California OAH special education order · September 25, 2013

Order Granting Student's Peremptory Challenge

OAH Case No. 2013051152, 2013040629 · ALJ Bob N. Varma

OAH granted Student's timely peremptory challenge to ALJ Timothy Newlove and reassigned the consolidated matters to ALJ Eileen Cohn.

Granted Peremptory challenges

This case went to decision

Student v. Santa Monica-Malibu Unified School District (consolidated): Santa Monica-Malibu Unified must reimburse Summit View tuition, tutoring and mileage; district's assessment upheld and IEE denied. (2013)

Summary

Student's attorney filed a peremptory challenge to remove the assigned ALJ, Timothy Newlove, from the consolidated cases between Student and Santa Monica-Malibu Unified School District. Each party gets one challenge without cause, but it must be made before the hearing begins and, if an ALJ is already assigned, no later than the start of the prehearing conference. OAH found Student's challenge timely, granted it, and reassigned the matter to ALJ Eileen Cohn.

Why it matters

Each side may remove one assigned ALJ without giving a reason, but only if the challenge is filed on time, before the prehearing conference or 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

  • N. Jane DuBovy, Attorney for Student
  • Timothy Newlove, Administrative Law Judge (challenged)
  • Eileen Cohn, Administrative Law Judge (reassigned)
  • Bob N. Varma, Presiding Administrative Law Judge

Topics

peremptory challenge alj reassignment disqualification without cause consolidated cases 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 Consolidated Matters of:

PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013051152

v.

SANTA MONICA-MALIBU UNIFIED

SCHOOL DISTRICT,

SANTA MONICA-MALIBU UNIFIED OAH CASE NO. 2013040629

SCHOOL DISTRICT,

v.

ORDER GRANTING STUDENT’S

PARENT ON BEHALF OF STUDENT. PEREMPTORY CHALLENGE

On September 24, 2013, N. Jane DuBovy, attorney for Student, filed a notice of peremptory challenge to Administrative Law Judge (ALJ) Timothy Newlove 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).)

Student’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 Eileen Cohn.

IT IS SO ORDERED.

Dated: September 25, 2013 /s/

BOB N. VARMA

Presiding Administrative Law Judge Office of Administrative Hearings