The attorney for parents suing the state over English language funding told a federal judge Tuesday he should consider imposing personal fines against the governor if the state doesn't meet the April 15 deadline to properly fund the programs.
Tim Hogan pointed to a request by the lawyer for Gov. Janet Napolitano asking 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 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 missing the deadline. 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 he believes Napolitano shares in 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 responsible for the failure.
"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 legislators approve a new law, something they have 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 wrote. "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 eliminates Cardenas' concerns about penalizing state taxpayers.
The state was first ordered in 2000 to come up with a plan to adequately teach English to youngsters who come to school speaking another language. Since that time there have been several changes in law and some additional funding, but none that have convinced Collins the state is meeting its requirements under federal law.
Collins accepted a new funding scheme 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 boosts the fines to $5 million daily.