California OAH special education order · September 1, 2016
Order Denying Student's Peremptory Challenge
OAH Case No. 2016080347 · ALJ Margaret Broussard
OAH denied Student's peremptory challenge to ALJ Cheryl Carlson as untimely, because the bifurcated expedited and non-expedited hearings are one case and the challenge had to precede the expedited prehearing conference.
This case went to decision
Student v. Parlier Unified School District: Parlier Unified must train staff on writing measurable behavior and social skills goals; behavior plan and report claims denied. (2016)
This case went to decision
Student v. Parlier Unified School District: Parlier Unified wrongly found an 11-year-old's misconduct unrelated to his ADHD and held one manifestation review late; ALJ reverses May 2016 manifestation determinations and denies the remaining claims. (2016)
Summary
Student filed a peremptory challenge to disqualify ALJ Cheryl Carlson from hearing the non-expedited part of a bifurcated case. Carlson had already held the expedited prehearing conference and was presiding over the expedited hearing, which was underway. OAH denied the challenge as untimely. Both parts of a bifurcated hearing belong to the same case, so any peremptory challenge had to be made before the expedited prehearing conference began.
Why it matters
When a case is split into expedited and non-expedited parts, the deadline for a peremptory challenge to the ALJ runs from the first prehearing conference in the expedited part. Parents who want to challenge an ALJ must do it early.
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
- Cheryl Carlson, Administrative Law Judge (challenged)
- Margaret Broussard, Presiding Administrative Law Judge
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. 2016080347 v. ORDER DENYING STUDENT’S
PEREMPTORY CHALLENGE
PARLIER UNIFIED SCHOOL DISTRICT.
On August 2, 2016, Student filed a due process hearing request with the Office of Administrative Hearings, naming the Parlier Unified School District. The hearing request raised both expedited and non-expedited issues. The matter was bifurcated and the expedited prehearing conference was held before Administrative Law Judge Cheryl Carlson on August 22, 2016. The expedited portion of this matter began on August 30, 2016 and is continuing.
That matter is being heard by ALJ Carlson. There is a prehearing conference in the non- expedited portion of this matter on September 2, 2016 and the hearing in the non- expedited portion of the matter is set to begin on September 14, 2016. On September 1, 2016, Student filed a peremptory challenge seeking to disqualify Administrative Law Judge Cheryl Carlson from hearing the non-expedited portion of 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).)
Student’s peremptory challenge is not timely made and is denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c). Although bifurcated into two parts, the non-expedited and expedited portions of the hearing are both part of the same case. Therefore, a timely peremptory challenge must have been made prior to the commencement of the prehearing conference in the expedited portion of this case.
IT IS SO ORDERED.
DATE: September 1, 2016
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings