An Adversary Comes of Age : New Status Ends Stepchild Era for San Diego ACLU

They weren’t exactly fixtures on the local party circuit. When a handful of civil libertarians banded together to form an ACLU chapter here about 35 years ago, they did not find San Diego a particularly hospitable home.

This was a sheltered, conservative place back then, a Navy town caught up like the rest of the nation in the throes of McCarthyism. Loyalty oaths and racial discrimination were commonplace, and local police and politicians were accustomed to doing things their own way--free of any meddling by watchdog groups. Residents, meanwhile, had little history of challenging the status quo.

So it was not surprising that the cadre of academics and other concerned citizens who staked the American Civil Liberties Union banner on San Diego soil took some heat in those early days. There was hate mail, threatening telephone calls and a steely determination to simply ignore the agitators and hope they would go pick on some other city.

Not on ‘Most-Popular List’

“There weren’t many of us back then, and we certainly weren’t on the most-popular list,” recalled attorney Irwin Gostin, one of the chapter’s first presidents. “It was a lonely job for quite a while.”

Things are a bit different today. Though still reviled by many, the ACLU in recent years has established a rock-solid presence in San Diego, building an undeniable reputation as a force to be reckoned with. Through cases challenging jail overcrowding, police misconduct, employee drug testing and a host of other alleged civil liberties abuses, the local ACLU has evolved into a potent and vigilant enemy of those whose actions run afoul of the Bill of Rights.

Signs of the group’s maturation abound. Over the past several years, the once-fledgling organization has more than tripled its membership, assembled a paid staff in a suite of offices within view of the county courthouse and seen its annual budget mushroom from $25,000 in 1984 to $200,000 last year.

Once limited to juggling only a few legal challenges at one time, the local ACLU can now tap a healthy bank of volunteer lawyers for assistance, permitting it to shoulder a dramatically expanded caseload. In addition, the organization--traditionally reliant upon lawyers with practices of their own--now attracts a modicum of help from large legal firms, which can provide research and clerical support that are vital in major cases.

Affiliate Status

Most recently, the local branch got the biggest organizational boost in its history when the ACLU’s national board of directors agreed in January to grant it affiliate status--a designation typically reserved for statewide branches. Previously, the San Diego office was a stepchild of the Los Angeles-based ACLU of Southern California, but local leaders said that arrangement presented logistical difficulties that diluted the group’s effectiveness here.

“I really believe this is a turning point for the ACLU,” executive director Linda Hills said. “I think we have built a fine reputation as a formidable adversary in a very short time. By gaining affiliate status, we have laid the groundwork for the type of strong ACLU presence that is badly needed here and will be needed even more in years to come.”

Helping to guide the affiliate into its next era will be a new legal director. Betty Wheeler, a 32-year-old attorney from Amarillo, Tex., became the ACLU’s only paid staff attorney last month, replacing Greg Marshall, who ended a three-year tenure to return to private practice.

Wheeler, whose background includes work on Capitol Hill for Rep. Patricia Schroeder (D-Colo.), was selected because of her “energy, enthusiasm” and 10-year record of civil-liberties work in her hometown of Amarillo, ACLU President John Murphy said.

“She’s a great catch and was head and shoulders above the 30 other people we interviewed,” Murphy said. “It takes a lot of courage to return to your hometown and start stirring up trouble. We were impressed by that.”

Must Pass State Bar

The affiliate was so taken with Wheeler--who made a name for herself by handling the first police misconduct cases ever brought in Amarillo--that its leaders hired her even though she lacks a license to practice law in California. She will take the bar exam in July, and fully expects to pass.

“I’m not worried,” said Wheeler, a slight, bespectacled woman who speaks with a hint of a drawl and is the daughter of a roofer and a seamstress. “I’m too busy getting up to speed on everything here.”

And, like usual, there is plenty going on here. In recent months, the ACLU has jumped into the fray on a bevy of provocative issues, taking on cases for a veteran employee of the Sara Lee Corp. who refused to submit to a urine test for drugs, an artist whose controversial sculpture about illegal aliens was ordered removed from a public plaza and inmates who are facing overcrowded conditions in the county’s outlying jail facilities.

On top of those and other simmering cases, local leaders are anxious to step up their efforts in neighboring Imperial County, which Murphy calls “the Mississippi of Southern California.” Increased involvement in border issues and problems besetting undocumented workers are also on the agenda, and 150 telephone calls and countless written pleas from those seeking help flow into the ACLU office each month.

“A lot of the labor groups and other voices on civil liberties issues have fallen by the wayside over the years, so we’ve really become the point-person for San Diego and Imperial counties,” said Murphy, an active ACLU member for 14 years. “There are a lot of people messing up out there, a lot of problems in need of our attention.”

Detractors Still Abound

Despite its increasing influence and expanding scrapbook of court victories, the ACLU still has plenty of detractors in these parts. Targets of the group’s legal challenges have denounced its tactics over the years as obstructionist, unprofessional and misguided, and hate mail still arrives from time to time. Also, the 3,500 membership is nothing to boast about.

Local leaders say they suffer from an image problem that has plagued the ACLU throughout its history and probably always will: Rather than judging the organization on the basis of its mission, people instinctively identify the group with its clients, who are not always popular figures.

“I would like to think that we have established some credibility here and that people no longer view us as loony, dangerous, bomb-throwing types,” said Marshall, the former legal director. “But the fact is, many still fail to see that we represent clients not because of their message but in spite of their message. They seem to think that because we have taken cases on behalf of Nazis or Communists whose message was suppressed, then we must be Nazis and Communists.”

Among those frequently spotlighted in ACLU lawsuits have been the county’s top law enforcement officials, San Diego Police Chief Bill Kolender and County Sheriff John Duffy. Kolender’s department has been knocked repeatedly for officer misconduct and was challenged unsuccessfully in 1984 for its use of undercover agents in drug stings on high school campuses.

“Philosophically, I have some problems with some of their stances on issues, and I feel that many times they are misdirected in their attacks and don’t get all the facts straight,” Kolender said. “I think they don’t show good judgment in some cases--like the school narcotics thing--and while defending the rights of one individual, they tend to forget about the rights of a whole lot of other individuals.”

Duffy--who has been on the losing end of ACLU lawsuits several times--was too busy to be interviewed last week, his secretary said. She added that the sheriff said he basically feels the ACLU is “sometimes hypocritical in the positions they take.” He did not elaborate.

Hard Battles in Early Days

Such relatively tame critiques would likely prompt an amused smile from the local ACLU’s founders, who triggered somewhat nastier vitriol when they first took up arms back in the mid-1950s.

Del Mar resident Harvey Furgatch--one of a half-dozen locals who hatched the ACLU branch because “nobody else was doing anything about all these civil liberties violations”--recalled that the organization “was for years denied any measure of respectability” in its host community.

“I recall one judge--I won’t mention his name--said, ‘The ACLU are a bunch of bastards, but we sure need them,’ ” Furgatch said. “That to me was a very encouraging thing. Most people were calling us a bunch of bastards and ending the sentence right there.”

Initially, the local ACLU contingent concentrated on holding informational meetings and speaking out publicly against various injustices. Loyalty oaths were in vogue back then, and ACLU members persistently challenged their use.

“I remember one time in the early ‘50s when Pete Seeger was in town for a performance and they refused to let him use a school auditorium unless he signed something, something declaring he was not then, and never had been (a member of the Communist Party),” Gostin, one of the early presidents, recalled. “We took it to court, and the concert went on that night.”

Another victory that stirs memories for longtime ACLU members came in the case of several Spanish sailors who jumped ship in San Diego, apparently seeking political asylum.

“They fled to Tijuana and there, as a result of prodding by American authorities, the police held them until the INS could pick them up,” recalled Harry Ruja, a retired professor of philosophy from San Diego State University who was the chapter’s second president, in 1958. “They were held in jail for months until we finally got them released. Our belief was they would have been executed if they were returned to Spain.”

Lawsuits Rare at First

Early on in the affiliate’s history, lawsuits were rare, and those that were filed generally were handled by ACLU attorneys in Los Angeles. But in the late 1950s, a panel of lawyers willing to volunteer on cases involving civil liberties issues was created, paving the way for the numerous legal battles the organization would tackle during the 1960s. The panel--which began with two attorneys but soon expanded to about 15--would meet in the basement of the San Diego Hotel and decide whose cause they could afford to take on.

“There was an awful lot to do in that decade,” mused Mary Harvey, a La Jolla attorney and early member of the legal panel. “Kids expelled from school because of armbands, young people getting arrested for distributing underground newspapers on public sidewalks. . . . Of course, racial discrimination in the schools, in housing and employment was a big thing. And with all the anti-war protests, you had long-haired kids in vans getting pulled over and arrested illegally all the time.”

By 1964, the local ACLU presence had grown to the point where leaders agreed it needed a permanent home. With finances scarce, however, options were limited. So they wound up in Ceil Podoloff’s kitchen.

“They needed a center point, a place to call home, so everyone got the boxes out from under their beds and brought them here,” recalled Podoloff, 67, of Point Loma. “I was the first paid employee, working half-time--which for the ACLU means something slightly short of 24 hours a day.”

The office remained in her kitchen--amid the salt shakers and appliances--until 1977.

Jail Crowding Case

Over the years, the local chapter grew in stature and began attracting more and more volunteer lawyers willing to do pro bono work. One such attorney, Alex Landon, took on the county and Sheriff Duffy in one of the more significant lawsuits filed locally, the challenge to conditions at the downtown jail.

In 1980, the ACLU won a key victory in that suit when a Superior Court judge imposed a 750-inmate cap on the population at the central jail. Settlement negotiations are now under way in a second suit aimed at improving conditions in the county’s outlying incarceration complexes.

About three years ago, ACLU leaders decided it was time to increase their investment in San Diego, and a full-time executive director and legal director plus two support employees were hired. Nearly everyone associated with the organization says the addition of paid staff has significantly enhanced the ACLU’s profile and effectiveness in town.

Since then, the chapter has handled numerous cases that have won it national media attention and praise.

Duffy-Bird Tangle

In 1985, filing a case on behalf of Common Cause, the ACLU challenged the sheriff’s conduct in the campaign to oust then California Supreme Court Chief Justice Rose Bird from office. Attorneys charged that Duffy acted illegally in using his office and deputies to distribute 18,000 anti-Bird post cards supplied by a group leading the fight to topple Bird.

The lawsuit, which drew statewide attention, specifically alleged that Duffy had overstepped legal limits on politicking by sending a letter to deputies on county stationery inviting them to distribute the cards, by mailing the cards to interested citizens and by using on-duty deputies to deliver the card to sheriff substations.

In early 1986, a Superior Court judge ruled that even though the sheriff had a right and a duty “to inform the public about matters that are reasonably within the scope of his duty,” most of Duffy’s conduct was prohibited by law. The ruling appeared to set a precedent forbidding public officials to engage in political activities “aimed at influencing the voters” during working hours.

Later, the 4th District Court of Appeal upheld the ACLU’s request for $18,804 in attorney’s fees--a sum Duffy unsuccessfully attempted to have the county government pay--and the ACLU recently filed for another $12,800 in reimbursement for costs incurred at the appellate level.

In another widely covered case, the ACLU took on Fallbrook High School after the principal suspended two students for publishing an underground newspaper called the Hatchet Job. In a settlement of the case, the students won $22,000 and an apology from the school district’s board of trustees. One columnist for the Washington Post said the outcome “appears to be the most substantial free-press victory for a high school newspaper in the history of the nation.”

Help From Law Firm

The Hatchet Job case also marked one of the few times a large, established law firm had stepped in to aid the ACLU. Charles A. Bird, an attorney with Luce Forward Hamilton & Scripps known for his skill with First Amendment cases, played the lead role in the case and “litigated the pants off” the other side, according to Tom Homann, an attorney who has handled numerous cases for the ACLU and is on its litigation committee.

Other significant victories followed. In an ACLU-assisted case that attracted nationwide attention, a Municipal Court judge last year dismissed charges against an El Cajon woman jailed for six days after being accused of contributing to her son’s death by ignoring doctor’s orders. The case involving Pamela Rae Stewart was closely watched by feminists, legal scholars and doctors and was seen as an important victory for advocates of reproductive rights.

Another case that made headlines last year involved the custody rights of a Mexican surrogate mother, Alejandra Munoz, who gave birth to a baby for a Chula Vista couple. After the couple dropped their quest to prove that they had a legal contract with Munoz and sole rights to the baby, the ACLU won for the mother what amounted to about equal custody of the child.

Recently, the local chapter has moved into the area of employee drug testing. One victory already has been notched, (San Diego Gas & Electric rehired an employee who was fired after a faulty test came out positive) and another case is pending.

Severing a Tie

Through it all, however, local ACLU leaders had felt hindered in their operations by the tie that bound them to Los Angeles. Frequent trips to the northern office were necessary, and the San Diego branch lacked a voice on the national board of directors, which it now has.

“Affiliate status was important because San Diego has unique problems not typical in other parts of the state--like the border, a Police Department that is out of control and all kinds of First Amendment issues,” said Peter Irons, a political science professor at UC San Diego and ACLU board member. “Now, we make our own decisions on things and have eliminated a layer of bureaucracy.”

San Diego is the only city to be granted affiliate status and the first new affiliate created since Delaware was so designated in the early 1970s. In arguing for the honor, local members noted that San Diego’s chapter had more members than affiliates in 26 states and had etched a record of aggressiveness in the local legal community.

No startling changes are expected under the new organizational structure: Leaders say the change will merely help them do a better job fighting the same battles they have been fighting all along.

“We will just keep litigating the same issues over and over,” attorney Homann said. “There are always evil forces out there, threatening to take over, and there are always people trampling on the Bill of Rights. So you’ll always need an ACLU around to keep the rich and powerful from oppressing the rest of us.”