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James Fleming v. the Superior Court of Orange County

December 21, 2010


(Super. Ct. No. 07ZF0013)

The opinion of the court was delivered by: Sills, P. J.



Original proceeding and appeal; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, and appeal from orders of the Superior Court of Orange County, William R. Froeberg, Judge. Petition granted; orders affirmed.

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.*fn1 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 superintendant 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 (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.*fn2 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 superintendant, 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.*fn3 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"*fn4 ), 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 superintendant 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 (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.)

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.*fn5 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.*fn6 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."*fn7

C. And the Subsequent Indictment

Word of the two lists eventually leaked out*fn8 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,*fn9 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 dismissed because, in Judge Froeberg's words, Fleming had used "company time to investigate political things." On March 15, 2010, Fleming filed a writ petition (G043395) to reverse the order as to count 1. Two weeks later, on March 29, the Orange County District Attorney's Office filed a writ petition (G043464) to overturn the order as to counts 2 and 3. This court denied that petition, but scheduled an order to show cause as to Fleming's challenge to count 1.

Meanwhile, the district attorney's office filed an appeal from the trial court's order dismissing counts 2 and 3. This court then consolidated Fleming's writ proceeding on count 1 with the appeal on counts 2 and 3.


This combined writ proceeding and appeal focus on the proper interpretation of three statutes. The first is Penal Code section 424, which deals with misappropriation of public funds generally. The second is Education Code section 7054, which is a much more focused statute, prohibiting the use of school funds for political campaign purposes. The third is Penal Code section 182, subdivision (a)(5), which is part of the Penal Code addressing conspiracies, and which makes any conspiracy to "commit an act . . . to pervert or obstruct justice, or the due administration of the laws" illegal.*fn10

A few points of comparison among the statutes should be noted at the outset. First, as we mentioned earlier, Penal Code section 424 requires that, to be unlawful, the misappropriation must be made "Without authority of law." The exact language, from subdivision (a)1. of the statute is: "Each officer of this state, or any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either: [¶] 1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another . . . [i]s punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state." (Italics added.)

One should note that, under the actual language of the statute, an officer's appropriation to his or her "own use" or "use of another" is lawful if done with "authority of law." To mention two obvious and non-controversial examples: a football coach's requisition of sleds for the high school football team, or a history teacher's requisition of legal pads to make notes for lectures.

It is also worth noting that the statute contains an explicit "incidental and minimal use of public resources" exception. The exact language, from subdivision (c) of the statute, is: "This section does not apply to the incidental and minimal use of public resources authorized by Section 8314 of the Government Code."

Second, Education Code section 7054, unlike Penal Code section 424, does not make the absence of "authority of law" an element of the crime. Nor does Education Code section 7054, in contrast to Penal Code section 424, set forth an "incidental and minimal use" exception. However, the crime delineated in section 7054 is itself defined much more narrowly. The crime is the specific use of school moneys for the specific purpose of "urging the support or defeat"' of a ballot measure. The exact language, from subdivision (a) of the statute, is: "No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district." (Italics added.)

Given its school-specific and election-specific focus, it is perhaps to be expected that -- at least up to now -- there has been no appellate case, published or unpublished, where an alleged violation of section 7054 was the basis for a criminal prosecution, though the statute certainly does provide for criminal penalties.

Third, the language used in Penal Code section 182, subdivision (a)(5) is extremely broad. Here it is: "If two or more persons conspire: [¶] . . . . (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws. [¶] . . . . They are punishable as follows: . . . ." The district attorney's office correctly notes that, as a matter of statutory construction, the literal language of section 182 would allow for the prosecution of conspiracies to do legal acts, if only because another part of the statute, subdivision (a)(1), makes conspiring to commit any crime itself a crime. (The language from that other part: "If two or more persons conspire: [¶] 1. To commit any crime." . . . . [¶] They are punishable as follows: . . . .") That is, to avoid redundancy (conspiracies to commit crimes are already illegal), the language of the statute allows for conspiracies to do acts which are not illegal.

However, the California Supreme Court has held: "The meaning of the words 'to pervert or obstruct justice, or the due administration of the laws' is easily ascertained by reference either to the common law or to the more specific crimes enumerated in part I, title VII." (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 59-60 (Lorenson), italics added; accord Skilling v. United States (2010) ___ U.S. ___ [130 S.Ct. 2896, 2929] [limiting federal "honest-services" statute to actual bribery or kickback schemes to avoid unconstitutionality for vagueness].) Of course, a conspiracy to obstruct justice certainly qualifies as an illegal conspiracy.

With these general observations in mind, we now examine each of the three counts brought against Fleming.

A. Fleming's Writ Challenge to Count 1

1. The Scope of a Superintendent's ...

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