Superior Court Lawsuit : Duffy On-Duty Campaign to Oust Bird Ruled Illegal

In a case of statewide significance, a San Diego County Superior Court judge ruled Friday that Sheriff John Duffy engaged in illegal political activity last year when he used his office and deputies to distribute materials urging state Chief Justice Rose Elizabeth Bird to resign.

Judge Douglas Woodworth ruled that Duffy--and, by implication, other public officials--could speak out about important issues but are prohibited during their on-duty hours from engaging in political activities “aimed at influencing the voters.”

Attorneys for both Duffy and Common Cause, which filed the lawsuit, said it was unclear where Woodworth was drawing the line against politicking by elected officials, and they agreed it was unrealistic to believe that politicians could be barred from endorsing candidates or taking stands on ballot issues. The decision is binding only on Duffy and does not set a precedent for other cases.

But the victorious American Civil Liberties Union lawyers and supporters of the chief justice nonetheless were elated by the judge’s decision--a slap at Duffy’s distribution in February, 1985, of 18,000 anti-Bird post cards supplied by Crime Victims for Court Reform, one of the groups leading the fight against the chief justice’s retention in the November general election.

“It has implications statewide because there have been a lot of public employees either actively campaigning in this judicial election or itching to do that,” said Gregory Marshall, legal director for ACLU’s San Diego chapter, which argued the suit for Common Cause. “The decision of the court here is they’re not to do that.”

Los Angeles attorney Anthony Murray, chairman of Bird’s campaign committee, said the ruling should deter other elected officials from using the trappings of their offices to advance the campaign for Bird’s removal.

“This ruling demonstrates dramatically the hypocrisy of a great many of the elements of the campaign against the chief justice,” he said. “It shows they have and will do anything to accomplish their political goals, including misusing public funds.”

Duffy, on vacation in Hawaii, was not available for comment.

Attorney Janet Houts, Duffy’s aide who argued his case in court, insisted that the sheriff and other Bird critics lost nothing under Woodworth’s ruling. She vowed, too, that the sheriff would continue to speak out against Bird.

“He still believes in Crime Victims for Court Reform and will work for them,” Houts said. She noted that Woodworth declined to keep the case open as a means of monitoring Duffy’s ongoing campaign activities and specifically restricted his ruling to apply only to those activities complained of by Common Cause.

“It was totally limited to the facts before the court, and those facts are not likely to repeat themselves,” Houts said.

Debbie Goff, a spokesman for Crime Victims for Court Reform, said campaigners throughout the state would abide by Woodworth’s decision, but that the group hoped Duffy would appeal.

“We feel Sheriff Duffy felt that what he was doing at the time with the post cards was right,” she said. “We assume he’ll appeal the decision and hope he’ll be vindicated on appeal.”

Houts, though, said she would advise Duffy not to appeal the decision. She noted that if an appellate court upheld the ruling, it could have a broader impact on other elected officials.

The suit contended that Duffy overstepped legal limits on politicking by sending a letter to deputies on county stationary inviting them to distribute the anti-Bird post cards, mailing the cards to interested citizens and dispatching on-duty deputies to deliver the cards to substations.

Houts argued that the issue was moot because Duffy had no intention of distributing more post cards, and that the activity was not political, because Bird was not a declared candidate for a partisan office. Moreover, she said, the distribution of the post cards was within Duffy’s constitutionally protected freedom of speech.

“The sheriff has the right to speak his mind and to express his views as to what he thinks about the justice system,” Houts said.

Woodworth, in an oral decision, ruled that “most of the conduct” by Duffy was prohibited by law. He said the forbidden activities are “those that endorse a particular advocacy or a lobbying group,” or urge public employees “to engage in specific political activity, such as the distribution of post cards such as those that recommend or advocate the removal or defeat of a public official.”

However, Woodworth said the sheriff had both a right and duty “to inform the public about matters that are reasonably within the scope of his duties.”

That principle, he said, “gives the sheriff the right to anger, criticize and even irritate judges if it may reasonably be said to serve the purpose of enlightening the public.”

Woodworth said eight lines of a letter Duffy sent to citizens who requested the post cards were permissible under his ruling, but that the remainder of the letter and the sheriff’s other communications to citizens and employees were not.

The allowable statements included these sentences:

“Much of what is wrong with our judicial system is the direct result of the influence and efforts of Chief Justice Rose Bird. Of the criminal cases she has reviewed during her tenure, she has voted against the death penalty 100% of the time and in non-death penalty criminal cases, she has voted against the people of the state of California and for the defendant 90% of the time.”

The remainder of the paragraph--which Woodworth said consisted of prohibited political statements--included this direct appeal to voters:

“In November of 1986 when she faces a vote of the people for another 12-year term, we all have an opportunity to vote ‘no.’ If we are successful in educating the voters, she won’t receive a majority vote, she will not be retained in office and Gov. Deukmejian will appoint a replacement. I am sure that any replacement would be an improvement and would be much more in tune with the feelings of the people of this state.”

ACLU’s Marshall said he would need to review a transcript of the decision to be certain how far Woodworth had gone in restricting Duffy’s political activity. “My own view is that it’s more or less necessary to give elected officials very, very broad latitude in what they do,” he said.

Like Marshall, Houts said it was nearly impossible to distinguish elected officials’ “on duty” and “off duty” time, making it difficult to determine how the judge’s ruling would be applied.

“The sheriff is never really off duty,” she said. “He’s a political person, and he speaks out all the time about issues that he’s concerned about in the legal system.”

Murray, chairman of the pro-Bird Committee to Conserve the Courts, said the ruling should be viewed as a limit on the activities of the California District Attorneys Assn., which opposes the retention of Bird and Justices Cruz Reynoso and Joseph Grodin.

He said the association, which is partly funded by dues paid from public coffers, used public funds to publish a “white paper” attacking Bird. “It was supposed to be an objective thing, but it was nothing more than a political hit piece from beginning to end,” Murray said.

Greg Thompson, executive director of the association, said no public funds were used in publishing the study.

“I think it’s always been understood you cannot use public resources to conduct campaign activities,” he said.

But Thompson was critical of aspects of Woodworth’s decision that seemed to restrict public officials’ authority to speak out on political issues.

“The rights of public officials to comment on anything which comes within their purview are pretty clear, and certainly the qualifications of other candidates for public office is a part of that,” he said.