California OAH special education order · April 17, 2015

Order Denying Challenge for Cause

OAH Case No. 2015010862 · ALJ Judith L. Pasewark

OAH denied Student's challenge for cause against ALJ Judith Pasewark, finding her participation in a public special education panel months before the case was filed showed no actual bias.

Denied Disqualifying a judge for cause

This case went to decision

Student v. Riverside Unified School District (consolidated): Riverside Unified prevails: speech services for a student with autism were appropriate despite the parents' apraxia claim. (2015)

Summary

Student moved to disqualify ALJ Judith Pasewark for cause, and District opposed. The challenge was based on her taking part in a September 2014 public panel at a Special Education Fair, where panelists answered general audience questions. The ALJ found Student showed no actual bias. The panel came four months before the complaint was filed, covered only general topics, and an ALJ's expressed views on legal issues are not grounds for disqualification. Student had also not used a peremptory challenge before the prehearing conference, so all hearing dates stayed in place.

Why it matters

Removing an ALJ for cause requires proof of actual bias. An ALJ's general public comments on special education law are not enough. Parents who are uneasy with an assigned ALJ should use their one peremptory challenge on time, no later than the start of the prehearing conference.

Key authority cited

  • Gov. Code, § 11425.40
  • Cal. Code Regs., tit. 1, § 1034
  • 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

  • Judith L. Pasewark, Administrative Law Judge (subject of challenge)

Topics

disqualification challenge for cause judicial bias peremptory challenge alj recusal

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. 2015010862 v. ORDER DENYING CHALLENGE FOR

CAUSE

RIVERSIDE UNIFIED SCHOOL

DISTRICT.

On April 13, 2015, Student filed a challenge for cause seeking to disqualify Administrative Law Judge Judith L. Pasewark from hearing this case.

On April 15, 2015, the Riverside Unified School District filed an opposition to Student’s motion. On April 16, 2015, Student filed a reply to District’s opposition.

APPLICABLE LAW AND DISCUSSION

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).)

Student raised no peremptory challenge to ALJ Pasewark prior to, during, or immediately following the initial prehearing conference on this matter, held on March 9,

2015. In fact, ALJ Pasewark, as the named due process hearing ALJ, ruled on Student’s

motion to continue, and granted Student’s request for continuance of this matter to its current hearing dates.

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, in order 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.)

On September 6, 2014, ALJ Pasewark participated in a panel discussion of special education at a Special Education Fair open to the public. ALJ Pasewark was one of three panelists, the other two being special education attorneys. Questions were anonymously taken from the audience in writing, and were presented by a program monitor. Each panelist then responded to the question. The questions addressed a variety of generalized special education subjects. Moderator informed the audience the selected questions were not intended to address specific factual allegations of individual attendees.

Student did not file his request for due process until January 27, 2015. He provided no information as to any actual bias from an educational program presented four months prior to the filing of Student’s complaint by ALJ Pasewark’s participation in a public forum presenting generalized information on a variety of special educations issues and services.

Further, by definition, special education ALJ’s communicate their opinions and interpretations of factual and legal issues every day in their rulings and decisions. While disagreement with ALJ Pasewark’s legal opinions may have given rise to Student’s election of a peremptory challenge, Student did not opt to file such a request. Student has demonstrated no actual bias, therefore Student’s challenge of ALJ Judith Pasewark is denied.

ORDER

1. Student’s challenge of ALJ Judith L. Pasewark is denied.

2. All dates previously set in this matter will remain on calendar.

DATE: April 17, 2015

/ S/

JUDITH PASEWARK

Administrative Law Judge Office of Administrative Hearings