Felix witnesses may
be off the hook with
legislative committee

The special master says the
subpoenas were inappropriate

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By Treena Shapiro
tshapiro@starbulletin.com

A state legislative committee's attempts to subpoena witnesses for its investigation into the Felix consent decree should be quashed, the federal court-appointed special master decided yesterday.

Legislators in a joint House-Senate investigation have attempted to subpoena Ivor Groves, court-appointed monitor in the Felix case, and his assistant Juanita Iwamoto to testify under oath Friday about how $400 million a year is being spent on special education.

But attorney Jeff Portnoy, the court-appointed special master who monitors Felix compliance, said yesterday that the subpoenas were inappropriate because Groves' position granted him judicial immunity. As his assistant, Iwamoto is a step removed, Portnoy said, but he expressed concerns that she was being called upon to give insight into Groves' thinking process.

Portnoy said that he would deliver his recommendation to Federal Judge David Ezra by this morning. Ezra is not bound by the recommendation.

Instead of having Groves and Iwamoto testify under oath, Portnoy said he would offer the Legislature two options: provide written questions for Groves and Iwamoto which will be reviewed by the court and answered without threat of contempt, or have the attorneys for the state House, Senate and auditor meet to determine what information it needs from the court to carry out its investigation.

Portnoy's recommendation is a victory for the plaintiffs' attorneys who worried that the legislative subpoena would have "a chilling effect" on the compliance process. Plaintiffs' attorney Shelby Anne Floyd said that by forcing Groves and Iwamoto to testify under oath, they could be found in contempt if they refused to answer questions, and the compliance work would be held up while the monitors dealt with a contempt case in Circuit Court.

Deputy Attorney General Russell Suzuki, representing the state, agreed that there were some areas that should be protected -- such as anything that has to do with Groves' thinking process -- but "anything that is not protected by judicial immunity privilege should be disclosed," he said.

Suzuki said the Attorney General's Office has never observed any misconduct by Groves. He maintained, however, that legislators had the right to make the inquiry.

Committee Co-chairman Rep. Scott Saiki (D, Moiliili-McCully-Ala Wai) said he was disappointed by Portnoy's recommendation but will wait for Ezra's ruling before deciding the next course of action, which could be an appeal if the subpoenas are quashed.

He said that the subpoenas were meant to make the investigative hearing a formal process, and the committee wanted live witnesses who would provide information under oath. "We've had a difficult time obtaining information in the past," he said, noting that was part of the reason the committee was formed during the last legislative session.

Saiki said the committee wanted to ask Groves and Iwamoto what accounting systems were in place, the results of the compliance service testing and questions about organizational-type issues.

"We (legislators) have a duty to appropriate funds and make sure those funds are spent properly," he said. "$400 million is a lot of money."