California OAH special education order · February 1, 2013
Order Granting District's Peremptory Challenge
OAH Case No. 2012100025 · ALJ Bob N. Varma
OAH granted District's timely peremptory challenge to ALJ Rebecca Freie over Student's objection and reassigned the case to ALJ Adeniyi Ayoade.
This case went to decision
Student v. Acalanes Union High School District: Acalanes Union High School District correctly found a student with ADHD ineligible for special education; Fusion Academy reimbursement denied. (2013)
Summary
District filed a peremptory challenge, which is a request to remove the assigned judge without having to show cause, against ALJ Rebecca Freie. Student objected. The Presiding ALJ found Student's objection unpersuasive and held that the challenge was timely under Government Code section 11425.40 and California Code of Regulations, title 1, section 1034. The case was reassigned to ALJ Adeniyi Ayoade.
Why it matters
Each party gets one no-reason challenge to the assigned ALJ, and an opposing party's objection usually will not stop it if it is timely. The challenge must be filed before the prehearing conference begins (if an ALJ is already assigned) and before the hearing starts.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Gov. Code, § 11425.40, subd. (a)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Rebecca Freie, Administrative Law Judge (challenged)
- Adeniyi Ayoade, Administrative Law Judge (newly assigned)
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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012100025
v. ORDER GRANTING DISTRICT’S
PEREMPTORY CHALLENGE
ACALANES UNION HIGH SCHOOL
DISTRICT.
On February 1, 2013, the Acalanes Union High School District (District), filed a notice of peremptory challenge to Administrative Law Judge (ALJ) Rebecca Freie in the above captioned matter. 1 District’s peremptory challenge is made pursuant to Government Code section 11425.40, subdivision (d), of the Administrative Procedures Act (APA), and California Code of Regulations, title 1, section 1034.
Government Code section 11425.40, subdivision (d), establishes the criteria for disqualification of the presiding officer. A party is entitled to one peremptory challenge (disqualification without cause) to an ALJ assigned to an Office of Administrative Hearings (OAH) hearing. (Cal. Code Regs., tit. 1, § 1034, subds. (a) & (b); Gov. Code, § 11425.40, subd. (d).) In no event will a peremptory challenge be allowed if it is made after the hearing has commenced. In addition, if at the time of a scheduled prehearing conference, an ALJ has been assigned to the Hearing, any challenge to the assigned ALJ shall be made no later than commencement of that prehearing conference. (Cal. Code Regs., tit. 1, § 1034, subd. (c).) A peremptory challenge is not allowed on reconsideration or remand, and cannot be made after a hearing has begun. (Cal. Code Regs., tit. 1, § 1034, subd. (a).)
District’s peremptory challenge is timely made and is granted pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c). The matter is reassigned to ALJ Adeniyi Ayoade.
IT IS SO ORDERED.
Dated: February 1, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings Student’s objection to District’s challenge was considered and found unpersuasive.