California OAH special education order · September 23, 2021
Order Denying Ventura Unified School District's Peremptory Challenge
OAH Case No. 2021040283 · ALJ Peter Paul Castillo
OAH denied Ventura Unified's second peremptory challenge, this time to ALJ Sabrina Kong, because a party gets only one and the district already used its challenge on ALJ Cararea Lucier.
This case went to decision
Student v. Ventura Unified School District: Ventura Unified must fund two private evaluations and up to $19,000 in compensatory services; claims before April 2019 time-barred. (2022)
Summary
Ventura Unified School District filed a peremptory challenge to ALJ Sabrina Kong. In July 2021 OAH had already granted the district's peremptory challenge to ALJ Cararea Lucier and reassigned the case. Presiding ALJ Peter Paul Castillo denied the new challenge because Government Code section 11425.40 and California Code of Regulations, title 1, section 1034 give each party only one challenge to an ALJ without cause.
Why it matters
Each side gets only one no-reason challenge to an assigned judge. Parents and advocates should decide carefully whether and when to use it, because a later judge cannot be removed without showing cause.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Gov. Code, § 11425.40, subd. (a)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Cararea Lucier, Administrative Law Judge (previously challenged)
- Sabrina Kong, Administrative Law Judge (challenged)
- Peter Paul Castillo, 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:
PARENTS ON BEHALF OF STUDENT,
v.
VENTURA UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021040283
ORDER DENYING VENTURA UNIFIED SCHOOL DISTRICT’S
PEREMPTORY CHALLENGE
SEPTEMBER 23, 2021
On July 2, 201, Ventura Unified School District filed a notice of peremptory challenge to Administrative Law Judge Cararea Lucier in the above captioned matter.
On July 2, 2021, OAH granted Ventura Unified School District’s peremptory challenge by oral notice pursuant to Government Code section 11425.40, subdivision (d), of the Administrative Procedures Act, and California Code of Regulations, title 1, section 1034, and reassigned the case to a different Administrative Law Judge.
On September 23, 2021, Ventura Unified School District filed a notice of peremptory challenge to Administrative Law Judge Sabrina Kong in the above captioned matter.
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).)
Ventura Unified School District’s peremptory challenge is denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (a) as a party only receives one challenge.
ORDER
Ventura Unified School District's challenge of ALJ Kong is denied.
IT IS SO ORDERED.
Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings