California OAH special education order · March 20, 2023
Order Denying Peremptory Challenge
OAH Case No. 2022120336, 2022120719 · ALJ Margaret Gibson
OAH denied Downey Unified's peremptory challenge to ALJ Gilmartin as untimely. A prehearing conference had already been held, and the ALJ had already decided the expedited portion of the case.
This case went to decision
Student v. Downey Unified School District: Downey Unified must reinstate a fifth grader after an ALJ finds his conduct was a manifestation of his disability. (2023)
Summary
Downey Unified School District filed a peremptory challenge to remove Administrative Law Judge T. Gilmartin from consolidated cases without stating a cause. Presiding ALJ Margaret Gibson denied the challenge as untimely. Under the regulations, a challenge must be made no later than the start of the prehearing conference once an ALJ is assigned. In this case one prehearing conference had already taken place, and the ALJ had already issued a decision on the expedited portion of the case. All previously set dates stayed on calendar.
Why it matters
Each party gets only one no-cause challenge to an ALJ, and it must be used before the prehearing conference starts. A party cannot wait to see how the ALJ rules, such as on an expedited issue, and then try to remove that judge.
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
- T. Gilmartin, Administrative Law Judge (challenged)
- Margaret Gibson, 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 CONSOLIDATED MATTERS INVOLVING:
DOWNEY UNIFIED SCHOOL DISTRICT ,
and
PARENT ON BEHALF OF STUDENT,
OAH CASE NUMBER 2022120336
OAH CASE NUMBER 2022120719
ORDER DENYING PEREMPTORY CHALLENGE
MARCH 20, 2023
On March 20, 2023, Downey Unified School District filed a notice of peremptory challenge to Administrative Law Judge T. Gilmartin in the above captioned matter. The 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).)
The peremptory challenge is not timely made and is denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c). There has already been one PHC in this matter and the ALJ has issued a decision on the expedited portion of this case already.
ORDER
1. The District’s challenge of ALJ Gilmartin is denied.
2. All dates previously set in this matter will remain on calendar.
IT IS SO ORDERED.
Margaret Gibson Presiding Administrative Law Judge Office of Administrative Hearings