California OAH special education order · February 21, 2019
Order to Show Cause Why Facts Should Not Be Certified for Contempt Sanction
OAH Case No. 2019010968 · ALJ Margaret Gibson
OAH ordered Student's attorney to show cause why she should not be referred for contempt after she called the ALJ a racist and repeatedly talked over the ALJ during a prehearing conference.
Summary
During a telephonic prehearing conference on Student's expedited issues, Student's attorney objected that the wrong judge was presiding. She had in fact peremptorily challenged a different ALJ, and that challenge had already been granted. After being told she could seek reconsideration, the attorney became belligerent, called the presiding ALJ a racist, and kept talking over her despite warnings. On its own motion, OAH ordered her to explain in writing, supported by a sworn declaration, why the facts should not be certified for a contempt sanction under Government Code section 11455.10. Her response was due by February 26, 2019.
Why it matters
Disorderly or insulting conduct toward an ALJ, even on a phone conference, can lead to a contempt referral against the attorney. Advocates should raise objections about which judge is assigned through proper motions, such as reconsideration, rather than by confronting the judge.
Key authority cited
- Gov. Code § 11455.10
People named in the order
- Nicole Hodge Amey, Student's attorney
- Rebecca Freie, Administrative Law Judge (peremptorily challenged)
- Rita Defilippis, Administrative Law Judge who convened the prehearing conference
- Margaret Gibson, Division 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. 2019010968 v. ORDER TO SHOW CAUSE WHY
FACTS SHOULD NOT BE CERTIFIED
KERN HIGH SCHOOL DISTRICT. FOR CONTEMPT SANCTION
On February 16, 2019, a telephonic prehearing conference was held in this matter.
Attorney Nicole Hodge Amey appeared on behalf of Student. Prior to the scheduled start time for the prehearing conference, Ms. Amey timely filed a peremptory challenge in this matter challenging Administrative Law Judge Rebecca Freie. The challenge was granted.
The prehearing conference was convened by ALJ Rita Defilippis.
At the outset of the prehearing conference, Ms. Amey expressed her concern that she had filed a peremptory challenge against ALJ Defiillipis. Ms. Amey was informed that she had specifically challenged ALJ Freie, and that her challenge had already been granted.
When Ms. Amey objected, ALJ Defilippis reminded Ms. Amey she could file a motion for reconsideration should she choose, but that the prehearing conference would be going forward as scheduled. The prehearing conference was for the expedited issues filed in this matter, which had very short timelines under which the hearing must begin.
Ms. Amey became belligerent and called ALJ Defillipis a racist. Ms. Amey was warned about her language and asked to stop talking over the ALJ several times. Ms. Amey persisted.
Government Code Section 11455.10 states that a person is subject to the contempt sanction in an adjudicative proceeding before an agency for obstruction or interruption of the due course of the proceeding during a hearing by disorderly, contemptuous, or insolent behavior toward the presiding officer while conducting the proceeding.
ORDER TO SHOW CAUSE
1. Ms. Amey is ordered to show cause in writing why she should not be subject
to a referral for a contempt sanction. Ms. Amey is ordered to file a written response with OAH by not later than 5:00 p.m. on February 26, 2019.
2. Any factual assertions in Ms. Amey’s response shall be supported by a
declaration under penalty of perjury.
3. Should Ms. Amey fail, without excuse, to timely file a response as ordered
above, showing adequate cause, OAH may certify the facts in this case for a contempt sanction.
DATE: February 21, 2019
MARGARET GIBSON
Division Presiding Administrative Law Judge Office of Administrative Hearings