Posted on: Wednesday, September 25, 2002

Supreme Court to rule on Felix conflict issue

By Curtis Lum
Advertiser Staff Writer

The federal judge overseeing the state's compliance in the Felix consent decree has asked the Hawai'i Supreme Court to determine whether the attorney general's office is in conflict of interest because of the various parties it represents in the case.

U.S. District Judge David Ezra last week asked the court to decide whether the state Constitution and Hawai'i statutes allow the office to represent "competing and contrary interests in the same and related litigation." Specifically, Ezra named the state Legislature and the state's executive branch.

The attorney general's office is representing the departments of health and education in the Felix matter. Both departments are responsible for improving service to special-education children under the consent decree.

But the attorney general's office also provides legal counsel to the Legislature and a special investigative committee created in 2001 to look into possible mismanagement of Felix money by state employees.

Last year the committee subpoenaed Judith Schrag, a member of the monitoring panel that oversees compliance of the consent decree. Although the attorney general's office took no position, it filed case law on the "quasi-judicial immunity" of members of the monitor's office.

Ezra eventually threw out the subpoena, but his order was challenged by the committee, which was represented by the attorney general's office.

Although Ezra said there is an apparent conflict of interest, he said he wanted the Hawai'i Supreme Court to decide the matter, rather than the federal court.

"There is no question that the attorney general's office is pursuing multiple, directly conflicting interests including a criminal investigation of the Felix contracting process which may implicate the very executive department clients it represents," Ezra wrote in his request to the Supreme Court.

"Because this is a significant question of state constitutional law and defines the very essence of the relationship between the executive and legislative branches, this court feels the (Hawai'i Supreme Court) should be given the opportunity in the first instance to address this issue."

Attorney General Earl Anzai yesterday repeated earlier statements that his office is not in conflict of interest. He also said the office has always represented state departments and agencies.

"We have done it, for I don't know how many years. Every attorney general before me," Anzai said. "We don't represent individuals in any criminal action and would never do that. We also take criminal action against state employees. Basically somewhere in our office there is a case against a state employee at all times. If we didn't do it, who would do it?"

Attorney Shelby Floyd, an attorney for the Felix plaintiffs, has filed a motion with Ezra to find the state in contempt of court on the conflict of interest issue. She said disciplinary rules that govern all attorneys don't allow the attorney general's office to be on two sides of the same issue.

"One arm of the state is actively resisting the compliance efforts of the other arm of the state in Felix," Floyd said.

Neither Anzai nor Floyd could say how long it will take for the Supreme Court to issue a ruling.