California OAH special education order · September 11, 2013
Order Granting Student's Peremptory Challenge
OAH Case No. 2013080449 · ALJ Bob N. Varma
OAH granted Student's timely peremptory challenge to ALJ Charles Marson and reassigned the case to ALJ Peter Paul Castillo, because each party gets one challenge without cause.
This case went to decision
Student v. Contra Costa County Probation Department: Contra Costa County Probation must fund one hour of tutoring for one day it blocked instruction; other claims denied. (2013)
This case went to decision
Student v. Contra Costa County Probation Department: ALJ rules OAH has jurisdiction over Contra Costa County Probation only when it blocks wards on security status from all CCCOE instruction. (2013)
Summary
Student's attorney filed a peremptory challenge to the assigned ALJ, Charles Marson. Under Government Code section 11425.40 and California Code of Regulations, title 1, section 1034, each party may disqualify one assigned ALJ without stating a reason. The challenge must come before the hearing starts, and before any scheduled prehearing conference if an ALJ is already assigned. Presiding ALJ Bob N. Varma found the challenge timely, granted it, and reassigned the case to ALJ Peter Paul Castillo.
Why it matters
Each side gets one chance to remove an assigned ALJ without giving a reason. It must be used early: before the prehearing conference if an ALJ is already assigned, and never after the hearing begins or on reconsideration or remand.
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)
- Peter Paul Castillo, Administrative Law Judge (reassigned)
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. 2013080449
v. ORDER GRANTING STUDENT’S
PEREMPTORY CHALLENGE
CONTRA COSTA COUNTY OFFICE OF
EDUCATION AND CONTRA COSTA
COUNTY PROBATION DEPARTMENT.
On September 11, 2013, Mary-Lee K. Smith, 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).)
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 Peter Paul Castillo.
IT IS SO ORDERED.
Dated: September 11, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings