California OAH special education order · March 24, 2017
Order Denying Peremptory Challenge
OAH Case No. 2017010024 · ALJ Margaret Broussard
OAH denied Student's peremptory challenge to ALJ Rebecca Freie as untimely because she had already presided over two prehearing conferences in the case.
This case went to decision
Tracy Unified School District v. Student: Tracy Unified must fund an independent psycho-educational evaluation after its triennial assessment was found legally deficient. (2017)
Summary
Student filed a peremptory challenge seeking to disqualify ALJ Rebecca Freie without cause in this District-filed case. Presiding ALJ Margaret Broussard denied the challenge as untimely. If an ALJ is assigned at the time of a scheduled prehearing conference, any peremptory challenge must be made no later than the start of that conference, and ALJ Freie had already presided over two prehearing conferences.
Why it matters
A party gets only one no-cause challenge to an ALJ, and it is lost if not made by the start of the first prehearing conference the assigned ALJ conducts. Parents and advocates should decide early whether to use it.
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
- Rebecca Freie, 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:
TRACY UNIFIED SCHOOL DISTRICT, OAH Case No. 2017010024 v. ORDER DENYING PEREMPTORY
CHALLENGE
PARENT ON BEHALF OF STUDENT.
On March 23, 2017, Student filed a notice of peremptory challenge to Administrative Law Judge Rebecca Freie 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).)
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). ALJ Freie has already presided over two prehearing conferences in this matter.
IT IS SO ORDERED.
DATE: March 24, 2017
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings