California OAH special education order · June 6, 2016
Order Granting Peremptory Challenge
OAH Case No. 2016040019 · ALJ Peter Paul Castillo
OAH granted Student's peremptory challenge to ALJ Judith Pasewark. It found the challenge timely even though filed just before the prehearing conference, because she only granted a continuance there.
This case went to decision
Student v. Garden Grove Unified School District: Garden Grove Unified need not fund a second, visual processing IEE after already funding a psychoeducational IEE. (2016)
Summary
Student's attorney filed a peremptory challenge to remove ALJ Judith Pasewark at 12:41 p.m. on the day of the 1:00 p.m. prehearing conference. ALJ Pasewark held the conference without having received the challenge, and Student's attorney did not attend. OAH ruled the challenge timely because the only thing done at the conference was granting Student's continuance request. The case was reassigned to ALJ Paul Kamoroff and will proceed as scheduled.
Why it matters
A peremptory challenge must be filed no later than the start of the prehearing conference if an ALJ is already assigned. Filing it early avoids disputes over timeliness, even though OAH was lenient here.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Judith Pasewark, Administrative Law Judge (challenged)
- Paul Kamoroff, Administrative Law Judge (newly assigned)
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. 2016040019 v. ORDER GRANTING PEREMPTORY
CHALLENGE
GARDEN GROVE UNIFIED SCHOOL
DISTRICT.
On June 3, 2016, at 12:41 p.m.,1 Student, through legal counsel Tania Whiteleather, filed a peremptory challenge, seeking to disqualify Administrative Law Judge Judith Pasewark from hearing this case. Student’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).)
The prehearing conference did occur on June 3, 2016, at 1:00 p.m., with ALJ Pasewark because she had not received the peremptory challenge, and Ms. Whiteleather did not attend the prehearing conference. However, all ALJ Pasewark did at the prehearing conference was to grant Student’s continuance request. Therefore, Student’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 request is dated May 3, 2016, but proof of service is dated June 3, 2016.
ORDER
1. Student’s challenge of ALJ Pasewark is granted. This case is assigned for all
purposes to ALJ Paul Kamoroff.
2. The matter will proceed as previously scheduled.
DATE: June 6, 2016
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings