California OAH special education order · October 3, 2017
Order Denying Request to Reinstate Prehearing Conference Judge
OAH Case No. 2017030569 · ALJ Marian H. Tully
OAH denied Student's request to reinstate the prehearing conference judge. Student had already used its one peremptory challenge and did not challenge the newly assigned ALJ for cause.
This case went to decision
Student v. Chula Vista Elementary School District: Chula Vista Elementary must fund 60 hours of intensive reading instruction for child find, assessment, and eligibility failures. (2018)
Summary
Student's attorneys filed a peremptory challenge to ALJ June R. Lehrman. OAH granted it and assigned ALJ Ted Mann to the hearing. The same day, Student asked OAH to reinstate the ALJ who had conducted the prehearing conference, arguing that judge knew the complaint and issues better. OAH denied the request because a party gets only one peremptory challenge, Student had used it, and the motion did not challenge ALJ Mann for cause.
Why it matters
Each party gets only one no-reason challenge to an assigned ALJ, so families should use it carefully. After it is used, a party cannot pick which judge hears the case unless it shows cause to disqualify the new judge.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- June R. Lehrman, Administrative Law Judge (subject of peremptory challenge)
- Ted Mann, Administrative Law Judge (assigned to hearing)
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. 2017030569 v. ORDER DENYING REQUEST TO
REINSTATE PREHEARING
CHULA VISTA ELEMENTARY SCHOOL CONFERENCE JUDGE
DISTRICT.
On September 29, 2017, Megan M. Nunez, attorney for Student, filed a notice of peremptory challenge to Administrative Law Judge June R. Lehrman in the above captioned matter. OAH granted the peremptory challenge pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c) and informed the parties that ALJ Ted Mann was assigned to the hearing.
On September 29, 2017, Ms. Nunez and Jennifer Varga, attorneys for Student, filed a “Request to Reinstate the PHC Judge” on the grounds the ALJ that conducted the PHC was more familiar with Student’s complaint and the questions at issue.
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).)
Student exercised the right to one peremptory challenge. The instant motion does not purport to challenge ALJ Mann for cause. Accordingly, the Motion to Reinstate the ALJ that conducted the PHC is denied.
IT IS SO ORDERED.
DATE: October 03, 2017
MARIAN H. TULLY
Acting Presiding Administrative Law Judge Office of Administrative Hearings