California OAH special education order · January 5, 2023
Order Denying Peremptory Challenge
OAH Case No. 2022120477 · ALJ Tara Doss
OAH denied Student's peremptory challenge to ALJ Cararea Lucier as untimely because it was filed after the ALJ had already held the December 30, 2022 prehearing conference.
This case went to decision
Student v. Mt. Diablo Unified School District (consolidated): Mt. Diablo Unified owes nine hours of compensatory education and $100 for a heated lunchbox; may conduct feeding assessment without consent. (2023)
Summary
Parent, on behalf of Student, filed a peremptory challenge to remove assigned ALJ Cararea Lucier from this District-filed case. Presiding ALJ Tara Doss explained that each party gets one challenge without cause, but it must be filed no later than the start of the prehearing conference if an ALJ has already been assigned. ALJ Lucier held the prehearing conference on December 30, 2022, and the challenge was not filed until January 5, 2023, so it was denied as untimely. All previously set dates remain on calendar.
Why it matters
Families who want to use their one no-reason challenge to a judge must file it before the prehearing conference begins. Once that conference starts, the right is lost.
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 assigned to hearing
- Tara Doss, 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:
MT. DIABLO UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2022120477
ORDER DENYING PEREMPTORY CHALLENGE
JANUARY 5, 2023
On January 5, 2023, Parent on behalf of Student, filed with the Office of Administrative Hearings, called OAH, a notice of peremptory challenge to Administrative Law Judge Cararea Lucier, the hearing judge assigned to this case. An Administrative Law Judge is called an ALJ. 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 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 was filed after ALJ Lucier held the prehearing conference on December 30, 2022. Therefore, Student’s peremptory challenge is untimely and is denied 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 Lucier is denied.
2. 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