California OAH special education order · July 6, 2017
Order Granting District's Peremptory Challenge
OAH Case No. 2017050795 · ALJ Theresa Ravandi
OAH granted Antioch's peremptory challenge to ALJ Penelope Pahl because the district raised it at the start of the prehearing conference, as the rules require.
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 July 3, 2017 prehearing conference, Antioch Unified School District used its one peremptory challenge to remove the assigned ALJ, Penelope Pahl, without stating a cause. Presiding ALJ Margaret Gibson found the challenge timely and granted it. Each party gets one such challenge, but when an ALJ is already assigned at the time of a prehearing conference, the challenge must be made no later than the start of that conference. The case was reassigned to ALJ Rita Defilippis, and the prehearing conference was continued to July 7, 2017.
Why it matters
Each side may remove one assigned ALJ without giving a reason. The window is short: if a judge is already assigned, the challenge must be made by the start of the prehearing conference, and it is never allowed once the hearing begins.
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
- Penelope Pahl, Administrative Law Judge (challenged)
- Margaret Gibson, Presiding Administrative Law Judge
- Rita Defilippis, 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 DISTRICT’S
PEREMPTORY CHALLENGE
ANTIOCH UNIFIED SCHOOL DISTRICT.
On July 3, 2017, at the start of the prehearing conference, Antioch Unified School District exercised its peremptory challenge as to Administrative Law Judge Penelope Pahl in the above captioned matter. Antioch’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).)
Antioch’s peremptory challenge was timely made and was granted by Presiding Administrative Law Judge Margaret Gibson on July 3, 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 Rita Defilippis, and the prehearing conference was continued to July 7, 2017, at 10:00 a.m..
IT IS SO ORDERED.
DATE: July 6, 2017
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings