California OAH special education order · January 8, 2013

Order Granting District's Peremptory Challenge

OAH Case No. 2012110503 · ALJ Bob Varma

OAH granted District's timely peremptory challenge to ALJ Rebecca Freie and reassigned the case to ALJ Troy K. Taira.

Granted Peremptory challenges

This case went to decision

Student v. Clovis Unified School District: Clovis Unified's blended special day class and general education middle school placement upheld; all of Student's claims denied. (2013)

Summary

On January 7, 2013, District filed a peremptory challenge to the assigned ALJ, Rebecca Freie. Each party may disqualify one assigned ALJ without stating a reason. The challenge must be made before the hearing starts, and before the prehearing conference if an ALJ is already assigned by then. OAH found District's challenge timely, granted it, and reassigned the matter to ALJ Troy K. Taira.

Why it matters

Each side gets one no-reason challenge to the assigned ALJ, but it must be filed before the prehearing conference or hearing begins, so parents should decide early whether to use it.

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 (challenged)
  • Troy K. Taira, Administrative Law Judge (reassigned)

Topics

peremptory challenge alj disqualification reassignment timeliness

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. 2012110503

v. ORDER GRANTING DISTRICT’S

PEREMPTORY CHALLENGE

CLOVIS UNIFIED SCHOOL DISTRICT.

On January 7, 2013, the Clovis Unified School District (District) filed a notice of peremptory challenge to Administrative Law Judge (ALJ) Rebecca Freie in the above captioned matter. 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 Troy K. Taira.

IT IS SO ORDERED.

Dated: January 8, 2013 /s/

BOB VARMA

Presiding Administrative Law Judge Office of Administrative Hearings