Bird dogging Jim Nielsen

Red Bluff activist, allies won’t give up effort to topple assemblyman

BEFORE …<br>Jim Nielsen’s Gerber residence in early 2008, when it was occupied by relatives and he was only “planning” to move there.

Jim Nielsen’s Gerber residence in early 2008, when it was occupied by relatives and he was only “planning” to move there.

Photo by Barry Clausen/the pioneer press

It’s been a year since the June 3, 2008, statewide primary election, and Charlie Schaupp still hasn’t conceded to Jim Nielsen, the man who beat him in the Republican race for termed-out Doug LaMalfa’s District 2 Assembly seat.

The Yolo County farmer and retired Marine Corps lieutenant colonel isn’t going to concede, either, because he’s convinced Nielsen’s victory was based on fraud—specifically, that Nielsen lived (and still lives) in a gated community in Woodland, outside the district, not in the Gerber-area mobile home inside the district that he claimed (and continues to claim) as his official domicile.

Schaupp is far from alone in this conviction. The firebrands up at the Pioneer Press in Fort Jones, which back in early 2008 first broke the story of Nielsen’s dubious residency claim, continue to hammer on the issue, and there are numerous people in the Gerber area who are familiar with the mobile home and are convinced Nielsen doesn’t live there.

Chief among Schaupp’s allies is Don Bird, an activist from Red Bluff with a bone-deep belief that nobody is above the law. So far, he’s filed complaints against Nielsen with state and local agencies, forced the state Attorney General’s Office to do an investigation and, most recently, taken out 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.

When he was running for office, Nielsen admitted he didn’t live in the Gerber house. It was occupied by his wife’s sister and her husband, Ellen and Larry VanDyke. The ostensible plan was for the VanDykes to build a house on an adjoining lot and for Nielsen and his wife, Marilyn, to move into the doublewide.

Nielsen argued that, because he planned to move into the house, it qualified as his residence for voting purposes.

As of Dec. 18, 2008, however, the building permit for the new house had expired. And in March neighbors told Pioneer Press reporter Barry Clausen that the VanDykes had moved to Corning. Nielsen, they said, was hardly ever there, dropping by only occasionally, apparently to do maintenance.

Nobody was home at the neighbors’ house when the CN&R scoped out the place in early April. All signs of the VanDykes—cars, hay trailer, house trailer—had vanished. The lawn was mowed, but that was the only sign of human presence. Curtains were drawn, blinds were down—the place was locked up tighter than a tick.

Nielsen has acknowledged to reporters that he and his wife live in Woodland but insisted that, when the Legislature is out of session and he’s touring the district, he resides in the Gerber doublewide.

He also argues that voters knew where he lived and decided to elect him anyway, based on his qualifications (he served in the state Senate from 1978 to ’90). As his friend LaMalfa put it back in April 2008, “What’s the big deal anyway?”

… AND AFTER<br>The house these days. The relatives have moved out, but there are no signs that anyone lives there. Neighbors say Nielsen comes around occasionally, but only to do upkeep on the place.

Photo By Robert Speer

To Don Bird and Charlie Schaupp, the big deal is obeying the law and being honest. This isn’t the first time Nielsen has lied about his residency, they charge. In the 1980s, after reapportionment put his Woodland house outside his Senate district, Nielsen rented an apartment in Rohnert Park that he claimed as his domicile but, as a reporter discovered, actually sat empty.

Bird, Schaupp, Clausen and their allies at the Pioneer Press see Nielsen as a scofflaw who gets away with it because he’s a powerful figure in political circles who has the support of the Republican establishment, and they blame state and local officials for not upholding the law.

That includes Attorney General Jerry Brown, whose office did a two-month investigation of Nielsen’s residency and concluded there were insufficient grounds for punishment.

Bird currently is circulating recall petitions on two Tehama County Superior Court judges, John J. Garaventa and Edward J. King. It was Garaventa who in May 2008 threw out his petition for a writ of mandamus accusing Nielsen of being ineligible to run because he didn’t live in the district. And King subsequently squelched Bird’s suit to force the Secretary of State’s Office and the Attorney General’s Office to enforce the election code regarding Nielsen’s residency.

Bird is also trying to recall Tehama County District Attorney Gregg Cohen, charging he failed to enforce the law by prosecuting Nielsen for lying about his domicile. It’s a long shot, though: He needs 6,136 signatures, compared to only 901 for Judge King. (Cohen did not return a call seeking comment.)

Bird’s real target, however, is Nielsen. He’s especially angry that Nielsen filed an anti-SLAPP (strategic lawsuit against public participation) suit against him and, adding injury to insult, Judge Garavanta made him pay $7,500 for Nielsen’s attorney’s fees. The way he sees it, Nielsen was the guy trying to keep him from exercising his rights, not the other way around.

These days Bird is standing outside Walmart, Kmart and other stores, gathering signatures. “We’re very close to getting King on the ballot,” he exulted on the telephone.

In addition, Clausen, Schaupp and John Martinez, who also ran against Nielsen in the 2008 Republican primary, are individually filing complaints against Cohen with the Tehama County Grand Jury. “Nielsen got away with this because Cohen wasn’t doing his job,” Schaupp said.

Unless Jim Nielsen really is living in Gerber, the possibility that he may become snared in a tangled web of his own weaving keeps increasing. That’s what Don Bird and his allies are hoping, anyway.

Take income taxes, for example. Legislators are paid not only a salary, but also per-diem expenses amounting to about $40,000 annually. According to an April 3 letter to the CN&R from Jon Waldie, chief administrative officer of the Assembly Rules Committee, per-diem expenses are subject to federal taxation if a legislator lives within 50 miles of the Capitol, but not if he or she lives farther away.

Nielsen’s dilemma is this: If he doesn’t pay taxes on the per-diem, claiming he lives in Gerber, and then is determined not to live there, he’s potentially guilty of tax fraud. On the other hand, if he does pay taxes on the income, he’s acknowledging that his domicile is in Woodland, outside the district.

Presumably, he’s already made the decision: He was sworn in and began drawing salary and per-diem in December 2008 and has filed his 2008 tax statement.

For his part, Schaupp is planning to run against Nielsen again in 2010, and this time the residency issue will be front and center. “What’s driving me is trying to get the law enforced and the corruption out of Tehama County,” he said. “They all turned a blind eye.”

The CN&R tried to contact Nielsen, but his Sacramento office was closed and his voicemail box was too full to accept further messages. Two voicemail messages left on the cellular phone of his chief of staff, David Reade, were not returned.