California OAH special education order · July 7, 2014

Order Granting District's Peremptory Challenge

OAH Case No. 2014050996 · ALJ Bob N. Varma

OAH granted District's timely peremptory challenge to ALJ Joy Redmon and reassigned the case, rejecting Parent's claim that the attorney's signature was forged because signing on counsel's behalf is acceptable.

Granted Peremptory challenges

This case went to decision

Student v. Cupertino Union School District: Cupertino Union wins on all claims: the ALJ finds it considered private CARD reports and did not predetermine placement. (2014)

Summary

District's attorney filed a peremptory challenge to remove the assigned ALJ, Joy Redmon, without cause. Parent opposed, claiming the attorney's signature was forged. A party has no right to oppose an initial peremptory challenge, but OAH considered the opposition because of the seriousness of the charge. OAH found the claim baseless, since the pleading showed the signature was made by another person in the office on the attorney's behalf, and it granted the timely challenge and reassigned the case to ALJ Margaret Broussard.

Why it matters

Each party gets one peremptory challenge to an assigned ALJ, and the other side cannot block a timely one. Accusing opposing counsel of misconduct, such as forgery, without a factual basis will not succeed.

Key authority cited

Gov. Code, § 11425.40, subd. (d)
Gov. Code, § 11425.40, subd. (a)
Cal. Code Regs., tit. 1, § 1034

People named in the order

Joy Redmon, Administrative Law Judge (challenged)
Margaret Broussard, Administrative Law Judge (reassigned)
Rodney L. Levin, District's attorney

Topics

peremptory challenge alj reassignment signature opposition disregarded 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. 2014050996

v. ORDER GRANTING DISTRICT’S

PEREMPTORY CHALLENGE

CUPERTINO UNION SCHOOL

DISTRICT.

On July 3, 2014, Rodney L. Levin, attorney for the Cupertino Union School District (District), filed a notice of peremptory challenge to Administrative Law Judge Joy Redmon in the above captioned matter. District’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. 1 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).)

On July 3, 2014, Parent, on behalf of Student, filed an opposition to District’s challenge. A party does not have a right to oppose an initial peremptory challenge.

Regardless, Student’s opposition was considered due to the serious charge Parent was leveling against District’s counsel. Student opposed the challenge on the assertion that Mr.

Levin’s signature on the pleading was forged, insinuating that Mr. Levin was acting in an unethical manner. Parent’s assertion is without foundation. District’s pleading contains Mr.

Levin’s signature, followed by an indication that it is being signed by another individual within the office on behalf of Mr. Levin. Such a signature is acceptable and Student’s opposition is disregarded.

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 reassigned to ALJ Margaret Broussard.