California OAH special education order · January 5, 2018
Order Denying Student's Motion for Telephonic Testimony
OAH Case No. 2017120141 · ALJ Rebecca Freie
OAH denied Student's motion to let a witness testify by phone because only a non-attorney advocate signed it, and non-attorneys cannot represent a child in a special education due process case.
Summary
Student asked OAH to let a witness testify by telephone at hearing. The motion was signed only by James D. Peters, who is not a licensed California attorney, and not by Student's attorney of record, Arthur Sloane. Etiwanda School District opposed on that ground. OAH relied on a September 2017 California Attorney General opinion that only active State Bar members may represent parties in due process hearings, and denied the motion without reaching whether phone testimony was appropriate.
Why it matters
Under IDEA, lay advocates may accompany and advise families, but only a licensed attorney or the parent can file motions on a student's behalf. Motions signed only by a non-attorney advocate can be denied outright, so the attorney of record should sign every filing.
Key authority cited
- 20 U.S.C. § 1415(h)(1)
- Ed. Code, § 56505, subd. (e)(1)
People named in the order
- Arthur Sloane, Student's attorney of record
- James D. Peters, Non-attorney advocate for Student
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. 2017120141 v. ORDER DENYING STUDENT’S
MOTION FOR TELEPHONIC
ETIWANDA SCHOOL DISTRICT. TESTIMONY
On November 30, 2017, Student filed a request for a due process hearing (complaint).
The complaint states that Student is represented by Arthur Sloane, Attorney at Law, and James D. Peters. Mr. Peters is not an attorney licensed to practice in California. The complaint was signed by both Mr. Sloane and Mr. Peters.
On December 8, 2017, Student filed a motion asking that OAH allow a witness to testify telephonically at hearing. The motion was signed only by Mr. Peters. On December 11, 2017, Etiwanda School District filed an opposition to the motion because Mr. Peters is not an attorney, and therefore cannot provide Student with representation in this matter.
APPLICABLE LAW
The parties to a due process proceeding have a right to be “accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.” (20 U.S.C. § 1415(h)(1); see also Ed. Code, § 56505, subd. (e)(1).) The right to be represented by an attorney and the right to be accompanied and advised by an individual with special knowledge or training does not mean that attorneys and individuals with special knowledge perform the same function. Attorneys are legally authorized to act on behalf of their clients and to practice law.
On September 18, 2017, the attorney general issued an opinion letter which considered whether the IDEA, the implementing regulations, and/or the California Education Code authorized a party to special education due process proceedings to be represented by a person who was not an active member of the California State Bar. The attorney general’s opinion concluded that these laws did not authorize parties to a special education due process hearing to be represented by a person that is not an active member of the California State Bar in due process hearings.
DISCUSSION
Student’s motion for telephonic testimony is signed only by Mr. Peters who is not an attorney. It is not signed by Mr. Sloane who is Student’s attorney of record in this matter.
Because a non-attorney, cannot represent a child in a special education due process matter, the motion is denied.
ORDER
Student’s motion for telephonic testimony of a witness is denied.
IT IS SO ORDERED.
DATE: January 5, 2018
REBECCA FREIE
Administrative Law Judge Office of Administrative Hearings