By Mark Bresee, Partner
Irvine Office
We are occasionally asked about the authority and responsibility of a governing board regarding requests for subpoenas in student expulsion cases. Though the issue does not arise very often, it is important to understand what is required and what options are available. The rule can be summarized as follows: Governing boards have an obligation to consider subpoena requests – they cannot have a blanket policy that subpoenas will never be issued – but they have discretion to decide whether to issue or deny specific subpoenas requested by a party, and that decision is final so long as the board does not abuse its discretion.
Education Code section 48918(i)(1) states that “[b]efore [a] hearing has commenced, [a] governing board may issue subpoenas at the request of either the superintendent of schools or the superintendent’s designee or the pupil, for the personal appearance of percipient witnesses at the hearing.” It also authorizes boards, hearing officers and administrative panels to issue subpoenas after hearings have commenced. Once authorized, subpoenas are issued in accordance with the provisions of the Code of Civil Procedure. Education Code section 48918(i)(2) provides for objections to the issuance of subpoenas, and states that any decision by the governing board “in response to an objection to the issuance of subpoenas shall be final and binding.” Also, if the board determines that a percipient witness would be subject to an unreasonable risk of physical or psychological harm by testifying at the hearing, a subpoena shall not be issued . . . [but] that witness may be compelled to testify by means of a sworn declaration.” (Section 48918(i)(3))
Therefore, a governing board is required to address and review each subpoena request individually, but for each subpoena request the board has the options of granting the request, denying the request based on particular circumstances related to that student/subpoena, or denying the request based on a determination that the proposed witness would be subject to an unreasonable risk of physical or psychological harm by testifying at the hearing. In the latter case, the board can require the witness to testify by means of a sworn declaration.
In Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, the only published decision interpreting these provisions, the Court of Appeal addressed the argument that the word “may issue subpoenas” is a grant of subpoena power rather than an authorization to deny them, and that a governing board is required to issue subpoenas on request. The Court rejected this argument. The Court concluded that the language of Section 48918(j) “assumes the issuance of subpoenas is subject to some kind of evaluation by the governing board, and that the results of the governing board’s evaluation lay the issue to rest.” (108 Cal.App.4th at 433) The Court concluded that the Board has discretion to decide whether to issue subpoenas, and may consider subpoena requests on a case-by-case basis so long as it is not arbitrary in its exercise of discretion. (Id. at 437-38)
