California OAH special education order · January 16, 2024

Order Granting Student's Peremptory Challenge and Denying Ukiah's Peremptory Challenge

OAH Case No. 2023100750 · ALJ Tara Doss

OAH granted Student's timely peremptory challenge to ALJ Myers-Cregar but denied Ukiah's challenge to ALJ Pahl because Ukiah filed it after the prehearing conference began and raised no objection there.

Ruling Peremptory challenges

This case went to decision

Student v. Ukiah Unified School District (consolidated): Ukiah Unified must fund 277 compensatory hours, an AAC assessment, and staff training; its October 2023 IEP is rejected. (2024)

Summary

Student filed a peremptory challenge to ALJ Deborah Myers-Cregar on the morning of January 12, 2024, and OAH granted it and reassigned the case to ALJ Penelope Pahl. ALJ Pahl held the prehearing conference that afternoon, and Ukiah raised no objection to her presiding. Ukiah filed its own peremptory challenge to ALJ Pahl about ten minutes after the conference started. OAH denied Ukiah's challenge as untimely because a challenge to an assigned ALJ must be made no later than the start of the prehearing conference, so ALJ Pahl remains assigned.

Why it matters

Each side gets only one peremptory challenge, and it must be made before the prehearing conference begins. Taking part in the conference without objecting gives up the right to challenge that judge.

Key authority cited

  • Gov. Code, § 11425.40, subd. (d)
  • Cal. Code Regs., tit. 1, § 1034

People named in the order

  • Deborah Myers-Cregar, Administrative Law Judge (challenged by Student)
  • Penelope Pahl, Administrative Law Judge (assigned; challenged by Ukiah)

Topics

peremptory challenge alj disqualification timeliness prehearing conference

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.

UKIAH UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2023100750

ORDER GRANTING STUDENT’S PEREMPTORY CHALLENGE

AND DENYING UKIAH’S PEREMPTORY CHALLENGE

JANUARY 16, 2024

On January 12, 2024, at approximately 9:30 AM, Student filed with the Office of Administrative Hearings, called OAH, a notice of peremptory challenge to Administrative Law Judge Deborah Myers-Cregar. The Administrative Law Judge is called an ALJ. At approximately 10:30 AM, on January 12, 2024, OAH informed the parties that Student’s peremptory challenge was granted and ALJ Penelope Pahl was assigned to the case. At approximately 1:00 PM, on January 12, 2024, ALJ Pahl convened a prehearing conference with the parties. Ukiah did not object to ALJ Pahl presiding over the prehearing conference and did not exercise its peremptory challenge. The parties completed the prehearing conference with ALJ Pahl. However, at approximately 1:10 PM, Ukiah filed a notice of peremptory challenge to ALJ Pahl. Student’s and Ukiah’s peremptory challenges were 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, also called 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 starts. 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 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). Ukiah’s peremptory challenge was not timely made and is denied because it was filed after the prehearing conference started and because Ukiah did not verbally object to ALJ Pahl presiding over the prehearing conference. ALJ Pahl remains the assigned judge.

IT IS SO ORDERED.

Tara Doss Presiding Administrative Law Judge Office of Administrative Hearings