California OAH special education order · August 13, 2024
Order Denying Peremptory Challenge
OAH Case No. 2024041122, 2023120389 · ALJ Joy Redmon
OAH denied Student's peremptory challenge to ALJ Charles Marson as untimely, because OAH's public calendar gave official notice of the reassignment on August 8 and Student did not file until August 12.
This case went to decision
Student v. Pleasanton Unified School District (consolidated): Pleasanton Unified must restore student to special education and fund a psychoeducational IEE after an eligibility exit based on a flawed assessment. (2024)
Summary
Student filed a peremptory challenge to ALJ Charles Marson on Monday, August 12, 2024. ALJ Marson had been assigned to the consolidated cases on Thursday, August 8, 2024, after the original ALJ, Claire Yazigi, became unavailable. OAH explained that its public calendar, updated around noon on August 8, is the official notice of an ALJ change. It noted that the case manager's courtesy calls to Student's counsel went unanswered, and it found the challenge untimely under the deadlines in California Code of Regulations, title 1, section 1034.
Why it matters
OAH treats its public calendar as official notice of judge reassignments, so parties should check it closely as hearings approach. The deadline to challenge a newly assigned ALJ can pass within a day or two, even if no one reaches you by phone.
Key authority cited
- Gov. Code, § 11425.40, subd. (d)
- Cal. Code Regs., tit. 1, § 1034
People named in the order
- Charles Marson, Administrative Law Judge (challenged, reassigned ALJ)
- Claire Yazigi, Administrative Law Judge (originally 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 CONSOLIDATED MATTERS INVOLVING:
PARENT ON BEHALF OF STUDENT,
and
PLEASANTON UNIFIED SCHOOL DISTRICT,
OAH CASE NUMBER 2024041122
OAH CASE NUMBER 2023120389
ORDER DENYING PEREMPTORY CHALLENGE
AUGUST 13, 2024
On August 12, 2024, Student filed a notice of peremptory challenge with the Office of Administrative Hearings, called OAH, to Administrative Law Judge Charles Marson. 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 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).)
This matter was originally assigned to ALJ Claire Yazigi. ALJ Yazigi became unavailable, and the matter was reassigned to ALJ Marson on Thursday, August 8, 2024.
As the matter was reassigned after the prehearing conference, both parties had an opportunity to exercise a timely challenge. 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).)
OAH’s public calendar, which constitutes official notice of the ALJ change, was updated at approximately noon on August 8, 2024. As an additional courtesy, the assigned case manager called to notify the parties of the change between 2:00 and 2:30PM on August 8, 2024. The case manager left a voice mail for Pleasanton’s counsel.
Student’s counsel was called twice but there was no answer and no voice mail connected. Again, parties are on notice that OAH’s public calendar is official notice of the ALJ assignments.
Student’s peremptory challenge, submitted Monday, August 12, 2024, is untimely and DENIED.
IT IS SO ORDERED.
Joy Redmon Presiding Administrative Law Judge Office of Administrative Hearings