California OAH special education order · August 14, 2017
Order Denying Peremptory Challenge
OAH Case No. 2017051304 · ALJ Margaret Gibson
OAH denied Student's peremptory challenge to ALJ Charles Marson as untimely because he had already held the prehearing conference in the case.
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
Student filed a peremptory challenge, which asks to remove an ALJ without giving a reason, against ALJ Charles Marson in the District-filed case. Presiding ALJ Margaret Gibson denied the challenge as untimely. Under the regulation, if an ALJ is already assigned when a prehearing conference is scheduled, any challenge must be made before that conference begins. ALJ Marson had already held the prehearing conference, so he could no longer be challenged.
Why it matters
A party gets one no-reason challenge to an assigned ALJ, but it is lost once the prehearing conference starts. Parents who want to use it must file before that conference.
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
- Charles Marson, 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 Matter of:
FAIRFIELD-SUISUN UNIFIED SCHOOL OAH Case No. 2017051304
DISTRICT,
ORDER DENYING PEREMPTORY
v. CHALLENGE
PARENT ON BEHALF OF STUDENT.
On August 14, 2017, Student filed a notice of peremptory challenge to Administrative Law Judge Charles Marson in the above captioned matter. 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).) 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 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). ALJ Marson has already held a prehearing conference in this matter and may no longer be challenged.
IT IS SO ORDERED.
DATE: August 14, 2017
MARGARET GIBSON
Presiding Administrative Law Judge Office of Administrative Hearings