California OAH special education order · June 13, 2016
Order Denying Peremptory Challenge
OAH Case No. 2016030723 · ALJ June R. Lehrman
OAH denied Student's peremptory challenge to ALJ Laurie Gorsline as untimely because it was filed the afternoon before hearing, not by noon on the Friday before the hearing week.
This case went to decision
Student v. Laguna Beach Unified School District: Laguna Beach Unified must reimburse $5,491 for private school and speech costs after delaying an IEP meeting; interim placement upheld. (2016)
Summary
Student filed a peremptory challenge at 2:24 PM on Monday, June 13, 2016, seeking to remove ALJ Laurie Gorsline from a hearing set to start the next morning. Because the hearing was at a site other than an OAH regional office, the regulations required any challenge by noon on the Friday before the hearing week. ALJ Gorsline was assigned around 10:30 AM that Friday and the assignment was posted on OAH's website calendar. Student's counsel's own Monday morning 'Motion for Clarification' showed counsel knew of the assignment on Friday, so OAH denied the challenge as untimely.
Why it matters
The one free challenge to an assigned ALJ is lost if it is not filed on time, and the deadline can fall only hours after the assignment is posted. Families and advocates should check OAH's online calendar closely in the days before hearing and file any peremptory challenge right away.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Gov. Code, § 11425.40, subd. (a)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Laurie Gorsline, Administrative Law Judge assigned to hearing
Topics
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. 2016030723 v. ORDER DENYING PEREMPTORY
CHALLENGE
LAGUNA BEACH UNIFIED SCHOOL
DISTRICT.
On Monday June 13, 2016, at 2:24 PM, Student filed a peremptory challenge, seeking to disqualify Administrative Law Judge Laurie Gorsline from hearing this case, set to begin the following day, Tuesday June 14, 2016, at 9:30 AM. Student’s peremptory challenge was 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).)
The timeliness of the challenge is governed by the California Code of Regulations.
Specifically, if the hearing is to be held at a site other than an OAH regional office, the peremptory challenge of the assigned ALJ shall be made by noon on Friday prior to the week in which the Hearing is to commence. (Cal. Code Regs., tit. 1, § 1034, subd. (e).)
Student’s peremptory challenge is untimely made and is denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (e).
The hearing is to be held at a site other than an OAH regional office. The peremptory challenge was not made by noon on Friday prior to the week in which the Hearing is to commence. The assignment of ALJ Gorsline to preside over the hearing was made at approximately 10:30 AM on Friday, June 10, 2016, and was publicized via the calendar on OAH’s website. Student was presumptively and actually aware of the assignment on Friday, June 10, 2016. Rather than filing a timely peremptory challenge on that day, Student instead filed a “Motion for Clarification” on the morning of Monday, June 13, 2016, which revealed that Student’s counsel had in fact been aware of the assignment of ALJ Gorsline as of Friday June 10, 2016. Student’s preemptory challenge was nevertheless not filed until Monday, June 13, 2016, and indeed was not filed until 2:24 PM on June 13, 2016, for a hearing set to begin the following day. It is therefore denied as untimely.
IT IS SO ORDERED.
DATE: June 13, 2016
JUNE R. LEHRMAN
Presiding Administrative Law Judge Office of Administrative Hearings