California OAH special education order · March 22, 2018
Order Discharging Order to Show Cause
OAH Case No. 2017110897, 2018020619 · ALJ Chris Butchko
OAH discharged an order to show cause against Student's attorney without sanctions after finding no intent to deceive in a continuance request based on Student's sudden illness.
Summary
OAH issued an order to show cause because Student's counsel sought a continuance in this case, citing Student's sudden illness. Around the same time, counsel went forward in another case involving the same Student without mentioning the illness or asking for a continuance. At the hearing, counsel explained that she expected to settle the other case and did not want to disclose Student's health unnecessarily. She also said the illness resolved quickly and the family decided before the other case's prehearing conference that they could attend that hearing. The ALJ found no intent to deceive OAH or opposing counsel and imposed no sanction.
Why it matters
Lawyers who rely on a student's health to get a continuance must keep their statements consistent across related cases, because OAH will check and may question them. Candor about changed circumstances avoids sanction proceedings.
People named in the order
- Chris Butchko, Administrative Law Judge
- Cara Lucier, Student's attorney
- Cynthia Vargas, District's attorney
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. 2017110897 v.
TEMECULA VALLEY UNIFIED SCHOOL
DISTRICT,
TEMECULA VALLEY UNIFIED SCHOOL OAH Case No. 2018020619
DISTRICT,
ORDER DISCHARGING ORDER TO
v. SHOW CAUSE
PARENT ON BEHALF OF STUDENT.
On March 16, 2018, an order to show cause hearing was held to address Student’s attorney’s actions in seeking a continuance in this action. The order to show cause hearing was attended by Administrative Law Judge Chris Butchko, Student’s counsel Cara Lucier, and Temecula Valley Unified School District’s counsel Cynthia Vargas. The show cause hearing was audio-recorded.
The due process hearing in this matter was to begin on March 6, 2018. On March 1, 2018, counsel explained in a joint stipulation that Student’s sudden illness required an immediate continuance of the hearing to allow his family to attend to his health issues. The parties proposed that OAH set the hearing to begin on April 17, 2018. Although a joint stipulation, the moving papers were prepared by Student’s counsel. District joined in the stipulation, and the request was granted by OAH on March 2, 2018.
In another matter involving the same student, a prehearing conference was held on March 5, 2018, with hearing scheduled to begin March 15, 2018. Nothing was said of Student’s illness at that PHC and no request for continuance was made. No action was taken by counsel in that case prior to the filing of a notice of settlement on March 13, 2018.
The order to show cause was issued to resolve OAH’s concerns regarding the representations made in this case in contrast to counsel’s actions in the other case. At the OSC hearing, counsel explained that she was confident that she would be able to settle the other case prior to hearing and did not wish to disclose Student’s health situation unnecessarily. She stated that Student’s health issue resolved unexpectedly quickly and Student’s family decided before the March 5, 2018 PHC that they could prepare for and attend the hearing as scheduled. Counsel and the assigned ALJ had a frank discussion about the degree of disclosure and candor necessary for reliance upon the representations of counsel.
Finding no intent to deceive OAH or opposing counsel on the part of Student’s counsel, OAH will take impose no sanction upon counsel. Accordingly, the order to show cause is discharged.
DATE: March 22, 2018
CHRIS BUTCHKO
Administrative Law Judge Office of Administrative Hearings