Judge rules against Felix subpoenas
By Alice Keesing
Advertiser Education Writer
Legislators say they will proceed "full speed ahead" with their investigation into the state special-education system despite a federal judge yesterday slapping down their subpoenas for two witnesses.
U.S. District Judge David Ezra ruled that the Legislature does not have the power to force federal court representatives to answer questions about the cost of special education, which has reached $300 million a year in Hawai'i. In so doing, he quashed subpoenas that a legislative investigative committee had issued for Ivor Groves, the court-appointed monitor overseeing the state's progress in the Felix consent decree, and Juanita Iwamoto, executive director of the Felix Monitoring Project.
Agreeing with special master Jeff Portnoy's recommendation earlier this week, Ezra said the pair are protected by judicial immunity.
Legislators "simply cannot do what they have attempted to do here," Ezra said.
"I suspect and I hope that this was the result of a serious and unfortunate mistake . . . and not an effort to create some sort of issue for publicity purposes ... and I certainly am not accusing them of that," he added.
Despite ongoing disagreement among legislators, the federal court and Felix attorneys, Ezra said his ruling is not meant to challenge legislators or "stonewall" them in their search for information about the state's compliance efforts.
"I want them to get as much information as they need," Ezra said, offering them the court's assistance, including a chance to ask written questions of Groves and Iwamoto.
Rep. Scott Saiki, co-chairman of the investigative committee, said legislators will consider the offer. But they also are considering an appeal to the ruling, even though Ezra warned they would be unsuccessful because they are not a party to the Felix lawsuit.
"If he's saying that he supports our efforts to get answers, then we're all on the same page and he should support our efforts, not delay them," said Saiki, D-20th (Kapahulu, Mo'ili'ili).
Legislators have said they issued the subpoenas because they have been unable to get answers through other avenues. They had hoped to question Groves and Iwamoto at a meeting this morning. That meeting will go ahead without them, Saiki said. The committee will likely draw up a list of other people it wishes to subpoena and also will hear from state Auditor Marion Higa.
Much of the Legislature's concern over special education stems from the auditor's reports that have found, among other things, inconsistent cost reporting, faulty identification of children into special education and a lack of independent oversight.
Ezra stressed that while the state is under his oversight to improve special education services, he has not told it how to spend "a single nickel." If the state has mismanaged its own money, Ezra said he also would want to know about it. But he stressed that neither he nor the state attorney general has seen any evidence to support such claims.
Despite Ezra's conciliatory tone yesterday, he fired a parting warning that he would find legislators and the state auditor in contempt if any more court officers are "harassed" or if there are any more attempts to "demand documents," as when representatives of the auditor's office went to Groves' office seeking information.
As a nonprofit organization, the Felix Monitoring Project is required by federal law to make available its financial reports to any member of the public, Saiki said, and the auditor's staff were refused such information.
Meanwhile House Republicans yesterday said the legislative committee should not have gone after the two people protected by the federal court.
"The state has complete control over the consent decree," said Rep. David Pendleton, a member of the investigative committee. "If there is a problem it is with the status quo leadership in Hawai'i and we need to own up to it. The leadership of the committee must go after the gross mismanagement of this issue by the state executive agencies involved."
