California OAH special education order · May 13, 2024
Order Denying Peremptory Challenge
OAH Case No. 2024010623 · ALJ Joy Redmon
OAH denied Student's peremptory challenge to ALJ Claire Yazigi as untimely because it was filed the day before hearing, not by noon the prior Friday, and the rules have no vacation or equity exception.
This case went to decision
Student v. Jurupa Unified School District: ALJ found Jurupa Unified's mostly special day class offer was not the LRE and ordered $11,602.06 reimbursement; federal court later vacated decision. (2024)
Summary
Student filed a peremptory challenge to ALJ Claire Yazigi on May 13, 2024, the day before hearing. The case had been reassigned to her on May 9 after the original ALJ became unavailable. Student admitted the challenge was late but asked OAH to grant it for fairness, because counsel was out of the country and missed the reassignment notice. OAH denied the challenge because the regulations allow no exception to the deadline for vacation schedules or equity. OAH noted that Student could still move to disqualify ALJ Yazigi for cause by filing that motion directly with her.
Why it matters
Peremptory challenge deadlines are strictly enforced even when an ALJ is reassigned just before hearing. Counsel should watch OAH's public calendar, which counts as official notice. Concerns about an ALJ's bias must be raised through a separate for-cause motion.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Claire Yazigi, Administrative Law Judge (challenged)
- Chris Butchko, Administrative Law Judge (conducted prehearing conference)
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.
JURUPA UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2024010623
ORDER DENYING PEREMPTORY CHALLENGE
MAY 13, 2024
On May 13, 2024, Student filed a notice of peremptory challenge with the Office of Administrative Hearings, called OAH, to Administrative Law Judge Claire Yazigi. An Administrative Law Judge is called 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, 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).)
If the hearing is to be held at an OAH regional office, the peremptory challenge must be made no later than two business days before the hearing. (Cal. Code Regs., tit.
1, § 1034, subd. (d).) If the hearing is to be held at a site other than an OAH regional office, the peremptory challenge must be made by noon on the Friday before the hearing. (Cal. Code Regs., tit. 1, § 1034, subd. (e).)
The prehearing conference in this matter was conducted by ALJ Chris Butchko on May 3, 2024. Thereafter, ALJ Butchko became unavailable for this due process hearing.
Before noon on Thursday, May 9, 2024, the matter was reassigned to ALJ Yazigi. OAH’s public calendar is official notice of the change; however, at noon on May 9, 2024, OAH provided a courtesy telephone call to the parties notifying them of the changed assignment. Student’s peremptory challenge was not filed by noon the Friday before the hearing, but on Monday, May 13, 2024, the day before. Student acknowledges the motion is untimely but asserts that equity and fairness dictate it should be granted.
Student’s counsel was out of the country and did not receive the email from his office’s calendar clerk notifying counsel of the changed assignment. Upon return, counsel reviewed ALJ Yazigi’s other issued decisions and concluded the challenge is “appropriate and necessary if Plaintiff is to receive a fair hearing of the issues in this case.” Counsel further asserted that to receive a fair hearing, Student’s case must be heard, “…before an ALJ who has not previously expressed bias and preconceptions about the competence of students with cognitive challenges such as those caused by his disability.”
Student’s peremptory challenge was not timely. There is no exception in the law governing peremptory challenges to the timeliness requirement based on vacation schedules or claimed equity. Accordingly, Student’s peremptory challenge is denied pursuant to Government section 11425.40, subdivisions (a) and (d), and California Code of Regulations, title 1, section 1034, subdivision (c). As noted, Student’s motion referred to bias and preconceptions. Nothing in this order prevents Student from seeking to challenge ALJ Yazigi for cause should Student so choose. A motion seeking to disqualify ALJ Yazigi for cause would be made directly to ALJ Yazigi for ruling.
Student’s peremptory challenge is DENIED. The case remains with ALJ Yazigi and all scheduled dates remain on calendar.
IT IS SO ORDERED.
Joy Redmon Presiding Administrative Law Judge Office of Administrative Hearings