California OAH special education order · August 11, 2014
Order Granting Challenge for Cause
OAH Case No. 2014070309 · ALJ Charles Marson
ALJ Charles Marson granted Student's challenge for cause against himself because he had mediated an earlier due process matter involving Student and learned confidential information about her.
Summary
At the start of a prehearing conference, Student's attorney orally asked to disqualify ALJ Charles Marson. She pointed out that he had served as mediator in an earlier due process case between Student and a different school district. On reviewing OAH records, the ALJ found he had had substantive conversations with the parties and learned confidential information about Student, which was inconsistent with acting as an impartial judge, so he granted the challenge. All dates stayed on calendar, the prehearing conference was reassigned to ALJ Joy Redmon that afternoon, and another ALJ will be assigned to hear the case.
Why it matters
Disqualification usually requires proof of actual bias, but an ALJ who mediated an earlier case for the same student and learned confidential information can be removed without that proof. Families should check whether their assigned ALJ ever mediated a prior dispute involving their child.
Key authority cited
- Gov. Code, § 11425.40
- American Isuzu Motors, Inc. v. New Motor Vehicle Board (1986) 186 Cal.App.3d 464
- Haas v. County of San Bernardino (2002) 27 Cal.4th 1017
- Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152
People named in the order
- Joy Redmon, Administrative Law Judge assigned to conduct the prehearing conference
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. 2014070309 v. ORDER GRANTING CHALLENGE
FOR CAUSE
SAN JOSE UNIFIED SCHOOL DISTRICT.
On August 11, 2014, Student, through her attorney Leticia N. Whetstone, orally made at the outset of a prehearing conference a challenge for cause seeking to disqualify the undersigned, Administrative Law Judge Charles Marson, from hearing this case.
An ALJ may be disqualified for bias, prejudice, or interest in the proceeding. (Gov.
Code, § 11425.40, subd. (a).) The following, without further evidence of bias, prejudice, or interest, are not by themselves grounds for disqualification: 1) the ALJ is or is not a member of a racial, ethnic, religious, sexual, or similar group and the proceeding involves the rights of that group; 2) the ALJ has experience, technical competence, or specialized knowledge of, or has in any capacity expressed a view on, a legal, factual, or policy issue presented in the proceeding; or 3) the ALJ has as a lawyer or public official participated in the drafting of laws or regulations or in the effort to pass or defeat laws or regulations, the meaning, effect, or application of which is in issue in the proceeding. (Gov. Code, § 11425.40, subd. (b).)
In other words, to disqualify an ALJ for cause, a factual showing of actual bias or prejudice is required. (See American Isuzu Motors, Inc. v. New Motor Vehicle Board (1986)
186 Cal.App.3d 464, 472.) For example, to be a basis for disqualification, the financial interest of the ALJ in the outcome of the case must be direct, personal, and substantial, rather than slight. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1031.) Similarly, personal involvement in the case by the ALJ or familial connections may warrant disqualification based solely on the probability of bias. (See Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170-1173.) However, in most other cases, including claims of bias arising from the hearing officer’s personal or political views, disqualification will not occur absent a showing of actual bias. (Haas, supra, at p. 1032.)
In this matter Ms. Whetstone properly pointed out that the undersigned ALJ served as a mediator in a previous due process matter involving Student and another school district.
On review of OAH records, it appears that the undersigned ALJ did have substantive conversations with the parties and acquired confidential information concerning Student, knowledge of which would be inconsistent with assignment to the prehearing conference and the due process hearing as an impartial trier of fact. The challenge for cause is therefore granted.
ORDER
1. Student’s challenge of ALJ Charles Marson is granted.
2. All dates previously set in this matter will remain on calendar. The prehearing
conference will be held at 1:00 p.m. on August 11, 2014, and will be conducted by ALJ Joy Redmon. OAH will initiate the call. OAH will assign another ALJ to conduct the hearing.
DATE: August 11, 2014
/S/
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings