California OAH special education order · February 26, 2014
Order Denying District's Motion to Quash Subpoena for Testimony Without Prejudice
OAH Case No. 2013100405, 2013101109 · ALJ Deidre L. Johnson
OAH denied District's motion to quash Student's subpoena of a school board member without prejudice because District offered no evidence supporting its privilege and official-immunity arguments.
This case went to decision
Student v. Sacramento City Unified School District: Sacramento City Unified must reimburse a Utah residential placement after its September 2013 split-therapy IEP denied FAPE. (2014)
Summary
District moved to quash Student's subpoena for testimony from Jeff Cuneo, a member of District's Board of Education. District argued that the deliberative process privilege, the Brown Act closed session privilege, and the attorney-client privilege applied, and that a government official with no personal knowledge of Student should be protected from testifying. OAH denied the motion without prejudice because District presented no evidence to support these arguments. District may renew the motion at hearing without filing anything new, and the motion and Student's opposition will be reinstated.
Why it matters
A district that wants to block testimony from a board member or other official must back its privilege claims with evidence, not just argument. Parents can subpoena district decision-makers, and a motion to quash that relies on bare assertions may fail.
Key authority cited
- 20 U.S.C. § 1415(h)(2)
- Ed. Code, § 56505, subds. (e)(2), (3)
- Cal. Code Regs., tit. 5, § 3082, subd. (c)(2)
- Cal. Code Regs., tit. 5, § 3089
- Gov. Code, §§ 11450.05-11450.30
People named in the order
- Jeff Cuneo, Member, District Board of Education (subpoenaed witness)
Topics
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2013100405 v.
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT,
SACRAMENTO CITY UNIFIED SCHOOL OAH Case No. 2013101109
DISTRICT,
v. ORDER DENYING DISTRICT’S
MOTION TO QUASH SUBPOENA FOR
PARENTS ON BEHALF OF STUDENT. TESTIMONY WITHOUT PREJUDICE
These consolidated matters are set for a due process hearing beginning on February 25,
2014. On February21, 2014, Sacramento City Unified School District (District) filed with
the Office of Administrative Hearings (OAH) a motion to quash a subpoena issued by Student and dated February 20, 2014. The subpoena seeks to compel the testimony of Jeff Cuneo, a member of District’s Board of Education. On February 26, 2014, Student filed an opposition to the motion. On the same date, District filed a reply.
APPLICABLE LAW
A party to a due process hearing under the Individuals with Disabilities Education Improvement 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).)
California Code of Regulations, title 5, section 3082, subdivision (c)(2) sets forth the right of the parties in a special education hearing to compel the attendance of witnesses. It provides in pertinent part that, "[t]he hearing officer shall have the right to issue Subpoenas (order to appear and give testimony) and Subpoenas Duces Tecum (order to produce document(s) or paper(s)
upon a showing of reasonable necessity by a party)." California Code of Regulations, title 5, section 3089, specifies that the subpoena provisions of the Administrative Procedure Act (APA), found in California Government Code sections 11450.05 to 11450.30, do not apply in special education due process hearing matters. Special education law does not specifically address whether or how a subpoena may be quashed. Since special education law is silent on these topics, and the APA does not directly apply, OAH looks to the relevant portions of the APA and the California Code of Civil Procedure as guidance.
DISCUSSION AND ORDER
District’s motion to quash Student’s motion for Mr. Cuneo’s testimony is supported by a copy of Student’s subpoena. The motion is based on the grounds that Mr. Cuneo’s testimony is subject to the deliberative process privilege, the Brown Act closed session privilege, the attorney-client privilege, and to certain protections afforded a governmental official with no personal knowledge of Student’s circumstances. While District argues that Mr. Cuneo’s position, role, and knowledge compel quashing Student’s subpoena, District has presented no evidence to support those arguments. On that basis alone, the motion must be denied without prejudice at this time.
To renew this motion at hearing, District need not file any further written motion or argument and the present motion will be reinstated in full, along with Student’s opposition.
DATE: February 26, 2014 /s/
DEIDRE L. JOHNSON
Administrative Law Judge Office of Administrative Hearings