California OAH special education order · September 11, 2013
Order Denying Student's Peremptory Challenge
OAH Case No. 2013050644 · ALJ Bob N. Varma
OAH denied Student's peremptory challenge to ALJ Charles Marson as untimely because he had already conducted a prehearing conference and ruled on a motion to continue.
This case went to decision
Student v. Oakland Unified School District: Oakland Unified properly found a fifth grader ineligible for special education and did not have to reassess him; all claims denied. (2013)
Summary
Student's attorney filed a peremptory challenge to disqualify ALJ Charles Marson without cause. OAH explained that when an ALJ is assigned at the time of a scheduled prehearing conference, any challenge must be made no later than the start of that conference. ALJ Marson had held a prehearing conference on July 5, 2013, and ruled on a motion to continue. The September 11, 2013 challenge was therefore untimely and was denied.
Why it matters
Each party gets only one no-cause challenge to an assigned ALJ, and it is lost if not used by the start of the first prehearing conference with that ALJ. Families should decide quickly, as soon as an ALJ is assigned.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Charles Marson, Administrative Law Judge (challenged)
- Natashe Washington, Attorney for Student
- Bob N. Varma, Presiding Administrative Law Judge
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. 2013050644
v. ORDER DENYING STUDENT’S
PEREMPTORY CHALLENGE
OAKLAND UNIFIED SCHOOL
DISTRICT.
On September 11, 2013, Natashe Washington, attorney for Student, filed a notice of peremptory challenge to Administrative Law Judge (ALJ) Charles Marson in the above captioned matter. Student’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).)
On July 5, 2013, ALJ Marson conducted a prehearing conference in this matter, wherein he considered and ruled upon a motion to continue. Because the parties have appeared before ALJ Marson and participated in a prehearing conference, Student’s motion is untimely, and is denied.
IT IS SO ORDERED.
Dated: September 11, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings