Beall vs Fleming Δ
aka the “Enemies List” Lawsuit. This lawsuit was filed on January 8, 2008 in Orange County Superior Court against CUSD’s indicted former superintendent James Fleming, indicted assistant superintendent Susan McGill, and each of the seven elected “old guard” trustees who for years worked with Fleming. These lawsuits sought to hold the defendants accountable for their unlawful actions that violated the plaintiff’s civil rights and right to privacy, including without limitation:
• Creating and using illegal “enemies lists;”
• Sending moles into private homes to spy on their perceived political enemies; and
• Paying CUSD’s legal counsel to ghost write political hit pieces against the plaintiffs that were then signed and distributed door to door by individual residents (as if they’d written the letter themselves).
This lawsuit was filed in order to hold the defendants accountable for their unlawful actions and to send a message to other government officials that such abuses of power will not be tolerated by the people. A number of newspaper articles were published at that time. For example, Trustee Anna Bryson was quoted in the LA Times, “… Bryson said she shared the claimants' horror regarding the enemies lists. 'This is a huge violation of the rights in this country, to be targeted in this way by their own tax dollars,' she said. 'It's beyond belief.' "
Lawsuit Was Settled in August 2009.
False & Misleading Statements Made by Union-Backed Recall Proponents. The proponents of the union-backed effort to recall Trustees Mike Winsten and Ken Lopez Maddox made the following false and misleading statement in their official grounds for recall:
“You did not recuse yourself from a vote approving an out of court settlement that resulted in hundreds of thousands of dollars being awarded to several of your political and financial supporters…”
This statement is both false and misleading for numerous reasons.
(a) Defendants Were Provided a Legal Defense. CUSD’s former superintendent Woodrow Carter made a unilateral decision – without providing prior notice to the seven elected CUSD Board members -- to provide Fleming, McGill and the other “old guard” trustee defendants a free legal defense in these lawsuits. That legal defense was provided by ASCIP – a joint powers authority that effectively acts as the school district’s insurance company.
(b) All Settlement Negotiations Were Handled By ASCIP’s General Counsel. Each of the defendants were represented by The Feldhake Law Firm, ASCIP’s general counsel. ASCIP’s independent general counsel personally led all settlement negotiations with the plaintiffs. Neither Trustees Lopez-Maddox or Winsten were personally involved in the settlement negotiations with the plaintiffs.
(c) ASCIP Provided a Defense – But Refused To Indemnify Fleming and the Other Individual Defendants. During settlement negotiations, ASCIP’s general counsel informed the plaintiffs that ASCIP had a duty to provide a legal defense for Fleming and the other individual defendants. However, ASCIP’s general counsel also advised the plaintiffs that since Fleming and the other individual defendants had intentionally engaged in numerous despicable acts against the plaintiffs, ASCIP would not indemnify the defendants when plaintiffs obtained a final judgment against the defendants. In other words, there would be no insurance coverage to pay the judgment because the individual defendants had intentionally damaged the plaintiffs. As a result, the school district’s general fund was facing liability in excess of thirty-million dollars as a result of the intentional bad acts committed by Fleming, McGill and the other individual defendants.
(d) Plaintiffs Refused To Take Any Money from the School District. From the date they filed their lawsuit, the plaintiffs in one of these cases had issued a public statement that read in pertinent part that,
“On the advice of legal counsel, the Capistrano Unified School District was named as a defendant (in addition to the nine individual defendants). In recognition of the serious budget problems facing the school district – problems created by years of gross fiscal mismanagement during the Fleming era – the CUSD Recall Committee pledged to contribute back to the school district the net proceeds received from the school district. Russell stated, “We intend to return to CUSD all of the net litigation proceeds received from the school district.”
When these same plaintiffs were informed by ASCIP’s general counsel that ASCIP refused to provide insurance coverage for the intentional bad acts committed by Fleming and the other individual defendants, the plaintiffs agreed to settle their lawsuit in order that CUSD would not be forced to pay any money to the plaintiffs because of the intentional despicable actions of Fleming, McGill and the other individual defendants. The plaintiff’s letter read in pertinent part as follows: “Despite possessing a very strong and persuasive case for liability and damages against the trustees, Fleming, McGill and CUSD, in reliance upon your representation the JPA has no contractual obligation to indemnify the defendants for the substantial damages that would be assessed against them in this lawsuit, my clients are interested in resolving the case at this time. My clients do not wish to harm CUSD’s financial status during this time of economic crisis...Therefore, my clients are willing to settle this matter and dismiss the lawsuit against all defendants…”
(e) Settlement Was Approved by All Parties BEFORE It Was Submitted to CUSD Board. The terms of the final settlement were approved by ASCIP’s general counsel, Fleming, McGill and the other individual defendants BEFORE those terms were submitted to the CUSD Board.
(f) Final Settlement Was Recommended by ASCIP’s General Counsel, Fleming, McGill and Other Defendants. ASCIP’s general counsel submitted the final settlement to the CUSD Board with a recommendation that the Board approve it noting that the settlement terms had already been approved by Fleming, McGill and the other individual defendants.
(g) Trustees Had a Duty to Vote. This statement falsely implies there was some duty or obligation for Trustees Lopez-Maddox and Winsten to recuse themselves from the vote to approve ASCIP’s recommendation to the Board that both lawsuits be settled. California law expressly defines what circumstances constitute a conflict of interest that would require an elected official to recuse himself from voting. If there is no such conflict of interest, an elected official has a duty to vote on each matter that comes before the board. In this instance, there was absolutely no conflict of interest and Trustees Lopez-Maddox and Winsten, as the duly elected representatives of the people, had an obligation to vote on whether to approve the settlement that was being recommended for CUSD Board approval by ASCIP’s general counsel, Fleming and each of the other individual defendants (who had already signed the settlement agreement). Under their false and misleading logic, because certain of the plaintiffs in the “enemies list” litigation had supported all seven of the current CUSD Trustees, all seven of the trustees would have to recuse themselves and the Board would have not been prohibited from acting to approve the settlement – a settlement that was recommended for approval by independent legal counsel, had already been approved by Fleming and all the other defendants, would put an end to the litigation, and protect CUSD from more than $30,000,000 in liability.
(h) ASCIP’s General Counsel Gave a Detailed Public Presentation Explaining the Entire Settlement Process and Terms. ASCIP’s general counsel delivered in an open public hearing, a detailed presentation confirming the process that culminated in the settlement, the terms of the final settlement, and that the CUSD Board of Trustees had acted properly and in full compliance with both the spirit and letter of the law in approving the settlement.
(i) No CUSD Money Was Ever Paid to the Plaintiffs. This statement falsely implies Trustees Lopez-Maddox and Winsten voted to award a significant amount of CUSD funds to their political and financial supporters. CUSD never paid any money the plaintiffs in the “enemies lists” lawsuits -- the only money ever paid to those plaintiffs came from the ASCIP insurance fund. Trustees Lopez-Maddox and Winsten never voted to award a penny of CUSD money to a political donor. Never!
Docs | News
Beall vs Kelley Δ
Petition for Alternative and Peremptory Writ of Mandate - CUSD Recall Committee members filed a petition for writ of mandate to strike false, misleading and illegal statements by Trustees Marlene Draper and Sheila Benecke in the proposed candidate (ballot) statements they filed with the Orange County Registrar for the June 24, 2008 special recall election. On April 28, 2008, the matter was resolved by stipulated settlement of the parties and an order by the court striking Benecke's and Draper's candidate statements in their entirety.
Docs | News | Press Releases 1, 2, 3
C4BR vs OC Registrar Δ
Application for Issuance of Writ of Mandate - A group of volunteers who assisted in the CUSD Recall Committee’s 2005 CUSD Recall campaign, filed a petition for writ of mandate against the Orange County Registrar of Voters on March 31, 2006. Mark Rosen, a Santa Ana lawyer, represented the group.
Kevin Murphy, the former Chairman of the CUSD Recall Committee, said the writ was filed after parents examined some 400 invalidated signatures and, he said, found many of them were thrown out improperly. His new group, operating under the name of the CUSD Recall Committee’s recipient committee, “Capo for Better Representation,” asked a judge to overturn the Registrar of Voters’ ruling that the recall campaign failed. In December 2005, the Registrar said about 35 percent of the 175,000 recall petition signatures were invalid, leaving the recall effort short of the 140,000 signatures necessary to put a recall on the ballot. The Registrar said at the time it had heard the complaints but stood by the accuracy of its count.
One argument advanced by recall supporters was that many signatures were rejected because signature-gatherers filled in the addresses of petition-signers after Registrar office staff members verbally told them the practice was OK. A Superior Court Judge sided with the County Registrar of Voters, saying it was proper to discount recall signatures where volunteers later filled in signators’ addresses. The decision essentially ended hopes of a recall. Plaintiffs said they would consider an appeal.
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Carter vs Smith Δ
DocsCase vs CUSD Δ
NewsRon Lackey, EdD Δ
Brown Act, Open Meetings - In August 2005, Ron Lackey filed suit against CUSD in Orange County Superior Court in Santa Ana. Lackey alleges that the district violated the state's open-meetings law by discussing inappropriate matters — including how to silence him — during a closed-session meeting. He sought a declaration that the trustees violated the Brown Act, an order requiring the board to videotape future closed meetings, and reimbursement for his attorney's fees.
The Trustees denied any violations. However, staff notes from a closed session showed them discussing items apparently outside of what the law allows. District officials argued that the performance of Superintendent James Fleming depending on the items, so they could be discussed in private. Terry Francke, an attorney who is an expert in public forum law called the staff notes an indication of the worst violation he'd seen in 25 years. Lackey, represented by Dana Point Councilman James Lacy, was also the target of a public presentation Fleming gave the board, outlining Lackey's past. The presentation was then posted on the district's website.
On February 12, 2007, the case was settled. Under the settlement agreement, CUSD must record its closed-session meetings for one year, and a judge will review the tapes to ensure that the Brown Act is followed. The audiotapes of meetings will be available for a judge to review in case of a subsequent lawsuit. The CUSD trustees will be trained on the Brown Act, the California law that requires most public business be conducted in public. They will provide public notices of which items will be discussed in closed session, and CUSD will pay Lackey for his legal fees: $16,000 for Dana Point attorney James Lacy.
Smollar Deposition | News | Quotes
Las Palmas Elementary Δ
Williams Act, Educational Equality - On June 16, 2005, more than 50 parents of the students at Las Palmas Elementary, headed by Sita Helms, filed a complaint under Williams Uniform Complaint Procedure with Las Palmas Elementary School and Capistrano Unified School District, alleging unhealthy classroom conditions, deteriorated buildings, sewer back flow and more. According to district spokeperson David Smollar, the procedure required a response by the school principal, Doug Kramer. Kramer responded with a letter referencing a modernization project underway at the school that had been planned for more than a year and not in response to any complaint. Smollar explained that if the parents aren't satisfied with the principal's response, there are "higher entities that can be addressed."
The Williams Uniform Complaint Procedure, which comes from the Williams Litigation Settlement, provides that every classroom in California should have sufficient textbooks and instructional materials. Every school facility "must be clean, safe, and maintained in good repair. Good repair means that the facility is maintained in a manner that assures it is clean, safe, and functional, as determined by the Office of Public School Construction," according to Education Code 35186.
Williams vs. California was lawsuit filed in 2000 that argued that the state has a constitutional duty to ensure basic educational equality and contended that California has failed in that duty by not providing thousands of students in public schools with "bare minimum necessities," defined as textbooks, trained teachers, and safe, clean, uncrowded facilities. The lawsuit further argued that low-income students and students of color are the most likely to bear the burden of inadequate resources.
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Lovell/Bourbon County Δ
DocsNeighborhood Schools Δ
Prop 209, Racial Gerrymandering - On June 16, 2005, parents of students in the Capistrano Unified School District filed suit against the district, charging it with violating Proposition 209 of the California Constitution by using race to determine new attendance boundaries for district high schools and middle schools. Rather than change it's discriminatory policy to comply with the law, CUSD leadership refused, choosing to litigate instead.
Neighborhood Schools For Our Kids, a coalition of parents and taxpayers in the district, was represented by Pacific Legal Foundation in the suit, which asked a state Superior Court to prohibit the school district from using race to determine where students will attend middle and high school.
The suit was settled on November 27, 2006. CUSD eliminated a policy for drawing school boundaries that took race into consideration. Under the settlement, the trustees changed the boundaries slightly and agreed not to use race in determining where students will go to school. “The district’s practice of using race in drawing student attendance boundaries was a clear violation of Proposition 209,” said a statement released by the Pacific Legal Foundation, which had challenged the district’s policy. Prop. 209, passed in 1996, forbids discrimination or racial preferences in schools and other public accommodations. A judge in August agreed that the district went too far in using race in setting school boundaries.
Blog | Docs | News | Quotes
Peloza vs CUSD Δ
First Amendment, Establishment Clause - High school biology teacher brought action against school district, its board of trustees, and various personnel at high school, challenging school district's requirement that he teach evolutionism, as well as school district order barring him from discussing his religious beliefs with students. The United States District Court, Central District of California, David W. Williams, J., 782 F.Supp. 1412, dismissed and awarded attorney fees to school district. Teacher appealed.
The Court of Appeals held that: (1) teacher failed to state claim for violation of establishment clause of First Amendment in connection with school district's requiring him to teach evolution, i.e., that higher life forms evolved from lower ones; (2) school district's restriction on teacher's right of free speech in prohibiting teacher from talking with students about religion during school day, including times when he was not actually teaching class, was justified by school district's interest in avoiding establishment clause violation; (3) teacher's allegations of injury to his reputation as result of allegedly defamatory statements made to and about him were insufficient to support claim for deprivation of liberty interest under § 1983; but (4) teacher's complaint was not entirely frivolous, precluding award of costs and attorney fees under Rule 11 and § 1988.
Affirmed in part; reversed in part.
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People vs Fleming Δ
Blog | Docs | News | Quotes
Powers vs Kelley, Alpay Δ
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Powers vs Kelley, Amato Δ
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Whispering Hills Challenge Δ
San Juan Hills High School Land Price - Four San Juan Capistrano residents challenged SDG&E’s agreement to sell Whispering Hills 13.8 acres for $100,000, saying the price was far too low. Residents supplied documents showing the Capistrano Unified School District was going to buy less than an acre of the same land from home-builder Whispering Hills for $965,000.
Public Utilities Commission Administrative Law Judge Peter V. Allen said it was apparent the price was too low. Allen ordered SDG&E to return to the table to negotiate a new deal with Whispering Hills, and he also ordered that $100,000 – the original sales price – be rebated to ratepayers after the sale to “provide the proper safeguards and incentives for the negotiations.” He also said 50 percent of anything above that $100,000 be shared with ratepayers. In essence, SDG&E would have to sell the land for at least $300,000 to recoup the $100,000 it originally sought.
The new deal would require a judge’s approval.
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