California OAH special education order · November 13, 2018
Order Denying Peremptory Challenge
OAH Case No. 2018090670 · ALJ Joy Redmon
OAH denied Student's peremptory challenge to ALJ Tiffany Gilmartin as untimely because it came after she had already convened the prehearing conference, and Parent's failure to appear did not extend the deadline.
This case went to decision
Student v. Fremont Union High School District: Fremont Union High must provide door-adjacent curb-to-curb transportation inside a gated complex and reimburse the family's mileage. (2018)
Summary
Student filed a peremptory challenge to ALJ Tiffany Gilmartin. ALJ Gilmartin had convened the November 2, 2018 prehearing conference, reached the District's counsel, and tried twice to reach Parent without success. She then issued an order to show cause about dismissal, and later let the case proceed after Parent responded. Because a peremptory challenge must be made no later than the start of the prehearing conference, and Parent's absence did not make the challenge timely, OAH denied it.
Why it matters
A family that wants to use its one no-reason challenge to an ALJ must file it before the prehearing conference begins. Missing the prehearing conference does not reset that deadline.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Tiffany Gilmartin, Administrative Law Judge (challenged)
- 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. 2018090670 v. ORDER DENYING PEREMPTORY
CHALLENGE
FREMONT UNION HIGH SCHOOL
DISTRICT.
On November 13, 2018, Student filed a notice of peremptory challenge to Administrative Law Judge Tiffany Gilmartin.
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 OAH 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.
Additionally, 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).)
The prehearing conference was scheduled for November 2, 2018. ALJ Gilmartin convened the PHC, reached Fremont Union High School District’s counsel, and made two unsuccessful attempts to reach Parent. Thereafter, ALJ Gilmartin issued an Order to Show Cause as to why the matter should not be dismissed for failure to prosecute. Parent responded to the OSC, and ALJ Gilmartin issued an order permitting the matter to proceed.
At the time of the PHC, ALJ Gilmartin was assigned to the hearing and called the matter on the record. Parent’s failure to appear does not render this peremptory challenge timely.
Accordingly, Student’s ALJ challenge is untimely and is DENIED.
IT IS SO ORDERED.
DATE: November 13, 2018
JOY REDMON
Presiding Administrative Law Judge Office of Administrative Hearings