California OAH special education order · January 11, 2013

Order Quashing Subpoena for Appearance of Deputy District Attorney

OAH Case No. 2012090744, 2012070653 · ALJ Adrienne L. Krikorian

OAH quashed Student's subpoena of a San Bernardino County deputy district attorney. Student showed no reasonable necessity for her testimony, and she declared she had no knowledge of Student's educational program.

Granted; subpoena quashed Subpoenas, motions to compel, and records

Summary

Student subpoenaed San Bernardino County Deputy District Attorney Brieann Durose to testify at the due process hearing set for January 30, 2013. The District Attorney's office moved to quash, and Student did not oppose. OAH quashed the subpoena because Student offered no showing of reasonable necessity, as special education regulations require. Durose declared under penalty of perjury that her only contact with Student and his mother was one School Attendance Review Board meeting where she explained truancy law, and that she had no involvement in Student's educational program.

Why it matters

A party seeking a subpoena in a special education hearing must show the witness is reasonably necessary and has relevant knowledge. Subpoenas for officials with only brief, unrelated contact, such as a truancy prosecutor at a SARB meeting, are likely to be quashed, especially if no opposition is filed.

Key authority cited

  • 20 U.S.C. § 1415(h)(2)
  • Ed. Code, § 56505, subds. (e)(2), (3)
  • Cal. Code Regs., tit. 5, § 3089
  • Cal. Code Regs., tit. 5, § 3082, subd. (c)(2)

People named in the order

  • Brieann Durose, San Bernardino County Deputy District Attorney (subpoenaed witness)

Topics

subpoena motion to quash witness reasonable necessity truancy sarb

Full text of the order

Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Consolidated Matters of:

PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012090744

v.

VICTOR VALLEY UNION HIGH SCHOOL

DISTRICT,

VICTOR VALLEY UNION HIGH SCHOOL OAH CASE NO. 2012070653

DISTRICT,

v.

ORDER QUASHING SUBPOENA FOR

PARENT ON BEHALF OF STUDENT. APPEARANCE OF DEPUTY DISTRICT

ATTORNEY

On September 2, 2012, Student subpoenaed San Bernardino County Deputy District Attorney (DDA) Brieann Durose, ordering her to appear at a hearing in this matter scheduled for January 30, 2013. There is no evidence that the subpoena included the required declaration establishing reasonable necessity for calling DDA Durose to testify. The San Bernardino District Attorney’s office filed a motion to quash the subpoena on January 4, 2013, which was supported by a copy of the subpoena and a declaration under penalty of perjury from DDA Durose. Student did not file an opposition to the motion to quash.

A party to a due process hearing under the Individuals with Disabilities in Education Act (IDEA) has the right to present evidence and compel the attendance of witnesses at the hearing. (20 U.S.C. § 1415(h)(2); Ed. Code, § 56505, subds. (e)(2), (3).) The provisions of the Administrative Procedure Act governing subpoenas do not apply to special education hearings. (Cal. Code Regs., tit. 5, § 3089.) Subpoenas may be issued upon a showing of reasonable necessity by a party. (Id., § 3082, subd. (c)(2).)

Student has failed to provide any evidence establishing a reasonable necessity for compelling DDA Durose to testify, including whether she possesses knowledge of any evidence that would be relevant to the issues in this proceeding. On the other hand, DDA Durose declared under penalty of perjury that she has no direct or indirect involvement in any issue that would come before the Administrative Law Judge in this proceeding. DDA Durose declared that her interaction with Student or his mother was limited to one occasion when she attended a School Attendance Review Board meeting for the sole purpose of explaining truancy law to Student and his mother. She has no knowledge of or relevant involvement in the development of Student’s educational program.

Accordingly, Student’s subpoena dated September 24, 2012, for the appearance of Deputy District Attorney Brieann Durose, is quashed.

Dated: January 11, 2013 /s/

ADRIENNE L. KRIKORIAN

Administrative Law Judge Office of Administrative Hearings