California OAH special education order · September 4, 2013
Order Denying Student's Peremptory Challenge
OAH Case No. 2013080296, 2013050805 · ALJ Bob N. Varma
OAH denied Student's peremptory challenge to ALJ Charles Marson as untimely because he had already held a prehearing conference, and sent the challenge for cause to ALJ Marson to decide.
This case went to decision
Student v. Manteca Unified School District (consolidated): Manteca Unified wins all issues and may place student at Children's Home of Stockton without parent consent. (2013)
Summary
Parent, on behalf of Student, filed a peremptory challenge to ALJ Charles Marson, and Manteca Unified opposed it. The Presiding ALJ found the challenge untimely. Under the rules, a peremptory challenge must be made no later than the start of the prehearing conference, and ALJ Marson had already held one on August 30, 2013. Because Student's papers actually alleged bias, OAH treated the filing in part as a challenge for cause and said ALJ Marson would rule on that in a separate order.
Why it matters
A no-reason peremptory challenge to an assigned ALJ must be filed before the prehearing conference begins, so families who want a different judge must act early. Claims of bias are handled separately and require a factual showing of actual bias.
Key authority cited
- Gov. Code, § 11425.40
- Cal. Code Regs., tit. 1, § 1034
- American Isuzu Motors, Inc. v. New Motor Vehicle Board (1986) 186 Cal.App.3d 464
- Haas v. County of San Bernardino (2002) 27 Cal.4th 1017
- Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152
People named in the order
- Charles Marson, Administrative Law Judge (challenged)
- 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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013080296
v.
MANTECA UNIFIED SCHOOL DISTRICT,
MANTECA UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2013050805
v.
PARENT ON BEHALF OF STUDENT. ORDER DENYING STUDENT’S
PEREMPTORY CHALLENGE
On September 4, 2013, Parent, on behalf of 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. On September 4, 2013, the Manteca Unified School District filed an opposition to Student’s challenge.
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).)
An ALJ may be disqualified for bias, prejudice, or interest in the proceeding. (Gov.
Code, § 11425.40, subd. (a).) The following, without further evidence of bias, prejudice, or interest, are not by themselves grounds for disqualification: 1) the ALJ is or is not a member of a racial, ethnic, religious, sexual, or similar group and the proceeding involves the rights of that group; 2) the ALJ has experience, technical competence, or specialized knowledge of, or has in any capacity expressed a view on, a legal, factual, or policy issue presented in the proceeding; or 3) the ALJ has as a lawyer or public official participated in the drafting of laws or regulations or in the effort to pass or defeat laws or regulations, the meaning, effect, or application of which is in issue in the proceeding. (Gov. Code, § 11425.40, subd. (b).)
In other words, to disqualify an ALJ for cause, a factual showing of actual bias or prejudice is required. (See American Isuzu Motors, Inc. v. New Motor Vehicle Board (1986)
186 Cal.App.3d 464, 472.) For example, in order to be a basis for disqualification, the financial interest of the ALJ in the outcome of the case must be direct, personal, and substantial, rather than slight. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1031.) Similarly, personal involvement in the case by the ALJ or familial connections may warrant disqualification based solely on the probability of bias. (See Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170-1173.) However, in most other cases, including claims of bias arising from the hearing officer’s personal or political views, disqualification will not occur absent a showing of actual bias. (Haas, supra, at p. 1032.)
While the motion is filed as a peremptory challenge, a reading of Student’s pleadings shows that this is in actuality a challenge for cause. To the extent that this is a peremptory challenge, Student’s peremptory challenge is untimely made as ALJ Marson conducted a prehearing conference in this matter on August 30, 2013. Student’s peremptory challenge is denied. To the extent that Student intended to file a challenge for cause, the challenge for cause is to be addressed by the ALJ being challenged, ALJ Marson. Accordingly, ALJ Marson will issue an order as to Student’s challenge for cause in a separate order.
IT IS SO ORDERED.
Dated: September 4, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings