California OAH special education order · June 8, 2018
Order Granting Peremptory Challenge
OAH Case No. 2018020102 · ALJ Theresa Ravandi
OAH granted Student's timely peremptory challenge to ALJ Charles Marson and reassigned the case to ALJ Penelope Pahl.
This case went to decision
Student v. Berkeley Unified School District: Berkeley Unified must reimburse tuition, tutoring and an assessment after a 2017 IEP lacked academic goals; older claims were time-barred. (2018)
Summary
Student filed a peremptory challenge, which is a request to disqualify an assigned ALJ without giving a reason, against ALJ Charles Marson. OAH explained that each party gets one such challenge, but it must be made before the hearing starts, and before the prehearing conference if an ALJ is already assigned by then. Because Student's challenge was timely, OAH granted it and reassigned the matter to ALJ Penelope Pahl.
Why it matters
Each party may remove one assigned ALJ without showing cause, but only if the challenge is filed in time, so families should decide early, before any prehearing conference.
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 (newly assigned)
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. 2018020102 v. ORDER GRANTING PEREMPTORY
CHALLENGE
BERKELEY UNIFIED SCHOOL
DISTRICT.
On June 8, 2018, Student filed a notice of peremptory challenge to Administrative Law Judge Charles Marson 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).) 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 now assigned to ALJ Penelope Pahl.
IT IS SO ORDERED.
DATE: June 8, 2018
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings