Questions Surround Attorneys’ Actions in Special Ed Case

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Third in a three-part series. Here are parts one and two.

To avoid paying for special education services for a teenager with autism, records show Garden Grove Unified School District attorneys may have engaged in an unethical scheme to sway the U.S. Ninth Circuit Court of Appeals.

Documents show the legal maneuver last year involved an apparent attempt to disguise the origins of a potentially important petition — a friend-of-the-court or amicus curiae brief that purportedly offered an independent view of the disputed services in the case.

The Ninth Circuit Court’s policy for amicus briefs requires a submitting attorney to disclose whether parties in the case authored or paid for the petition so judges will know whether it is a truly independent view.

In this case, federal court records show that the amicus brief was filed in San Francisco on behalf of a little-known public insurance organization, whose law firm told the court no other attorneys authored or paid for the petition. However, meeting minutes of the insurance organization's board show that attorneys for Garden Grove Unified prepared the brief.

If a party to a case is involved in authoring an amicus brief without disclosure, “It is an ethical violation,” said Gregory C. Sisk, who teaches ethics at the University of St. Thomas School of Law in Minnesota.

Such an ethical violation could lead to disbarment from a circuit court’s bar, which in turn could prompt California Bar sanctions, said Sisk.

Garden Grove Unified officials refused to comment on the issue, as did their attorney in the litigation, S. Daniel Harbottle, who heads a Costa Mesa law firm known for aggressive actions on behalf of school districts.

Symbolic of a Larger Battle

The case involves Carlos, now an 18-year-old with autism who has been engaged in protracted legal battles with the school district over special education services. His guardian, aunt Alexis Baquerizo, was seeking reimbursement for supplemental services she had paid for at a nonpublic facility.

Events surrounding the amicus brief are symbolic of the intensity of the acrimony in the Garden Grove Unified and similar cases in Orange County, where school districts have been particularly resistant to providing special education services sought by families. Such battles have produced huge legal bills for both sides, frequently far exceeding the cost of services in the disputes.

The apparent attempt to dupe the appellate court with the amicus brief reflects the depth of legal challenges families face in attempting to win services they believe should be provided under state and federal laws to children with disabilities.

In December 2010, federal appellate courts adopted a new policy to better identify sources of amicus briefs, records show. The policy, which addresses a national issue, was designed to prevent what records show appeared to have occurred in the Garden Grove case and ensure that parties to a case aren't able to deceive judges.

The Ninth Circuit Court has a process for reviewing allegations or complaints about policy violations such as an amicus case, said court spokesman David Madden; but he declined comment further.

Carlos' Fight

Despite the amicus brief, Baquerizo eventually prevailed in the legal fight when the U.S. Supreme Court let stand a decision that allows families in the Ninth Circuit’s nine western states to be reimbursed for certain services in nonpublic facilities.

After a state administrative hearing for adjudicating disputes between families and school districts, an administrative law judge had ruled that Baquerizo should receive partial reimbursement, . Baquerizo sued in U.S. District Court in 2008 for full reimbursement, and a judge eventually agreed. Garden Grove then appealed in 2010 to the Ninth Circuit Court.

In March 2011, a three-judge panel of the Ninth Circuit Court agreed that Garden Grove Unified should fully reimburse Baquerizo for Carlos’ services and transportation, totaling about $45,000. School district attorneys quickly appealed for a review of the panel’s decision by the entire Ninth Circuit Court, a tactic that is rarely successful.

Shortly thereafter, the Northern California Regional Liability Excess Fund [Nor Cal ReLiEF], which oversees liability insurance programs for school districts, filed the amicus curiae brief. A Torrance firm, Keenan & Associates, administers Nor Cal ReLiEF along with a similar joint powers authority for Southern California.

Minutes for the Nor Cal ReLiEF board meeting on May 6, 2011, state that the amicus brief in Carlos’ case was “prepared by the Harbottle Law Group.”

But the Nor CAL ReLiEF brief was filed with the Ninth Circuit Court on April 21, 2011, by Christopher J. Fernandes, an attorney in the San Marcos office of Fagen, Friedman & Fulfrost, another firm that represents school districts.

Approval to file the amicus brief was unanimous when Nor Cal ReLiEF’s board voted at its May 2011 meeting to affirm the earlier staff decision on the court filing, said Graham Grise, a Keenan & Associates manager.

In a recent interview, Grise said the brief received from the Harbottle group was reviewed by Nor Cal ReLiEF’s attorney, Craig E. Farmer, of Sacramento. But Farmer said in an interview he had no record of that, adding that such a review was “not something we would do.” Neither Grise nor Farmer could recall another amicus brief in which the organization was involved.

Kimberly Dennis of Alameda County, the Nor Cal ReLiEF board member who seconded the approval motion in May 2011, said she couldn’t recall whether the board knew the brief already was filed with the court. Grise claims the board was told. Nor Cal ReLiEF minutes are silent on the court filing date.

Minutes do say the appellate decision Nor Cal FeLiEF sought to overturn “could have profound negative consequences for disabled students.”

In the amicus brief, however, Fernandez states the decision “lowers the bar for parents to obtain reimbursement from school districts for expensive private school placements and services.”

Baquerizo countered that the facility helped Carlos make huge educational strides, which now translates to much lower special education costs. The decision should help other families get such reimbursement, said her attorney, Tania L. Whiteleather of Lakewood.

Details of the amicus brief records were described to Fernandes in an interview, but he declined to respond.

A Similar Case in Saddleback Valley

A special education case before the appellate court in 2008 involving Saddleback Valley Unified School District, which Harbottle represented, shows what the 2010 federal policy change was designed to address, noted Sisk, who clerked and practiced in the Ninth Circuit.

“You can beat the bushes to get someone to file an amicus brief," Sisk said, "but you’ve got to be very careful it is independently written.”

In the Saddleback Valley case, the dispute dealt with a complex area of law on whether a school district must reimburse a family for their attorney fees if the family accepted a type of settlement offer prior to a state administrative hearing to resolve issues.

A party that wins a federal or state court case can receive reimbursement for their attorney fees.

This family had accepted a $42,500 settlement offer for services in 2006, then requested about $24,000 reimbursement for legal fees, attorneys said. Saddleback Valley refused to pay attorney fees, so the family sued in U.S. District Court, lost, then appealed to the Ninth Circuit Court.

On Aug. 13, 2008, an amicus brief was filed by Lyndsy R. Rutherford, who, court records show, previously had represented Saddleback Valley while working for Harbottle. Rutherford and Harbottle represented Saddleback Valley while they were at Rutan & Tucker, a prominent Costa Mesa firm that represents school districts. Harbottle left in 2009 to start his own firm.

Rutherford filed her brief on behalf of the California School Board Association Education Legal Alliance, a Sacramento-based group that advocates for more than 1,000 school boards. She argued against reimbursing the family for attorney fees.

For the amicus brief, Rutherford listed her Huntington Beach home address, which she had began using with the California bar on April 18, 2008.

On Jan. 15, 2009, Rutherford switched her California bar address to the Los Angeles office of Fagen, Friedman & Fulfrost. Rutherford didn’t respond to interview requests.

In the end, Saddleback Valley prevailed in the appellate court. The decision wasn’t published so it didn’t set a precedent. The family still got no attorney fee reimbursement.

“It was egregious how the district behaved,” said Bonnie Z. Yates, the Culver City attorney who represented the family in the Saddleback Valley case. The family has remained anonymous.

But Saddleback Valley officials say they must take such actions to limit special education costs from draining district budgets.

Please contact Rex Dalton directly at rexdalton@aol.com

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