Thursday, July 19, 2012

 

State running up legal fees on contempt/sanctions order


by Larry Geller

The Hawaii Department of Education has decided at all costs (that is, all costs to be paid by Hawaii taxpayers), it does not want to reimburse Loveland Academy for services given to a special needs student. See: Hawaii’s war on the disadvantaged shuts down special needs school (7/10/2012) and Parents on difficuluty (sic) of finding good schools (KITV, 7/10/2012). The school is owed $700,000 and a federal judge agreed. KITV indicated that the school may have to close.

On May 25, 2012, Judge Susan Oki Mollway issued an order. This is the last bit of the text:

IT IS HEREBY ORDERED, that Plaintiffs Ex Parte Motion to Shorten Time for Hearing on Plaintiffs Motion for an Order to Show Cause Why Defendant Should Not be Held in Contempt, Directing That a Garnishee Summons Issue and Imposing Sanctions is GRANTED and Plaintiffs Motion for an Order to Show Cause Why Defendant Should Not be Held in Contempt, Directing That a Garnishee Summons Issue and Imposing Sanctions shall be heard before the Honorable Judge Susan Oki Mollway, United States District Court Judge for the District of Hawai'i, on June 14, 2012 at 10:30 o'clock p.m. or as soon thereafter as counsel can be heard.

(Sig: Susan Oki Mollway)
DATED: Honolulu, Hawai'i, May 25, 2012.

So the battle now is whether the DOE will be found in contempt, and whether the federal court will have to garnishee a state bank account in order to extract the money owed to Loveland.

On June 14 it appeared that the state would spend more taxpayer money by taking the case to the 9th Circuit. From published minutes of that hearing:

Discussion held re: whether or not Loveland Academy will continue to provide services if this motion is continued to the same time as Defendant's Motion for Preliminary Injunction Order to Stay Enforcement Pending Ruling on Defendant's Appeal to the Ninth Circuit Court of Appeals, which is set for 8/21 @ 9:45 a.m., etc.

Plaintiff's Motion for an Order to Show Cause Why Defendant Should Not Be Held in Contempt, Directing That a Garnishee Summons Issue and Imposing Sanctions continued to 8/21/12 @ 9:45 a.m.

This particular case, 1:10-cv-000381 Marcus I., et al. vs. State of Hawaii Department of Education, has run for several years. It’s already been to the 9th Circuit and back.

In the end, most likely the state will have to pay Loveland as ordered, could possibly be found in contempt, and could have one of its bank accounts snatched if it continues to refuse to pay. Along the way, Loveland Academy will likely shut down, thereby depriving other special needs students of its services.

You and I are paying for the legal fees in this case. Considering how long it may last, the final tab could be $1 – 1.5 million. And that’s over and above having to pay as the court ordered.

The present action is only the most recent segment of the dispute over providing this student with a Free Appropriate Public Education as the federal law requires. Along the way have been due process hearings and court reviews. A reader not familiar with the tension between the DOE and special needs students might be mystified at the shenanigans that are described in the many legal briefs. For example, Judge David Ezra was called to review a due process hearing in 2009. He issued an order on October 21, 2009 affirming a hearing officer’s decision. End of that chapter? Yes, but reading his unpublished opinion is educational.

Just a few high (low?) points: after several IEP (Individualized Education Program) meetings that determined that the student should be placed in a residential educational facility, we skip ahead to discover that the DOE suddenly thinks he can just attend his local school. Ezra wrote:

On July 17, 2009, this Court held a hearing on the administrative record. During oral argument on the appeal, the Court was informed that DOE had subsequently developed IEPs for Marcus that determined his home public school of Baldwin on Maui would be a sufficient educational placement.

This appears bizarre.

Then there is a Clinton-esque skirmish described by Judge Ezra in which a vice-principal “is careful with her word choice.” In a nutshell, the DOE had claimed they did not have information on the student’s progress from Loveland, but it turned out that they did have information. Ezra described some of the testimony thusly: “Such testimony could have been careful word choice, at best, and outright misleading, at worst.” A judge doesn’t usually write that someone lied. I would love to have been present in the courtroom that day to hear what each side and the judge did say.

The DOE clearly doesn’t want to pay what it owes to Loveland, never mind a court order. So likely we taxpayers will fund another appeal at the 9th Circuit, and perhaps further court hearings here in Hawaii after that.

What about just educating the students, all of them, in the first place? The federal law says a student will be evaluated, an IEP will be drawn up and revised as necessary, and the required program and services will be delivered. It doesn’t say that parents have to go to due process hearings in between each of those steps. It doesn’t say that a student needs a lawyer to get a Free Appropriate Public Education.

But in Hawaii we do it that way. The DOE won’t learn as long as the taxpayers just keep covering their legal expenses.

 

 

 


 




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