California OAH special education order · July 10, 2017
Order Granting Peremptory Challenge
OAH Case No. 2017051304 · ALJ Charles Marson
OAH granted Fairfield-Suisun's timely peremptory challenge to ALJ Penelope Pahl and reassigned the case to ALJ Rita Defilippis.
This case went to decision
Fairfield-Suisun Unified School District v. Student: Fairfield-Suisun Unified may move a hard-of-hearing student with intellectual disability to a functional academics class without parent consent. (2017)
Summary
Fairfield-Suisun Unified School District filed a peremptory challenge asking that ALJ Penelope Pahl be removed from its case without having to show cause. OAH explained that each party gets one such challenge, but it must be made before the hearing begins and, if an ALJ is already assigned, no later than the start of the prehearing conference. Because the District's challenge was timely, OAH granted it and reassigned the matter to ALJ Rita Defilippis.
Why it matters
Each side gets one no-reason challenge to the assigned judge, but it must be filed early, before the prehearing conference or hearing starts, or the right is lost.
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)
- Rita Defilippis, Administrative Law Judge (reassigned)
- Charles Marson, Acting 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:
FAIRFIELD-SUISUN UNIFIED SCHOOL OAH Case No. 2017051304
DISTRICT,
ORDER GRANTING PEREMPTORY
v. CHALLENGE
PARENT ON BEHALF OF STUDENT.
On July 10, 2017, the Fairfield-Suisun Unified School District filed a peremptory challenge seeking to disqualify Administrative Law Judge Penelope Pahl from hearing the above-captioned matter. Fairfield-Suisun’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).)
Fairfield-Suisun’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 Rita Defilippis.
IT IS SO ORDERED.
DATE: July 10, 2017
CHARLES MARSON
Acting Presiding Administrative Law Judge Office of Administrative Hearings