California OAH special education order · April 13, 2015

Order Granting District's Peremptory Challenge and Denying Request for Continuance

OAH Case No. 2015010344 · ALJ Bob N. Varma

OAH granted Oakland's timely peremptory challenge to ALJ Rebecca Freie and reassigned the case. It denied Oakland's continuance request as premature because no actual scheduling conflict yet existed.

Ruling 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

After Student successfully challenged the first assigned ALJ, Oakland filed its own peremptory challenge to the newly assigned ALJ, Rebecca Freie. Oakland also asked for a continuance based on possible future conflicts for its counsel. OAH granted the challenge as timely, because it was filed the same day the case was reassigned, and assigned ALJ Theresa Ravandi. OAH denied the continuance without prejudice as not yet ripe, since the hearing was scheduled to finish on April 16, 2015, before the claimed conflicts. Oakland may renew the request with the hearing ALJ if a real conflict arises.

Why it matters

Each side gets one peremptory challenge, and a reassignment opens a new window to use it. A continuance request based only on speculative future conflicts will likely be denied until an actual conflict exists.

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 (removed by Student's peremptory challenge)
Rebecca Freie, Administrative Law Judge (removed by District's peremptory challenge)
Theresa Ravandi, Administrative Law Judge (newly assigned)

Topics

peremptory challenge alj reassignment continuance ripeness timeliness

Order details

OAH case number: 2015010344
Order date: April 13, 2015
Order type: Peremptory challenges
Ruling: Peremptory challenge granted; continuance denied without prejudice
Administrative law judge: Bob N. Varma
Moving party: District
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 DISTRICT’S

PEREMPTORY CHALLENGE AND

OAKLAND UNIFIED SCHOOL DENYING REQUEST FOR

DISTRICT. CONTINUANCE

On April 9, 2015, the Office of Administrative Hearings reassigned the hearing in this matter to Administrative Law Judge Charles Marson. On April 11, 2015, Student filed a peremptory challenge to ALJ Marson. On April 13, 2015, OAH granted Student’s peremptory challenge and reassigned this matter to ALJ Rebecca Freie. On April 13, 2015, the Oakland Unified School District filed a peremptory challenge to ALJ Freie.

Oakland also requested a continuance based upon future potential conflicts for its counsel on April 17, 2015, and the week of April 21, 2015.

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).)

Oakland’s peremptory challenge is timely made, as OAH reassigned this matter on April 13, 2015, 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 Theresa Ravandi.

With respect to Oakland’s request for continuance, the request is not yet ripe. At this time, there is no evidence that a genuine conflict exists as this matter is currently calendared to finish on April 16, 2015. Therefore, the request is denied without prejudice. Oakland may renew the request to the ALJ presiding at the hearing, should a conflict arise. Any continuance will be granted or denied at the discretion of the ALJ presiding at the hearing.