The Fire Fighting Case over closure of Fire Department

On the surface, the case involved no more than the large passions that can ignite a small town. In 1997 it appeared that Union, Ohio (pop. 5,531), was about to lose the fire and rescue services it had shared with neighboring Randolph Township. Clearly, something had to be done. Right now! Union's City Council responded with an emergency resolution establishing its own fire department.

The decision, naturally, was not universally welcomed. Union taxpayers Ronald Kidwell, Julie Johnson and Charles Arnett rushed into responsive action. The issue would be put to a vote! They campaigned against a new fire department. They lost. They retained counsel, went to U.S. District Court in Dayton, and launched a legal battle that finally collapsed three months ago. The Supreme Court refused to hear their appeal from a 2-1 decision of the 6th U.S. Circuit. And that, for the time being, is that.


At the heart of this small-town case is a large question: To what extent may government — any government — spend public funds to defend its own challenged programs? In the case at hand, to quote from the dissenters' plea to the Supreme Court:

"The election was preceded by a lively campaign in which the Union City Council used public funds to oppose the initiative. It is undisputed that the Union City Council used city workers and city equipment to hang a 'Vote No' campaign banner across Main Street, mailed campaign leaflets to residents, advertised in local newspapers, and used the town newsletter to exhort city residents to vote against the initiative. ..."

Compounding the injury, "the Union City Council has continued to use public funds to campaign against ballot initiatives, including campaigning in favor of a tax levy to fund the new fire department."

To Kidwell, Johnson and Arnett, to spend public funds directly to influence the outcome of an election is "not only wrong, but dangerous." They concede that members of the council are not required to remain speechless during a campaign. Neither is City Manager John Applegate required to stay mute. Even so, a fine line must be drawn: "The government may use public funds to disseminate its views on issues of the day, but it may not use public funds directly to campaign in an election."

The plaintiffs lost before District Judge Thomas M. Rose and lost again to a divided panel of the 6th Circuit. Writing for the majority, Judge Julia Smith Gibbons quoted a famous Supreme Court case 10 years ago involving the University of Virginia: "When the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes." Then she swerved to a position somewhere between sometimes and not always. "The government's power to fund its speech is severely limited, however."

Judge Gibbons made this point: The plaintiffs had complained that the town fathers had promoted the new department through the town's official newsletter — a publicly financed medium of communication. The court saw nothing amiss. The newsletter was not a "public forum." It could be used by the council and the town manager to advance their views: "It is imperative that government be free to make unpopular decisions without opening the public fisc to opposing views."

Those who govern, said Judge Gibbons, must be allowed to defend their governance. To silence them during an election campaign would yield the stage to hecklers. True, the natural consequence of government speech "is that some constituents will be displeased by the stance their government has taken." No matter. "Displeasure does not necessarily equal unconstitutional compulsion."

In a dissenting opinion that ran on to 31 pages, Judge Boyce F. Martin strongly and persuasively dissented: "Government campaigning in elections is implicitly prohibited by our constitutional design and republican form of government." True, "the government must, of course, be permitted to speak in order to govern and educate," but a distinction must be drawn "between government speech related to governing and speech intended to campaign or to influence an election."

The disagreeing circuit judges were drawing fine lines. The high court should have taken the case and definitively redrawn them. But don't worry: The obligation will return.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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