California OAH special education order · May 27, 2016
Order Granting Peremptory Challenge
OAH Case No. 2016040211 · ALJ June R. Lehrman
OAH granted Student's timely peremptory challenge to ALJ Alexa Hohensee, reassigned the case to ALJ Caroline Zuk, and moved that day's prehearing conference to 3:00 PM.
This case went to decision
Student v. Kern County Superintendent of Schools: Kern County Superintendent of Schools must fund at least six months of residential treatment after its home schooling placement denied FAPE. (2016)
Summary
Student filed a peremptory challenge to remove ALJ Alexa Hohensee from the case on the day of the scheduled prehearing conference. OAH found the challenge timely and granted it, because each party gets one challenge without cause if it is made before the prehearing conference or hearing begins. ALJ Caroline Zuk was assigned, the 1:00 PM prehearing conference was moved to 3:00 PM that day, and the hearing dates stayed the same.
Why it matters
Each party gets one chance to remove an assigned ALJ without giving a reason, but it must be used before the prehearing conference starts if an ALJ is already assigned. Using it does not delay the hearing dates.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Alexa Hohensee, Administrative Law Judge (disqualified by peremptory challenge)
- Caroline Zuk, 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. 2016040211 v. ORDER GRANTING PEREMPTORY
CHALLENGE
KERN COUNTY SUPERINTENDENT OF
SCHOOLS.
On May 27, 2016, Student filed a peremptory challenge, seeking to disqualify Administrative Law Judge Alexa Hohensee from hearing the above captioned matter.
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).)
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).
ALJ Caroline Zuk is assigned to the matter, and today’s 1:00 PHC trailed to 3:00 PM, as ordered below.
ORDER
1. Student's challenge of ALJ Hohensee is granted
2. Administrative Law Judge Caroline Zuk will hear this matter.
3. The previously set prehearing conference is trailed to 3:00 PM today, May 27,
2016.
4. The hearing dates remain as scheduled.
DATE: May 27, 2016
JUNE R. LEHRMAN
Presiding Administrative Law Judge Office of Administrative Hearings