California OAH special education order · May 13, 2020

Order Denying Peremptory Challenge

OAH Case No. 2020020214 · ALJ Marian H. Tully

OAH denied Menifee Union School District's peremptory challenge to ALJ June R. Lehrman as untimely because the District filed it after the hearing had already begun.

Denied Peremptory challenges

This case went to decision

Student v. Menifee Union School District: Menifee Union must reverse expulsion of student with ADHD after a flawed manifestation review; ALJ finds basis of knowledge. (2020)

Summary

On May 12, 2020, Menifee Union School District filed a peremptory challenge seeking to remove ALJ June R. Lehrman from the case without stating a cause. OAH denied the challenge as untimely. The regulations do not allow a peremptory challenge once the hearing has started, and the first day of hearing in this matter had already taken place.

Why it matters

Each party gets one no-reason challenge to an assigned ALJ, but it is lost once the hearing begins. Parents and advocates who want a different judge must act before the first day of hearing.

Key authority cited

  • Gov. Code, § 11425.40, subd. (d)
  • Cal. Code Regs., tit. 1, § 1034

People named in the order

  • June R. Lehrman, Administrative Law Judge (challenged)
  • Marian H. Tully, Presiding Administrative Law Judge

Topics

peremptory challenge alj disqualification timeliness untimely motion hearing commenced

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,

v.

MENIFEE UNION SCHOOL DISTRICT.

OAH CASE NUMBER 2020020214

ORDER DENYING PEREMPTORY CHALLENGE

MAY 13, 2020

On May 12, 2020, Menifee Union School District filed a notice of peremptory challenge to Administrative Law Judge June R. Lehrman in the above captioned matter.

Menifee Union School 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. A peremptory challenge is not allowed on reconsideration or remand. (Cal. Code Regs., tit. 1, § 1034, subd. (a).)

Menifee Union School District’s peremptory challenge is denied as untimely. The challenge was made after the first day of hearing in the dual set matter commenced.

IT IS SO ORDERED.

Marian H. Tully Presiding Administrative Law Judge Office of Administrative Hearings