California OAH special education order · March 13, 2017
Order Denying Peremptory Challenge
OAH Case No. 2016110439 · ALJ Margaret Broussard
OAH denied Student's peremptory challenge to ALJ B. Andrea Miles as untimely because she had already convened the initial prehearing conference on February 17, 2017.
This case went to decision
Elk Grove Unified School District v. Student: Elk Grove Unified may implement its IEP moving a fifth grader with autism to a self-contained class without parental consent. (2017)
Summary
Student filed a peremptory challenge, meaning a request to remove an assigned judge without giving a reason, against ALJ B. Andrea Miles in this case filed by Elk Grove Unified School District. Each party gets one such challenge. If a judge is already assigned when a prehearing conference is held, the challenge must be made no later than the start of that conference. Because ALJ Miles had already held the initial prehearing conference on February 17, 2017, Presiding ALJ Margaret Broussard denied the challenge as untimely.
Why it matters
A party who wants to use its one no-reason challenge to an assigned judge must do so before the prehearing conference begins. Waiting until after that conference forfeits the right.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- B. Andrea Miles, Administrative Law Judge (challenged)
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:
ELK GROVE UNIFIED SCHOOL OAH Case No. 2016110439
DISTRICT,
ORDER DENYING PEREMPTORY
v. CHALLENGE
PARENT ON BEHALF OF STUDENT.
On March 113, 2017, Student filed a notice of peremptory challenge to Administrative Law Judge B. Andrea Miles in 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).)
ALJ B. Andrea Miles convened an initial prehearing conference in this matter on February 17, 2017. As such, 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).
IT IS SO ORDERED.
DATE: March 13, 2017
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings