California OAH special education order · February 26, 2024
Order Granting District's Peremptory Challenge
OAH Case No. 2024010738 · ALJ Tara Doss
OAH granted Mountain View Whisman's peremptory challenge to ALJ Butchko. The Monday filing would normally be untimely, but OAH had not announced the reassignment until after noon on the Friday before hearing.
This case went to decision
Mountain View-Whisman School District v. Student: Mountain View-Whisman may place a first grader in a nonpublic school for up to 45 school days after proving injury risk. (2024)
Summary
Mountain View Whisman School District filed a peremptory challenge to ALJ Chris Butchko on the Monday before hearing. OAH had told the parties of his assignment at about 2:50 PM the previous Friday. A challenge for a hearing held away from an OAH regional office is normally due by noon on the Friday before hearing. Because OAH announced the assignment after that deadline, the challenge was deemed timely and granted, the case was reassigned to ALJ Rommel Cruz, and all dates stayed on calendar.
Why it matters
When OAH reassigns a judge too late for a party to meet the usual deadline, the party still keeps its one peremptory challenge. Parents and districts should act promptly after any late reassignment notice.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Chris Butchko, Administrative Law Judge (challenged)
- Rommel Cruz, Administrative Law Judge (newly assigned)
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:
MOUNTAIN VIEW WHISMAN SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2024010738
ORDER GRANTING DISTRICT’S PEREMPTORY CHALLENGE
FEBRUARY 26, 2024
On February 23, 2024, at approximately 2:50 PM, the Office of Administrative Hearings, called OAH, informed the parties that the case was reassigned to Administrative Law Judge Chris Butchko. An Administrative Law Judge is called ALJ. On February 26, 2024, Mountain View Whisman School District filed a notice of peremptory challenge to ALJ Butchko, 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).)
Here, Mountain View Whisman filed its peremptory challenge on the Monday before the hearing, which would typically be untimely. However, because OAH did not inform Mountain View Whisman of ALJ Butchko’s assignment to the case until after noon on the Friday before hearing, the peremptory challenge is deemed timely, and is granted. The case is now assigned to ALJ Rommel Cruz, and all scheduled dates remain on calendar.
IT IS SO ORDERED.
Tara Doss Presiding Administrative Law Judge Office of Administrative Hearings