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Pa. woman, mayor spar over right to petition

By The Associated Press
01.12.09

WILKES-BARRE, Pa. — Overlooking this 200-year-old city is a neighborhood called the Heights, where simple frame homes built for immigrant coal miners, brewery workers and railroad hands after the Civil War stand cheek by jowl along sharply inclined streets and alleyways.

There’s little open space among the singles, twins and rowhouses here. One consequence: If a house catches fire, adjacent structures are at risk, too. Seconds count when firefighters get a call.

Generations of Heights dwellers have known this. So when the mayor decided to shutter the neighborhood’s dilapidated firehouse — saying it required costly repairs that Wilkes-Barre could ill afford — Denise Carey protested. Loudly.

Thus began a long and spirited campaign by the lifelong Heights resident to save the East Fire Station.

“I wanted all of us to be safe,” she says now, four years later.

So, too, did Mayor Tom Leighton. But he insisted the city’s other firehouses could protect the Heights.

He complained Carey was misleading people — and he concluded she had to be stopped.

Their struggle, which finally played out in a courtroom at the end of last year, boiled down to a First Amendment issue:

When citizens petition their government, can the government push back? And if so, how hard?

‘Difficult decisions’
Carey, a 46-year-old social worker, took comfort in the East Station. At a moment’s notice, firefighters could respond to her home or to her elderly parents’ home around the corner.

In October 2004, Leighton was still settling into his new job at City Hall. The real estate broker and three-term city councilman had become mayor the previous January on a pledge to revive the sagging downtown and crack down on crime in this northeastern Pennsylvania town of 41,000.

“I will make the difficult decisions,” Leighton told his new constituents.

What to do with the Heights’ firehouse would turn out to be one of those tough decisions.

On Oct. 19, a storm pounded the city and exposed serious problems at East Station, including roof leaks that sent rainwater through light fixtures. The next day, the fire chief declared the building a fire hazard and closed it.

“If the money’s not insane, we’ll amend some things and get it fixed as quickly as possible,” Leighton promised, and hired an engineering firm to study how much repairs would cost. The answer: between $241,000 and $340,000.

The mayor said the city didn’t have that kind of cash.

The estimate seemed ridiculously high to Carey and her neighbors. Besides, people were willing to donate time and materials to repair the roof. What was the problem?

The neighbors banded together as Citizens for Safety and set out to change the mayor’s mind. The fledgling activists packed City Council meetings, staged protest marches, and blanketed the Heights with signs.

“The closing of East Station was wrong, and it was reckless,” Carey lectured the mayor.

The group had the support of the firefighters’ union and some council members, but Leighton remained adamant. He had to be a good steward of taxpayers’ funds.

“I can only spend the money we have,” the mayor told the protesters.

After months of failed efforts at persuasion, a member of Citizens for Safety had an idea. Why not alter the city charter to allow a referendum on the East Station? That way, residents would have the final say — not the mayor.

Carey and her allies began circulating a petition to place a question on the November 2005 ballot. Required to get 975 signatures to qualify, they wound up submitting 1,300 to the Luzerne County Board of Elections.

Petition dispute
As Carey came to see it, direct democracy was an opportunity for citizens to assert more power for themselves. At the same time, this approach threatened to take authority from the mayor’s office.

Leighton told his lawyer to stop the activist, arguing that Carey and other canvassers had deliberately misled residents by telling them they were signing a petition to reopen the firehouse when, in fact, the petition’s intent was to revamp the city charter.

Though Carey hotly denied the charge, the mayor asked a judge to toss her petition.

Before their dispute could be resolved in court, a canvasser pulled all of the hundreds of signatures he’d collected, citing technical flaws. Without them, Carey knew the petition could not qualify for the ballot. She sent a letter of withdrawal to the election board.

But the fight was about to take another dramatic turn.

Since the effort to change the charter was now moot, Carey thought the hearing on the city’s challenge would be just a formality. Instead, Luzerne County President Judge Michael Conahan demanded to know why no one had informed him about Carey’s motion to withdraw. He had cleared his schedule for a hearing that was no longer needed.

“Does anybody recognize that we’re all kind of busy here?” he hollered.

“I do recognize that, sir,” Carey replied meekly.

Leighton’s lawyer told the angry judge that the city had wasted time and money fighting Carey’s petition — and that the activist should have to pay the city’s legal bill.

“Court awards attorney fees against Ms. Carey,” Conahan quickly ordered. Then he pronounced the amount:

“$11,056.”

Carey collapsed, sobbing, into her husband Tom’s arms. The couple lived paycheck-to-paycheck and had very little savings. Where would they get that kind of money? Would they lose their house?

New court fight
Public condemnation of Leighton and Conahan was swift.

“The system put Carey in her place,” fumed Casey Jones, then a columnist for The Times Leader.

Leighton countered in a letter to the editor. Carey and her group engaged in “deception” and “committed a fraudulent act against the City of Wilkes-Barre by misleading residents and violating the election process,” he wrote. “They must be held accountable for their actions.”

When Carey read this, she thought: First the mayor raided my pocketbook, and now he’s trashing my reputation. A steely resolve began to replace her ambivalence about an appeal. She and Tom met with a pair of out-of-town lawyers.

Cynthia Pollick, who had years of experience in civil rights work, listened to Carey’s tale with growing outrage. Attorney Lisa Welkey had a similar reaction: “I absolutely believed it was a way to silence her, to teach her a lesson about challenging local government.”

It was decided: Welkey would appeal the legal fees to the state Commonwealth Court, while Pollick would sue Leighton and the city in federal court.

Leighton, the suit claimed, retaliated against Carey for exercising her First Amendment freedoms of speech, association and petition, and abused his power by using the legal system to silence dissent.

As the legal wrangling began, Wilkes-Barre received a sad reminder of what got this prolonged dispute started.

A fire broke out in the Heights.

Although it wasn’t clear that a functioning East Station would have made a difference, the blaze claimed three homes.

Legal turnaround
Carey got good news in January 2007, when Commonwealth Court overturned Conahan’s decision to award legal fees. She was off the hook financially.

And on a chilly November day in 2008, a jury took up the activist’s federal case in Scranton.

“I’m here because I tried to do something good for my area, my community, and I was punished by the mayor,” Carey began her testimony.

She talked about the importance of the East Station, about the Citizens for Safety petition drive, about that horrible day in Conahan’s courtroom, and, finally, about the mayor’s public comments about her.

“I just felt absolutely beaten by them,” Carey said.

Then it was the mayor’s turn to testify.

Leighton, who had won re-election in 2007, told jurors he was duty-bound to protect the city charter from a legally suspect attempt to change it.

“And you don’t have remorse for writing a letter to the editor on a citizen sitting here today, correct?” Pollick asked.

“There’s no reason to have remorse,” Leighton replied. “Everything that’s in my letter is true.”

In her closing argument, Pollick depicted a mayor who couldn’t tolerate dissent.

To Leighton’s attorney, Mark Bufalino, the case was about a dishonest attempt to change city government.

Court victory
Jurors were out 4½ hours before reaching a decision. U.S. District Judge Thomas I. Vanaskie studied the verdict slip, then read each question.

Did Leighton retaliate against Carey by seeking attorney fees?

Yes.

Did he retaliate by writing a letter to the editor and making other public statements?

Yes.

Did his actions display “reckless or callous indifference” to Carey’s First Amendment rights?

Yes.

Then came the award: $67,000, more than six times the amount the city had sought from her.

“This is a win for the community,” Carey told reporters afterward. “Now no one has to be afraid of speaking up.”

Weeks later, sitting at her kitchen table, she wonders if that’s really true.

“I don’t know if anybody wants to rush in there and test the waters again,” she says. “I only hope eventually this verdict will change that thinking, not only for me but for other people.”

The city has appealed, and attorneys for the parties are discussing a settlement. Still, Carey says, no one can take away the jury’s verdict.

The East Station, meanwhile, remains shuttered. A few weeks ago, the city sold the building for $20,000.


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