California OAH special education order · November 2, 2015

Order Denying Student's Peremptory Challenge of Mediator

OAH Case No. 2015100209 · ALJ Peter Paul Castillo

OAH denied Student's peremptory challenge to the ALJ assigned as mediator because the peremptory challenge rule applies to hearings, not mediations, which are voluntary.

Denied Peremptory challenges

This case went to decision

Student v. Capistrano Unified School District: Capistrano Unified denied FAPE by delaying an eye-tracking communication device; must fund 21 hours of training and an assessment. (2016)

Summary

Student's attorney filed a peremptory challenge to Administrative Law Judge Darrell Lepkowsky in his role as mediator. OAH explained that a party gets one challenge without cause to an ALJ assigned to a hearing under California Code of Regulations, title 1, section 1034 and Government Code section 11425.40. That regulation does not cover mediations. OAH assigns mediators based on its operational needs, and because mediation is voluntary, a party can simply decline to take part. The challenge was denied.

Why it matters

Families cannot use a peremptory challenge to remove an assigned mediator. If a family objects to the mediator, the remedy is to decline the voluntary mediation and save the challenge for the hearing ALJ.

Key authority cited

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

People named in the order

Darrell Lepkowsky, Administrative Law Judge assigned as mediator

Topics

peremptory challenge mediation mediator assignment disqualification alj

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. 2015100209 v. ORDER DENYING STUDENT’S

PEREMPTORY CHALLENGE OF

CAPISTRANO UNIFIED SCHOOL MEDIATOR

DISTRICT.

On November 2, 2015, Kathleen M. Loyer, attorney for the Student, filed a notice of peremptory challenge to Administrative Law Judge Darrell Lepkowsky in the above captioned matter. The challenge is as to her role as a mediator.

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).)

The regulation does not apply to mediations. Mediators are assigned based on OAH’s operational needs. Mediations are voluntary and a party may decline to participate in mediation if it so chooses. Accordingly, the challenge is denied.