Cunningham Successor Faces Legal Controversy, Too
By Thomas D. Williams
t r u t h o u t Report
Wednesday 25 October 2006
San Diego Republican Congressman Brian Bilbray, now in the midst of a California elections campaign, is trapped in a spinning political and legal controversy over whether his prime residence is in California or Virginia.
The issue became a nagging question for Bilbray, 55, a surfer, most of whose roots are in California, as a result of a sworn statement he made in a Fairfax County, Virginia, 2005 deed of trust. It made 8930 Linton Lane, Alexandria, Virginia, his "prime residence."
After losing a California Congressional election to Susan Davis in 2000, Bilbray soon moved to Washington, DC, to become a lobbyist. He represented tribal issues, a border-sewage treatment project and an anti-illegal immigration group, the Associated Press reports.
Land records show he retains that Alexandria residence, while also using and listing family residences in Imperial Beach and Carlsbad, California, where the Bilbrays report they began living when he once again successfully ran for congress in a special election earlier this year. A call Tuesday to the Alexandria, Virginia, Real Estate Division confirmed he still owns the property there.
The battle of words over his residence has swirled off and on for almost six months, yet no public official responsible to the voters in California has ultimately decided legally, once and for all, where Bilbray's prime residence is. Nevertheless, it is essential that Bilbray be a legal resident of California to not only run for office, but to vote.
Some officials involved with the controversy agree it could be much simpler, less expensive and time consuming to resolve whether a contender is qualified to be a candidate before he is elected, rather than afterwards. Special elections in California have an estimated cost of over $30 million, and state reimbursement to a locality has reached as high as $43 million. Those are figures released by a 2006 report from the Institute of Governmental Studies for the University of California at Berkeley.
But, today, despite the doubt over Bilbray's actual prime and legal residence, no state official has decided what to do with the election looming November 7.
Only last April, Bilbray won his own special run-off election to fill the seat of Randall Harold "Duke" Cunningham, a 14-year Republican congressional veteran.
In March, Cunningham was sentenced to eight years and four months in prison and ordered to pay $1.8 million in restitution after pleading guilty to accepting at least $2.4 million in bribes and underreporting his income for 2004. Bilbray had himself been a Republican member of Congress from another California district from 1995 to 2001 before he lost an election.
Bilbray served for a decade on the San Diego County Board of Supervisors from 1985 to 1994, before winning his first election to the US House of Representatives, representing a district that included Imperial Beach.
Just a month after Bilbray regained his place in Congress this year from San Diego, County Democratic Chairman Jess Durfee complained to California Attorney General Bill Lockyer that Bilbray had falsely sworn under oath to the state about California being his prime residence. The following month, Lockyer's office turned the complaint over to San Diego District Attorney Bonnie M. Dumanis.
Paul Levikow, director of communications for Dumanis, would not comment on that investigation, or whether the question of Bilbray's legal residence can be resolved before the election through a complaint to another responsible state office.
The dispute over Bilbray's home grounds has resulted in news story after news story including rumors about the status of the investigation and whether a grand jury has been impaneled. No one interviewed could supply a copy of subpoenas reportedly issued to neighbors of Bilbray's to prove the grand jury's existence. No public record is available because of the secrecy required for grand juries so there is no way of knowing whether or not one is actually investigating the complaint, or has completed a probe.
A California state elections registration document, sworn to under oath by Bilbray on Feb. 23, 2006, says he is a resident of Carlsbad, California. On the other hand, a deed, dated July 24, 2002, says he resides in Imperial Beach, California. However, still another deed dated Aug. 5, 2005, in Fairfax County's Alexandria, Virginia, and sworn to by Bilbray, makes his "prime" residency there.
According to federal tax rules, a taxpayer must have lived two of the past five years in a "prime residence" to shelter up to $500,000 in real estate profits from taxation, if married, as Bilbray is. If the taxpayer doesn't follow the rule, the tax shelter gets eliminated.
Repeated attempts to contact Bilbray for his reaction to the controversy including three phone calls to his press spokesman, Kurt Bardella, and an e-mail supplying Bardella with Bilbray's crucial residency and voter registration documents, failed to inspire any response.
When he was confronted about the state investigation of his residency in a debate on NBC's 739 News in San Diego recently, Bilbray said: "I live in Carlsbad. If she (Busby) had the decency to ask my neighbors where I live, she wouldn't do this." He then claimed that his opponent makes serious charges without being able to back them up.
Despite the availability of these documents to Bilbray's opponents, Democratic Chairman Durfee and Democrat Francine Busby, his rival for the congressional seat, and potentially to all state officials responsible, nothing has been done to decide Bilbray's crucial residency qualification. Nan Nguyen, a spokeswoman for the Secretary of State's elections division, said ironing out a conflict over residency is the responsibility of the Registrar's Office, in this case, in San Diego. Through a spokeswoman, Monique Roberts, Registrar Department Head, Mikel Haas, said his office does not investigate residency requirement complaints. The person with the substantiating evidence needs to file the complaint, Roberts said, and the registrar's office has received no such information.
Nathan Barankin, a spokesman, for the attorney general's office, said the usual remedy for a dispute like this comes from a challenge by the complaining parties to the courts in the form of a writ. It is not the practice of the attorney general to file such a writ, he said.
However, Busby's spokeswoman, Linda Poniktera, said that for Busby to file such a complaint in court "would be considered sour grapes" by the voting public. She said Busby has already made every effort, including posting Bilbray's residency conflict on her Internet site, to ensure the voters know all about the available facts.
Busby said: "Don't take my word for it. The documents available in the public domain speak for themselves. There are discrepancies suggesting that Mr. Bilbray may be subject to charges of perjury and fraud, and voters have a right to know the facts before the election. Any ordinary citizen who behaved this way would be subjected to investigation. If elected officials have additional information, it should be provided to voters without regard for timing."
Democratic Chairman Durfee said: "Lawyers told us the best course of action would be to complain to the district attorney, and, as a backup course of action, to the attorney general. Prior opinions of the attorney general were not definitive enough to convince the party to file a writ."
Thomas "Dennie" Williams is a former state and federal court reporter, specializing in investigations, for the Hartford Courant. Since the 1970s, he has written extensively about irregularities in the Connecticut Superior Court and Probate Court systems for disciplining both judges and lawyers for misconduct. His stories about the corrupt activities inside the Hartford Probate Court helped encourage a federal grand jury probe leading to the conviction of the court's investigator for corrupt activities, the first attempted impeachment of a judge or any official in the state's history, and a legislative probe that resulted in major changes of the court's disciplinary system for state lawyers. Another of his investigative inquiries in the 1980s led to the forced resignation of a Superior Court judge who was hiring and appointing friends and relatives for lucrative court duties. His most recent freelance stories exposed failings of the Connecticut Judicial Review Council, investigating misconduct by Superior Court judges and the regular one and a half year delays in deciding State Appellate Court cases. He has received numerous awards for his investigative and in-depth reporting.