Fining gov. in ELL case floated
Capitol Media Services
April 2, 2008


By Howard Fischer

Tucson, Arizona | Published:

 PHOENIX The attorney for parents suing the state over English-language funding told a federal judge on Tuesday that he should consider imposing personal fines against the governor if the state doesn't meet the April 15 deadline to fund the programs as ordered.

Tim Hogan pointed to a request by the lawyer for Gov. Janet Napolitano asking District Judge Raner Collins to back away from his order last month imposing fines starting at $2 million a day if legislation increasing financing of these programs is not approved by the deadline. Attorney Jose Cardenas said it would be unfair to penalize Arizona taxpayers.

At the very least, Cardenas wants a hearing to determine the "appropriateness" of fines.

Hogan said he's willing to go along assuming the hearing is to determine whether state officials have used their "best efforts" to comply with Collins' order.

He wants Collins to decide who is at fault for blowing past the deadline without action. At that point, Hogan said, Collins should decide whether to impose fines "against any individual officials in their personal capacity and, if so, in what amount."

Hogan made it clear that he believes Napolitano shares at least part of the blame.

"Whether for political reasons or otherwise, the governor clearly has not done everything she could to bring Arizona into compliance with the court's order," he said.

Cardenas scoffed at the idea that Napolitano is in any way responsible for the failure to fund English programs.

"Nobody thinks realistically the governor or the state Board (of Education) should have any liability," he said. And Cardenas said Napolitano is powerless to do anything until the Legislature approves a new law, something it has yet to do.

Hogan, however, said that isn't exactly true.

"She has previously demonstrated her ability to influence the budget process on issues that she has regarded as a priority," Hogan wrote in his legal filing.

"For example, the governor used her authority over the budget to exact additional funding for full-day kindergarten, an issue that the governor regarded as a priority for the state," he continued. "Unfortunately, the governor has never assigned a sufficiently high priority to the English Language Learner funding issue."

Hogan is not excusing legislative leaders from blame, either. But he did not specifically address their culpability, since it was Cardenas, as Napolitano's attorney, seeking a waiver or at least a reduction of the fines.

But he said Collins can figure that out himself if Napolitano, Senate President Tim Bee and House Speaker Jim Weiers are forced to testify in court.

Hogan also said that if fines are imposed against the individuals, that would eliminate Cardenas' concerns about penalizing state taxpayers.

The state was first ordered in 2000 to come up with a plan to adequately teach English to the youngsters who come to school speaking other languages.

Since that time, there have been several changes in law and some additional funding, but none that has convinced Collins the state is meeting its requirements under federal law.

Collins accepted a new funding plan last month, conditional on some changes in the statute. But he also said if that is not enacted into law by April 15, he will impose fines of $2 million a day; failure to act by May 15 would boost the fines to $5 million daily.