California OAH special education order · May 15, 2017
Order Granting Peremptory Challenge
OAH Case No. 2017030950 · ALJ Margaret Broussard
OAH granted Oakland's peremptory challenge to ALJ Penelope Pahl as timely and reassigned the case to ALJ Rebecca Freie, with the prehearing conference set for that afternoon.
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
Oakland Unified School District filed a peremptory challenge, a request to remove the assigned judge without stating a reason, against ALJ Penelope Pahl on the day of the prehearing conference. Each party gets one such challenge, but it must be made before the hearing starts and, if a judge is already assigned, no later than the start of the prehearing conference. OAH found Oakland's challenge timely, granted it, and reassigned the case to ALJ Rebecca Freie, with the prehearing conference to begin at 1:00 p.m. that day.
Why it matters
Each side gets one chance to remove an assigned judge without giving a reason, but it must be used by the start of the prehearing conference. Parents should decide early whether to use it.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Penelope Pahl, Administrative Law Judge (challenged)
- Rebecca Freie, Administrative Law Judge (reassigned)
- 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:
OAKLAND UNIFIED SCHOOL OAH Case No. 2017030950
DISTRICT,
ORDER GRANTING PEREMPTORY
v. CHALLENGE
PARENT ON BEHALF OF STUDENT.
On May 15, 2017, Oakland Unified School District filed a notice of peremptory challenge to Administrative Law Judge Penelope Pahl in the above captioned matter.
Oakland’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).)
Oakland’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 Rebecca Freie. The PHC will begin today at 1:00 p.m.
IT IS SO ORDERED.
DATE: May 15, 2017
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings