Metropolitan News-Enterprise


Monday, October 24, 2011


Page 1


Court Says D.A. Cannot Be Forced to Prosecute School Bond Case




A voter-approved law tightening accountability standards for school bond funds cannot be used to force a district attorney to prosecute a school officials for alleged misuse of such monies, the First District Court of Appeal ruled Friday.

Div. One affirmed a San Mateo Superior Court judge’s dismissal of the county’s district attorney from a suit by Pescadero attorney Jeffrey S. Gananian. The patent lawyer and parent of a student in the La Honda-Pescadero Unified School District claimed that Judge John L. Grandsaert had the authority to order the district attorney to prosecute Timothy Beard, the former superintendent, and other district officials, as well as contractors, under Proposition 39.

Proposition 39 was approved by voters in 2000. The measure, also known as the Smaller Classes, Safer Schools, and Financial Accountability Act, reduced the percentage of the vote needed to approve school construction and repair bonds from two-thirds to 55 percent, conditional upon meeting new standards as to how the funds were to be spent and accounted for.

Bond Measure

The appeal grew out of a suit that Gananian filed in 2009 against Beard and the district. The attorney, who represented himself in the appeal and has been soliciting funds for the litigation on a website he set up, alleges that funds from a construction bond measure called Measure I were misused, and that Beard and the district had also violated campaign finance laws.

Shortly after filing his complaint, he wrote the then-district attorney, James Fox, seeking “permission” to pursue civil claims under the Political Reform Act. The relevant provision of the act allows a private citizen to sue if the district attorney declines to do so, provided the citizen asserts “grounds for believing a cause of action exists.”

In his letter to Fox, Gananian claimed that members of the Bond Oversight Committee established by the district under Proposition 39 failed to file Form 700 statements of economic interests. Gananian claimed this made it likely the members were hiding conflicts of interest involving district contractors.

The district attorney responded that the letter failed to establish grounds for believing that a cause of action existed, because it failed to name the individuals involved or the factual basis for believing that they had acted improperly, or failed to act as required. He also noted that contractors are not required to file Form 700.

In an amended complaint, Gananian reasserted his claims against the district and Beard under Proposition 39, and also sought declaratory relief against the district attorney and leave to sue under the PRA.

Duty Alleged

Fox demurred, but conceded that Gananian could bring his own PRA action. Gananian, however, responded to the demurrer by arguing that Proposition 39 imposed on Fox an affirmative, non-discretionary duty to investigate and prosecute alleged conflicts of interest with respect to the handling of school bond funds.

The argument was based on Education Code Sec. 15288, a provision of the initiative stating:

“It is the intent of the Legislature that upon receipt of allegations of waste or misuse of bond funds authorized in this chapter, appropriate law enforcement officials shall expeditiously pursue the investigation and prosecution of any violation of law associated with the expenditure of those funds.”

The judge sustained the demurrer, ruling that nothing in Proposition 39 deprived the district attorney of prosecutorial discretion, and that Gananian did not need declaratory relief in light of the district attorney’s concession that the plaintiff could sue in his own right under the PRA.

Gananian appealed the dismissal. Fox did not run for re-election last year, and his successor, District Attorney Stephen M. Wagstaffe, is now defending the appeal.

Justice Sandra Margulies, writing for the court Friday, said the demurrer was correctly sustained.

Education Code Sec. 15288 does not impose the non-discretionary duty the plaintiff asserted, the justice said, but merely express a “desire or preference” that such cases be given priority. And even if it imposed a mandate, she concluded, that duty would not be enforceable through a citizen’s private action.

Statement of Intent

Margulies explained that Sec. 15288 does not impose mandatory duties because it is an express statement of intent. Had the Legislature intended to force prosecutors to investigate alleged violations, it would not have used qualifying language, she said.

The jurist also noted that there was nothing in the legislative history suggesting an intent to impose mandatory duties on prosecutors or other law enforcers with regard to alleged misuse of Proposition 39 monies.

“Most significantly,” Margulies wrote, “construing Education Code section 15288 as a legislative command would clash with a basic precept of our criminal justice system—that the Constitution leaves the decision whether to pursue criminal charges against a person to the discretion of prosecutors subject only to the supervision of the Attorney General.”

Prosecutorial discretion, she added, is rooted in the constitutional separation of powers, so the court likely could not order the district attorney to prosecute a particular type of case, even if the Legislature intended to mandate that he do so. But assuming the  Legislature can impose such a mandate, the justice wrote, “it would be remarkable if it did so without acknowledging and clearly stating that it was making an exception to the principle of prosecutorial discretion.”

In a footnote, Margulies agreed with the district attorney’s concession that Gananian did not need his permission to sue under the PRA. A private citizen may bring such an action, she said, in any instance in which that person has made a statutory request that the district attorney sue, and the district attorney has rejected the request.

The case is Gananian v. Wagstaffe, A127698.


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