STATE OF CALIFORNIA

RECEIVED

JUN 2 3 2009 COMMISSJON ON

JUDICIAL PERFORMANCE

BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE

INQUIRY CONCERNING JUDGE PETER J. McBRIEN,

v.

No. 1 85

FILED JUN 2 3 2009

Commission on Judicial Performance

FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE SPECIAL

MASTERS

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"[T]his is a very serious proceeding. There 's no question about it. And the problem is, when people 's livelihood is on the line, I think that you should be able to show as much positive aspects of somebody, especially Judge McBrien here, who has gone out-he's not been prodded. He got into the soup kitchen right after the search warrant was filed [in the tree case] . And these are things he said he wants to do. He wants to make amends, and I think that' s quite good." (Exhibit 46, pp. 1 29- 1 30)

Judge McBrien's post-hearing statement

In response to his hearing testimony about the prior disciplinary matter, and the

Commission' s introduction of his prior sworn statement, Judge McBrien submitted the

following statement to the Special Masters after the hearing:

"Judge McBrien's [hearing] testimony regarding the arborist ' s trimming of oak trees related to his own personal observation and not to the extent of the tree trimming activity that was the subject ofthe misde1neanor charge. Judge McBrien observed only one large limb cutfrom the oak tree in question and apologizes if there was any COJ?fitsion regarding this testimony. Judge McBrien acknowledges that the limb he observed being removed was not the only cutting done by the arborist. The point Judge McBrien was attempting to make by way of his testimony was that it did not make any difference whether the oak tree was on private or public land; the prohibitory ordinance made any cutting without a permit a misdemeanor. While view enhancement was an intended effect of the trimming, the testimony of Judge McBrien on April 3, 2009 was true and correct to his best recollection." (Exhibit P, italics added)

PART VIII CHARACTER EVIDENCE

At the hearing, Judge McBrien called numerous witnesses to testify to his good

character and judicial demeanor.

Judge James Mize, the presiding judge of the Sacramento Superior Court, often

appeared before Judge McBrien in the family law division before his own appointment to

the bench in 2000. Judge Mize testified that when he appeared as an attorney in family

law cases, Judge McBrien was fair, impartial, courteous, dignified, and patient, and Judge

Mize considered him an asset to the family law bench. As a family law practitioner,

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questions . When I 'm pro temming, if l have particular problems or need to bring litigants

or attorneys down, this is the judge I ' ll bring them to." (HT 52 1 )

Robert O'Hair testified he had practiced family law since 1 98 1 or 1 982 . He was a

certified family law specialist, a member of the Sacramento County Bar Association's

Family Law Section, and he served on that section's executive committee. (HT 583-586)

He worked with Judge McBrien in that capacity on methods to streamline family law

cases and improve the local rules . (HT 5 86-5 8 8) Mr. O'Hair testified Judge McBrien

was dedicated to the improvement of family law in Sacramento County, and he was "one

of the more active judges" in that area compared to other members of the bench. (HT

5 88)

Mr. O'Hair conducted four or five trials before Judge McBrien, and "[s]ome of my

biggest defeats have probably come from Judge McBrien." (HT 588 , 5 89) Mr. O'Hair,

however, considered Judge McBrien an asset to the family law bench, and described him

as fair, patient, courteous to litigants and attorneys, hard working, and knowledgeable

about the law . (HT 588-589)

Camille Hemmer testified she had exclusively practiced family law in Sacramento

since 1 985 , and she was a certified family law specialist. (HT 59 1 ) She was a member

of the Sacramento County Bar Association, and held every post in that organization. She

also served on the Family Law Section's executive committee. She briefly represented

Mr. Carlsson in his dissolution. (HT 592-593)

Ms. Hemmer regularly appeared before Judge McBrien. She tried five or six cases

and argued about 40 law and motion matters before him, and worked with him on the

Family Law Section's Executive Committee. (HT 593-594) She testified Judge McBrien

was patient, courteous to litigants and attorneys, and an asset to the superior court bench.

He was a good judge and she would continue to accept trial assignments before him. (HT

594-595)

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reflect any bias or prejudice against either Mr. Carlsson or Ms. Huddle. Aside from the

incident on the last afternoon of trial, Judge McBrien never prevented a witness from

testifying and never cut off a witness ' s testimony. While Judge McBrien improperly and

inappropriately terminated the trial, Ms. Huddle failed to pursue other opportunities to

introduce evidence through a settled statement or stipulation, and her failure to do so was

based upon her own decisions and not on Judge McBrien's conduct.

FACTORS IN A GGRA VA T/ON

1 . Judge McBrien lacked insight as to the impropriety of continuing to preside

over the Carlsson matter after sending the transcript of Mr. Carlsson's testimony to his

employer and not notifying the parties.

2 . Judge McBrien continues to lack insight into how his actions in the Carlsson

matter would be perceived by the public .

3 . Judge McBrien has a prior public admonishment.

4. At the Special Masters ' hearing, Judge McBrien gave testimony inconsistent

with his prior sworn statement regarding the underlying matter of his prior public

admonishment.

5 . Judge McBrien improperly tried to use the Special Masters ' hearing as a public

forum to address a grievance with the media on a prior disciplinary matter.

FACTORS IN MITIGA TION

1 . Judge McBrien is extremely hard working, keeps long hours, willingly works

through lunch hours, and takes short breaks to make sure parties get their trial time.

2 . Judge McBrien voluntarily stayed in the family law division for nearly 20

years .

3 . Judge McBrien played an active role in revising the family law system to allow

trials to be heard expeditiously by experienced family law judges .

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4. Judge McBrien had a good faith belief in his duty to repmi a possible criminal

violation.

5 . Judge McBrien consulted with judicial colleagues as to the appropriate steps to

take to report a possible criminal violation.

6. The disciplinary action taken against Mr. Carlsson by his employer was based

upon his own misconduct, and not influenced by Judge McBrien.

7. Judge McBrien admitted in a personal letter to the Commission: "I admit I

acted badly and for which actions I deserve to be rebuked." (Exhibit 3 , p. 72)

8. Judge McBrien apologized to his judicial colleagues for his prior public

admonishment.

9. Judge McBrien voluntarily performed public service, unrelated to any

condition of a criminal plea, upon the filing of criminal charges in the underlying matter

that resulted in the prior public admonishment.

1 0 . Judge McBrien has served as a mentor to new judges in the family law

division.

1 1 . Judge McBrien has continued to work with the family law bar to improve the

trial system in family law division.

1 2 . In over 40,000 contested hearings, this is the only instance of Judge

McBrien 's misconduct on the bench.

1 3 . Judge McBrien is widely respected by attorneys who frequently appear in

front of him, and judges who serve with him.

14 . Judge McBrien has a very low reversal rate on appeal considering the nature

of his lengthy assignment in the family law division.

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1 5 . Numerous character witnesses testified favorably about Judge McBrien's

judicial demeanor.

Respectfully submitted,

kd� /Hon. Dennis A. Cornell Presiding Special Master

Special Master

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