California OAH special education order · August 18, 2017
Order Granting Peremptory Challenge
OAH Case No. 2017070105, 2017061238 · ALJ Margaret Gibson
OAH granted Student's timely peremptory challenge to ALJ Charles Marson in the consolidated Lodi Unified matters and reassigned the case to ALJ Penelope Pahl.
This case went to decision
Student v. Lodi Unified School District (consolidated): Lodi Unified prevails on all claims over a student's third- and fourth-grade reading goals, resource services, paraeducators, and parent participation. (2017)
Summary
On August 17, 2017, Student filed a peremptory challenge to the ALJ assigned to the consolidated cases with Lodi Unified School District. The challenge did not name ALJ Charles Marson, but he was the assigned ALJ. Presiding ALJ Margaret Gibson found the challenge timely under Government Code section 11425.40 and California Code of Regulations, title 1, section 1034, granted it, and reassigned the matters to ALJ Penelope Pahl.
Why it matters
Each party gets one peremptory challenge to an assigned ALJ, with no reason needed. It must be filed before the prehearing conference begins, if an ALJ is already assigned by then, and never after the hearing starts.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Charles Marson, Administrative Law Judge (challenged)
- Penelope Pahl, Administrative Law Judge (reassigned)
- 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. 2017070105 v.
LODI UNIFIED SCHOOL DISTRICT.
LODI UNIFIED SCHOOL DISTRICT, OAH Case No. 2017061238 v.
PARENT ON BEHALF OF STUDENT. ORDER GRANTING PEREMPTORY
CHALLENGE
On August 17, 2017, Student filed a notice of peremptory challenge the Administrative Law Judge assigned to the matters. Although Student did not name ALJ Charles Marson specifically, he is the ALJ assigned to the matters. 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 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 Penelope Pahl.
IT IS SO ORDERED.
DATE: August 18, 2017
MARGARET GIBSON
Presiding Administrative Law Judge Office of Administrative Hearings