California OAH special education order · April 13, 2015

Order Granting Student's Peremptory Challenge, Vacating Hearing Date and Setting Due Process Hearing

OAH Case No. 2015010344 · ALJ Bob N. Varma

OAH granted Student's peremptory challenge to ALJ Charles Marson despite Oakland's untimeliness objection, because OAH reassigned the case less than two business days before hearing, making the deadline impossible to meet.

Granted Peremptory challenges

This case went to decision

Student v. Oakland Unified School District: Oakland Unified must fund independent psychoeducational and mental health evaluations after skipping assessments; academic, bullying, and transfer claims denied. (2015)

Summary

Two days before the hearing, OAH told the parties the case had been assigned to ALJ Charles Marson, and Student filed a peremptory challenge against him. Oakland opposed, arguing the challenge was untimely under the two-business-day rule and that Student could have filed a day earlier. OAH agreed Student could have filed on April 10, but granted the challenge anyway because the late reassignment made the regulation's deadline impossible to meet. The April 13 hearing date was vacated and the case was reassigned to ALJ Rebecca Freie, with hearing starting April 14, 2015.

Why it matters

When OAH reassigns a judge too late for a party to meet the two-business-day deadline, the challenge cannot be denied as untimely on that basis alone. Even so, parties should file a challenge as soon as possible after learning of an assignment.

Key authority cited

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

People named in the order

Charles Marson, Administrative Law Judge (challenged)
Rebecca Freie, Administrative Law Judge (reassigned)

Topics

peremptory challenge alj reassignment timeliness hearing date vacated

Order details

OAH case number: 2015010344
Order date: April 13, 2015
Order type: Peremptory challenges
Ruling: Granted
Administrative law judge: Bob N. Varma
Moving party: Student
Case filed by: Student
Education agency: Oakland Unified School District
Student's counsel: Not stated
District's counsel: Not stated
Official order: OAH PDF

Orders in this case

February 27, 2015: Unopposed continuance granted; prehearing conference set April 3, hearing reset to April 13, 2015. (PDF)
April 2, 2015: Prehearing conference moved from 10:00 AM to 3:00 PM on April 3, 2015. (PDF)
April 6, 2015: Hearing set for April 13–16, 2015; issues framed; teacher's telephonic testimony allowed. (PDF)
April 13, 2015: Order Granting District's Peremptory Challenge and Denying Request for Continuance
April 13, 2015: Order Granting Student's Peremptory Challenge, Vacating Hearing Date and Setting Due Process Hearing
Decision (2015-06-04)

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. 2015010344 v. ORDER GRANTING STUDENT’S

PEREMPTORY CHALLENGE,

OAKLAND UNIFIED SCHOOL VACATING HEARING DATE AND

DISTRICT. SETTING DUE PROCESS HEARING

On April 9, 2015, the Office of Administrative Hearings informed the parties that Administrative Law Judge Charles Marson had been assigned to the hearing set to start on April 13, 2015. On April 11, 2015, Student filed a notice of peremptory challenge to ALJ Marson 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. On April 13, 2015, the Oakland Unified School District filed an opposition.

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 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).) Furthermore, if a hearing is to be held at an OAH regional office, the challenge must be made no later than two business days prior to the commencement of the hearing. (Cal. Code Regs., tit. 1, § 1034, subd. (d).) 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).)

The parties were informed late in the afternoon of April 9, 2015, that OAH was reassigning the matter. Student’s peremptory challenge was filed less than two business days before the commencement of this hearing. Oakland contends the challenge is untimely.

However, the reassignment by OAH was done less than two business days prior to the commencement of the hearing, and Student could not meet the requirements of the regulation. Therefore, the challenge may not be denied simply on the grounds that it failed to meet the requirements of the regulation. Oakland also asserts that Student could have filed the challenge on April 10, 2015. Oakland’s contention is well taken and Student could have filed the challenge on April 10, 2015. However, based upon the facts in this case, OAH will grant the challenge.

The due process hearing date of April 13, 2015 is vacated. The hearing is reassigned to ALJ Rebecca Freie. The matter will commence on April 14, 2015, at 9:30 a.m. All other dates are confirmed.