McGill v. Superior Court of Orange Cnty.

• Decision Date: 31 May 2011
• Docket Number: No. G043778.,G043778.
• Citation: 128 Cal.Rptr.3d 120,11 Cal. Daily Op. Serv. 6577,195 Cal.App.4th 1454,2011 Daily Journal D.A.R. 7839
• Parties: Susan McGILL, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; People of the State of California, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

195 Cal.App.4th 1454

128 Cal.Rptr.3d 120

11 Cal. Daily Op. Serv. 6577

2011 Daily Journal D.A.R. 7839

Susan McGILL, Petitioner,

v. The SUPERIOR COURT of Orange County, Respondent;People of the State of California, Real Party in Interest.

No. G043778.

Court of Appeal, Fourth District, Division 3, California.

May 31, 2011.

Kevin E. Gallagher for Petitioner Susan McGill.

No appearance for Respondent.

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

OPINION

SILLS, P.J.

I. SUMMARY

In mid-August 2006, the Orange County District Attorney's Office convened a grand jury investigation into possible misuse of public funds by the superintendent of the Capistrano Unified School District, James Fleming. (See generally Fleming v. Superior Court (2010) 191 Cal.App.4th 73, 119 Cal.Rptr.3d 275( Fleming ).) The district attorney's office's theory was that the school superintendent had misused public resources by authorizing subordinates to compile lists of individuals who had supported a recall of the school district's board of trustees in 2005. ( Id. at p. 77, 119 Cal.Rptr.3d 275.)

One of those subordinates was Susan McGill, the assistant superintendent of the school district until she retired in June 2006, just months before the grand jury began its investigation in August. McGill's specific role in the alleged misappropriation was, according to the district attorney's office, this: Superintendent Fleming sent Assistant Superintendent McGill, along with the school district's public relations officer, David Smollar, down to the county registrar of voters to look at the various recall petitions that had been turned in, and to copy down names of recall supporters. Afterwards, McGill had her secretary create a spreadsheet of recall supporters using a school district database, and later the lists were forwarded to Fleming. ( Fleming, supra, 191 Cal.App.4th at p. 80, 119 Cal.Rptr.3d 275.)

The grand jury's investigation began in August of 2006, and was not completed until May 2007, roughly nine months later. Fourteen witnesses appeared before the grand jury in that nine-month period, including Fleming, the target of the investigation. However, Fleming, knowing he was the target of the grand jury's investigation, invoked his privilege against self-incrimination to most of the questions asked of him.

McGill was among the very first witnesses to testify, testifying relatively early in the process in mid-August 2006, right after the testimony of Kate McIntyre, who had been Fleming's personal secretary. McGill was not the “target” of the grand jury's investigation. In fact, she was specifically told at the beginning of her testimony that there was “no expectation or intention” at that time of any charges against her “as a result” of the investigation.

But McGill's testimony did not fit the district attorney's office's version of events: McGill testified that going down to the registrar's office was her own idea, because she anticipated a lawsuit against the school district, and she wanted to know why some signatures were valid and some weren't. She also said that Smollar had “asked to come along,” and said Smollar practically inserted himself into the trip, which made her feel uncomfortable. In fact, McGill testified to a certain amount of enmity which Smollar bore her, a point that Fleming's secretary McIntyre had also made earlier. Basically, according to McGill, Smollar was angry that he didn't get the job of being the school district's “point person” in regard to the recall movement. Smollar had even “verbally attacked” McGill.

There was no dispute in the grand jury testimony that McGill and Smollar went down together to the registrar's office, where names of signature-gatherers were copied down. As McGill recounted events, she would read out names from the petitions and Smollar wrote them down. According to McGill, they hadn't been told to do that by Fleming; it was their own idea. While McGill said that she had informed Fleming about the trip and recall procedures, she “never gave” any “report about the names” to Fleming. Rather, she had assumed that Smollar was probably going to handle the matter with Fleming.

McGill's last day of testimony was August 21, 2006. Within a month, a document, dated January 12, 2006, was found among Smollar's “things.” (Smollar himself had left the school district about June 2006.) The document was a list of the signature-gatherers, with a cover sheet in the form of a short memo, ostensibly from McGill to Fleming, and no “cc” to Smollar, consisting of two sentences, basically saying, “per your request, here's a list of signature-gatherers.” ¹

McGill was never asked to return to the grand jury to explain the memo, or given the chance to allow it to refresh her memory of the events concerning the trip to the registrar's office. However, in May 2007, nine months after McGill testified, McGill's own secretary, Barbara Thacker, was called to testify before the same grand jury (still ostensibly investigating Fleming ). We will describe Thacker's questioning and testimony in extreme detail in part III of this opinion, but for the moment here is a précis: Thacker could not recall that McGill ever gave her the memo to type up, but—after being asked substantively the same question over and over (and over and over) again by two separate deputy district attorneys each taking turns asking that same question—Thacker said that McGill had probably given her the memo to prepare.

As noted, initially McGill was not only not the target of the grand jury's investigation, but she was specifically told there was no expectation of any charges against her from the proceeding, which was focused on Fleming. Even so, at the close of the investigation in May 2007, the two trial-level deputy district attorneys conducting the investigation not only asked for an indictment of Fleming, on three counts, but for an indictment of McGill, on two counts, as well.

One of those counts was intrinsic to the grand jury proceeding itself, that is, based on alleged perjury before the grand jury in conducting the investigation of Fleming. We should point out now that what exactly McGill was alleged to have falsely told the grand jury under oath is not spelled out in the indictment. All the indictment tells McGill is that she was alleged to have lied somehow, somewhere, in her grand jury testimony. Literally, the indictment said no more than that.²

Indeed, to this day in 2011, the district attorney's office has yet to actually quote the exact words which McGill uttered under oath and which the office claims she knew were false. Instead, the district attorney's office has provided, in briefing to this court, a series of general statements in the district attorney's office's own words that paraphrase McGill's testimony, followed by a string of general record references: “Petitioner further testified she did not know what happened to the list of names Smollar had written down. (RT: 191, 205–208.) She repeatedly claimed she never told Superintendent James Fleming about the list or wrote him any memos about it. (RT: 189–190, 195, 201, 202–203, 205–208, 212.)” ³

From this statement, we gather that the district attorney's office has based its perjury count on the January 12, 2006 cover memo, ostensibly written by McGill, and its subsequent “authentication” by her erstwhile secretary Thacker. The district attorney's office's theory appears to be that McGill falsely testified that she did not know what happened to the list of names written down at the registrar's office and did not give Fleming any memos about the trip when, in fact, the January 12, 2006 cover memo proves she did know full well what happened to the list, and in fact did write Fleming a memo about the list.

The other count in the indictment was extrinsic to McGill's testimony, that is, did not depend on the face of McGill's testimony before the grand jury, except insofar perhaps as the count was premised on a rejection of McGill's testimony that going down to the registrar's office was her own idea. This was a conspiracy count, which McGill shared with Fleming. The conspiracy allegation, as it was eventually fleshed out in briefing at the appellate level, was based on the theory that McGill and Fleming conspired to “ ‘use district resources to further their own personal purposes.’ ” ( Fleming, supra, 191 Cal.App.4th at p. 100, fn. 23, 119 Cal.Rptr.3d 275 [quoting district attorney's office's brief].) This court affirmed the trial court's dismissal of the conspiracy count in Fleming, and that judgment is now final.

But what about the school district's public relations officer Smollar, who by every version of the facts was at least as involved in the trip to the registrar's office and the preparation of the list as McGill, and in whose own “things” the memo, ostensibly from McGill, had been found? Smollar was never called to testify before the grand jury.

But there was something more than just the fact that Smollar was never called: At the very end of the grand jury's investigation in mid-May, one of the deputy district attorneys presenting the witnesses to the grand jury affirmatively instructed the grand jury that “anything” Smollar “might or might not say” was “irrelevant” to the “crimes” on which the grand jury was being asked to consider, which included the perjury charge against McGill.

The indictment against superintendent Fleming (including necessarily the conspiracy count against both Fleming and McGill) was considered in Fleming, supra, 191 Cal.App.4th 73, 119 Cal.Rptr.3d 275. There, this court held that, under the Education Code, the superintendent and his assistant McGill were within their lawful authority to compile the lists, disposing of the first two counts against Fleming. (See id. at pp. 84–89, 119 Cal.Rptr.3d 275 [noting and then applying provisions of Education Code...