Judge urged to quash special-ed subpoenas

By Alice Keesing
Advertiser Education Writer

The special master in the Felix consent decree yesterday recommended that the federal court quash two subpoenas issued by a legislative investigative committee, a move that legislators said they could fight.

In its search for answers into the millions of dollars being spent on special education under the Felix consent decree, the Legislature's investigative committee issued subpoenas for two representatives of the federal court: Ivor Groves, the court-appointed monitor who oversees the state's progress in the consent decree, and Juanita Iwamoto, executive director of the Felix Monitoring Project.

But special master Jeff Portnoy yesterday said he believes that Groves and Iwamoto are covered by judicial immunity because they are representatives of the federal court, and the Legislature does not have the power to compel them to testify.

U.S. District Judge David Ezra is expected to make his final ruling on the matter this week, but Portnoy said the court has "great concern" about the effect of the investigation on the state's court-mandated efforts to improve special education services. And he questioned why the Legislature chose to first subpoena two representatives of the federal court instead of state employees.

"I have great concern as to what really might be going on," Portnoy said.

Assistant U.S. Attorney Ted Meeker, who is representing Groves and Iwamoto, also questioned the Legislature's motives, calling the investigation a "witch hunt."

Rep. Scott Saiki, co-chairman of the investigation, said he is disappointed by the reaction to the subpoenas. Committee members are deciding how to proceed if Ezra agrees with Portnoy's recommendation, he said, and will go ahead with the planned hearing on Friday.

"We will review all of our options, which may include, at the extreme point, an appeal to the 9th Circuit," said Saiki, D-20th (Kapahulu, Mo'ili'ili).

However, Meeker said the Legislature could not appeal because it is not a party to the lawsuit. Sen. Colleen Hanabusa, D-21st (Kalaeloa, Makaha) disagreed, saying there are ways the Legislature could take the issue to the 9th Circuit.

The committee also will consider Portnoy's recommendation that attorneys representing all parties meet and reach a compromise on what information the Legislature needs and can be given. Portnoy also suggested the Legislature be allowed to issue written questions to Groves and Iwamoto.

Saiki said the committee wanted to use its subpoena power because of problems getting information in the past.

"The bottom line is that we just want to make sure that taxpayer dollars are being spent appropriately, given the kinds of complaints and anecdotal evidence that we've been receiving," he said.

Attorney Eric Seitz, who represents the plaintiffs in the Felix case, said he does not oppose the Legislature's efforts to look into special education spending, but the overly broad nature of the investigation would be "disruptive" to the efforts to improve services.