California OAH special education order · July 6, 2017
Order Granting Student's Peremptory Challenge
OAH Case No. 2017050795 · ALJ Theresa Ravandi
OAH granted Student's peremptory challenge to ALJ Rebecca Freie because Student made it at the start of the prehearing conference, and reassigned the case to ALJ Penelope Pahl.
This case went to decision
Student v. Antioch Unified School District: Antioch Unified must train special education staff after an improperly composed July 2015 IEP meeting; other claims denied or time-barred. (2018)
Summary
At the start of the June 30, 2017 prehearing conference, Student used a peremptory challenge, which removes an assigned judge without giving a reason, against ALJ Rebecca Freie. Presiding ALJ Margaret Gibson granted the challenge that day because it was timely. Each party gets one such challenge, and it must be made no later than the start of the prehearing conference if an ALJ is already assigned. This written order confirms the ruling and the reassignment to ALJ Penelope Pahl.
Why it matters
Each party gets one no-reason challenge to the assigned judge. If a judge is already assigned when the prehearing conference begins, the challenge must be made by the start of that conference or the right is lost.
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 Gibson, Presiding Administrative Law Judge
- Penelope Pahl, 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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017050795 v. ORDER GRANTING STUDENT’S
PEREMPTORY CHALLENGE
ANTIOCH UNIFIED SCHOOL DISTRICT.
On June 30, 2017, at the start of the prehearing conference, Student exercised his peremptory challenge to Administrative Law Judge Rebecca Freie in the above captioned matter. Student’s peremptory challenge was 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 was timely made and was granted by Presiding Administrative Law Judge Margaret Gibson on June 30, 2017, pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c). This matter was re-assigned to ALJ Penelope Pahl.
IT IS SO ORDERED.
DATE: July 6, 2017
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings