Use of Deputies Called Illegal : ACLU Sues Duffy on Drive to Oust Justice Bird

The American Civil Liberties Union, on behalf of California Common Cause, filed a lawsuit Tuesday against San Diego County Sheriff John Duffy in an attempt to halt the distribution by on-duty deputies of post cards urging California Chief Justice Rose Elizabeth Bird to resign.

The suit, which also names more than 200 sheriff’s deputies as defendants, says that “distributing these items through the use of public facilities, public vehicles and public officers while the latter are on duty and in uniform (is) . . . an illegal expenditure of public funds.”

In addition, the suit filed in San Diego Superior Court claims Duffy’s and the deputies’ involvement in the mailing effort violates state statutes forbidding law enforcement officers from engaging in political activity while in uniform and on duty.

Robert L. Simmons, a University of San Diego law professor who was an unsuccessful candidate for Congress last year, and Byron F. Lindsley, a former Superior Court judge, joined Common Cause, a nonprofit investigative group, as plaintiffs in the suit.

Since last week, Duffy has ordered his deputies to hand out the post cards to the public on request, and to make them available at Sheriff’s Department substations throughout the county. Lt. John Tenwolde, a spokesman for Duffy, said 15,000 of the post cards have been ordered for distribution by the Sheriff’s Department here as part of a statewide push to oust Bird.

Tenwolde refused to comment on the suit, but said, “we will continue to make the cards available to the public.” Tenwolde said the sheriff was out of town Tuesday and would not comment on the litigation.

Duffy, in an angry letter to the ACLU before the suit was filed, said the “media hysteria regarding the so-called controversy has generated overwhelming public requests for these post cards.”

Linda Hills, director of the ACLU San Diego chapter, said after the suit was filed that it “has yet to be decided” whether there would be an effort to seek an immediate, temporary injunction to halt the distribution of the post cards.

“Our strategy is not set,” she said. “We’re still not sure if we will go for injunctive relief.”

Bird will stand for approval by the voters in November, 1986.

The mailing drive has been orchestrated by “Crime Victims for Government Reform,” a statewide group pledged to the ouster of Bird, and of Associate Justices Cruz Reynoso and Joseph Grodin, all appointees of former Gov. Edmund G. Brown Jr. Duffy is a charter member of the group, which is headed by Bill Roberts, manager of George Deukmejian’s gubernatorial campaign.

Duffy, the suit said, appeared at a January press conference under the banner “Bye-Bye Birdie” to announce the opening of the mailing effort.

The post cards criticize Bird for her decisions on capital punishment and say she has “hurt our entire judicial system . . . crippled law enforcement . . . and decided cases in favor of criminals over victims.” They are addressed to Bird, and demand her immediate resignation.

The suit details a plan by Duffy to mobilize his deputies for the mailing effort. “Under this program,” the suit claims, “certain defendants are assigned while on duty to receive telephone inquiries about the campaign; to record the names and addresses furnished by callers; to prepare ‘mailers’ using Sheriff’s Department facilities, equipment, stationery, envelopes and postage, and to mail this campaign literature at county expense to the names and addresses recorded.”

In some of the mailers, the suit claims, Duffy has included a personal letter urging the recipient to join “Crime Victims for Government Reform.”

Tenwolde refused to comment on those allegations. “We can’t talk about our internal situation now that the suit has been filed,” he said.

Michael Asimow, state Common Cause chairman, said the mailing drive was “part and parcel of a political campaign” against Bird. “It is wrong to get the public’s money involved,” he said.

Duffy, however, has maintained that the post cards are of an educational rather than a political nature. “There is no mention on the card of any election, any campaign, any vote, or any ballot measure,” the sheriff said in his letter to the ACLU.

“There is no election scheduled for retention of the chief justice for almost two years,” Duffy’s letter continued. “The post card is a simple written communication between an ordinary citizen and the chief justice. It is respectful and non-threatening.”

Asimow called Duffy’s claim that the cards could be distributed under the guise of educating the public a “transparent political ploy.”