California OAH special education order · November 9, 2023
Order Granting Peremptory Challenge
OAH Case No. 2023100681 · ALJ Joy Redmon
OAH granted Berkeley's peremptory challenge to ALJ Rita Defilippis as timely, filed the same day the case was reassigned to her, and reassigned the matter to ALJ Penelope Pahl.
This case went to decision
Berkeley Unified School District v. Student: Berkeley Unified may move an 18-year-old student to Rising Star SPED Academy for up to 45 school days after repeated injuries. (2023)
Summary
Berkeley filed a peremptory challenge, which is a request to remove an assigned judge without giving a reason, against ALJ Rita Defilippis. Each party gets one such challenge, and it must be made before the hearing starts and before any prehearing conference if a judge is already assigned. Berkeley filed on November 8, 2023, the same day OAH told the parties the case had been reassigned to ALJ Defilippis. OAH found the challenge timely, granted it, and reassigned the case to ALJ Penelope Pahl.
Why it matters
Each side gets one no-reason challenge to an assigned judge, but it must be used quickly, before the prehearing conference or hearing begins. Families should know that using or not using this one-time right can shape who decides their case.
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
- Rita Defilippis, Administrative Law Judge (challenged)
- Penelope Pahl, Administrative Law Judge (newly assigned)
- Joy Redmon, 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:
BERKELEY UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT.
OAH CASE NUMBER 2023100681
ORDER GRANTING PEREMPTORY CHALLENGE
NOVEMBER 9, 2023
On November 8, 2023, Berkeley filed a notice of peremptory challenge to Administrative Law Judge Rita Defilippis. Berkeley’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 (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).)
OAH notified parties on November 8, 2023, that the matter was reassigned to ALJ Defilippis. Therefore, Berkeley’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). The matter is now assigned to ALJ Penelope Pahl.
IT IS SO ORDERED.
Joy Redmon Presiding Administrative Law Judge Office of Administrative Hearings