Pressure on in Felix case

By Alice Keesing
Advertiser Education Writer

The special master in the Felix case fired another shot across the Legislature's bow yesterday, warning that the state could risk fines of $100,000 a day and extended federal court oversight if sufficient money is not provided for special education.

Special Master Jeffrey Portnoy said U.S. District Judge David Ezra "will not back down." Advertiser library photo

Special Master Jeffrey Portnoy led the status conference for U.S. District Judge David Ezra, who was meeting with negotiators for the state and teachers' union to reiterate his intention of stepping in if the strike was not over by today.

But even if the state resolves the strike, it still faces court intervention over how to pay for Felix.

Portnoy said the matter could soon be taken out of legislators' hands.

"To the extent that there are still some out there who question the court's resolve, they do it at their peril," Portnoy said.

Ezra has oversight over the education system because of the Felix consent decree, which he issued in 1994 after finding the state not in compliance with federal law requiring educational opportunities for children with special needs.

The departments of Education and Health are racing to meet a December deadline to comply, and while they have made significant progress, all sides in court yesterday agreed that compliance has been jeopardized by the budget cuts.

The Felix dispute has become increasingly heated as the price has risen. So far it has cost the state about $500 million, according to the Felix court monitor, Ivor Groves.

Legislators have delayed or cut money requests as they examine whether money will be spent wisely. They say they wish no affront to the judge, but they will not write a blank check without being sure the money is getting to the children it's intended for.

Schools chief Paul LeMahieu and health director Bruce Anderson told the court that, without the money they have requested for the next biennium, there is no way they will met the December deadline. The draft budgets of the House and Senate leave the DOE short $32 million and the DOH short about $15 million.

Eric Seitz, an attorney in the Felix case, said the "game of chicken" that legislators have been playing with the departments indicate the federal court will have to continue its oversight of the special-education system for perhaps another five years.

The plaintiff attorneys in the Felix case filed a motion yesterday asking the court to order the executive branch to find the money.

Another option is fining the state $100,000 for each day its in noncompliance, Portnoy said. At the extreme, Ezra could appoint a receiver to take over the education system. Such a person could have the authority to redirect whatever money is needed. A formal hearing on the motion is set for Thursday.

When Portnoy asked how the governor plans to respond to the need for more money, Deputy Attorney General Russell Suzuki said the governor is considering a special session. In another scenario, the governor may ask Ezra for the power to move money between departments, Suzuki said.

"What is very disturbing is that the separation of powers (between the legislative and executive branches) is totally being ignored here," said Sen. Colleen Hanabusa, D-21st (Kalaeloa, Makaha).

House Speaker Calvin Say said he hopes the judge gives the state until the December deadline.

But Portnoy said the judge is not likely to wait until December if the state is not in compliance before then. And he said he didn't believe anyone wants the state to be in the embarrassing situation of having its education system taken over by the federal court. The state hospital is already under federal oversight, and Hawai'i's prisons operated under a federal consent decree for 14 years, emerging in 1999.

"Those of us who know Judge Ezra know he will not back down because some are making noises that he's overstepping his role," Portnoy said.