California Court of Appeal

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Fleming v. Superior Court, G043395

A petition for a of mandate challenging the grand jury indictment against a former school district's superintendent for authorizing subordinates to compile two lists of individuals who strongly supported a recall of the district's school board back in 2005, is granted and the trial court's order dismissing counts 2 and 3 affirmed where: 1) because defendant was within his lawful authority to authorize his subordinates to compile the two lists, his authorizations were not criminal under Penal Code section 424 as defendant was within the proper scope of his authority as superintendent to research the nature of the discontent and unrest in the school district at the time; 2) the case against defendant 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 it required for violation of that statute; and 3) the conspiracy allegation under Penal Code section 182(a)(5) fails because defendant and his assistant superintendent agreed to do nothing more than acts which they had the legal right to do in the first place, they had no criminal objective in doing, and did not come anywhere near to obstructing justice or the due administration of law in the first place.

Appellate Information

  • Decided 12/21/2010
  • Published 12/21/2010




  • California Court of Appeal


  • For Appellant:
  • John D. Barnett, Tony Rackauckas

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