California OAH special education order · January 23, 2019
Order Denying Student's Peremptory Challenge
OAH Case No. 2018120463, 2018120181 · ALJ Peter Paul Castillo
OAH denied Student's peremptory challenge to ALJ Alexa Hohensee as untimely. Student did not file it before the December 21, 2018 prehearing conference she held in Upland's case, which was later consolidated with Student's case.
This case went to decision
Upland Unified School District v. Student: Upland Unified may not reassess student without consent because its assessment plan was not in Parent's native Spanish. (2019)
Summary
Student filed a peremptory challenge on January 22, 2019, seeking to remove ALJ Alexa Hohensee from the consolidated cases. ALJ Hohensee had already held a prehearing conference in Upland's case on December 21, 2018, where she granted Upland a continuance. OAH consolidated the two cases on January 17, 2019. Because the cases are consolidated and Student did not challenge the judge before that December prehearing conference, OAH denied the challenge as too late and kept all dates on calendar.
Why it matters
When a district's case and a parent's case are consolidated, the deadline for a no-cause challenge to the judge may already have passed at a prehearing conference held in the district's case. Families should decide quickly whether to use their one peremptory challenge as soon as a judge is assigned in either case.
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
- Alexa Hohensee, 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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2018120463 v.
UPLAND UNIFIED SCHOOL DISTRICT,
UPLAND UNIFIED SCHOOL DISTRICT, OAH Case No. 2018120181 v. ORDER DENYING STUDENT’S
PEREMPTORY CHALLENGE
PARENT ON BEHALF OF STUDENT.
On January 22, 2019, Student filed a peremptory challenge seeking to disqualify Administrative Law Judge Alexa Hohensee from hearing the above captioned matter.
District’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).)
On December 5, 2018, Upland Unified School District filed with the Office of Administrative Hearings a Request for Due Process Hearing in OAH case number 2018120181, naming Student. On December 13, 2018, Student filed a Request for Due Process Hearing in OAH case number 2018120463, naming Upland. On December 21, 2018, ALJ Hohensee convened a prehearing conference in Upland’s Case, in which she granted Upland’s request for a continuance. On January 17, 2019, OAH granted Upland’s motion to consolidate those cases (Consolidate Case).
Because this is a Consolidated Case, Student’s peremptory challenge is denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c) as Student failed to make a peremptory challenge of ALJ Hohensee before the December 21, 2018 prehearing conference.
ORDER
1. Student’s challenge of ALJ Hohensee is denied.
2. All dates previously set in this matter will remain on calendar.
DATE: January 23, 2019
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings