Ezra learns judicious use of stick

The federal judge has often been forced into censuring the state

At one point, virtually all major public institutions in Hawaii were under his jurisdiction in federal court by "luck of the draw," says U.S. District Judge David Ezra.

"We used to have a very high-tech method of assigning cases," he said Thursday in a keynote address at the Mental Health Association in Hawaii's awards luncheon at the Japanese Cultural Center.

"Believe it or not, it was a deck of cards with a judge's name written on each card," he said. When a case came up, the deck was shuffled to draw a judge for it, he explained. Since there were only two federal judges in Hawaii at one time, his name was on half the cards.

That's how he became involved in long-running cases against the state concerning conditions in the prison system, education of special-needs children (the Felix consent decree), Hawaii State Hospital and the mental health system, and regulation of state fisheries.

He said it was an uncomfortable position for him because he believes in separation of powers between the state and federal governments.

Federal judges are appointed for life, so they can handle tough cases without having to run for office, he said. "But I don't think the framers of the Constitution anticipated that a federal judge would end up running a state mental health system."

Of all the cases, only one part of the mental health case remains, Ezra said. That is development of a plan for a community mental health system, due June 30.

When the state entered the Felix consent decree to improve services for education of children with disabilities, Ezra said he agreed with his two law clerks that "it would be a long battle. We were right."

He cited a number of roadblocks: difficulty getting the Legislature to provide funding to do what was needed, administrative resistance in the Department of Education, and "a showdown" with the state Senate over alleged fraud and abuse in use of Felix program money.

He said he directed the U.S. Attorney's Office to investigate operations and funds involved with the Felix consent decree, and "absolutely nothing" was found.

To his knowledge, he said, "it's the most fraud-free program that's ever been conducted anywhere, let alone the state of Hawaii, it's so carefully monitored."

The Felix case lasted longer than three governors and four attorneys general, Ezra said. "At one point I had to get tough," he said, noting that he found the state in contempt of court.

Everyone should have been "greatly ashamed" of the education program 13 years ago, Ezra said, explaining "it was the norm" to put students with disabilities in the back of a classroom with a piece of paper and pen. They would sit there an entire semester, he said. "This is not special education, and that is not what is going on in public schools anymore."

He said the case "changed the culture in our community so all people with disabilities are treated with equal dignity, with the same rights as all of us."

In the mental health case, Ezra said he was "unqualifiedly proud of the fact that we made tremendous strides" in improving services at Hawaii State Hospital.

Conditions were draconian, and patients overmedicated and restrained, because the staff -- while "wonderful, caring people" -- had no resources to do anything else, he said.

Although the hospital has been released from federal oversight, Ezra said, "There is no room for backsliding. ... There is always the specter of further action in federal court if constitutional standards the state agreed to meet are allowed to slide."

He said he recognizes that he became unpopular among some people in the mental health community. "They felt I was putting on too much pressure, that I refused to allow breathing room. That's true, because the Constitution doesn't allow for it," he said.

"I could not and would not allow the Constitution and the rights of these people to be placed in barter. ... We don't say it's OK to ... discriminate against people for six months to a year because you have no resources to do anything else. That's not an option."