Evansville Sued for Violating Gun Owner's Rights

[KLB]

What I like about appeals: there are no billing guidelines or rubrics that demonstrate what is excessive or not.
What I like about trials: the insurer expects 14+ hour billable days.

...are you sensing a trend?

Always follow the money?

 

[JAL]

Ben and Guy made the trades: COA again rejects Evansville?s gun-in-park suit appeal | The Indiana Lawyer

Caveat:
I'm not an attorney, nor have I been to law school. I have, however, been down the path of civil litigation, including motions to correct errors, motions for relief from judgment, and appeals, and I wasn't just a passenger in the back watching the in-flight movie. These are my layman's observations from the sidelines.

This reads like a definition of the res judicata principle. Latin for "already adjudicated", it is the approximate civil tort equivalent of the criminal Double Jeopardy exclusion that prohibits being tried for the same crime twice. The key sentence for me in the article:

The COA noted the issues the city argued in this appeal were the same as those brought before the court that previously ruled in favor of Benjamin Magenheimer.

Regarding the issues raised to the trial court and then to the COA not just once, but twice now, cue the scene in the Wizard of Oz in which the coroner reads the Wicked Witch of the East's death certificate.
[video=youtube;6cMsXBJ0Y98]https://www.youtube.com/watch?v=6cMsXBJ0Y98[/video]

I skimmed through the COA decision looking for remarks related to raising the same issues before the COA twice. As expected, I found them near the end on pages 9 and 10 and they were more severe than I'd expected to find:
http://www.in.gov/judiciary/opinions/pdf/06131705ewn.pdf

The city's attorneys were admonished for not mentioning anything about the same issues having been raised before or even mentioning the prior appeal and its COA decision in their instant appellate brief; it's required to do so. OOPSIE! Gosh, I wonder why it wasn't. While wading my way to pages 9 and 10, I had noted on page 6 that the ISC had unanimously declined the City's petition to transfer the prior COA decision to the ISC. Not hard to connect the dots. If at first you don't succeed . . . Of particular note in this current COA decision are these remarks regarding this blatant omission:

We also note that the City made no mention of Magenheimer I in its lead brief to this court despite that opinion’s conspicuous treatment of the arguments raised by the City in the instant appeal. Indeed, the trial court cited Magenheimer I in its entry denying the City’s motion for summary judgment. Attorneys have an affirmative obligation to bring relevant authority to this court’s attention, even if that authority is adverse to the attorney’s client. See Ind. Professional Conduct Rule 3.3(a)(2). Magenheimer I clearly satisfies that test.

For those that don't recognize Indiana Professional Conduct Rule 3.3, it prohibits attorneys (who are officers of the court) from knowingly deceiving or attempting to deceive a court, by act or omission, or knowingly allowing someone else to do so without taking affirmative action to disclose it. It's titled more affirmatively as "Candor Toward the Tribunal".
https://www.in.gov/judiciary/rules/prof_conduct/#_Toc461714680

IMHO citing a Professional Conduct Rule like this isn't just a minor hand slap. Attorneys can be sanctioned for violating them.

All this is interlocutory, no less [sigh]. Are one or more elected Evansville officials in mortal terror of losing the next election if they do not pursue this case using every conceivable means at their disposal, whether or not it's realistic, rational, or ethical? They're urinating up a very limp rope, from the leeward side.

Keep plugging away. IMHO Evansville keeps digging its grave deeper, one shovel full at a time. Unfortunately, this will not cost the elected officials personally, it will cost the taxpayers who live in Evansville with either lost services or higher taxes.

John

 

[SSGSAD]

Ben and Guy made the trades: COA again rejects Evansville?s gun-in-park suit appeal | The Indiana Lawyer

Well, I am late to the party, this was the article in the Indy Star .....

Win for us ..... so far .....

 

[IndyDave1776]

Well, the real reason I went to law school was . . .

. . . oh, wait.

The reason I went to law school was that I accidentally went in the wrong building once!

 

[Caleb]

May be counting chickens before they are hatched (some really old eggs here too), but INGO should have an open carry picnic in the park when E-ville finally throws in the towel.

Works for me

 

[GuyRelford]

Just FYI, the City of Evansville has filed a Petition for Rehearing, asking the Court of Appeals to reconsider its most recent ruling - and plaintiff/appellee has filed a response. Both documents are available here:

https://publicaccess.courts.in.gov/docket/Search/Detail?casenumber=82A05-1610-PL-02350

Guy

 

[T.Lex]

Hey Guy, how many times do they get to appeal this?

Correct answer: 3. Three shall be the number of the counting and the number of the counting shall be three. Four shalt thou not count, neither shalt thou count two, xcepting that thou then proceedeth to three. Five is right out.

 

[actaeon277]

This is ridiculous.
Maybe the people of Evansville should require the politicians responsible for this to foot the bill.

 

[Cameramonkey]

Just FYI, the City of Evansville has filed a Petition for Rehearing, asking the Court of Appeals to reconsider its most recent ruling - and plaintiff/appellee has filed a response. Both documents are available here:

https://publicaccess.courts.in.gov/docket/Search/Detail?casenumber=82A05-1610-PL-02350

Guy

You actually quoted Monty Python in a legal document? EPIC! (Though it looks like some boring legalese got stuck in the middle of it. )

You, sir, are earning every dollar. LOVE IT!

 

[GuyRelford]

Hey Guy, how many times do they get to appeal this?

Correct answer: 3. Three shall be the number of the counting and the number of the counting shall be three. Four shalt thou not count, neither shalt thou count two, xcepting that thou then proceedeth to three. Five is right out.

I believe that's Rule 3, Indiana Rules of Appellate Procedure. (Or is it Rule 4 - can't be 2 or 5?)

Guy

 

[PhxCollier]

Anyone that quotes Monty Python in legal proceedings has got to be ok.

Guy +1

 

[bigus_D]

Anyone that quotes Monty Python in legal proceedings has got to be ok.

Guy +1

This is fantastic!!!

 

[Timjoebillybob]

Just FYI, the City of Evansville has filed a Petition for Rehearing, asking the Court of Appeals to reconsider its most recent ruling - and plaintiff/appellee has filed a response. Both documents are available here:

https://publicaccess.courts.in.gov/docket/Search/Detail?casenumber=82A05-1610-PL-02350

Guy

I love your response, and not just for the Monty Python part, I could hear the sarcasm.

You actually quoted Monty Python in a legal document? EPIC! (Though it looks like some boring legalese got stuck in the middle of it. )

You, sir, are earning every dollar. LOVE IT!

Heck even half the boring legalese was entertaining.

Anyone that quotes Monty Python in legal proceedings has got to be ok.

Guy +1

Agreed.

 

[LockStocksAndBarrel]

I'm glad Guy's on our side.

That is priceless.

 

[actaeon277]

The Month Python reference was priceless.

The city should be mad at their officials throwing away their tax money.

 

[Cameramonkey]

The Month Python reference was priceless.

The city should be mad at their officials throwing away their tax money.

Why would they care? Its not their money.
.

 

[littletommy]

The Month Python reference was priceless.

The city should be mad at their officials throwing away their tax money.

I've been mad for quite a while that my town spent millions of dollars to build a new fire house to replace a perfectly good, but aging firehouse. **** has simply gotten out of hand, and try as I might, I can't vote the blood sucking incumbents out by myself.

 

[rhino]

Hey Guy, how many times do they get to appeal this?

Correct answer: 3. Three shall be the number of the counting and the number of the counting shall be three. Four shalt thou not count, neither shalt thou count two, xcepting that thou then proceedeth to three. Five is right out.

You actually quoted Monty Python in a legal document? EPIC! (Though it looks like some boring legalese got stuck in the middle of it. )

You, sir, are earning every dollar. LOVE IT!

Anyone that quotes Monty Python in legal proceedings has got to be ok.

Guy +1

The Month Python reference was priceless.

The city should be mad at their officials throwing away their tax money.

Agreed! Impressive.

 

[Hop]

Epic!

 

[Timjoebillybob]

Why would they care? Its not their money.
.

It will be. After the insurance co pays out lord knows how much by the end of this. You don't think the rates are going to go way up? Along with what the city itself is paying for attorney fees. It's going to cost the city a good bit in the long run.

I've been mad for quite a while that my town spent millions of dollars to build a new fire house to replace a perfectly good, but aging firehouse. **** has simply gotten out of hand, and try as I might, I can't vote the blood sucking incumbents out by myself.

My town is currently building a new fire house, I guess the current one is perfectly good, but they have outgrown it. It was built iirc somewhere around 1900, it's been updated since then but it's still only has two bays with no way of adding on more. Since they don't have space to store all the engines it slows response time down some since they have to go to them and then to the scene.