California OAH special education order · June 11, 2015
Order Denying Motion to Strike Portions of Student's Brief Exceeding 35 Pages, Denying Request for Reply Brief, and Granting Request to Strike Reference to Witness Who Did Not Testify
OAH Case No. 2014120055 · ALJ Joy Redmon
OAH refused to strike Student's over-length closing brief because Sacramento City's own brief also exceeded the 35-page limit, denied a reply brief, but struck testimony wrongly attributed to a non-testifying witness.
This case went to decision
Student v. Sacramento City Unified School District: Sacramento City Unified must fund a mental health IEE, repay Springstone tuition and some housing and mileage costs; fifth-grade claims denied. (2015)
Summary
After the due process hearing, Sacramento City moved to strike the parts of Student's closing brief that went past the ALJ's 35-page limit, or else to file a reply brief. It also asked to strike a statement Student's brief attributed to Jim Downing, who never testified. The ALJ found Student's brief was three pages over the limit, but Sacramento City's brief was also two pages over, and both had about the same amount of substance. So OAH considered both briefs as filed, denied the reply brief, and struck the Downing reference, which Student admitted was a mistake.
Why it matters
Page limits on closing briefs are binding orders, and the ALJ warned that parties who exceed them risk having some or all of their argument stricken. Closing briefs may also cite only testimony that is actually in the hearing record.
People named in the order
- Jim Downing, Person to whom testimony was mistakenly attributed in Student's closing brief; did not testify
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. 2014120055 v. ORDER DENYING MOTION TO
STRIKE PORTIONS OF STUDENT’S
SACRAMENTO CITY UNIFIED SCHOOL BRIEF EXCEEDING 35 PAGES,
DISTRICT. DENYING REQUEST FOR REPLY
BRIEF, AND GRANTING REQUEST
TO STRIKE REFERENCE TO
WITNESS WHO DID NOT TESTIFY
On June 4, 2015, Sacramento City Unified School District filed a motion to strike portions of Student’s closing brief that exceed the page limit set by the undersigned Administrative Law Judge at the conclusion of the hearing or, in the alternative, be permitted to submit a reply brief. Sacramento City also asked to strike a reference in Student’s closing brief attributed to a witness who did not testify. On June 5, 2015, Student filed an opposition to the motion to strike.
At the hearing’s conclusion, the undersigned ALJ permitted written closing briefs to be submitted and limited the length to 35 pages not including the optional chronology. All argument was to be included in the 35 pages. Student’s counsel asked permission to submit an unpublished opinion as an appendix. That request was granted but no request to submit additional argument beyond the 35 page limit was granted.
Student’s closing brief was 36 pages, with an additional two page appendices of argument regarding a residency claim. Student also submitted the optional chronology that did not count toward the page limit. In sum, Student submitted three pages beyond the page limit imposed during the hearing. Student’s closing brief also attributed testimony to Jim Downing who did not testify. Student clarified in the opposition that the statement was mistakenly attributed to Mr. Downing.
In the motion to strike, Sacramento City argued that it worked diligently to limit its brief to 35 pages, leaving out additional information and argument it considered relevant to comply with the ALJ’s directive. This assertion is odd in light of the fact that Sacramento City’s closing brief was 37 and not 35 pages as indicated. Therefore, Sacramento City’s closing brief was two pages beyond the page limit imposed during the hearing.
Parties are expected to comply with the page limits imposed on written closing briefs.
Parties who disregard these instructions do so at the risk that some and potentially all of their closing argument will be stricken by the ALJ. The undersigned ALJ reviewed both briefs and determined that they contain approximately the same amount of substantive information.
In this case, after carefully considering the options, both closing briefs as submitted will be considered. Both parties are on notice that ALJ orders are not discretionary and a similar result is unlikely in the future.
ORDER
1. Sacramento City’s motion to strike portions of Student’s closing brief that exceeds
35 pages is denied.
2. Sacramento City’s request to submit a reply brief is denied.
3. Sacramento City’s request to strike the reference to Jim Downing’s testimony is
granted.
IT IS SO ORDERED.
DATE: June 11, 2015
/ S/
JOY REDMON
Administrative Law Judge Office of Administrative Hearings