California OAH special education order · May 3, 2013
Order Granting Request for Reconsideration
OAH Case No. 2012120545, 2012120173 · ALJ Susan Ruff
OAH granted Student's reconsideration request and rescinded any prehearing conference directive requiring Student's attorney to try the case, leaving representation questions to the newly assigned hearing ALJ.
This case went to decision
Student v. Capistrano Unified School District (consolidated): Capistrano Unified must reimburse $91,000 for a Utah residential school after its day-program offer and triennial assessment denied FAPE. (2013)
Summary
At the prehearing conference, ALJ Ruff said that if Student had an attorney, the attorney should be present to try the case. That statement was not in the written order. Student asked for reconsideration so an educational advocate could try part or all of the case. Student explained that the attorney had recently had surgery and that the parents wanted to save on attorney's fees. Because the case had been reassigned to ALJ Owens-Murrell, ALJ Ruff rescinded any such orders so the hearing ALJ could decide how the hearing is conducted and who represents Student, with any remaining concerns to be raised on the first day of hearing.
Why it matters
Families who want a non-attorney advocate to present their case can ask OAH to revisit prehearing statements about attorney attendance. Decisions about hearing conduct and representation generally rest with the ALJ who will preside over the hearing.
People named in the order
- Susan Ruff, Administrative Law Judge (prehearing conference)
- Owens-Murrell, Administrative Law Judge assigned to hearing
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 Consolidated Matters of:
STUDENT, OAH CASE NOS. 2012120545 &
2012120173 v.
ORDER GRANTING REQUEST FOR
CAPISTRANO UNIFIED SCHOOL RECONSIDERATION
DISTRICT
On April 24, 2013, the undersigned administrative law judge (ALJ) issued an Order Following Prehearing Conference. During the telephonic prehearing conference (PHC) that led to the issuance of that order, there was a discussion regarding the upcoming hearing.
Although an attorney filed the due process request on behalf of Student in this case, an educational advocate appeared at the PHC on behalf of Student. During the PHC, ALJ Ruff expressed an expectation that, if Student was represented by an attorney, that attorney should be present at the administrative hearing to try the case on his client’s behalf. The ALJ’s comments in this regard were not included in the written PHC order.
On April 29, 2013, Student filed a request for reconsideration of the PHC order, asking that Student’s educational advocate be permitted to try part or all of the case at the due process hearing, whether or not the attorney is present. Student’s moving papers explained that the attorney recently underwent surgery and may not be present during part or all of the hearing. Student also explained that Student’s parents prefer to have an advocate prosecute their case, rather than their attorney, to save money on attorney’s fees.
This case has recently been reassigned to ALJ Owens-Murrell for hearing. ALJ Owens-Murrell should make the orders regarding the conduct of the hearing over which she will preside. Therefore, to the extent that ALJ Ruff made any orders during the PHC which require Student’s attorney to attend the hearing and prosecute the case on his client’s behalf, Student’s motion for reconsideration is granted and those orders by ALJ Ruff are rescinded.
Nothing in this Reconsideration Order is intended to limit ALJ Owens-Murrell’s discretion to make any orders regarding the conduct of the hearing or the representation of Student at the hearing.
If Student has any additional concerns regarding the PHC order or matters discussed during the telephonic PHC, Student should raise those issues with ALJ Owens-Murrell on the first day of hearing.
IT IS SO ORDERED.
Dated: May 3, 2013 /s/
SUSAN RUFF
Administrative Law Judge Office of Administrative Hearings