California OAH special education order · May 1, 2017
Order Denying Peremptory Challenge
OAH Case No. 2017040078 · ALJ Margaret Broussard
OAH denied Student's peremptory challenge to the assigned ALJ as untimely because it was filed after the noon-Friday deadline before the week of an off-site expedited hearing.
This case went to decision
Student v. Liberty Union High School District: Liberty Union High School District's manifestation determination upheld; ALJ finds campus fight not caused by ADHD or unimplemented behavior plan. (2017)
Summary
Student filed a peremptory challenge, a request to disqualify the judge without giving a reason, against ALJ Charles Marson. Marson was assigned to an expedited hearing set to begin May 2, 2017, at the district. OAH received the challenge at 7:18 p.m. on Friday, April 28, 2017, so it counted as filed on May 1. Because the hearing was not at an OAH regional office, the challenge was due by noon on the Friday before the hearing week, so OAH denied it as untimely.
Why it matters
For hearings held away from an OAH regional office, a peremptory challenge must reach OAH by noon on the Friday before the hearing week. Filings received after business hours count as filed on the next business day, so families should check the assigned ALJ on OAH's online calendar and file early.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Charles Marson, 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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017040078 v. ORDER DENYING PEREMPTORY
CHALLENGE
LIBERTY UNION HIGH SCHOOL
DISTRICT.
On April 25, 2017, the parties were notified telephonically that Administrative Law Judge Charles Marson was assigned to the expedited hearing in this matter, scheduled to begin on May 2, 2017, at Liberty Union High School District. From that time forward, ALJ Marson was also showing as the assigned ALJ on the Office of Administrative Hearings calendar, which is accessible to the parties online through the OAH website.
On May 1, 2017, Student filed a notice of peremptory challenge to ALJ Marson in the above captioned matteri. 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).) If the hearing is to be held at a site other than an OAH regional office, the peremptory challenge of the assigned ALJ shall be made by noon on Friday prior to the week in which the hearing is to commence. (Cal. Code Regs., tit. 1, § 1034, subd. (e).)
Student’s peremptory challenge is not timely and is denied pursuant to California Code of Regulations, title 1, section 1034, subdivision (e).
IT IS SO ORDERED.
DATE: May 1, 2017
MARGARET BROUSSARD
Presiding Administrative Law Judge Office of Administrative Hearings i OAH received the peremptory challenge at 7:18 p.m. on Friday, April 28, 2017.
Because it was received after hours, it is considered filed on May 1, 2017.