Residency questions dog many California legislators

02/28/2014 11:00 PM

08/13/2014 8:40 AM

Hours before officials announced Tuesday that state Sen. Rod Wright would take a leave of absence while he fights a jury’s verdict that he lied about where he lives, a 79-year-old retired contractor from Red Bluff stood outside the Capitol in a baseball cap and yellow T-shirt, making the case that Wright isn’t the only lawmaker who lives outside the district he represents.

The sign-waving protester, Don Bird, has been arguing for four years that state Sen. Jim Nielsen does not really live in the Tehama County community of Gerber that he claims as his official domicile, but in Woodland – outside the Senate district he represents. Bird has taken his complaints to the state attorney general’s office, the secretary of state’s office and a Tehama County grand jury, none of which has found any wrongdoing on Nielsen’s part.

“It’s the typical good old boy thing,” Bird said. “Nobody but me and a few other people up there are the only ones growling about it. That’s the way it is.”

California’s requirement that legislative candidates live in the districts they seek to represent has been thrust into the spotlight as the Capitol grapples with how to respond to Wright’s conviction. A Los Angeles jury in January found Wright guilty of eight felonies, including perjury and voter fraud, for signing candidacy papers during his 2008 election swearing that he lived in a home he owns in Inglewood, while he actually lived a few miles away in the tonier community of Baldwin Hills. Neighbors testified that they routinely saw Wright at the Baldwin Hills house, while Wright's tenant at the Inglewood home testified she had never seen him spend the night or fix a meal in Inglewood.

He is scheduled to be sentenced in May.

But the case against Wright marks a rare prosecution for a practice many say is common in the state Capitol: Candidates frequently hop around as they spot open races or change addresses when new district lines are drawn every decade. And while legal challenges are not uncommon, they typically come from opposing candidates – not from criminal prosecutors.

Criminal charges must come from 58 elected county district attorneys, who not only have wide discretion on whether to prosecute, but also a variety of political considerations, particularly when another elected official is the target.

“He is not exactly the first politician who fudged residency to run for office,” said Jack Pitney, a professor of politics at Claremont McKenna College.

Senate leader Darrell Steinberg acknowledged as much.

When pressure mounted against him this week to oust Wright from the Senate, Steinberg worked to turn the attention away from his Democratic colleague and onto Republican legislators who have faced similar allegations. Steinberg says he wants to wait and see whether the judge will uphold the jury’s guilty verdicts before taking any permanent actions against Wright.

“It is arguable that there is an ambiguity in the law on residency and domicile. It is arguable because in my calculation over a quarter of the members in the minority party on this floor today have had their own residency status questioned at the time that they filed for office,” Steinberg said.

Republican Sen. Tom Berryhill, for instance, was sued by an opponent in his 2010 race for state Senate who claimed he didn’t have a right to run for the office because he had moved into the district less than a year before the election.

She lost.

“It was a difficult issue and I think I was portrayed as someone who was using the courts to win instead of legitimately running,” said Heidi Fuller, a lawyer who lives in the Tuolumne County town of Columbia.

“But I’m not a politician. I had never run for anything beforehand and I’ve never run for anything since. I’m a person who cares very deeply about the whole idea of standing for one’s principles.”

Republican Sen. Mimi Walters was sued by an opponent who alleged she had lied about where she lived when she ran for re-election in 2012, after district lines were redrawn and her family home was no longer in a politically favorable district. Walters rented a 500-square-foot apartment in Irvine, said her opponent, Democrat Steve Young, and claimed she’d moved out of the 14,000-square-foot home in Laguna Niguel where her husband and children remained.

“We monitored the apartment for a long, long time,” said Young, a trial lawyer who lives in Newport Beach. “I sent flowers to the house and had them delivered and left on the front porch. Then we’d go back regularly and photograph the flowers as they wilted over a three-week period.”

Despite his assertions, Young’s case against Walters was tossed out of court. Young said the judge ruled that only the Legislature – not the courts – can determine that someone does not meet the requirements to run for office.

Walters and Berryhill did not return messages from The Bee.

Nielsen, also Republican, faces criticism over where he lives not only from Bird – who stood outside the Capitol this week – but also from a former unsuccessful election opponent.

“I’m calling for Jim Nielsen to resign because his situation is nearly identical to Senator Wright’s,” said Charlie Schaupp, a farmer who serves on the Esparto Community Services District board. “There is corruption on both sides of the aisle around this.”

Nielsen said numerous investigations have determined that his critics’ concerns are unfounded, and that he had to get a restraining order against Bird to stop him from stalking his home.

Nielsen said he lives in Woodland when he is doing business at the Capitol or in parts of his expansive district that surround Sacramento. But he spends plenty of nights in Gerber, he said, taking care of his cats, tending his property or participating in events in the north end of the state.

“(My wife) is born and raised in that county. She is a former Miss Tehama County,” Nielsen said. “So our roots are very, very deep up there.”

In Sacramento County, prosecutors said they are not pursing a case against Assemblyman Richard Pan, a Democrat, even though a Sacramento Bee investigation last year found that he did not live in the Pocket-area condo he claimed as his legal domicile but with his wife and children in Natomas, outside his Assembly district.

The Sacramento County District Attorney’s Office doesn’t have enough lawyers to initiate its own investigation on an election matter, said Chief Deputy District Attorney Steve Grippi. Instead, it relies on the secretary of state’s election fraud division to do the initial investigation. That office examined Pan’s situation, Grippi said.

“We were told they were not presenting a case to us for prosecution and that the case had been concluded,” Grippi said.

When The Bee asked the secretary of state’s office for information on its investigation, a spokeswoman said the office does not disclose any details about work done by its elections fraud unit.

Wright’s case has stirred discussion about whether California’s residency law is appropriate.

The state constitution requires legislators be an eligible voter in the district they seek for a year before an election and a resident of California for three years. Federal law, however, requires only that congressional candidates live in the states they seek to represent – not within the boundaries of individual districts.

Justin Levitt, a professor at Loyola Law School, says that’s a better model.

“The vast majority of time, I think, the voters would want somebody from their community. But to the extent voters want to have someone represent them who doesn’t live in their area, it doesn’t make sense to me that it’s wise to tell the voters no,” Levitt said.

Young, who sued Walters, rejected the idea of eliminating the legislative requirement to live within the district.

“We tout our government as a representative government. If it doesn’t matter where you live, then representation is an absolute fiction,” he said.

Yet Sen. Ted Gaines said he can represent his district just as well from his home in Roseville – outside district boundaries – as he could when he lived in Rocklin, just a few miles away but within the district.

Gaines, a Republican, got permission from the Senate, his own lawyer and the Legislature’s lawyer to move out of his district late last year and return to his family’s longtime home in Roseville.

“I know what I did was completely legal,” Gaines said. “I know that Senator Wright had a case before a jury and the jury found him guilty. That’s a very distinct and, in my view a huge difference.”

Pitney, the politics professor, said the Wright case is stoking a new conversation about how Californians elect their legislators.

“I don’t know if it will make them more honest,” Pitney said. “But it will make them more careful, which isn’t exactly the same thing.”

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