California OAH special education order · December 14, 2020
Order Denying Clear Passage Educational Center's Peremptory Challenge
OAH Case No. 2020090447 · ALJ Peter Paul Castillo
OAH denied Clear Passage Educational Center's peremptory challenge to ALJ Cara Lucier because it was the center's second challenge, after one was granted in October 2020, and it was untimely.
This case went to decision
Student v. Clear Passage Educational Center: Clear Passage Educational Center, a charter school, owed Student no FAPE because Long Beach Unified was responsible; all claims denied. (2021)
Summary
Clear Passage Educational Center filed a peremptory challenge, a request to remove an ALJ without stating a reason, against Administrative Law Judge Cara Lucier. OAH denied it. A party gets only one peremptory challenge, and OAH had already granted Clear Passage's first challenge on October 26, 2020. The second challenge was also not filed on time. All previously set dates stayed on calendar.
Why it matters
Each party gets only one peremptory challenge to an ALJ in an OAH case, and it must be filed on time, usually before the prehearing conference begins. Once it is used, any later effort to remove a judge must show actual cause.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Cara Lucier, 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 MATTER OF:
PARENT ON BEHALF OF STUDENT,
v.
CLEAR PASSAGE EDUCATIONAL CENTER.
OAH CASE NUMBER 2020090447
ORDER DENYING CLEAR PASSAGE EDUCATIONAL
CENTER’S PEREMPTORY CHALLENGE
DECEMBER 14, 2020
On December 14, 2020, Clear Passage Educational Center filed a notice of peremptory challenge to Administrative Law Judge Cara Lucier in the above captioned matter. Clear Passage Educational Center’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).)
Clear Passage Educational Center’s peremptory challenge is denied as this is Clear Passage Educational Center second peremptory challenge, the first filed with and granted by OAH on October 26, 2020, and also not timely made, pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivisions (a), (b) and (e).
ORDER
1. Clear Passage Educational Center's challenge of ALJ Lucier is denied.
2. All dates previously set in this matter will remain on calendar.
IT IS SO ORDERED.
Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings