California OAH special education order · November 18, 2013
Order Granting Peremptory Challenge
OAH Case No. 2013100097 · ALJ Timothy L. Newlove
OAH granted Student's timely peremptory challenge, removed ALJ Judith Pasewark, and reassigned the case to ALJ Susan Ruff, keeping all scheduled dates on calendar.
This case went to decision
Student v. Huntington Beach Union High School District et al. (consolidated): Huntington Beach Union High may place student at a locked Utah treatment center; all claims against both districts denied. (2014)
Summary
Student's advocate filed a peremptory challenge asking that ALJ Judith Pasewark be removed from the case. Each party gets one challenge without having to show cause, as long as it is filed before the prehearing conference or the hearing begins. OAH found the challenge timely and granted it. ALJ Susan Ruff was assigned, and all previously set dates stayed in place.
Why it matters
Each side gets one chance to remove an assigned ALJ without giving a reason, but it must be used before the prehearing conference or hearing begins. Removing the judge does not push back the existing schedule.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Judith Pasewark, Administrative Law Judge (challenged)
- Susan Ruff, Administrative Law Judge (newly assigned)
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. 2013100097
v. ORDER GRANTING PEREMPTORY
CHALLENGE
HUNTINGTON BEACH CITY SCHOOL
DISTRICT; HUNTINGTON BEACH
UNION SCHOOL DISTRICT; WEST
ORANGE COUNTY CONSORTIUM FOR
SPECIAL EDUCATION.
On October 31, 2013, the advocate representing Student filed with the Office of Administrative Hearings (OAH) a peremptory challenge seeking to disqualify Administrative Law Judge (ALJ) Judith Pasewark from hearing this case. 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 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).
ORDER
1. Student's challenge of ALJ Judith Pasewark is[granted.
2. All dates previously set in this matter will remain on calendar.
3. The hearing judge in this matter is now ALJ Susan Ruff.
Dated: November 18, 2013 /s/
TIMOTHY L. NEWLOVE
Presiding Administrative Law Judge Office of Administrative Hearings