California OAH special education order · August 18, 2023
Order Granting Request for Reconsideration but Confirming Ruling
OAH Case No. 2023070944 · ALJ Charles Marson
OAH granted reconsideration but again refused to reassign the ALJ who had mediated Student's earlier case, because his promise not to hear that case did not cover new cases and he remembered nothing about it.
Summary
Student asked that the ALJ be reassigned because he had mediated an earlier due process case involving Student, and the ALJ denied that request in the August 11, 2023 prehearing conference order. Student then sought reconsideration. Parents added a new claim: the ALJ had assured them at the earlier mediation that another judge would hear that case, and they see this case as a continuation of the earlier dispute. OAH granted reconsideration based on this new assertion but confirmed the denial. It reasoned that the ALJ's routine assurance applies only to the mediated case, not to different cases, and that he has mediated hundreds or thousands of matters and has no memory of this Student or the prior dispute.
Why it matters
An ALJ who mediated a family's earlier case may still hear a later, separate due process case. A mediator's promise not to serve as hearing judge usually covers only the case that was mediated. Parents who want a different judge should raise the specific grounds right away and show actual knowledge or bias, not just a prior mediation role.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
People named in the order
- Charles Marson, 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.
SAN DIEGO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2023070944
ORDER GRANTING REQUEST FOR RECONSIDERATION BUT
CONFIRMING RULING
AUGUST 18, 2023
On August 11, 2023, shortly before a prehearing conference, Student filed a request that the undersigned ALJ be reassigned. The ground was that the ALJ was the mediator in Case No. 2022080880, a different matter involving Student. Student asserted in the motion that the ALJ would therefore have “pre-existing knowledge” of the “facts and circumstances relevant” to this matter.
On August 11, 2023, the undersigned Administrative Law Judge issued an Order Following Prehearing Conference in this matter, which included a ruling denying Student’s request for reassignment on the ground that he did not remember anything about that previous mediation and therefore could not be tainted by pre-existing knowledge. (Order Following Prehearing Conference, Aug. 11, 2023, p. 10.) On May 16, 2023, Student requested that the ALJ reconsider that ruling.
APPLICABLE LAW
The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time, generally within ten days. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
DISCUSSION
The only claim in the request for reconsideration that was not previously made in the August 11, 2023 request for reassignment is the assertion that Parents view this matter as the continuation of and inextricably intertwined with their ongoing litigation against the District. They assert that the ALJ assured them during the mediation in Case No. 2022080880 that if that due process request went to hearing, another judge would hear the case.
This new assertion supports reconsideration of the ruling, which is granted.
Although the ALJ does not remember that particular advisement, the ALJ routinely assures Parents in mediations that he will not be the judge who hears that case. However, that assurance does not extend to different cases, and Parents in their motion to reconsider do not claim that the assurance was made about any case except Case No. 2022080880. However Parents may characterize the relationship between the two due process cases, the ALJ did not assure Parents that he would not be the hearing judge in a different case. Additionally, the fact remains that the undersigned has mediated hundreds, if not thousands, of due process matters and has no memory of the facts regarding this Student or the prior dispute among the parties. The ruling declining the request for reassignment in the August 11, 2023 Order Following Prehearing Conference is confirmed.
ORDER
1. Student’s motion for reconsideration of the August 11, 2023 ruling declining
reassignment is granted.
2. Student’s request for reassignment is again denied.
Charles Marson Administrative Law Judge Office of Administrative Hearings