California OAH special education order · May 15, 2017
Order Granting Student's Peremptory Challenge
OAH Case No. 2017030950 · ALJ Margaret Broussard
OAH granted Student's peremptory challenge to ALJ Rebecca Freie because it was made before the prehearing conference began, and reassigned the case to ALJ Ravandi.
This case went to decision
Student v. Oakland Unified School District (consolidated): Oakland Unified's 2016 psycho-educational evaluation upheld; parent not entitled to a publicly funded IEE despite a late IEP meeting. (2017)
This case went to decision
Student v. Oakland Unified School District (consolidated): Oakland Unified may move student to Highland Academy for 45 school days but must provide a one-to-one bus aide. (2017)
Summary
On the day of the prehearing conference, and before it started, Student used a peremptory challenge to remove the assigned ALJ, Rebecca Freie, in this District-filed case. The Presiding ALJ found the challenge timely, because when an ALJ is already assigned at the time of a scheduled prehearing conference, the challenge must be made no later than the start of that conference. OAH granted the challenge, reassigned the case to ALJ Ravandi, and kept the prehearing conference on for that afternoon.
Why it matters
Each party gets one peremptory challenge to remove an assigned ALJ without giving a reason. If an ALJ is already assigned, the challenge must be made before the prehearing conference begins, or the right is lost.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Rebecca Freie, Administrative Law Judge (challenged)
- Ravandi, Administrative Law Judge (reassigned)
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:
OAKLAND UNIFIED SCHOOL OAH Case No. 2017030950
DISTRICT,
ORDER GRANTING STUDENT’S
v. PEREMPTORY CHALLENGE
PARENT ON BEHALF OF STUDENT.
On May 15, 2017, before the prehearing conference started in this matter, Student asked for a 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 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). The matter is reassigned to ALJ Ravandi and the prehearing conference will take place this afternoon at 3:00 p.m.
IT IS SO ORDERED.
DATE: May 15, 2017
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings