her case. Despite his losing record, attorney Savage seems game to take cases to a decision. 


I think one key factor will be DiBello's ability to fight over the long haul. If her $1.5 million demand and accompanying argument is to be believed, she is on the ropes financially and emotionally, and seems to need to settle a lot more than the town. In that $1.5 million demand, her lawyer said DiBello can't get by on $30,000 in unemployment benefits and is broke.

But DiBello also has quite a reputation as a gambler. Normally the odds would be 20-to-1 against DiBello v. Charlestown going to court. But I rate the odds as more like 5-to1. 

One event to watch is next Monday's regular Town Council meeting which will be DiBello's first since filing her lawsuit against the town.