California OAH special education order · March 28, 2019
Order Granting Peremptory Challenge
OAH Case No. 2018110928 · ALJ Marian H. Tully
OAH granted Student's peremptory challenge to Administrative Law Judge Cole Dalton because it was timely, and each party gets one challenge to remove an assigned judge without giving a reason.
This case went to decision
Student v. Pasadena Unified School District: Pasadena Unified prevails on all claims, including child find, assessment, and nonpublic school offer; Bridges Academy reimbursement denied. (2019)
Summary
Student filed a peremptory challenge to remove the assigned Administrative Law Judge, Cole Dalton, from Student's case against Pasadena Unified School District. Presiding Administrative Law Judge Marian H. Tully explained the rules. Each party gets one challenge without cause. The challenge must be made before the hearing starts, and if a judge is already assigned at the time of a scheduled prehearing conference, no later than the start of that conference. OAH found Student's challenge timely and granted it.
Why it matters
Families can remove an assigned judge once without giving a reason, but only if they act early enough. The deadline is no later than the start of the prehearing conference if a judge is already assigned, and never after the hearing begins.
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
- Cole Dalton, 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. 2018110928 v. ORDER GRANTING PEREMPTORY
CHALLENGE
PASADENA UNIFIED SCHOOL
DISTRICT.
On March 28, 2019, Student filed a notice of peremptory challenge to Administrative Law Judge Cole Dalton 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).
IT IS SO ORDERED.
DATE: March 28, 2019
MARIAN H. TULLY
Presiding Administrative Law Judge Office of Administrative Hearings