When a party wants to ask the judge to do or change something about their case, it is called a “motion.” Examples are requesting that a date for mediation be scheduled or that two cases be combined into one hearing (called a “consolidation”). A motion is usually made in writing. A motion may also be made verbally during a prehearing conference or due process hearing. All other parties have the option to respond to a motion. When OAH gets a motion, a judge will decide what to do and either write an "order" or make a verbal ruling on the record during a prehearing conference or during the hearing. The order tells the parties whether the judge agrees to do what the party asked for in their motion. If a written order is issued, OAH sends a copy of the order to each party.
Unless otherwise stated, a motion must be filed no later than the third business day before the prehearing conference.
How to Prepare a Motion
A motion is a kind of letter, which includes at least three things:
- What the party wants the judge to do;
- An explanation as to why the judge should do it; and
- Any facts the party thinks are important that support the requested action.
For example, if a party wanted to change the date of a mediation that was already scheduled because they found out their mother needed a medical procedure and the party needed to give her a ride, they would need to file a motion asking that the mediation date be continued, called a “motion for a continuance”. This motion could be a letter with that heading in which the party explains to the judge why they need the date changed and why the situation is “good cause” (as it could not be anticipated in advance). The party would need to include facts about the date and time of the mother’s appointment and attach a copy of the appointment reminder.The last sentence should say that the person signing “declares these facts under penalty of perjury.” That statement would need to be signed and dated. This motion would need to be served on the other side (with a proof of service) and filed with OAH. If the other side disagreed, they would have the opportunity to file an opposition.
OAH has forms for some kinds of motions. For example, there is a form on the website to request a change in the date for prehearing conference or hearing. Parents may use an OAH form, send a letter to OAH, or use a more formal document. All motions must be served on the other side with a proof of service; and then a complete copy filed via mail, hand-delivery, overnight delivery, or SFT with OAH.
How to Respond to a Motion
Any other party may respond to the motion if they want to. If a party disagrees with the motion, they should respond in writing. They must respond within three days. At least three things should be included in the response:
- Why they disagree;
- What they think the judge should do; and
- The facts they think are important.
Anyone that sends a response to OAH must send a copy to all other parties. A "proof of service" must be attached to the response.
When someone sends a motion to a self-represented parent, the parent has three days to respond if the parent disagrees with the motion. If the parent cannot send a response within three days, the parent may send a letter to OAH asking for more time.
Information on Common Motions
When someone requests a due process hearing, the request must include certain facts:
- The Child's name, age, address and school;
- What the problem is and how it might be fixed.
If the request does not include enough information, another party may file a “Notice of Insufficiency.” “Insufficiency” means “not enough facts or information.” A Notice of Insufficiency is a kind of motion. No response to a Notice of Insufficiency is required or expected. The judge decides whether the complaint that was filed is sufficient solely by looking at the complaint itself. A Notice of Insufficiency must be filed within 15 days of the complaint being filed or the complaint is automatically deemed “legally sufficient.” That means the other side cannot require that the complaint be rewritten to include more information. It does not mean that the other side automatically wins.
A judge will decide whether the request contains enough information. The judge will send an Order to all the parties. The Order will explain whether there are enough facts. If the judge decides that there are not enough facts, the judge will cancel the mediation and hearing dates. If this happens, the judge will usually allow 14 days for the party who filed the complaint to write a new request, including more facts. The judge might also say which facts are missing. If the party that filed the complaint does not have a lawyer, the judge may explain how to get help from an OAH mediator in describing the facts about their case.
Any party may make a motion to postpone mediation, prehearing conference or hearing dates. Asking OAH to postpone dates is called a "Request for Continuance."
If all parties in a case want to postpone dates, the request is called a joint request for continuance. All parties must agree on the dates in a joint request. The parties must provide a good reason for requesting a continuance, which is called “good cause.” An example of “good cause” might be illness, or that an essential witness is not available or out of the country until a certain date. It does not include failing to prepare for the hearing. A joint request for a continuance must be signed by all parties.
OAH has only one form to file a joint request for a continuance of the hearing and prehearing conference on the website. It is the form “Request to Set Mediation (and Continuance of Initial Due Process Hearing Dates, if Required).” This form must be signed by all the parties to the case. The form “Request for Continuance of Special Education Due Process Hearing Dates” may be signed by all the parties (making a joint request for continuance) but it may also be used by only one of the parties.
Before filing a motion asking for a continuance of any dates, a party should first ask the other parties to agree to postpone the dates and to try to agree upon new dates. If any of the other parties do not agree, the party may file their own motion for continuance.
A motion for continuance should include:
- A statement that parents have tried to contact the other parties and that the other parties do not agree to a continuance, or that the parties cannot agree on dates;
- The reason for the request; and,
- The new date or dates parents request.
After filing a complaint, parents may make a motion to keep their child's educational situation the same until the judge determines something needs to change. This is called a motion for "stay put." A motion for stay put must include a copy of the most recent IEP that parents have agreed to. How to attach the IEP to the motion is explained below in "How to Present Evidence to Support or Respond to a Motion."
Any party may make a motion to skip some or all of the due process hearing. This is called a "Motion to Dismiss." For example, if the student does not live in the district, or parents did not attend a resolution session, the district may file a motion to dismiss the case. Anyone who receives a motion to dismiss has the right to file an opposition to the motion explaining why they believe the case or portion of the case should not be dismissed.
The party that filed the Request for Due Process (often called a "complaint") may make a motion to add more claims or add more facts to the original complaint. This is called a "Motion to Amend the Complaint." If a parent wants to do this, the motion should be made as early as possible. A judge cannot grant a Motion to Amend the Complaint less than five days before the hearing unless the other party agrees. A copy of the new complaint the party wants to file must be filed at the same time as the motion asking for permission to amend.
Any party may make a motion to add another party to the case, such as a different district or county office of education. This kind of motion should be sent to the parties that are already part of the case and to the new party. The "proof of service" should include all the parties and the new party. When a new party is added, dates and other details about the mediation and due process hearing might change but they might remain the same. It is important to read all communications from OAH very carefully.
Any party may make a motion to consolidate two or more cases into one case. “Consolidate” means to combine the cases so that there is only one hearing. This can happen when there are two or more cases that involve the same parties and facts. For example, if a parent and a district have both filed a complaint about a similar problem, the cases could be combined so there is only one hearing. Combining cases generally saves time and money for all of the parties.
The Special Education website includes a list of all the judges who hear special education matters and the educational background of each. Which judge has been assigned to the hearing is also posted on the OAH website. The parties may also call the OAH staff person on the Scheduling Order to find out which judge has been assigned to the hearing. If a party does not want the judge that is assigned to the case, there are two ways to get a different judge for the hearing. The first way is called a "Peremptory Challenge." The second way is called a "Challenge for Cause."
Peremptory Challenge: A peremptory challenge allows a party to disqualify a judge from hearing the case without stating a reason. Each party may make one peremptory challenge per case. When any party makes a timely peremptory challenge, a new judge is assigned to the case. Strict time limits apply to peremptory challenges.
A peremptory challenge must be made no later than the beginning of the prehearing conference if the judge conducting the prehearing conference is the judge assigned to the hearing. If the judge assigned to the hearing is not the judge that handles the prehearing conference, the deadline for a peremptory challenge depends upon the location of the hearing. If the location of the hearing is an OAH office, the peremptory challenge must be made no later than two business days before the hearing. If the location of the hearing is not an OAH office, the peremptory challenge must be made by noon on the Friday before the week the hearing is scheduled.
Challenge for Cause: If a party believes the assigned judge cannot be fair in their case, the party may file a "challenge for cause." A challenge for cause is a motion. If a judge is disqualified, a new judge will be assigned.
A challenge for cause must prove that the assigned judge should be disqualified. Actual proof of bias or prejudice is required. To file a challenge for cause, follow the instructions above under the heading "How to File a Motion" and include evidence of why the party believes the assigned judge
cannot be fair. To submit evidence of bias or prejudice, follow the instructions in the next section, "How to Present Evidence to Support or Respond to a Motion."
Some motions need to have evidence so that the judge can decide important facts. For example, a motion for stay put must include a copy of the student's most recent IEP that parents have agreed upon.
There are two ways to submit evidence when a party is filing a motion or responding to a motion filed by another party. The first way is by written testimony. This is called a declaration. The second way is by sending OAH copies of relevant documents.
Declarations Stating Facts
A declaration is a written statement of facts that the person would say if the person was testifying as a witness. A declaration is written testimony. The written testimony is made under penalty of perjury. This means the written testimony is true and the person could be penalized if the written testimony is not true. A declaration may be made by letter or in a more formal document. The declaration must include at least three things:
- The declaration begins by saying who the person is. For example: "My name is Jane Smith. I am student's mother."
- Then the declaration states the important facts. For example, if the parents request a continuance, one fact that the parent might say is: "I cannot attend the hearing on May 22, 2015, because I will be out of town on vacation and district will not agree to postpone the hearing."
- The declaration must end with this statement (“Penalty of Perjury Statement and Signature”):
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. This declaration was executed at (write the name
of the city here , California, on (write the date here) .
__________(Sign name here)
(Print name here)