California OAH special education order · December 2, 2013

Order Granting District's Peremptory Challenge and Vacating First Day of Due Process Hearing

OAH Case No. 2013060562 · ALJ Bob N. Varma

OAH granted District's timely peremptory challenge to ALJ Rebecca Freie, reassigned the case to ALJ Deidre L. Johnson, and moved the first hearing day from December 2 to December 3, 2013.

Granted Peremptory challenges

This case went to decision

Student v. Sacramento City Unified School District: Sacramento City Unified must translate IEP documents into Chinese for parents; June 2013 IEP voided, other claims denied. (2014)

Summary

OAH reassigned the case to ALJ Rebecca Freie, and the same day District filed a peremptory challenge to her. Each party gets one challenge to an assigned ALJ without having to show cause, as long as it is made before the hearing begins. OAH found District's challenge timely and granted it. The case went to ALJ Deidre L. Johnson, and the first hearing day was moved by one day to December 3, 2013.

Why it matters

Each side may remove one assigned ALJ without giving a reason, but only if it acts quickly, before the hearing or any scheduled prehearing conference starts. A late reassignment can still be challenged, and the challenge may shift the hearing dates.

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)
  • Deidre L. Johnson, Administrative Law Judge (reassigned)

Topics

peremptory challenge alj reassignment hearing continued 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. 2013060562

v. ORDER GRANTING DISTRICT’S

PEREMPTORY CHALLENGE AND

SACRAMENTO CITY UNIFIED SCHOOL VACATING FIRST DAY OF DUE

DISTRICT. PROCESS HEARING

On November 27, 2013, the Office of Administrative Hearings informed the parties that this matter was reassigned to Administrative Law Judge (ALJ) Rebecca Freie. On November 27, 2013, Daniel Osher, attorney for the Sacramento City Unified School District (District), filed a peremptory challenge to ALJ Freie.

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 assigned to ALJ Deidre L. Johnson. The first day of hearing, December 2, 2013, is vacated and the hearing is continued to December 3, 2013, at 9:30 a.m.

Dated: December 2, 2013 /s/

BOB N. VARMA

Presiding Administrative Law Judge Office of Administrative Hearings