California OAH special education order · April 14, 2015

Order of Nonaction Without Prejudice

OAH Case No. 2015030220 · ALJ Joy Redmon

OAH took no action on Student's letter asking that a different ALJ review all rulings, because it was unclear whether Student sought reconsideration, disqualification for cause, or a peremptory challenge.

Ruling Disqualifying a judge for cause

This case went to decision

Student v. Fresno Unified School District: Fresno Unified must train case managers after holding an IEP meeting without a speech therapist; other claims denied. (2015)

Summary

Student sent OAH a letter asking that an ALJ other than ALJs Darrell Lepkowsky and Charles Marson review and rule on all current and future decisions and evidence in the case. Student said these judges have a history of ruling against parents. OAH found the request unclear. It could be a motion for reconsideration of earlier orders, a request to disqualify the ALJs for cause, or a peremptory challenge, which would require naming one ALJ. OAH took no action, without prejudice, and advised Student to follow the legal standards it laid out if Student files new motions.

Why it matters

A parent who wants a different judge must say exactly what they are asking for. That means stating whether it is reconsideration, a for-cause challenge with evidence of bias, or a single peremptory challenge naming one ALJ, and meeting the deadline for each. A vague request will not be acted on.

Key authority cited

Gov. Code, § 11425.40
Cal. Code Regs., tit. 1, § 1034
Gov. Code, § 11521
Code Civ. Proc., § 1008
Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192

People named in the order

Darrell Lepkowsky, Administrative Law Judge (issued prior order)
Charles Marson, Administrative Law Judge

Topics

disqualification peremptory challenge reconsideration alj bias unclear request

Order details

OAH case number: 2015030220
Order date: April 14, 2015
Order type: Disqualifying a judge for cause
Ruling: No action taken, without prejudice
Administrative law judge: Joy Redmon
Moving party: Student
Case filed by: Student
Education agency: Fresno Unified School District
Student's counsel: Not stated
District's counsel: Not stated
Official order: OAH PDF

Orders in this case

March 20, 2015: Order Granting in Part and Denying in Part District's Motion to Limit Issues and Motion to Strike Is
April 14, 2015: Order of Nonaction Without Prejudice
April 14, 2015: Unopposed continuance granted; hearing reset from April 28 to May 5, 2015. (PDF)
April 22, 2015: PHC and hearing continued to May 22 and June 10, 2015, so parties can hold resolution session. (PDF)
May 26, 2015: PHC order sets June 10-12, 2015 hearing, lists issues, and sets exhibit and witness rules. (PDF)
July 30, 2015: Unopposed extension granted; written closing arguments now due August 6, 2015. (PDF)
July 31, 2015: Order Denying Request to Conduct an Additional Day of Hearing
August 3, 2015: Order Denying Motion to Consolidate
Decision (2015-08-31)

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. 2015030220 v. ORDER OF NONACTION WITHOUT

PREJUDICE

FRESNO UNIFIED SCHOOL DISTRICT.

On March 3, 2015, Student filed the instant action naming the Fresno Unified School District as the respondent. On March 11, 2015, Fresno filed a motion to limit and motion to strike issues and resolutions in Student’s complaint. On March 16, 2015, Student filed a document that was considered an opposition to Fresno’s motion to strike or limit issues.

On March 20, 2015, Administrative Law Judge Darrell Lepkowsky issued an order granting in part and denying in part Fresno’s original motion. Later in the day after the order was issued the Office of Administrative Hearings received additional documents opposing the motion. On March 25, 2015, Fresno submitted an opposition to the additional documents and factual clarification.

On March 26, 2015, Student sent a letter to OAH requesting that an administrative law judge other than ALJ Lepkowsky and ALJ Charles Marson, “review and rule on all current and future decisions, documents and evidence submitted to date to OAH regarding the issues in this case.

APPLICABLE LAW

Reconsideration:

The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) Except in unusual circumstances, the ALJ who issued the original order is the ALJ who rules on the motion for reconsideration. Additionally, the party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)

Request to Disqualify ALJ:

Government Code section 11425.40 subdivisions (a) and (b) establish the criteria for disqualifying the presiding officer for cause. When a request to disqualify is made for cause the presiding officer is subject to disqualification for bias, prejudice, or interest in the proceeding but interest in the proceeding alone is not itself grounds for disqualification, without further evidence of bias, prejudice, or interest, that the presiding officer:

(1) 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) 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.

(3) 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.

Government Code section 11425.40, subdivision (d), establishes the criteria for disqualifying the presiding officer without case. 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).) 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).)

DISCUSSION

It is unclear whether or not Student seeks reconsideration of a specific or all prior orders in this case. It is also unclear if Student seeks to challenge ALJ Lepkowsky and ALJ Marson for cause in light of the statement that they, “have a history of ruling negatively against parents dispute relevant information and evidence presented before OAH.”

Alternatively, Student may have intended to use his single preemptory challenge to remove one ALJ without case. If Student seeks to utilize his preemptory challenge, he needs to designate which ALJ is being challenged.

As Student’s requests are unclear and subject to different interpretation, no action is taken at this time. This notice of non-action is without prejudice. Student may file additional motions; however, Student is advised to follow the legal standards outlined above.