California OAH special education order · December 13, 2019

Order Denying Request for Reconsideration

OAH Case No. 2019100729 · ALJ Kara Hatfield

OAH denied Student's request to reconsider an order allowing Greenfield to call Parent as a witness, finding no new facts or law and that the Fifth Amendment privilege must be raised question by question.

Denied Reconsideration

This case went to decision

Greenfield Union School District v. Student: Greenfield Union may implement its August 2019 IEP without Parent's consent after ALJ finds the offer provided FAPE. (2020)

Summary

Student asked OAH to reconsider its December 4, 2019 order, which had denied a continuance and refused to bar Greenfield from calling Parent as a witness. Student again argued that the Fifth Amendment prevents Greenfield from calling Parent to testify. OAH denied reconsideration because Student offered no new facts, circumstances, or law. It explained that IDEA hearings are civil, so a self-incrimination objection must be raised when a specific question is asked, and the judge then decides whether the privilege applies.

Why it matters

Parents cannot use the Fifth Amendment to avoid being called as witnesses in a due process hearing. Any privilege objection has to be made to specific questions at the hearing. Reconsideration also requires genuinely new facts or law, not a repeat of earlier arguments.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • Warford v. Medeiros (1984) 160 Cal.App.3d 1035
  • Fuller v. Superior Court (2001) 87 Cal.App.4th 299
  • Blackburn v. Superior Court (1993) 21 Cal.App.4th 414

Topics

reconsideration parent as witness fifth amendment self-incrimination self-represented parent

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:

GREENFIELD UNION SCHOOL DISTRICT,

v.

PARENT ON BEHALF OF STUDENT.

OAH CASE NUMBER 2019100729

ORDER DENYING REQUEST FOR RECONSIDERATION

On December 4, 2019, the undersigned Administrative Law Judge issued an Order Denying: 1. Student’s Motion for Continuance and 2. Student’s Motion to Limit Evidence. This Order was issued in response to Student’s November 25, 2019 “Continuance Motion of Motion to Notice Witness Due Process.” (Sic.)

On December 11, 2019, Student filed by United States Postal Service with the Office of Administrative Hearings, called OAH, a “[Continuous Motion: Reconsideration (ALJ) Misinterpretation].” (Sic.) Student’s motion states, “Continuous Motion: [Notice to Witness Due Process] dated [November 21, 2019] misinterpreted by (ALJ) Kara Hatfield as Ordered, '’Student has no basis to limit the evidence in the due process hearing to exclude Parent as a witness.’ Furthermore, ‘[t]o limit evidence to exclude Parent as a witness is denied.’ Request Reconsideration by (ALJ) presently.” (Sic.)

OAH did not receive a response from Greenfield Union School District and Student did not provide proof that Parent served the motion for reconsideration on Greenfield or its attorney.

APPLICABLE LAW

The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time, generally within ten days. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)

DISCUSSION

Student offers no new facts, circumstances or law to support reconsideration.

Student repeats his earlier, erroneous, assertion that the Fifth Amendment to the United States Constitution prohibits Greenfield from calling Parent as a witness in this administrative due process hearing. Student even purports to quote a “Supreme LandMark case [(Blackburn. v. Superior Court (1993) 21 Cal. App 4th 414.428] ‘A Party is not entitled to decide for himself whether he is protected by the [Fifth Amendment] privilege’ unto criminal cases and grand jury indictment” [sic], but still seeks to have Parent decide for herself that she is protected by the Fifth Amendment in this non-criminal case, and not involving a grand jury indictment. As hearings under the Individuals with Disabilities Education Act are civil, not criminal, in nature, objections based on the privilege against self-incrimination are to be raised when the witness is questioned and the court to decide “after conducting ‘a particularized inquiry, deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well founded. [Citation.]’ [Citations.]”

(Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.) “Consequently, a civil defendant does not have the absolute right to invoke the privilege against self-incrimination.” (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306.)

ORDER

Student has not established the December 4, 2019 Order should be reconsidered.

The motion for reconsideration is denied. All dates set in this matter are confirmed.

IT IS SO ORDERED.

DATED: December 13, 2019 Kara Hatfield Administrative Law Judge Office of Administrative Hearings