California OAH special education order · August 1, 2014
Order Granting Peremptory Challenge
OAH Case No. 2014060827 · ALJ June R. Lehrman
OAH granted a timely peremptory challenge to ALJ Marian Tully, because each party gets one no-cause challenge if made before the prehearing conference, and moved the prehearing conference to 3:00 PM.
This case went to decision
Student v. Arcadia Unified School District: Arcadia Unified had no duty to assess or offer FAPE to a student still enrolled in a charter school; all claims denied. (2014)
Summary
A peremptory challenge was filed on August 1, 2014 to remove Administrative Law Judge Marian Tully from the case. The order says the District filed it, but later calls it Student's challenge. OAH granted it because each party gets one challenge without cause, and this one was made before the scheduled prehearing conference and before the hearing began. The August 4, 2014 prehearing conference was moved from 1:00 PM to 3:00 PM.
Why it matters
Each side may remove one assigned ALJ without giving a reason, but only if it acts before the prehearing conference starts. Waiting until after that point loses the right.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Marian Tully, 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:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2014060827
v. ORDER GRANTING PEREMPTORY
CHALLENGE
ARCADIA UNIFIED SCHOOL DISTRICT.
On August 1, 2014, District filed a notice of peremptory challenge to Administrative Law Judge (ALJ) Marian Tully 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).)
ORDER
1. 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).
2. The Prehearing Conference set for Monday, August 4, 2014, at 1:00 PM is re-
scheduled to 3:00 PM.
DATE: August 01, 2014
/S/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings