California OAH special education order · September 12, 2019
Order Granting Peremptory Challenge
OAH Case No. 2019040158, 2019010897 · ALJ Marian H. Tully
OAH granted Santa Monica-Malibu Unified School District's timely peremptory challenge to ALJ Chris Butchko, and all previously set dates stay on calendar.
This case went to decision
Student v. Santa Monica-Malibu Unified School District (consolidated): Santa Monica-Malibu Unified prevails on all claims; fifth grader with ADHD and mood disorder properly found ineligible for special education. (2019)
Summary
On August 28, 2019, Santa Monica-Malibu Unified School District filed a peremptory challenge to ALJ Chris Butchko in these consolidated cases. Each party may disqualify one assigned ALJ without giving a reason. The challenge must be made before the hearing starts, and before any scheduled prehearing conference if an ALJ is already assigned. OAH found the District's challenge timely, granted it, and kept all scheduled dates in place.
Why it matters
Each side in an OAH case gets one no-reason challenge to the assigned judge, but it is lost if not used before the prehearing conference or hearing begins. Granting it does not delay the case, because existing dates stay on calendar.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Chris Butchko, 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,
v.
SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2019040158
and
SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT,
OAH CASE NUMBER 2019010897
ORDER GRANTING PEREMPTORY CHALLENGE
On August 28, 2019, Santa Monica-Malibu Unified School District filed a notice of peremptory challenge to Administrative Law Judge Chris Butchko in 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. (Cal. Code Regs., tit. 1, § 1034, subd. (a).)
District’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. District’s challenge of ALJ Chris Butchko is granted.
2. All dates previously set in this matter will remain on calendar.
DATED: September 12, 2019 Marian H. Tully Presiding Administrative Law Judge Office of Administrative Hearings