California OAH special education order · November 18, 2015

Order Granting Peremptory Challenge

OAH Case No. 2015091115 · ALJ Margaret Broussard

OAH granted San Lorenzo's timely peremptory challenge to ALJ Rebecca Freie and reassigned the case to ALJ B. Andrea Miles.

Granted Peremptory challenges

This case went to decision

Student v. San Lorenzo Unified School District: San Lorenzo Unified prevails on all claims; first grader found not eligible for special education despite delayed IEE funding. (2016)

Summary

San Lorenzo Unified School District filed a peremptory challenge to the assigned ALJ, Rebecca Freie. Each party may disqualify one assigned ALJ without giving a reason, as long as the challenge is made before the hearing begins and no later than the start of any scheduled prehearing conference. OAH found San Lorenzo's challenge was timely, granted it, and reassigned the case to ALJ B. Andrea Miles.

Why it matters

Each side gets one no-reason challenge to the assigned ALJ, but it must be filed before the prehearing conference or hearing begins. Parents should watch the ALJ assignment and act quickly if they want to use their challenge.

Key authority cited

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

People named in the order

Rebecca Freie, Administrative Law Judge (challenged)
B. Andrea Miles, Administrative Law Judge (reassigned)

Topics

peremptory challenge alj reassignment disqualification timeliness

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. 2015091115 v. ORDER GRANTING PEREMPTORY

CHALLENGE

SAN LORENZO UNIFIED SCHOOL

DISTRICT.

On November 18, 2015, San Lorenzo Unified School District filed a notice of peremptory challenge to Administrative Law Judge Rebecca Freie in the above captioned matter.

San Lorenzo’s peremptory challenge is made pursuant to Government Code section 11425.40, subdivision (d), of the Administrative Procedures Act, and California Code of Regulations, title 1, section 1034.

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 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).)

San Lorenzo’s peremptory challenge is timely made 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 B. Andrea Miles.