Federal Judge David Ezra has been appointed a "special master" to oversee settlement talks aimed at reopening Hawaii public schools for five days a week through the rest of the school year.

Ezra had been the judge assigned to two legal challenges to the "furlough Friday" program that closes public schools for 17 days through this school year.

In a court order filed yesterday afternoon, Ezra said he had "recused" himself as judge on the cases so he could work with the parties on an out-of-court settlement.

Ezra said he "believes recusal is a prudent action here because it would be improper for the Court to both work on an amicable out-of-court resolution and rule on the merits of the case."

Carl Varady, a private attorney representing parents of autistic children who sued to halt the furloughs, cautioned yesterday that no settlement of the issues is imminent.

"I'm not saying that furloughs will go away as part of this (settlement) process," Varady said.

"It might be viewed as a temporary cooling-off period while the parties look at other measures that can be taken to resolve the issues.

"Having a judge with the depth of experience that Judge Ezra has on this topic involved as a special master is a very positive development."

Attorney General Mark Bennett would not comment.

Bennett's office filed legal papers yesterday — before Ezra recused himself — in defense of the furlough program and challenging the validity of the suits against the furloughs.

A major new argument raised by Bennett yesterday was that the court can't order the state to unwind the furloughs without involving the Hawaii State Teachers Association.

The furloughs were agreed to by Gov. Linda Lingle, the teachers' union and a majority of the state's 13,500 teachers who ratified the plan in a September vote. The furloughs effectively cut teacher pay by 7.9 percent to help the state narrow a $1 billion budget deficit through June 2011.

Varady said, "It would be a fair assumption" that both the HSTA and the HGEA, the union that represents most nonteacher public school workers, would be included in the settlement discussion with Ezra.

Neither union is a party in the two federal court suits and neither has moved so far to intervene in the cases, Varady said.

"But without the involvement of the unions, you don't have parties that are necessary to adjudicate all the issues involved," he said.

Attorneys representing the two unions could not be reached for comment yesterday.

After Ezra removed himself from the two cases, 9th U.S. Circuit Court of Appeals Judge Wallace Tashima was named as his replacement. Tashima then appointed Ezra as "special master" to pursue settlement talks.

The plaintiffs' request for a preliminary injunction that would stop the furloughs was scheduled for a hearing on Tuesday morning before Ezra but has now been rescheduled to Nov. 9, according to Varady.

The hearing, which would have included testimony from witnesses, was set after Ezra refused on Oct. 22 to issue a restraining order that would have forced the state to keep schools open on the first furlough day, Oct. 23.

Ezra said that issuing an eleventh-hour restraining order forcing schools to remain open "would inevitably lead to chaos and confusion."

The furloughs, which continued yesterday, are scheduled for roughly two Fridays a month through May. They will reduce instructional days in public schools to 163 a year from 180. That will likely place Hawaii last in the nation in number of teaching days.