Fleming v. Superior Court

Decision Date23 March 2011
Docket NumberNos. G043395, G043577.,s. G043395, G043577.
Citation262 Ed. Law Rep. 948,119 Cal.Rptr.3d 275,191 Cal.App.4th 73,10 Cal. Daily Op. Serv. 5894
CourtCalifornia Court of Appeals Court of Appeals
PartiesJames FLEMING, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The People, Real Party in Interest. The People, Plaintiff and Appellant, v. James Fleming, Defendant and Respondent.

Law Office of John D. Barnett, John D. Barnett and Albert A. Newton for Petitioner and Respondent James Fleming.

Tony Rackauckas, District Attorney and Stephen Sauer, Deputy District Attorney, for Real Party in Interest and Appellant People of the State of California.




Penal Code section 424 provides that each officer of any school district in this state who is charged with the "receipt, safekeeping, transfer, or disbursement of public moneys," and who, without authority of law, appropriates such moneys to his or her own use, may be punished by a prison term of either two, three or four years.1 In this case, criminal charges have been brought via a grand jury indictment against the former superintendent of the San Juan Capistrano Unified School District (the District), petitioner James Fleming, for authorizing subordinates to compile two lists of individuals who strongly supported a recall of the District's school board back in 2005.

In response to the superintendent's petition for writ of mandate attacking the indictment, this court issued an order to show cause and scheduled oral argument in order to consider the legal question of whether the superintendent's authorization fell within the purview of his lawful duties as District superintendent. In sum, we now hold that because Fleming was within his lawful authority to authorize his subordinates to compile the two lists, his authorizations were not criminal under section 424. Briefly, Fleming was within the proper scope of his authority as superintendent to research the nature of the discontent and unrest in the District at the time. (See Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1431, 57 Cal.Rptr.3d 885 ( Morrow ) [school superintendent "had an official duty to communicate with the press about matters of public concern" and what district would do about incidents of student violence].)

We also consider the district attorney's office's own appeal from the trial court's dismissal of two other counts against Fleming. One of those counts is based on an allegedly criminal violation of Education Code section 7054, the other is based on a conspiracy with his assistant superintendent to, in the language of Penal Code section 182, subdivision (a)(5), "commit any act ... to pervert or obstruct justice, or the due administration of the laws." The case against Fleming based on Education Code section 7054 collapses in light of the fact that neither of the two lists, under California Supreme Court cases, comes anywhere near to constituting the "urging support or defeat" of a candidate or ballot measure as is required for violation of that statute. And the conspiracy allegation under Penal Code section 182, subdivision (a)(5) fails because Fleming and his assistant superintendent agreed to do nothing more than acts which (1) they had the legal right to do in the first place, (2) they had no criminal objective in doing, and (3) did not come anywhere near to obstructing justice or the due administration of law in the first place.

A. The First List

It would be safe to say that in the spring of 2005 there was a fair amount of discontent among many parents and citizens in the District. One sore point that received media attention was a new District headquarters building, often referred to as the "Taj Mahal." As recall supporters saw it, District bureaucrats got an expensive new building while students continued to make do with portable classrooms.2 But there were other issues too, such as the location of a new high school and new attendance boundaries.

And so, in the spring of 2005, an e-mail was brought to the attention of the District's superintendent, James Fleming. The e-mail had the subject line "Let's show up for the Recall" and it had a large list of e-mail addresses in the "to" column.3 Some of the addresses, of course, were of simple names, and others were obviously aliases. According to Fleming, he wanted to know the degree of dissatisfaction with the location of a new high school (he would refer to opponents of that location as "Nimbys" 4), and with recent changes in school attendance boundaries. Fleming would later say that he wanted to "inform" these nascent recall supporters of the reasons for the location of the new high school and the recent changes in attendance boundaries. One of his staffers, Kate McIntyre, testified before the grand jury that the list was developed so that people who were unhappy with the District could be "educated" about District issues.

We stress that in this opinion we accept the district attorney's office's version of the facts, i.e., the version of the facts most disfavorable to Fleming. Under this version of the facts, he directly asked his assistant superintendent or a secretary to compile a list of the names from the addressees of the e-mail proposing the recall. That person in turn developed a series of spreadsheets that converted the "to" addresses in the original e-mail into a spreadsheet that had columns of the real people's names. Next to the names were corresponding e-mail addresses. Then, in the same line (but only in some cases) names of the relevant high school, middle school and elementary school attendance area. The spreadsheets could not have been compiled without access to a student information database system known as Aeries.

In any event, the actual work involved on this list was minimal: The secretary who did the typing testified that the preparation of the spreadsheets would have taken no more than a half an hour.

We have no evidence that Fleming actually did anything with this first list, other than to "maintain" it over the course of the ensuing months.

B. The Second List

The recall effort failed in December 2005, and, as noted, there is no evidence that the failure could be in any way tied to the first list because Fleming (literally) did nothing with it. The reason for the failure was, however, not any general lack of support for the recall, but because supporters were in too much of a hurry and thus ran afoul of election law. As explained in Capo for Better Representation v. Kelley (2008) 158 Cal.App.4th 1455, 71 Cal.Rptr.3d 354 ( Capo for Better Representation ), recall petition circulators were so eager to recall the entire seven-person board of the District that they literally filled in the signers' addresses for them after each signer signed the first recall form, so as to avoid troubling signers with the task of making them write in their addresses on the six additional recall forms. That "shortcut," however, violated the Elections Code. ( Id. at pp. 1459-1460, 71 Cal.Rptr.3d 354.)

While Fleming would later deny authorizing the second list, the prosecution's case is that he sent his assistant superintendent, Susan McGill, and the District communications director, David Smollar, to the office of the county Registrar of Voters, during regular school hours in the period January 1 through January 12, 2006, to view the actual petitions that had been turned in. 5 Registrar Neal Kelly then (improperly, as everyone now seems to acknowledge) allowed McGill and Smollar to view the actual petitions and copy down names of recall petition circulators.6 McGill, in turn, instructed her secretary Barbara Thacker to create a spreadsheet of these signature gatherers using information from the Aeries database. Thacker created two new lists: One of the hard-core gatherers who were responsible for 90 percent of the signatures, the other for the rest. McGill then sent Fleming a cover sheet for the lists with the words, "Per your request, attached are the lists of individuals who were listed as petition signature-gatherers along with the information on whether they have children in CUSD and which schools those children attend." 7

C. And the Subsequent Indictment

Word of the two lists eventually leaked out 8 and the district attorney's office initiated grand jury proceedings. The grand jury returned an indictment in May 2007 against Fleming and McGill. The indictment sets forth three counts against Fleming, all centering on misuse of public funds, with the fourth against McGill, for perjury based on allegedly false statements made to the grand jury. (We deal with the fourth count against McGill in a separate opinion.) The three counts against Fleming are:

—Count 1 for violation of Penal Code section 424 based on the willful and unlawful appropriation of public moneys for his own use in ordering the creation of the two lists.

—Count 2 for violation of Education Code section 7054 based on the use of District funds to urge support or defeat of a ballot measure (i.e., the recall of the District's board). Count 2 is based exclusively on the first list.

—Count 3 for conspiracy, along with his assistant superintendent McGill, to violate Education Code section 49076 based on the use of the Aeries computer program with its confidential information about pupil records, plus conspiracy to commit acts "injurious to the public" by creating the two lists.

D. The Litigation

In October 2009, Fleming brought a motion, pursuant to section 995 of the Penal Code,9 to set aside the indictment as without probable cause. At a hearing in late February 2010, the trial court granted the motion as regards counts 2 and 3, finding that there was no evidence that Fleming ever "urged the resistance" to the recall effort or "attempted to persuade or influence any vote in that aborted recall."

Count 1, however, was not...

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