California OAH special education order · November 15, 2018
Order Denying Peremptory Challenge
OAH Case No. 2018050914 · ALJ Theresa Ravandi
OAH denied Antioch's peremptory challenge to ALJ Penelope Pahl as untimely because she was already assigned and had convened the prehearing conference months earlier.
This case went to decision
Student v. Antioch Unified School District: Antioch Unified prevails on all issues: 2016 autism assessment upheld, no IEE, and manifestation review without parents allowed. (2019)
Summary
Antioch Unified School District filed a peremptory challenge to disqualify Administrative Law Judge Penelope Pahl without cause. Under the regulations, if an ALJ is already assigned to the hearing when the prehearing conference is held, any challenge must be made no later than the start of that conference. ALJ Pahl was assigned and convened the prehearing conference on July 9, 2018, so OAH found Antioch's November 2018 challenge untimely and denied it.
Why it matters
A party gets only one no-cause challenge to an ALJ, and it is lost if not made by the start of the prehearing conference when that ALJ is already assigned. Parties should decide whether to challenge the ALJ before or at the outset of the PHC.
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)
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. 2018050914 v. ORDER DENYING PEREMPTORY
CHALLENGE
ANTIOCH UNIFIED SCHOOL DISTRICT.
On November 15, 2018, Antioch Unified School District filed a notice of peremptory challenge to Administrative Law Judge Penelope Pahl in the above captioned matter. Antioch’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).)
ALJ Pahl convened the prehearing conference in this matter on July 9, 2018. At the time of that PHC, ALJ Pahl was assigned to the hearing and called the matter on the record.
Accordingly, Antioch’s ALJ challenge is untimely and is DENIED.
IT IS SO ORDERED.
DATE: November 15, 2018
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings