California OAH special education order · March 25, 2016

Order Denying Challenge for Cause

OAH Case No. 2016030186 · ALJ Alexa J. Hohensee

ALJ Alexa Hohensee denied Student's challenge for cause because her work at District's law firm, Lozano Smith, in 2002-2003 was too remote to show actual bias, prejudice, or interest.

Denied Disqualifying a judge for cause

Summary

Student asked to disqualify ALJ Alexa Hohensee for cause. Lozano Smith represents District in this case, and the ALJ had worked for that firm for about two years around 2002 and 2003. The ALJ ruled on the challenge herself and denied it. She found that the past employment was remote, that she has no financial or personal interest in the firm, and that disqualification for cause requires a factual showing of actual bias or prejudice.

Why it matters

A judge's long-past work for the opposing side's law firm is usually not enough to disqualify the judge for cause. Parents should be ready to show specific facts of actual bias, or a direct personal or financial interest. A timely peremptory challenge may be the better tool when the only concern is the judge's background.

Key authority cited

  • Gov. Code, § 11425.40
  • 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

  • Alexa J. Hohensee, Administrative Law Judge

Topics

disqualification alj bias challenge for cause prior employment conflict of interest

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:

MORGAN HILL UNIFIED SCHOOL OAH Case No. 2016030186

DISTRICT,

ORDER DENYING CHALLENGE FOR

v. CAUSE

PARENT ON BEHALF OF STUDENT.

On March 25, 2016, Student filed a challenge for cause seeking to disqualify the undersigned, Administrative Law Judge Alexa Hohensee.

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.)

The undersigned ALJ worked for two years, in approximately 2002 and 2003, for the Southern California office of a state-wide special education firm, Lozano Smith, that currently represents District in this matter. The undersigned became a Judge Pro Tem for the Office of Administrative Hearings approximately seven years ago, and has been an Administrative Law Judge for OAH since January 2012. The employment with Lozano Smith is remote, and the undersigned has no financial or personal interest in Lozano Smith.

The undersigned hereby finds that she is free from bias, prejudice or interest in this due process proceeding and can be free and impartial in the conduct of, and rendering a decision in, this proceeding.

ORDER

Student's challenge of ALJ Hohensee is denied.

DATE: March 25, 2016

ALEXA J. HOHENSEE

Administrative Law Judge Office of Administrative Hearings