Still tilting at windmills

Don Bird is still tilting at windmills.

The latest tale in the saga of the Red Bluff man who is waging a lonely and quixotic battle to try to force Assemblyman Jim Nielsen’s hand on the issue of his residency involves the town’s chief of police and its building director.

There are many, including some prominent members of Nielsen’s own Republican Party, who agree with Bird that Nielsen has been untruthful about living in his 2nd Assembly District and doesn’t meet the qualifications for voting in the district, much less representing it in the Assembly. (See “Bird dogging Jim Nielsen”.)

But when it comes to acting on his convictions, Bird is pretty much alone at this point.

So far he’s filed complaints against Nielsen with state and local agencies, forced the state attorney general’s office to do an investigation (which went nowhere) and begun circulating recall petitions on three Tehama County officials—two judges and the district attorney—who in his opinion refused to uphold the law.

He hasn’t gotten far. One judge, John J. Garaventa, not only refused to grant Bird’s petition for a writ of mandamus, he also upheld a Nielsen countersuit charging Bird with filing a SLAPP, or strategic lawsuit against public participation, and required him to pay Nielsen’s attorney fees, some $7,000. The irony wasn’t lost on Bird, who believed he clearly was the party trying to participate publicly.

The other judge, Edward J. King, denied Bird’s request for a jury trial in his suit seeking to force the attorney general’s and secretary of state’s offices to enforce the election code regarding Nielsen’s residency. Bird is convinced that, had a jury of his peers heard the evidence, they would have agreed that Nielsen’s legal domicile was in fact his home in Woodland, outside the district, and that he did not live in Gerber, as he claims.

Bird is also trying to recall Tehama County District Attorney Gregg Cohen, charging he failed to enforce the law by prosecuting Nielsen for allegedly lying about his domicile.

The closest Bird has come to success has been in gathering signatures in the King recall. He needs to collect only 901 voters’ signatures to put the recall on the ballot.

He’s close, he says, but needs a couple hundred more as “a cushion” in case some are invalid, and his deadline is nearing. It didn’t help any that last week the local Walmart store kicked him off the premises, even though he’d filled out all the paperwork to put up his table and collected signatures there before.

Later that same day, he’d put up his table in front of the Red Bluff Post Office and was gathering signatures when the Red Bluff chief of police, Scott Capilla, and the city’s building director, J.D. Ellison, showed up.

He had to remove his table and chair, the men said. He was blocking the sidewalk. It had something to do with the Americans for Disabilities Act, they explained, according to Bird’s account.

The chief also objected to one of his signs, Bird said. The sign accused DA Cohen of being “a spineless, corrupt public servant,” Bird acknowledged. He says the chief told him any sign that “incites people” could be illegal.

Bird is a law-abiding man, so he removed his table and got rid of the offending signs. Told it was illegal to hang signs from his parked car, he removed those, too.

After that he used the car’s hood as a table. Unfortunately, it was parked in a 20-minute zone, which meant he kept having to move it.

In a phone conversation, Capilla acknowledged that he’d gotten complaints about the “personal nature” of some of Bird’s signs. Jjust as important was that Bird’s table was blocking the ability of people parked in front of the post office to exit their cars.

The city was recently stung by a big ADA lawsuit, the chief said, and Ellison in particular was sensitive about possible violations.

Ellison was out on medical leave, so the CN&R talked with Robert Adams, a senior inspector in the Building Department. “My understanding was that they were having no trouble until he started putting out real negative stuff,” Adams said.

Asked about Capilla’s comments, Bird said the chief was all wrong. His table, he said, was next to a red zone. “Nobody was inconvenienced getting out of a car or van,” he said.

In addition, “I don’t see anything [in the Constitution] that keeps me from putting a sign on my parked car. … There’s nothing in the code that says it’s not permissible.”

Michael Risher, a staff attorney for the American Civil Liberties Union of Northern California, agreed with Bird. “If there’s one polestar in the First Amendment, it’s that the police cannot tell us what we can say,” he commented in a phone interview.

That’s especially true of political speech, which includes gathering recall signatures. And the federal courts have ruled that use of a small table in such situations is OK, as long as it doesn’t block the sidewalk.

“The most they should have done is tell [Bird] to move a few feet away,” Risher said.

Bird has until Monday (June 29) at 4 p.m. to submit his signatures.