California OAH special education order · April 24, 2014
Order Denying Student's Peremptory Challenge
OAH Case No. 2014031002 · ALJ Richard T. Breen
OAH denied Student's peremptory challenge to ALJ Stella Owens-Murrell as untimely because it was filed after the prehearing conference before that ALJ had already begun.
This case went to decision
Kern High School District v. Student: Kern High School District may conduct a triennial reassessment without parental consent; Mother's residency-based motion to dismiss denied. (2014)
Summary
Student filed a peremptory challenge on April 23, 2014, asking to disqualify ALJ Stella Owens-Murrell without cause. District opposed, arguing the challenge was late. OAH explained that a party gets one peremptory challenge, but it must be made no later than the start of the prehearing conference. Because ALJ Owens-Murrell had already started the prehearing conference on April 18, 2014, before continuing it, the challenge was untimely and denied.
Why it matters
A peremptory challenge to an ALJ must be filed before the prehearing conference starts. Once the conference begins, even if it is continued, the right to challenge the judge without cause is lost.
Key authority cited
- Cal. Code Regs., tit. 1, § 1034
- Gov. Code, § 11425.40, subd. (d)
People named in the order
- Stella Owens-Murrell, Administrative Law Judge (challenged)
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:
KERN HIGH SCHOOL DISTRICT, OAH CASE NO. 2014031002
v. ORDER DENYING STUDENT’S
PEREMPTORY CHALLENGE
PARENT ON BEHALF OF STUDENT.
On April 23, 2014, Student filed a peremptory challenge seeking to disqualify Administrative Law Judge (ALJ) Stella Owens-Murrell from hearing this case. District opposed the request on April 24, 2014, on the ground it was not timely made.
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).) 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).)
Here, a prehearing conference was held before ALJ Stella Owens-Murrell on April 18, 2014, and a written order issued reflecting that the prehearing conference had been started and continued. Thus, Student’s peremptory challenge was not timely made and is denied.
IT IS SO ORDERED.
DATE: April 24, 2014 /s/
RICHARD T. BREEN
Presiding Administrative Law Judge Office of Administrative Hearings