California OAH special education order · February 1, 2013
Order Reconsidering Prior Order on Peremptory Challenge and Denying District's Peremptory Challenge
OAH Case No. 2012100025 · ALJ Bob N. Varma
OAH reversed itself on its own motion and denied District's peremptory challenge as untimely, because District learned of the ALJ reassignment that morning but filed after the noon Friday deadline.
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
OAH reassigned the hearing to ALJ Rebecca Freie on February 1, 2013, the Friday before a hearing set to start February 4. District filed a peremptory challenge at about 3:45 p.m., and Student objected that it was untimely. OAH first granted the challenge, then reconsidered on its own motion. Because the hearing was at a site other than an OAH office, the challenge was due by noon on the Friday before the hearing week. District's counsel admitted her office learned of the reassignment at about 9:20 a.m., so District had enough time to comply. OAH denied the challenge, vacated the reassignment to ALJ Ayoade, and returned the case to ALJ Freie.
Why it matters
Peremptory challenge deadlines are strictly enforced. For hearings held away from an OAH office, the challenge is due by noon on the Friday before the hearing week. A party that misses that deadline after timely notice loses the challenge. Opposing parties should object promptly, because OAH may reconsider an order granting an untimely challenge.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Rebecca Freie, Administrative Law Judge (assigned hearing ALJ)
- Ayoade, Administrative Law Judge (reassignment vacated)
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 RECONSIDERING PRIOR
ORDER ON PEREMPTORY
ACALANES UNION HIGH SCHOOL CHALLENGE AND DENYING
DISTRICT. DISTRICT’S PEREMPTORY
CHALLENGE
Reconsideration On February 1, 2013, the Office of Administrative Hearings (OAH) informed the parties that it had reassigned the due process hearing in this matter, set to begin on February 4, 2013, to Administrative Law Judge (ALJ) Rebecca Freie. The Acalanes Union High School District (District) filed a peremptory challenge as to ALJ Freie at approximately 3:45 p.m. on February 1, 2013. Student, soon thereafter, filed an objection asserting District’s challenge was untimely. District filed a response in which District’s counsel acknowledged that her office was informed of the reassignment at approximately 9:20 a.m. on February 1,
2013. The undersigned issued an order granting District’s challenge.
However, upon further review of the pleadings from the parties, the undersigned has decided to reconsider the earlier ruling, sua sponte.
Peremptory Challenge 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).)
Specific to this matter, when a due process hearing is held at a site other than an OAH office, the peremptory challenge must be made no later than noon on the Friday prior to the week in which the hearing is to commence. (Cal. Code Regs., tit. 1, § 1034, subds. (e).) In this matter, District was notified of the reassignment with sufficient time to comply with the requirement. Accordingly, District’s challenge is untimely and is denied. To the extent that OAH’s calendar has reassigned the matter to ALJ Ayoade, that reassignment is vacated and the matter is reassigned to ALJ Freie.
IT IS SO ORDERED
Dated: February 1, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings