California OAH special education order · February 9, 2018
Order Granting Peremptory Challenge
OAH Case No. 2017110106 · ALJ Joy Redmon
OAH granted Palo Alto's timely peremptory challenge to ALJ Penelope Pahl and reassigned the case to ALJ Rita Defilippis.
This case went to decision
Student v. Palo Alto Unified School District: Palo Alto Unified prevails on all claims by a gifted 9th and 10th grader with anxiety and executive functioning needs. (2018)
Summary
Palo Alto Unified School District filed a peremptory challenge, which removes a judge without needing a reason, against ALJ Penelope Pahl. OAH explained that each party gets one such challenge, but it must be made before the hearing starts. If an ALJ is already assigned when a prehearing conference is scheduled, the challenge must come before that conference begins. Palo Alto's challenge was timely, so OAH granted it and reassigned the case to ALJ Rita Defilippis.
Why it matters
Each side gets one no-reason challenge to the assigned judge, but it is lost if not filed before the prehearing conference or hearing begins, so parents should decide early whether to use theirs.
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)
- Joy Redmon, 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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017110106 v. ORDER GRANTING PEREMPTORY
CHALLENGE
PALO ALTO UNIFIED SCHOOL
DISTRICT.
On February 9, 2018, Palo Alto Unified School District filed a notice of peremptory challenge to Administrative Law Judge Penelope Pahl in the above captioned matter. Palo Alto’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).)
Palo Alto’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: February 9, 2018
JOY REDMON
Presiding Administrative Law Judge Office of Administrative Hearings