California OAH special education order · March 19, 2018
Order Denying Peremptory Challenge
OAH Case No. 2017080513 · ALJ Marian H. Tully
OAH denied Student's peremptory challenge to ALJ Cole Dalton as untimely, holding that parties must check ALJ assignments themselves and are not owed written notice of a change.
This case went to decision
Student v. Antioch Unified School District: Antioch Unified prevails on all nine claims about behavior plan implementation, speech-language, autism assessment, and discipline. (2018)
Summary
Student filed a peremptory challenge to ALJ Cole Dalton on March 19, 2018, arguing Student never received written notice of the ALJ's assignment. Presiding ALJ Marian H. Tully denied the challenge as untimely. OAH had telephoned the parties on March 15, 2018, about the assignment, and Student's counsel admitted she knew ALJs can be reassigned and had reviewed the OAH calendar. Under the regulations, the duty to check the ALJ assignment is on the party, and OAH's call was only a courtesy. All hearing dates stayed on calendar.
Why it matters
Parents and advocates who want to use their one no-cause challenge to an ALJ must watch the OAH calendar and act quickly. OAH does not have to give written notice when it changes the assigned judge, and a late challenge will be denied.
Key authority cited
- Gov. Code, § 11425.40, subd. (a)
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Cole Dalton, Administrative Law Judge (challenged)
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. 2017080513 v. ORDER DENYING PEREMPTORY
CHALLENGE
ANTIOCH UNIFIED SCHOOL DISTRICT.
On March 19, 2018, Student filed a notice of peremptory challenge to Administrative Law Judge Cole Dalton 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).)
Student’s peremptory challenge is untimely made and denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivisions (c) and (e). Student contends that Student was not given written notice of the ALJ’s assignment. Counsel admits she knows that OAH may change ALJ’s assigned to a hearing and that she reviewed the OAH calendar. OAH telephoned the parties on March 15, 2018, informing them that ALJ Dalton was assigned to the hearing. OAH’s call to inform the parties’ of the change of ALJ assignment is merely a courtesy as pursuant to California Code of Regulations, title 1, section 1034, subdivision (f), the obligation is on Student to check the assignment.
ORDER
Student’s challenge of ALJ Dalton is denied. All dates previously set in this matter will remain on calendar.
DATE: March 19, 2018
MARIAN H. TULLY
Presiding Administrative Law Judge Office of Administrative Hearings