California OAH special education order · September 12, 2017
Order Denying Peremptory Challenge
OAH Case No. 2017051280, 2017060886 · ALJ Margaret Gibson
OAH denied Templeton's peremptory challenge to ALJ Penelope Pahl as untimely because it was filed nearly two months after she had already held the first prehearing conference.
This case went to decision
Student v. Templeton Unified School District: Templeton Unified must pay for an independent functional behavior assessment after withdrawing its case; its own assessment was found inappropriate. (2017)
Summary
Templeton Unified School District filed a peremptory challenge on September 11, 2017, seeking to remove Administrative Law Judge Penelope Pahl without cause. ALJ Pahl had already held the first prehearing conference on July 14, 2017, and no challenge was filed before then. Under the regulations, if an ALJ is assigned at the time of a scheduled prehearing conference, any peremptory challenge must be made no later than the start of that conference. Presiding ALJ Margaret Gibson denied the challenge as untimely.
Why it matters
A party gets one no-cause challenge to an assigned ALJ, but it must be filed before the first prehearing conference begins if the ALJ is already assigned. Waiting until after that conference forfeits the right.
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
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017051280 v.
TEMPLETON UNIFIED SCHOOL
DISTRICT,
TEMPLETON UNIFIED SCHOOL OAH Case No. 2017060886
DISTRICT,
v.
ORDER DENYING PEREMPTORY
PARENT ON BEHALF OF STUDENT. CHALLENGE
On September 11, 2017, Templeton Unified School District filed a notice of peremptory challenge to Administrative Law Judge Penelope Pahl in the above captioned matter. On July 14, 2017, ALJ Pahl held the first prehearing conference in this matter. No peremptory challenge was filed prior to the July 14, 2017 prehearing conference.
Templeton’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).)
Templeton’s peremptory challenge is not timely made and is DENIED pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c).
IT IS SO ORDERED.
DATE: September 12, 2017
MARGARET GIBSON
Presiding Administrative Law Judge Office of Administrative Hearings