California OAH special education order · November 3, 2017
Order Quashing Subpoenas to Testify
OAH Case No. 2017040249, 2017050972 · ALJ Charles Marson
OAH quashed subpoenas for two California Department of Education employees because no witness fees were paid and the testimony sought was improper expert opinion on the law of graduation-requirement waivers.
This case went to decision
Student v. Benicia Unified School District (consolidated): Benicia Unified lawfully graduated a 21-year-old with a regular diploma; ALJ denies all of Student's claims despite a late annual IEP. (2018)
Summary
During the November 1, 2017 hearing, the ALJ quashed subpoenas served on the California Department of Education for testimony from its employees Allison Smith and Stephanie Papas. The written order says the subpoenas were defective for two reasons. First, they were not served with the witness fees required by Government Code section 68097.2, subdivision (b). Second, they sought expert testimony on the law governing waivers of graduation requirements, which is not admissible evidence, and any testimony on practices the law does not require or address would have been irrelevant.
Why it matters
A subpoena to a state agency employee must include the required witness fees, or it can be quashed. Witnesses also cannot be called to explain the law to the ALJ, so plan testimony around facts, not legal interpretation.
Key authority cited
- Gov. Code § 68097.2, subd. (b)
- Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155
People named in the order
- Allison Smith, California Department of Education employee (subpoenaed witness)
- Stephanie Papas, California Department of Education employee (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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017040249 v.
BENICIA UNIFIED SCHOOL DISTRICT.
BENICIA UNIFIED SCHOOL DISTRICT, OAH Case No. 2017050972 v.
ORDER QUASHING SUBPOENAS TO
PARENT ON BEHALF OF STUDENT. TESTIFY
On the record during hearing November 1, 2017, in these matters, the undersigned ordered the subpoenas previously served upon the California Department of Education for the testimony of its employees Allison Smith and Stephanie Papas quashed in full.
As explained in more detail on the record, the subpoenas were defective because they were not served in compliance with Government Code Section 68097.2, subdivision (b), as they were not accompanied by the witness fees required by that statute.
The subpoenas were also defective because they called for expert testimony on the law surrounding the process for waivers of graduation requirements, and therefore did not seek admissible evidence. (See, e.g., Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178-1184.) To the extent that the subpoenas sought testimony on practices and procedures not required or addressed by law, such testimony would have been irrelevant.
DATE: November 3, 2017
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings