Supreme Court Rules Special Ed Litigation Costs Are Public

California Supreme Court Justices
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The California Supreme Court has cleared the way for public disclosure of governmental legal costs in ongoing lawsuits where school districts, cities or other public agencies refuse to reveal the bills before litigation is complete.

In Orange County and other jurisdictions, governmental agencies have frequently declined to disclose the costs of ongoing litigation, contending such legal bills are exempt under the California Public Records Act.

But in its Feb. 20 ruling on a Los Angeles lawsuit, the court affirmed a published appellate decision in which judges decided that legal fees can be disclosed when a public records request is made during active litigation.

Terry Franke, an attorney for Californians Aware, an open-access organization in Sacramento, said, “This case properly ends an abuse too often employed to conceal from the public just how much of its money is being spent by lawyers.”

The court decision removes a ploy used by the Orange County Department of Education and a number of the county’s 28 school districts to deny disclsure of litigation costs when fighting cases against families seeking special education for youths with disabilities under federal and state laws.

Last year, Voice of OC ran a series of articles showing how school districts were spending hundreds of thousands of dollars to fight families over services that sometimes cost only a few thousand dollars. Such legal battles also created enormous hardships for families and limited options for children with autism and other serious developmental disabilities.

For instance, the Orange Unified School District, working with county education department attorneys, refused last year to release the district’s legal costs after the district sued a family in federal court to prevent paying about $3,400 a year for a preschool for the family’s autistic child. The youngster is known only as C.K. in court records.

Recently released Orange Unified records show the district’s legal costs to fight the family totaled at least $236,000. These costs were for an administrative hearing, where the family won service funding, and to sue the family in U.S. District Court in Santa Ana.

Orange Unified paid a Costa Mesa law firm headed by S. Daniel Harbottle about $83,000 of that total, according to invoices provided by the school district. And because the family of the child defeted the school district’s lawsuit, the federal judge ordered the district to pay their Long Beach attorney, Bruce Bothwell, his court-approved attorney fees of $153,000.

In another case involving an 18-year-old autistic youth in the Garden Grove Unified School District, the school district and county’s attorneys have refused to release the district’s costs in a contentious legal battle that has gone on since 2008.

The youth’s guardian aunt has fought for services in five administrative hearings and filed several federal lawsuits against the district for declining to pay for or provide special education services. The family’s litigation costs are in excess of $350,000, they say.

The Garden Grove district’s aggressive legal stance was designed to drive the boy out of the school district, alleged the aunt, Alexis Baquerizo. The school district has denied the charge in court.

A spokesman for the Garden Grove district declined comment on the legal ruling. He referred the inquiry to the county education department.

Lysa M. Saltzman, a county education department counsel, declined to address specific questions about the disclosure ruling, writing in an email that any new requests under the California Public Records Act for legal costs in the case will be evaluated based on the recent Supreme Court decision.

School district and county attorneys have argued that cost disclosures could compromise the school district’s legal position and should be treated like legal strategies, which remain exempt from disclosure during continuing litigation.

But last Nov. 16, the California Court of Appeal for the 2nd District ruled that legal fees in continuing cases were disclosable. It was this decision that the Supreme Court let stand while also affirming that the ruling should remain published, thereby serving as a statewide precedent.

“Government officials are not paying for litigation or other legal services out of their own pockets, so there’s no independent check on their spending, which can grow very large very quickly if taxpayers have no way of learning how the bills are piling up,” said CalAware’s Franke.

The decision arose from a civil lawsuit filed by a Bellflower couple in 1999 after they allegedly were improperly held and harassed by Los Angeles County sheriff’s deputies during a 1998 auto theft investigation.

In a recent interview, Donald W. Cook of Los Angeles, attorney for the couple, said the case easily could have been settled more than a decade ago but the Los Angeles county counsel’s office engages private law firms to litigate seemingly forever as a tactic to discourage plaintiffs.

The couple’s original claim for damages has bounced up and down the court system during the 13 years. Furious over delays, Cook engaged an attorney to sue Los Angeles County for legal costs, which he estimated at about $1 million.

Cook said that certain governmental agencies like Los Angeles County “don’t want the taxpayer to know they are wasting money. The strategy here is to hire a private firm, which milks the case for all it’s worth and then bills the taxpayer.”

A spokesman for the Los Angeles County counsel’s office declined comment.

In Orange County, families, child advocates and family attorneys have contended that school district have employed similar tactics for years to avoid providing services required by the federal Individuals with Disabilities Education Act.

A handful of law firms represents the county’s school districts, who look to them as buffers against substantial costs that some special education cases can require. District superintendents claim they must take a hard line to control costs.

The stakes are so high over the issue that Cook suspects governmental agencies may seek legislation in Sacramento in an attempt to amend the state Public Records Act to again block legal fee disclosures.

Expressing concern about the impact of the appellate decision, the League of California Cities filed a letter Jan. 24 urging the state Supreme Court to accept and hear arguments on Cook’s case. The league, a Sacramento-based organization of 469 municipalities, fears being swamped by requests for disclosures.

A league attorney, Koreen Kelleher, said she was unaware of any such legislation effort.

Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.

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