California OAH special education order · January 13, 2023
Order Granting Peremptory Challenge
OAH Case No. 2022080821 · ALJ Tara Doss
OAH granted Student's timely peremptory challenge to ALJ Sabrina Kong, reassigned the case to ALJ Jennifer Kelly, and kept all previously set dates on calendar.
This case went to decision
Student v. Gateway College and Career Academy: Gateway College and Career Academy must provide 132 compensatory hours for never offering an IEP; transfer-based claims denied. (2023)
Summary
Student filed a peremptory challenge to the assigned hearing judge, ALJ Sabrina Kong. Each party gets one challenge to an assigned ALJ without having to show cause, as long as it is made before the hearing starts and no later than the start of a scheduled prehearing conference. OAH found the challenge timely and granted it. ALJ Jennifer Kelly was assigned, and all dates stayed in place.
Why it matters
Each party may remove one assigned ALJ without giving a reason, but only if the challenge is filed on time. Changing judges this way does not by itself move the hearing dates.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Sabrina Kong, Administrative Law Judge (challenged)
- Jennifer Kelly, Administrative Law Judge (newly assigned)
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.
GATEWAY COLLEGE & CAREER ACADEMY.
OAH CASE NUMBER 2022080821
ORDER GRANTING PEREMPTORY CHALLENGE
JANUARY 13, 2023
On January 13, 2023, Student filed with the Office of Administrative Hearings, called OAH, a notice of peremptory challenge to Administrative Law Judge Sabrina Kong, the hearing judge assigned in this case. Student’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, or disqualification without cause, to an ALJ assigned to an OAH hearing. (Cal. Code Regs., tit. 1, § 1034, subds. (a) & (b); Gov. Code, § 11425.40, subd. (d).) A peremptory challenge is not allowed if made after the hearing has started. 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 must be made no later than the start 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).)
Student’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. Student’s challenge of ALJ Kong is granted.
2. ALJ Jennifer Kelly is assigned as the hearing judge in the case.
3. All dates previously set in this matter will remain on calendar.
IT IS SO ORDERED.
Tara Doss Presiding Administrative Law Judge Office of Administrative Hearings