California OAH special education order · November 19, 2018
Order Granting Student's Peremptory Challenge
OAH Case No. 2018100281 · ALJ Peter Paul Castillo
OAH granted Student's timely peremptory challenge to ALJ Rommel Cruz and reassigned the case to ALJ Chris Butchko. Existing dates stayed in place, but the prehearing conference start moved to 11:00 a.m.
This case went to decision
Student v. Long Beach Unified School District: Long Beach Unified failed to implement a student's test-correction accommodations in pre-calculus and must regrade her work and train staff. (2019)
Summary
Student filed a peremptory challenge, which is a request to disqualify an assigned judge without giving a reason, against ALJ Rommel Cruz. Presiding ALJ Peter Paul Castillo found the challenge timely under Government Code section 11425.40 and California Code of Regulations, title 1, section 1034. Each party gets one such challenge, and it must be made before the prehearing conference or hearing begins. The case was reassigned to ALJ Chris Butchko, and the prehearing conference and hearing dates stayed the same, except that the prehearing conference will now start at 11:00 a.m.
Why it matters
Each party in an OAH special education case gets one no-reason challenge to the assigned judge. It must be filed before the prehearing conference or hearing begins, or it is lost.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Gov. Code, § 11425.40, subd. (a)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Rommel Cruz, Administrative Law Judge (challenged)
- Chris Butchko, 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. 2018100281 v. ORDER GRANTING STUDENT’S
PEREMPTORY CHALLENGE
LONG BEACH UNIFIED SCHOOL
DISTRICT .
On November 19, 2018, Student filed a notice of peremptory challenge to Administrative Law Judge Rommel Cruz in the above captioned matter. Student’s peremptory challenge was 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).
ORDER
1. Student’s challenge of ALJ Cruz is granted. Matter is now assigned to
ALJ Chris Butchko.
2. The previously set prehearing conference and hearing dates remain as
scheduled, except that the Prehearing Conference shall commence at 11:00 a.m.
DATE: November 19, 2018
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings