Judge Peter McBrien Prosecution: McBrien Opening Brief to the Commission on Judicial Performance by Attorneys James A. Murphy, Bryan L. P. Saalfeld, Murphy, Pearson, Bradley & Feeney

JAME S A. MURPHY - 062223 BRYAN L. P. SAALFELD - 24333 1

Pearson, Bradley & Feeney 88 Street, 1Oth Floor San Francisco, CA 94 108-5530 Tel: 788- 1900 Fax: 393-8087

Attorneys for THE HONORABLE PETER J. MCBRIEN

STATE OF CALIFORNIA

BEFORE THE COMMI S SION ON JUDICIAL PERFORMANCE

INQUIRY CONCERNING

JUDGE PETER J. MCBRIEN

NO. 185

RE SPONDENT' S OPENING BRIEF T O THE COMMI S SION

2009-07-07-Respondent-Opening Brief

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TABLE OF CONTENTS

I. APPLICABLE LEGAL STANDARD &

Page

RESPECTIVE BURDENS .................................................... 1

A. The Elements of Willful Misconduct. ........................ 1

B. The Elements of Conduct Prejudicial to the Administration of Justice ............................................ 2

C. The Elements of "Improper Action." ......................... 3

II. THE NOTICE OF FORMAL PROCEEDINGS .................... 3

III. THE MASTER S' FINDINGS OF FACT .............................. 4

A. COUNT ONE (A) (l)-Due Process Violation ............. 4

1. Objections to The Findings of Fact ................. 4

2. Objections to Conclusions of Law .................. 4

B. COUNT ONE (A) (2)-Alleged Improper Threat of Contempt ................................................................ 7

1. Objections to The Findings of Fact ................. 7

2. Objections to the Masters' Conclusions of Law .............................................................. 8

C. COUNT ONE (A) (3)-Transmittal of Transcript to DGS ...................................................................... 12

1. Objections to the Findings of Fact.. ............... 12

2. Objections to the Masters' Conclusions of Law ............................................................ 13

D. Count One (A) (4)-Demeanor "Law School Comment" ..... ... ......................................................... 18

1. Objections to The Findings of Fact ............... 18

2. Objections to the Masters' Conclusions of Law ............................................................ 18

IV. DI SCIPLINE ................................................................... . . . . . 22

A. The Number of Acts of Misconduct ......................... 24

B. Prior Discipline ......................................................... 24

C. Appreciation of Misconduct ..................................... 25

D. Likelihood of Future Violations ............................... 25

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TABLE OF CONTENTS (continued)

Page

E. Impact of Misconduct on the Judicial System .......... 25

F. Mitigating Factors ................................ . . . ........ . . . ....... 26

V. CONCLU SION .................................................................... 26

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TABLE OF AUTHORITIES

Cases Broadman v. Commission on Judicial Performance

Page

( 1998) 18 Cal.4th 1079 ........................................................... 1, 2, 3, 23, 27

Decision and Order Bruce Van Bruce Van

Number 165 ....................................................................................... 23, 24

Doan v. Commission ( 1995) 1 1 Cal.41h 294 ................................................................... 3, 5, 9, 13

Dodds v. Commission ( 1995) 12 Cal.41h 163 ........................................................................... 2, 27

v. Commission on Judicial Performance ( 1987) 43 Cal.3d 1297 ....................................................................... 23, 26

Geiler v. Commission ( 1973) 10 Cal.3d 270 ............................................................................. 1, 2

In re a P. ( 198 1) 28 Cal.3d 908 ................................................................................. 1

In Re Gordon ( 1996) 13 Cal.41h 472 ............................................................................... 27

In Re Rasmussen ( 1987) Cal.3d 536 .................................................................................... 27

Comm. On Jud. Performance, Ann. Rep. ( 1998), Public Censure and Bar

........................................................................................................... 1 1, 12

(200 1) 9 1 Cal.App.41h 875 ....................................................................... 13

Roberts v. Ford & Comm. ( 1990) 224 Cal.App.3d 793 ................................................................. 1, 27

v. Commission on Judicial ( 1975) 13 Cal.3d 778 ................................................................................. 2

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Penal Code

TABLE OF AUTHORITIES (continued)

Statutes

Page

384a ....................................................................................................... 24

Other Authorities Code of Judicial Ethics

Canon 2 ............................. . ........................................... 4, 8, 13, 18, 19, 22

Code of Judicial Ethics Canon 2A .......... ........................................ ............................................. 3, 4

Code of Judicial Ethics Canon 3B(4) .............................................................. 3, 4, 8, 18, 19, 20, 22

Code of Judicial Ethics Canon 3B(7) .......................................................................................... 3, 4

Code of Judicial Ethics Canon 3E(2) .......................................................................................... 3, 4

Code of Judicial Ethics Canon 3E(4) ............................................................................................ 13

Rothman, California Judicial Conduct Handbook, C section, p. 37 ........... . . . . ......................................................................... 15

Rothman, California Judicial Conduct Handbook, section 13.29 .............................................................................................. 3



Rules Rules of the Commission on Judicial Performance

Rule 130(a) ................................................................................................ 1

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TABLE OF AUTHORITIES (continued)

Constitutional Provisions California Constitution,

Page

Article VI, section 18 ( d) ................................. . ........................... . . . ............ 3

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Respondent Judge Peter J. McBrien hereby submits the following

opening brief to the Commission pursuant to Rule 130 (a) of the Rules of

the Commission on Judicial Performance:

I. APPLICABLE LEGAL STANDARD & RESPECTIVE BURDENS

The Notice of Formal Proceedings sets forth one count of alleged

misconduct, encompassing four subcounts all arising from the contested

marital dissolution matter of Carlsson v. Carlsson Sacramento County

Superior Court Action No. 04FL02489. The burden of proof is on the

Commission to prove these charges by clear and convincing evidence

sufficient to sustain the charge to a reasonable certainty. v.

Commission ( 1973) 10 Ca1.3d 270, 275.) The clear and convincing

evidence standard requires that the evidence be "sufficiently strong to

command the unhesitating assent of every reasonable mind." ( In re

P. ( 198 1) 28 Ca1.3d 908, 9 19; Roberts v. Ford &

Comm. ( 1990) 224 Cal.App.3d 793, 804.) There must be a "high

probability" that the charge is true. v. Commission on Judicial

Performance ( 1998) 18 Ca1.4th 1079, at p. 1090.)

Moreover, judicial conduct is reviewed by an objective, rather than a

subjective, standard. v. at p. 277.) There are

three categories of misconduct: Willful misconduct, prejudicial misconduct

and improper action. The elements of each category are discussed below.

A. The Elements of Willful Misconduct.

Willful misconduct is: ( 1) unjudicial conduct; (2) committed in bad

faith; (3) by a judge acting in his judicial capacity." v.

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Commission ( 1998) 18 Cal.4th 1079, 109 1; v. Commission on

Judicial ( 1975) 13 Cal.3d 778, 795.)

The California Supreme Court explained "bad-faith" in Broadman v.

Commission on Judicial Performance ( 1998) 18 Cal.4th 1079, at p. 1092. In

order to support a finding of bad faith, the evidence must establish that the

judge performed a judicial act ( 1) "for a corrupt purpose (which is any

purpose other than the faithful discharge of judicial duties)," or (2) "with

knowledge that the act is beyond the judge's lawful judicial power," or

(3) "that exceeds the judge's lawful power with a conscious disregard for

the limits of the judge's authority."

A necessary element of willful misconduct in office is that the

conduct occur when the judge is acting in a judicial capacity. A judge is

acting in his judicial capacity when he is performing one of the varied

functions generally associated with the position of judge, whether

adjudicative or administrative in nature. v. Commission ( 1995) 12

Cal.4th 163, 172.)

B. The Elements of Conduct Prejudicial to the Administration of Justice.

The Masters conclude that Judge McBrien has engaged in conduct

prejudicial to the administration of justice that brings the judicial office into

dispute (hereafter referred to as "prejudicial misconduct.") Prejudicial

misconduct includes acts that a judge "undertakes in good faith but which

nevertheless would appear to an objective observer to be not only

unjudicial conduct but conduct prejudicial to public esteem for the judicial

office." v. Commission on Judicial ( 1973) 10 Cal.3d

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270, 284.) To constitute prejudicial misconduct, a judge's actions must

bring the judicial office into disrepute, that is, the conduct would appear to

an objective observer to be prejudicial to "public esteem for the judicial

office." 18 Cal. 4th at p. 1093.) The California

Supreme Court has emphasized it is not necessary that actual observers

view the judges conduct, rather the appropriate standard is how an

"objective observer" would view the judge's conduct. v.

Commission ( 1995) 1 1 Cal.4th 294, 324-325.)

C. The Elements of "Improper Action."

The Commission has also charged that Judge McBrien engaged in

improper action under the California Constitution, Article VI, section 18.

According to Rothman, " [ n ]o published opinion has sought to define this

phrase, although it is plainly something less than willful misconduct or

conduct prejudicial." (Rothman, California Judicial Conduct Handbook,

section 13.29, pp. 386-387.) A public admonishment is the strongest

allowable level of discipline that may be imposed for so-called "improper

action." (Ca. Const., Art. VI, sec. 18 (d).)

II. THE NOTICE OF FORMAL PROCEEDINGS

The singular count brought against Judge McBrien contains four

subcounts all arising from the contested marital dissolution matter of

Carlsson v. Carlsson Sacramento County Superior Court Action No.

04FL02489. The Commission contends that Judge McBrien's conduct

violated Canons 2A, 3B(4), 3B(7), 3E(2) of the Code of Judicial Ethics.

( See, Notice of Formal Proceedings, at pp. 3-6.)

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The first subcount, alleging violation of Code of Judicial Ethics,

Canons 2A and 3B(7), asserts that Judge McBrien denied Mr. Carlsson his

constitutional right to due process by ending trial one minute early, when

Judge McBrien responded to an Emergency Protective Order phone call.

The second subcount, alleging violations of Code of Judicial Ethics,

Canons 2 and 3B( 4 ), asserts that Judge McBrien improperly threatened

attorney Sharon Huddle, counsel for Mr. Carlsson, with contempt during

trial. The third subcount, alleging violations of Code of Judicial Ethics,

Canons 2A and 3E(2), claims that Judge McBrien's actions to inform

Mr. Carlsson's employer, The Department of General Services, of

Mr. Carlsson's trial testimony regarding a potential undisclosed interest in a

real estate property at issue in the proceeding constituted embroilment. The

fourth subcount, alleging violations of Code of Judicial Ethics, Canons 2

and 3B( 4 ), asserts that Judge McBrien failed to be patient, courteous or

dignified to Mr. Carlsson's attorney Ms. Huddle during trial.

III. THE MASTERS' FINDINGS OF FACT

A. COUNT ONE (A)(l)-Due Process Violation

1. Objections to The Findings of Fact

Respondent objects to the exclusion of the fact that according to the

trial minute orders, the Carlsson trial was in session for a total of twelve

hours and minutes. (Ex. 14) This amount was in excess of

what would be usual and customary for a two-day trial estimate.

2. Objections to Conclusions of Law

Judge McBrien objects to the Masters' finding that he committed

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conduct prejudicial to the administration of justice that brings the judicial

office into disrepute. As stated above, the appropriate standard is how an

"objective observer" would view the judge's conduct.


v.

As the Masters' find, and multiple character witnesses confirm,

Judge McBrien is an extremely hard-working judicial officer of the

Sacramento County Superior Court Family Law Division. (Findings, p. 13)

He devotes long hours to the bench, typically arriving at the courthouse at

6 :30 a.m., and displays a high standard of work ethic. (Findings, p. 13) The

minute orders and trial transcript support that Judge McBrien's handling of

the Carlsson matter conformed to this same high standard of industry.

(Ex. 14)

The actual trial testimony heard in the Carlsson trial totaled twelve

hours and exceeding what would be usual and

customary for a two day estimate. (Ex. 14) An average two day trial

conservatively includes ten to eleven hours of actual trial testimony.1 Here,

although estimated as a two day trial, the Carlsson parties essentially

received an extra half day of testimony. As evidenced by the transcript,

Judge McBrien worked diligently to ensure that the trial was completed

within the time alloted. Not only did he limit and reduce the customary

recesses, he also began the second day of trial 8 :30 a.m., in advance of the

typical 9 :00 a.m. start time. (Ex. 14) Judge McBrien cannot be faulted for

1 An average trial day beginning at 9 :00 a.m. and concluding at 4 :30 pm., and taking account one 15 minute break during the morning session, an hour and a half for lunch, and two ten minute afternoon breaks, would conservatively total 5-5.5 hours of actual trial testimony.

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his considerable time and efforts devoted to the Carlsson matter.

As the Masters' conclude, the Sacramento Superior Court Family

Law Division functions if the with their time

estimates for trial." (Findings, p. 137, emphasis added) It was

Mr. Carlsson's obligation to ask for more time and he and Ms. Huddle did

not, as the Masters concluded, make adequate attempts to do so. (R T

323 :9-22) Ms. Keeley testified credibly that Judge McBrien directed them

to move things along because this case, considering the uncomplicated

issues presented, was moving slower than was typical in a family law

courtroom, and nobody wanted a mistrial. (RT 477:24-478:4) As the

Masters find, Ms. Huddle "was simply not as prepared for trial as her

counterpart, Ms. Keeley." (Findings, pg. 137)

The record simply does not support by clear and convmcmg

evidence that Mr. Carlsson's rights to due process and a fair trial were

infringed by Judge McBrien's handling of the Carlsson matter. He

received substantially more trial time than was requested at the time for

trial, and no extraordinary events occurred during trial that warranted a

further extension of time. Significantly, the Masters conclude that none of

Judge McBrien's rulings and decisions in the dissolution case reflected any

bias or prejudice against either Mr. Carlsson or Ms. Huddle. (Findings,

p. 124)

The local rules expressly place the responsibility on the parties and

their counsel to provide accurate trial estimates. Judge McBrien made sure

that the parties received their requested time. In consideration of the

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"constant squeeze" on the Sacramento County Superior Court Family Law

Division highlighted by the Masters, Judge McBrien should not be given

the additional responsibility of making sure that parties and trial counsel

budget their time efficiently. While the judge may offer guidance, the

decisions of how to present a case within the estimated time ultimately

must rest with the parties and their trial counsel.

In light of these factual findings, Respondent respectfully submits

that his actions terminating the trial with one minute remaining do not reach

the objective standards of clear and convincing evidence required for

prejudicial conduct. That being said, Judge McBrien expresses

considerable remorse over his decision to end trial without returning to

properly address counsel following his taking of the EPO call. In

consideration of Judge McBrien's over twenty years of service to the

Sacramento County Superior Court Family Law Division without any other

incident arising from a judicial proceeding, Respondent respectfully

requests that this subcount be reduced to improper conduct.

B. COUNT ONE (A)(2)-Alleged Improper Threat of Contempt

1. Objections to The Findings of Fact Respondent objects to the finding the Ms. Huddle subjectively

perceived Judge McBrien's comments as a threat "that I could potentially

be put in jail if I didn't comply with what he wanted." (Findings, p. 58)

Ms. Huddle's subjective feelings are irrelevant because the appropriate

standard for evaluating judicial conduct is to view that conduct objectively.

Respondent objects to the Masters' findings to the extent the Masters

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failed to consider or weigh evidence that Mr. Carlsson expressly agreed to

comply with Judge McBrien's request to bring his Fair Political Practices

Act Statement of Interest to court upon resumption of trial. Although this

exchange was admittedly a request, and not a direct order, the fact remains

that Mr. Carlsson agreed to bring Judge McBrien, an officer of the court,

the specific documents when he returned to court. As the Masters

conclude, these documents were clearly not privileged, as they were already

part of the public record. Mr. Carlsson's failure to do so was a refusal to

comply with a request of the Court.

2. Objections to the Masters' Conclusions of Law

The Masters conclude that Judge McBrien violated canons 2 and

3B(4) during his exchange with Ms. Huddle on March 9, 2006 regarding

Mr. Carlsson's failure to comply with Judge McBrien's request that he

produce his Statement of Interest in compliance with the Fair Political

Practices Act. The Masters find that an attorney would perceive the

language and tone used by Judge McBrien as threatening contempt if the

attorney failed to comply with his request for production of the document.

(Findings, p. 126.)

Judge McBrien objects to the Masters' finding on the grounds that

the factual findings do not support by clear and convincing evidence that

Judge McBrien's comments and requests for the documents constituted

improper conduct. Canon 2 states that a judge shall avoid impropriety and

the appearance of impropriety in all activities. Canon 3B( 4) states a judge

shall be patient, dignified, and courteous, to all parties with whom the judge

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deals in an official capacity. As stated above, the appropriate standard is

how an "objective observer" would view the judge's conduct. (Doan v.


The transcript of the Carlsson case establishes that Judge McBrien

did not threaten Ms. Huddle with contempt, but rather used the language to

enforce a request that Mr. Carlsson had already agreed to comply with: to

bring his Fair Political Practices Act Statement of Interest to court. The

language in question follows:

M S. HUDDLE:

THE COURT:

M S. HUDDLE:

THE COURT:

M S. HUDDLE:

THE COURT:

M S. HUDDLE:

Are you indicating that he can't take the Fifth Amendment now?

I'm not indicating anything. I'm indicating that you need to send somebody to his employment to pick up those documents.

If he's taking the Fifth Amendment, then those documents would be part of it.

Those documents are on file with the Secretary of State. I could go to the Secretary of State's office and get a copy of them.

Ms. Keeley never raised this issue. If she believed it was really an issue, why didn't Ms. Keeley get those documents? We're here at trial now, and-

Ms. Huddle, you are out of the [sic] order. It was my request, not Ms. Keeley's request.

I think you would potentially, although I don't know-

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THE COURT:

M S. HUDDLE:

THE COURT:

M S. HUDDLE:

THE COURT:

M S. HUDDLE:

THE COURT:

M S. HUDDLE:

THE COURT:

M S. HUDDLE:

THE COURT:

Ms. Huddle, do you wish to ask your client to send somebody to get the records?

If he provides those and he gets charged with something for having provided them-

Yes or no?

Is the Court indicating that he cannot assert his Fifth Amendment?

I'm not indicating any such thing. The documents are not part of the Fifth Amendment. It's what he states out of his mouth that is a part of the Fifth Amendment. Those are public documents at this point. They are on file

- assuming they are the ones that he described- on file with the Secretary of State's office. As a convenience to the Court, I have asked him to bring us a copy.

I suppose - this is all on the record. I don't know what to do in a situation like this when you're actually asking him to produce evidence which might incriminate him, and it's not even the opposing side presenting it.

Ms. Huddle, am I to take that as a "no," placing you in the possibility of contempt?

No. I will tell him to get the records-

I'm not suggesting that he needs to -

- if the Court is ordering him to produce him [sic].

- absent himself. I'm suggesting he needs to send somebody, given the fact

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that he hasn't done it in the week that's transpired, to go get it so he can also attend this trial.

[Ex. 37; Carlsson Transcript 368: 1 1-370:5, emphasis added]

Objectively, these above statements do not demonstrate clear and

convincing evidence of an improper threat of contempt. Judge McBrien's

comments were made in response to Mr. Carlsson's failure to produce

public records that he had already agreed to provide to the Court. This was

not a threat of contempt, but part of the dialogue between Judge McBrien

and Ms. Huddle. The totality of circumstances must be considered in

evaluating the objective appearance. Balancing the testimony of

Ms. Keeley and Judge McBrien against the testimony of Ms. Huddle, there

is not clear and convincing evidence that Judge McBrien actually

threatened contempt. A review of the transcript demonstrates, and Judge

McBrien admits, that it was a request, not an order, that Mr. Carlsson

produce his Statement of Interest when he returned for the third and final

day of trial. An objective lawyer would understand that a request had been

made, and that a threat of contempt was not imminent.

Discipline has been imposed by the Commission for threatening

contempt without cause. However, as cited by Rothman these cases

involve clear, indisputable threats of contempt. In Inquiry concerning

Judge James Randal Ross, Comm. On Jud. Performance, Ann. Rep. ( 1998),

Public Censure and Bar, pp. 19-2 1, the judge threatened contempt hearings

in response to a lawyer's objections to the proceedings and the commission

found the judge violated due process rights. The Commission found that

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the judge had threatened to pursue contempt proceedings, unless the parties

expressly agreed to a written waiver any claim against the Judge before the

Commission on Judicial Performance. !d. In Ross, the commission found

clear and convincing evidence of the judge's conduct as constituting an

improper threat of contempt.

Here, unlike Ross, clear and convincing evidence does not exist to

support that an objective observer would interpret Judge McBrien's

statements as an actual improper threat of contempt. A review of the

factual findings regarding Judge McBrien's exchange with Ms. Huddle

does not objectively rise to that level.

As an additional matter, it should be recognized that Judge McBrien

comment specifically states the "possibility" of contempt. Respondent

respectfully submits that this language objectively qualifies the tone of his

language, thereby reducing its force and effect to an objective observer.

Overall, the Examiner has not established by clear and convincing

evidence that the exchange between Judge McBrien and Ms. Huddle would

be objectively perceived as threatening contempt. As such, the finding that

Judge McBrien committed an improper action in Count One (A) (2) is not

supported.

C. COUNT ONE (A)(3)- Transmittal of Transcript to DGS

1. Objections to the Findings of Fact As an initial matter, it should be noted that on Pg. 98 of the Masters'

Findings it state that Judge "Carlsson" called Ms. Cabatic, general counsel

for Mr. Carlsson's employer DGS. (Findings, p. 98) This error should be

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corrected to reflect Judge McBrien.

Respondent objects to the inclusion in the Masters' Findings of

language from the appellate decision of In re Marriage of Carlsson (2008)

163 Cal.App.4th 28 1, as stated in the Commissions' findings. (Findings, p.

99- 100) At the hearings before the Commission, the Court of Appeal's

decision was not received into evidence for its factual content in these

proceedings, as it is hearsay and irrelevant. (RT 5:2-6: 13; v.

& McCort (200 1) 9 1 Cal.App.4th 875)

Therefore, to the extent the decision is being used as factual content in the

Commissions' findings, it should be struck.

Respondent objects to the Masters' omission of the fact that when

Judge McBrien faxed the transcript to the Department of General Services

general counsel Linda Cabatic' s attention, he did not know whether he was

disclosing information that Carlsson's employer The State of California did

not already have through an FPPC report. (RT 17 1 :9- 17)


The Masters find that Judge McBrien violated canons 2 and 3E(4)

and became embroiled in this action. The Masters conclude that Judge

McBrien's efforts to obtain a partial transcript of Mr. Carlsson's testimony

and to send this transcript to Mr. Carlsson's employer constituted

prejudicial conduct. As stated above, the appropriate standard is how an

"objective observer" would view the judge's conduct. v.


Judge McBrien objects to the Masters' finding that he committed

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judicial misconduct as to Count One (A) (2). The Examiner has not

established by clear and convincing evidence that Judge McBrien's actions

in requesting the transcript constituted prejudicial conduct. Based on a

review of the record, and in further consideration of Judge McBrien's

unblemished judicial record in over 40,000 trials, it is respectfully

requested that this subcount be deemed, at worst, an improper action.

During trial, Judge McBrien heard testimony from Mr. Carlsson

which he believed may have constituted a crime or violation of the Fair

Political Practices Act. (Findings, p. 132) As the Masters conclude, Judge

McBrien believed, in good faith, that he had the duty, as a judicial officer,

to report a possible violation of the law. (Findings, p. 137) As a result,

Judge McBrien obtained and reviewed the transcript of testimony.

(Findings, p. 132-3 As the Masters take note, Judge McBrien then sought

out and consulted Judges Hight and Sumner as to his duties and

responsibilities in the matter. (Findings, p. 137) These judges agreed that

it was the proper procedure to report the testimony. (Findings, p. 137 )

Based on the judges comments, Judge McBrien chose to submit the

transcript. Notably, Judge McBrien did not comment or offer

on Mr. Carlsson's innocence or guilt over the matter when he

submitted the transcript to Ms. Cabatic.

The Masters confirm that a failure by a state employee to properly

disclose an interest could potentially be a misdemeanor under the California

Fair Political Practices Act. (Findings, p. 132) In their conclusions, the

Masters also highlight that a judge's obligation to report a crime is not

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entirely a settled issue: "some judges believe that they should report the

criminal conduct, whereas others do not." (Rothman, Cal. Judicial

Handbook, supra, 5.68, p. 253.) Rothman places particular emphasis on

whether the judge is the only person who has knowledge of the criminal

conduct. (Findings, p. 134.) At the time of the Mr. Carlsson's testimony of

his interest, there were admittedly other lawyers and witnesses present.

However, it was not clear that these witnesses were even aware of the

potential implications under the Political Reform Act, and the disclosure

requirements involved. It certainly appears that Ms. Huddle was not aware.

Therefore, as the only person with knowledge of the potential criminal

conduct, Judge McBrien had an obligation to report it.

The Masters make clear that when deciding to report a crime, the

judge should avoid becoming an advocate in the process of making the

report. (Findings, p. 134) The judge "should simply make the referral, and

let the agency exercise its powers whether or not to go forward." (Findings,

p. 134) Here, the Masters' conclude that Judge McBrien became embroiled

in this action when he chose to submit the transcript of Mr. Carlsson's

testimony regarding a potential violation of the FPPC. Embroilment is "the

process by which a judge surrenders the role of impartial

factfinder/decisionmaker and joins the fray." (California Judicial Conduct

Handbook, C section, p. 37.) Respondent respectfully disagrees with the

Masters' assertion that by obtaining and submitting Mr. Carlsson's

transcript testimony, he ''joined the fray."

Judge McBrien reasonably believed he had an obligation to provide

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the Carlsson testimony to DG S. (Findings, p. 137.) By sending the

transcript to DGS, the facts do not support that Judge McBrien became

"vested" in the outcome, nor did it influence his handling of the Carlsson

case. When he submitted the transcript, Judge McBrien did so without

or comment on Mr. Carlsson's innocence or in the

matter. That fact is crucial. Had Judge McBrien provided any comment as

to Carlsson's culpability, he admittedly would have joined the fray.

However, the Masters conclude that Judge McBrien's rulings and decisions

in the dissolution case did not reflect any bias or prejudice against either

Mr. Carlsson or Ms. Huddle. (Findings, p. 124). Thus, the sending of the

transcript had no bearing on the rulings in Carlsson. Overall, the evidence

does not support that Judge McBrien's surrendered his role as the impartial

finder of act, as he was unaware at the time that he sent the transcript

whether Mr. Carlsson had violated the law.

Furthermore, the Masters' conclude that although Judge McBrien

acted in good faith in submitting the transcript to DGS, that he should have

submitted it to the Attorney General's office, as it was the appropriate

agency responsible for enforcement of the FPPC. However, under the

circumstances, it certainly does not seem unreasonable that Judge McBrien

chose to send the Ms Cabatic at DG S. First, at the time he submitted the

transcript to Ms. Cabatic, Judge McBrien did not know the implications of

Mr. Carlsson's Statement of Interest, and he did not know whether he was

disclosing information that Carlsson's employer The State of California did

not already have through an FPPC report. (RT 17 1 :9- 17) Second, Judge

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McBrien chose to contact Ms. Cabatic after consulting with Judges Hight

and Sumner about the matter. In fact, it was Judge Sumner who informed

Judge McBrien that Linda Cabatic was the general counsel for the State's

DGS. (Findings, p. 95.) Judge McBrien also obtained Ms. Cabatic's phone

number from Judge Sumner. (Findings, p. 95.) Judge McBrien decision to

send the transcript to Ms. Cabatic at DGS, was based on his discussions

with Judge Sumner. Judge McBrien decided to send the transcript directly

to DGS and Ms. Cabatic, because that seemed to be the person most readily

with the skills of how to handle the matter. In fact, to perform further

investigation into the matter would have been taking additional steps, in

effect risking "joining the fray."

In hindsight, Judge McBrien concedes that he should have disclosed

his request and submittal of the transcript to the other parties at the time.

However, as he states, he was unsure whether the matter actually was a

violation of the FPPC. As soon as he learned of the state's DGS's decision

to take disciplinary action against Mr. Carlsson, Judge McBrien

disqualified himself. (Findings, p. 98)

On balance, Judge McBrien's actions to obtain and submit the

transcript of Mr. Carlsson's testimony regarding his Statement of Interest,

constitute at the very worst, improper action. Respondent respectfully

requests that the Commission to weigh this charge in consideration of his

twenty plus years of exemplary service for the Sacramento County Superior

Court.

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D. Count One (A)( 4)- Demeanor "Law School Comment"

1. Objections to The Findings of Fact

Respondent objects to the exclusion of the fact that Judge McBrien

testified that he did make the comment about "law school" based on any

frustration or impatience with Ms. Huddle. (RT 182: 17-2 1) Rather, Judge

McBrien testified that he was trying to provide a concrete example to

Ms. Huddle of the context in which this type of questioning would be

appropriate. (R T 182: 17-2 1)

Respondent objects to the finding that Judge McBrien's "law school

comment" were subjectively hurtful to Ms. Huddle. Specifically, that

Ms. Huddle found Judge McBrien's voice like "a parent scolding a child"

and she felt that he was making me look like, you know, I should go back

to school or something." (Findings, p.59) Ms. Huddle's subjective feelings

are irrelevant because the appropriate standard for evaluating judicial

conduct is to view that conduct objectively.


The Masters conclude that Judge McBrien violated canons 2 and

3B(4) by ( 1) being discourteous to Ms. Huddle; (2) repeatedly threatening a

mistrial when she questioned a witness or objected to testimony; (3) and

addressing her in a derogatory manner while she was examining a witness.

(Findings, p. 137.) However, as indicated below, the Examiner has failed

to meet his burden of establishing clear and convincing evidence that Judge

McBrien's conduct towards Ms. Huddle constituted an improper action in

violation of canons 2 and 3B( 4 ). As such, it is respectfully submitted that

no improper conduct by Judge McBrien be found as to Count I (A) (4).

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Canon 2 states that a judge shall avoid impropriety and the

appearance of impropriety in all activities. Canon 3B( 4) states that a judge

shall be patient, dignified, and courteous to all litigants, jurors, witnesses,

lawyers, and others with whom the judge deals in an official capacity.

Important to the determination of these charges, is Rothman's definition of

"improper judicial demeanor": conduct by a judicial officer in reaction to

courtroom events that is not mindful (i.e. is not filtered through a conscious

consideration) of legitimate judicial goals and objectives, is not in the

service of such goals and objectives, or is conduct that willfully ignores

legitimate goals and objectives. (Rothman, California Judicial Conduct

Handbook, section 2.46, p. 94.) Judge McBrien respectfully submits that

based on the totality of the circumstances, his alleged conduct was not

improper judicial demeanor.

Notably, the Masters conclude that Judge McBrien's rulings and

decisions in the dissolution case did not reflect any bias or prejudice against

Mr. Carlsson or Ms. Huddle. (Findings, p. 14 1) However, the Masters'

determine that Judge McBrien's demeanor throughout trial constituted an

improper action, based in large part on the fact that Judge McBrien was not

even-handed in his comments regarding the possibility of mistrial during

the Carlsson case. (Findings, p. 138-139.) The Masters find that Judge

McBrien never directed any allegedly discourteous or derogatory marks to

Ms. Keeley or raised the threat of mistrial while she questioned a witness,

made an objection, or introduced an exhibit. (Findings, p. 138- 139.) As an

example, the Masters' state that Judge McBrien did not threaten a mistrial

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in response to Ms. Keeley's request to recall Mrs. Carlsson's appraiser, or

when Mrs. Keeley cross-examined Mr. Carlsson's appraiser about a

mathematical error. (Findings, p. 139) However, the observation that

Judge McBrien did not direct such comments to Ms. Keeley is not clear and

convincing evidence of any improper conduct towards Ms. Huddle. This

example concerns the mathematical error committed by Mr. Carlsson's own

expert. In fact, this evidence only further supports the Masters' finding that

Ms. Huddle "was simply not as prepared for trial as her counterpart,

Ms. Keeley." (Findings, p. 137)

As Special Master Andler concludes in her "Concurrence and

Dissent," "the balance of credibility as to this count and others favors

Ms. Keeley's testimony. (Concurrence and Dissent, p. 147.) Ms. Keeley

testified that Judge McBrien's demeanor for the Carlsson trial was

"excellent," acknowledging that Judge McBrien "did direct us to move

things along because this case, considering the issues presented, was

moving slower than is typical in a family law courtroom, and nobody

wanted a mistrial." (RT, pg. 477: 24-478-4, emphasis added) Notably,

Ms. Keeley uses the word "us" to describe Judge McBrien's treatment in

making sure that the trial met its two day estimate. Ms. Keeley also

testi fied that Ms. Huddle was "slow" in presenting her case. (RT,

pg. 493:6- 13)

The Masters point out that it is the canons that dictate a Judge's

conduct, not the lawyers' behavior. Respondent wholeheartedly agrees

with this statement, and in particular, its application Canon 3B(4) and

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specifically proper judicial demeanor. As stated by above, improper

judicial demeanor is that which "is not in the service of such goals and

objectives, or is conduct that willfully ignores legitimate goals and

objectives." On balance, the factual findings do not support that Judge

McBrien's conduct was improper by this definition.

Ms. Huddle testi fied that she found the "law school comment"

demeaning, characterizing the Judge's comment as "like a parent scolding a

child." (RT 238:2-2 1) McBrien, however, characterized his statement as

"trying to give a concrete example of a context in which this type of

questioning or this kind of statement would be appropriate." (R T 182: 17-

2 1.) Notably, no further testimony was given regarding the specific law

school comment, from any other witnesses, including Ms. Keeley or

Ms. Robbi Joy.

When viewed objectively, there is not a clear and convincing

evidence that Judge McBrien was being discourteous or impatient with

Ms. Huddle with his comment. It was a response made to a statement

directed to Judge McBrien by Ms. Huddle. Judge McBrien further

explained "You know when you tendered that explanation last week, no

one objected to it. I think we ought to move on with the trial and the

substance of the matter." (Findings, p. 59) In doing so, he provided

instruction to Ms. Huddle. Viewed in this context, it was not demeaning,

but a comment made in conformance with the legitimate objective of

making sure that the trial reached its completion within the allotted two

days.

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As an additional matter, and in v1ew of the charges herein,

Respondent respectfully asks the Commission to consider that Ms. Huddle

is an experienced family law trial attorney. At the time of the Carlsson

trial, Ms. Huddle had twenty-four years of experience practicing law,

fourteen of which she had spent practicing family law on a full-time basis.

(RT 2 1 1 :22-23) Ms. Huddle further testified that she had tried one to three

trials a year since the early 1990s. (RT 2 12: 17-23). Based on her

testimony, a conservative estimate would make the Carlsson case

somewhere between her fifteenth and fortieth divorce case before the

Sacramento County Superior Court Family Law Division. Respondent

respectfully requests that the Commission consider these facts in making its

determination of how an objective attorney with similar experience would

view Judge McBrien's behavior and comments towards her.

Overall, the Examiner has not proved by clear and convmcmg

evidence that Judge McBrien's comments were in violation of canons 2 and

3B(4). As Honorable Gail Ander states in her "Concurrence and Dissent"

the balance of credibility favors witness Charlotte Keeley's testimony.

Respondent respectfully submitted that the Special Masters' change their

Findings of Fact and Conclusions of Law as to Count I (A) (4) to reflect that

Judge McBrien committed no judicial misconduct.

IV. DISCIPLINE

The purpose of Commission proceedings "is not punishment, but

rather the protection of the public, the enforcement of rigorous standards of

judicial conduct, and the maintenance of public confidence in the integrity

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and independence of the judicial system." 18 Cal.41h at pp.

1 1 1 1- 1 1 12.) This purpose is consistent with the Supreme Court's mandate

that the purpose of these proceedings "is not to punish errant judges but to

protect the judicial system and those subject to the awesome power that

judges wield." v. Commission on Judicial Performance ( 1987) 43

Cal.3d 1297, 1320.)

The Supreme Court has recognized that in determining the

appropriate discipline, each case must be considered on its own facts.'

Proportionality review based on discipline imposed in other cases, however, is neither required nor determinative. The factual variations from case to case are simply too great to permit a meaningful comparison in many instances. "Choosing the proper sanction is an art, not a science, and turns on the facts of the case at bar." 18 Cal.41h at p. 1 1 12, citing 43 Cal.3d at p. 13 18.)

In prior cases, the commission has identified five considerations that

are relevant to its determination of appropriate discipline: ( 1) the number

of acts of misconduct; (2) the effect of any prior discipline on the judge's

conduct; (3) whether the judge appreciates the inappropriateness of his or

her actions; (4) whether the judge is likely to continue to engage in

unethical conduct; and (5) the impact of the judge's misconduct on the

judicial system. ( See, Decision and Order Removing Judge Bruce Van

Voorhis, Inquiry Concerning Judge Bruce Van Voorhis, Number 165, at

p. 3 1.) This is not an exhaustive list of possible considerations and no one

consideration should be considered critical to the commission's

determination of the appropriate level of discipline. In addition, the

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commission considers any mitigating factors that a judge may advance.

A. The Number of Acts of Misconduct

The Masters found that Judge McBrien engaged in two subcounts of

prejudicial misconduct and two subcounts of improper action. (Findings, at

p. 9.)

Notably, all four alleged acts arose from a single matter, Judge

McBrien's handling of the Sacrament County Superior Court case

Carlsson. As discussed above, it is respectfully submitted that the weight

of the evidence was that Judge McBrien was faithfully and in good-faith

following the established policy of the Sacramento County Superior Court

in handling the Sacramento County Family Court calendar. Although the

Masters determined that Judge McBrien erred, his purpose was the faithful

discharge of his judicial duties within what he believed were the lawful

limits of his authority.

B. Prior Discipline

The second consideration is the effect of any prior discipline on the

judge's conduct. As discussed, Judge McBrien was publicly admonished in

2002 based on his contest plea to a misdemeanor violation of Penal Code

section 3 84a, arising from a much publicized tree-cutting incident. Judge

McBrien apologized to his fellow jurists for the embarrassment that he had

brought them. (RT 580:2-58 1 :24) It is significant that the instant

proceedings do not involve a reoccurrence of the conduct that was at issue

in. Indeed, the circumstances surrounding this public admonishment were

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completely unrelated to any of Judge McBrien's judicial duties. (RT 580:2-

58 1:24)

Judge McBrien respectfully asks the Commission to take into

account that in his over 40,000 trials before him in Sacramento County, this

is the only instance of judicial misconduct relating to his judicial duties.

C. Appreciation of Misconduct

The third consideration is whether the judge appreciates the

inappropriateness of his or her conduct. There was no evidence during the

hearing that Judge McBrien did not appreciate the serious of the charges.

As noted by the Masters, Judge McBrien "admitted in a personal letter to

the Commission that he had acted badly, for which actions I deserve to be

rebuked. (Exhibit 3, p. 72 (Findings, at p. 142.) Judge McBrien

understands the seriousness of the charges, and expresses regret to his

fellow jurists for any embarrassment that he may have caused them as

result.

D. Likelihood of Future Violations

The fourth consideration is whether the judge is likely to continue to

violate the Code of Judicial Ethics. The charges herein stern from one

isolated incident out of the estimated 40,000 trials that Judge McBrien has

presided over. No evidence suggest that Judge McBrien is likely to

continue to violate the Code of Judicial Ethics.

E. Impact of Misconduct on the Judicial System

The fifth consideration concerns the impact of the judge's

misconduct on the judicial system. As discussed above, the purpose of

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disciplinary proceedings is to protect the public and the integrity of the

judicial system, not to punish an errant judge. at p. 1320.) Judge

McBrien's alleged conduct all arises from a single matter. This isolated

incident has not affected the handling of other actions within the

Sacramento County Superior Court Family Law Division, or in the greater

California judicial system.

F. Mitigating Factors

The Supreme Court has stated that character evidence and evidence

of a judge's contributions to the judicial system do not mitigate or excuse

misconduct, but may be considered in determining the appropriate

discipline.

The Masters adopted the substantial mitigation evidence offered by

Judge McBrien, pointing out that Judge McBrien has been a valuable and

respected member of the Sacramento County Superior Court Family Law

Bench for nearly 20 years. (Findings, at p. 14 1.) They found that he is

extremely hard working, and has played an active role in revising the

family law system to allow trials to be heard expeditiously by experienced

family law judges. (Findings, at p. 14 1.) The testimony of several local

experienced judges, including the Presiding Justice of the 3rd District Court

of Appeal, Sacramento County Bar Association Family Law attorneys, and

a licensed social worker all greatly mitigate against the imposition of

discipline greater than a public admonishment in this matter.

V. CONCLUSION

It is respectfully submitted that public admonishment Is the

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appropriate sanction here. A public censure is typically reserved for those

cases involving multiple and repeated violations of misconduct. ( See, e.g.,

Broadman v. Commision on Judicial Performance, 18 Ca1.4th 1079; In Re

Gordon ( 1996) 13 Cal.4th 472; Dodds v. Commission on Judicial

Performance ( 1995) 12 Cal.4th 163; In Re Rasmussen ( 1987) Cal.3d 536;

Roberts v. Commission on Judicial Performance ( 1983) 33 Cal.3d 739.) In

light of Judge McBrien's significant contributions to the Sacramento

County Superior Court Family Law Division during the past twenty- five

years, this isolated incident should not rise to the level of a public censure.

-q., ()Of MURPHY, PEARSON, BRADLEY & FEENEY

BLS.200335 17.doc

James A. Murphy Attorneys for HONORABLE JU PETER J. MCBRIEN

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CERTIFICATE OF SERVICE

I, Emily J. Samuel, declare:

I am a citizen of the United States, am over the age of eighteen years, and

am not a party to or interested in the within entitled cause. My business address is.

On July 7, 2009, I served the following document(s) on the parties in the

within action:

RESPONDENT'S OPENING BRIEF TO THE COMMISSION

Dennis A. Cornell 5tli District Court of Appeal 2424 Ventura St. Fresno, CA 93 721

Gail A. Andler Orange County Superior Court Civil Complex Center 751 West Santa Ana Blvd., Cx 102 Santa Ana, CA 92701

Denise de Bellefeuille Santa Barbara County Superior Court 11 00 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

Janice M. Brickley Legal Advisor to Commissioners Commission on Judicial Performance 455 Golden Gate Ave., Ste. 14400 San Francisco, CA 94102-3660

Andrew Blum, Esq. Office of Trial Counsel Commission on Judicial Performance 455 Golden Gate Ave., Ste. 14424 San Francisco, CA 941 02

Via E-Mail:

ViaE-Mail:

ViaE-Mail:

Via E-Mail:

Via E-Mail:

I declare under penalty of perjury under the laws of the State of California

that the foregoing is a true and correct statement and that this Certificate was

executed on July 7, 2009.

By Emily J. Samuel


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Investigative Reporting, News, Analysis, Opinion & Satire

Sacramento Family Court NewsHOME JUDGE PRO TEMS 3rd DISTRICT COURT of APPEAL RoadDog SATIRE

ABOUT FAMILY COURT NEWS CONTACT FAMILY COURT NEWS Terms & Conditions Privacy Policy

ATTORNEY MISCONDUCT DOCUMENT LIBRARY

18 July 2013

Vance W. Raye Third District Justice and Judge Peter McBrien Turn Over Court Operations to SCBA Family Law Section Lawyers

In 1991, as a superior court judge, current 3rd District Court of Appeal Presiding Justice Vance Raye partnered with controversial family court Judge Peter J. McBrien and attorneys from the Sacramento County Bar Association Family Law Section in establishing the current, dysfunctional Sacramento Family Court system, according to the sworn testimony of McBrien at his 2009 judicial misconduct trial before the Commission on Judicial Performance. Behind closed doors and under oath, the judge provided explicit details about the 1991 origins of the present-day family court structure.

In essence, McBrien and Raye agreed to effectively privatize public court operations to the specifications of private-sector attorneys in exchange for not having to run the court's settlement conference program. The SCBA Family Law Section agreed to run the settlement program provided they were given effective control over most court policies and procedures, including local court rules.

As a result, the public court system was restructured to the specifications of local, private-sector attorneys, according to McBrien's testimony. To view McBrien's detailed description of the collusive public-private collaboration, posted online exclusively by SFCN, click here. To view an example of the same, current day collusion, click here.

The 1991 restructuring plan began with a road trip suggested by the family law bar:

"[T]he family law bar, and it was a fairly strong bar here in Sacramento, initiated the concept of a trip to Orange County and San Diego County to pick up some ideas about how their courts were structured. And myself and Judge Ridgeway and two family law attorneys made that trip and came back with various ideas of how to restructure the system," McBrien told the CJP. Click here to view.

But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who restructured the family

Leaked Transcript Indicates Vance Raye & Judge Peter McBrien Enabled Family Law Bar Control of Court in 1991

Vance Raye and Peter J. McBrien were thearchitects of the current family court system.

JUDICIAL MISCONDUCT (63)

JUDGE PRO TEM (49)

ATTORNEY MISCONDUCT (35)

MATTHEW J. GARY (33)

FLEC (28)

SCBA (22)

ARTS & CULTURE (21)

CHILD CUSTODY (21)

PETER J. McBRIEN (20)

ROBERT SAUNDERS (20)

WATCHDOGS (19)

CHARLOTTE KEELEY (18)

CJP (18)

EMPLOYEE MISCONDUCT (18)

PRO PERS (18)

DOCUMENTS (16)

DIVORCE CORP (13)

JAMES M. MIZE (12)

COLOR OF LAW SERIES (11)

CONFLICT OF INTEREST (11)

SATIRE (11)

WOODRUFF O'HAIR POSNER and SALINGER (11)

JAIME R. ROMAN (10)

SHORTCUTS TO POPULAR SUBJECTS AND POSTS

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Sacramento Family Court News via Google+ 1 year ago - Shared publiclyVance W. Raye Third District Justice and Judge Peter McBrien Turn Over Court Operations to SCBA Family Law Section Lawyers. Leaked Transcript Indicates Vance Raye & Judge Peter McBrien Enabled Family Law Bar Control of Court in 1991:In 1991, as a superior court judge, current 3rd District Court of Appeal Presiding Justice

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Posted by PelicanBriefed at 11:20 AM

Labels: 3rd DISTRICT COA, ANALYSIS, APPEALS, ATTORNEY MISCONDUCT, CJP, FLEC, JUDGE PRO TEM, JUDICIAL MISCONDUCT,

NEWS EXCLUSIVE, PETER J. McBRIEN, SCBA, VANCE W. RAYE

Location: Sacramento County Superior Court Family Relations Courthouse - 3341 Power Inn Road, Sacramento, CA 95826, USA

- William R. Ridgeway

court system in 1991. As reported by the Daily Journal legal newspaper, McBrien dishonestly implied that the new system was conceived and implemented by judges alone after they made a county-paid "statewide tour" of family law courts.

The judge omitted from the story the fact that the trip was initiated by the family law bar, and included two private-sector family law attorneys who took the county-paid tour with McBrien and the late Judge William Ridgeway. As the Daily Journal reported:

"Around 1990, McBrien and a few other Sacramento judges went on a statewide tour of family law courts. At the time there were continual postponements of trials.

'This is how we came up with the system today,' McBrien said. 'It was probably the best trip Sacramento County ever paid for.'

The judges changed the local system so that family law judges presided over both law and motion matters and trials, which used to be sent to a master calendar department and competed with criminal trials for scheduling.

'Now, if you're ready and unable to settle, chances are 99.9 percent that you are going out [to trial] the first time,' McBrien said. 'A lot of that is attributable to the willingness of the Sacramento bar to work as settlement counselors.'" Click here to view the Daily Journal report.

To continue reading the rest of this article, visit our special, updated 3rd District Court of Appeal page. Click here. For more on the alleged collusion between judges and attorneys who also serve as Sacramento Superior Court temporary judges and work as settlement counselors, visit our special judge pro tems page. For additional posts about the people and issues in this report, click on the corresponding labels below.

Sacramento Family Court judges and local, Sacramento Bar Association attorneys openly acknowledge their close relationship.

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COMMISSION ON JUDICIAL PERFORMANCE

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4 INQUIRY CONCERNING JUDGE PETER J. McBRIEN

5 CJP NO. 185 ORIGINAL 6 -- ---- ------ -- - -- - -- ---- --1

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TRANSCRIPT OF THE

HEARING BEFORE SPECIAL MASTERS

SACRAMENTO, CALIFORNIA

APRIL 1, 2009

VOLUME 1, PAGES 1 - 250

REPORTED BY: SANDRA LEHANE REGISTERED PROFESSIONAL REPORTE:R

CERTIFIED SHORTHAND REPORTER NO. 7372 155 Orr Road

Alameda, California 94502 (510) 864-9645

----------- IN RE CJF NO. 185 - 4/1/09 ------- ----1 1

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A. It's actually 920 - no. 720 9th Street.

Q. That's the main Sacramento County courthouse?

A. It is.

Q. And how long were the family law departments

in that particular courthouse?

A. Until 1999, when we moved out to the Ridgeway

building.

Q. Going back to when you were first appointed

to the family law department or assigned to the family

law department, what were the problems with this

master calendar system?

A. The trials never got to trial. So the Bar

the family law bar, and it was a fairly strong bar

here in Sacramento, initiated the concept of a trip to

Orange County and San Diego County to pick up some

ideas about how their courts were structured. And

myself and Judge Ridgeway and two family law attorneys

made that trip and came back with various i as of how

to restructure the system.

Q. Now, is there a family law section of the

Sacramento County Bar Association?

A. There is.

Q. And was there a family law section of the

Sacramento County Bar Association back in 1991?

A. There was.

b-------------------------IN RE CJF NO. 185 - 4/1/09----------------------~ 188

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Q. Is there an organization called the Family

Law Executive Committee?

A. There is.

Q. What is the Family Law Executive Committee?

A. It is a group of leaders that the family law

bar e ects to take care of the administrative needs

for the section.

Q. And did you work with the Family Law

Executive Committee in developing the current system

in the fami y law practice in Sacramento County?

A. We did.

Q. Could you describe what that wor ng

relationship was?

A. Okay. We - we I, first of all, it's a very

good relationship. We meet -- we still meet monthly.

We keep making adjustments to the system when there are problems. But basically, we moved to a system

where we have law and motion in the family aw

departments on Monday, Tuesday, Wednesday, and we hear

the trials on Thursday and Friday if, in fact, those

trials are two days or less. And if they are more

than two days, they go down through the master

calendar.

Q. Backing up, the Family Law Executive

Committee is appointed in what fashion?

~------------------------IN RE CJF NO. 185 - /09----------------------~ 189

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A. They are elected by the membership of the

family law bar.

Q. The family law bar section of the Sacramento

County Bar Association?

A. Correct.

Q. And you and other judges worked together with

this Family Law Executive Committee in developing the

current system?

A. Correct.

Q. Who are the other judges?

A. Well, at the time, there was Justice Raye

now Justice Raye.

Q. Justice Vance Raye of the Third District

Court of Appeal?

A. Yes.

And another individual whose name always

escapes me, but he left the bench after about two

years.

Q. Dave Sterling?

A. Dave Sterling.

Q. Now, after you went to Orange County, you met

with the Family Law Executive Committee and

developed - or started to develop a plan. Was that

presented to the Superior Court for its approval?

A. It was. And what happened is the Bar culled

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through the various ideas and options, came up with a

plan, presented it to the family law bench. We made

what adjustments we felt were appropriate and then

presented the whole of it to the full bench.

Q. And was that plan approved?

A. It was.

Q. When?

IA. In 19 I want to say late 91 .

Q. And since 1991, is that the current plan that

is employed in the family law departments?

A. It is.

Q. You testified that on Mondays, Tuesdays and

Wednesdays f ly law courts hear law and motion

matters and trials of two days or less on Thursday and

Friday; right?

A. Correct.

Q. Who hears the settlement conferences?

A. The family law bar indicated that they would

be willing to volunteer, and they serve as the

settlement pro terns. There are two for each day of

the week except for Monday. So they have four days a

week where they have two volunteers. And they try to

make it gender neutral, have one male and one female,

and they hear the settlement conferences.

Q. And are settlement conferences assigned

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dependent upon the length of the trial?

A. They are.

Q. How does that work?

A. If, in fact, it's going to be a one-day or

less trial, the settlement conference would be one

week before the trial date. And if it's going to be

two days or less, it would be two weeks before.

Q. And in connection with the estimation of the

length of the trial, is that something that you as a

judge would do?

A. No.

Q. Who makes the estimation?

A. The attorneys.

Q. Are the attorneys encouraged to work together

in developing the estimated time?

A. They are.

Q. And is there any significance to the

estimated length of the case, at least from the

judicial perspective of the Sacramento County Superior

Court judge?

A. I believe that -- you know, having seen many,

many of them, that they generally are accurate. They

aren't always accurate, but I think they are trying to

be accurate, stay within the guidance that we have.

Because quite frankly, if, in fact, they don't

L-------------------------IN RE Cc7F NO. 185 - 411109----------------------~ 192

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complete it, they can be mistried.

Q. And when you say "mistried," meaning that the

parties will then be given a new trial date?

A. They would.

Q. You were involved, obviously, with the

Carlsson vs. Carlsson case?

A. Correct.

Q. I would like you to take a look at Exhibit C

in the respondent's

A. I think mine is over there.

MR. MURPHY: May I approach the witness?

SPECIAL MASTER CORNELL: Yes. You don't need

to seek permission.

THE WITNESS: you said C?

MR. MURPHY: Exhibit C, yes.

THE WITNESS: Okay. I have it before me.

BY MR. MURPHY:

Q. For the record, could you describe what

Exhibit Cis?

A. This is an Order to Show Cause filed by

Ms. Huddle on behalf of Mr. Carlsson asking to

continue the trial, fi ed on March 1st of 2006.

Q. What was the basis of the request for a

continuance?

A. That she was just served with a joinder '-------------IN RE CJ.F NO. 185 411109------------~

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Investigative Reporting, News, Analysis, Opinion & Satire

Sacramento Family Court NewsHOME JUDGE PRO TEM RACKETEERING 3rd DISTRICT COURT of APPEAL SACRAMENTO

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JUDGE PRO TEM RACKETEERING

Sacramento Family Court News Exclusive Investigative ReportThis investigative report is ongoing and was last updated in April, 2015.

As many of the articles on our main page reflect, Sacramento Family Law Court whistleblowers and watchdogs contend that a "cartel" of local family law attorneys receive kickbacks and other forms of preferential treatment from family court judges, administrators and employees because the lawyers are members of the Sacramento County Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program on behalf of the court.

The kickbacks usually consist of "rubber-stamped" court orders which are contrary to established law, and cannot be attributed to the exercise of judicial discretion. For a detailed overview of the alleged collusion between judge pro tem attorneys and family court employees and judges, we recommend our special Color of Law series of investigative reports.

The Color of Law series reports catalog some of the preferential treatment provided by family court employees and judges to SCBA Family Law Section judge pro tem lawyers. Click here to view the Color of Law series. For a list of our reports about family court temporary judges and controversies, click here.

The current day Sacramento County Family Court system and attorney operated settlement conference program was set up in 1991 by and for the lawyers of the Sacramento County Bar Association Family Law Section,

Sacramento Superior Court Temporary Judge Program Controversy

Judge Pro Tem Attorney "Cartel" Controls Court Operations, Charge Whistleblowers

Sacramento Family Court reform advocates assert that collusion between judges and local attorneys deprives financially disadvantaged, unrepresented pro per court users of their parental rights, community assets, and due process and access to the court constitutional rights.

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according to the sworn testimony of controversial family court Judge Peter J. McBrien at his 2009 Commission on Judicial Performance disciplinary proceedings. Click here to read Judge McBrien's testimony.

In his own testimony during the same proceedings, local veteran family law attorney and judge pro tem Robert J. O'Hair corroborated McBrien's testimony and attested to McBrien's character and value to Sacramento County Bar Association Family Law Section members. Click here to view this excerpt of O'Hair's testimony. To view O'Hair's complete testimony, click here.

Court watchdogs assert that the settlement conference kickback arrangement between the public court and private sector attorneys constitutes a racketeering enterprise which deprives the public of the federally protected right to honest government services.

Court reform and accountability advocates assert that the local family law bar - through the Family Law Executive Committee or FLEC - continues to control for the financial gain of members virtually all aspects of court operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and bias against unrepresented litigants and "outsider" attorneys, including:

Divorce Corp, a documentary film that "exposes the corrupt and collusive industry of family law in the United States" was released in major U.S. cities on January 10, 2014. After a nationwide search for the most egregious examples of family court corruption, the movie's production team ultimately included four cases from Sacramento County in the film, more than any other jurisdiction. Judge pro tem attorneys Charlotte Keeley, Richard Sokol, Elaine Van Beveren and Dianne Fetzer are each accused of unethical conduct in the problem cases included in the movie. The infamous Carlsson case, featuring judge pro tem attorney Charlotte Keeley and Judge Peter McBrien is the central case profiled in the documentary, with Sacramento County portrayed as the Ground Zero of family court corruption and collusion in the U.S. Click here for our complete coverage of Divorce Corp.

Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was dumbfounded by the order. Click here for our exclusive report, which includes the complete court reporter transcript from the hearing. Click here for our earlier report on the unethical practice of "hometowning" and the prejudicial treatment of outsider attorneys.

Whistleblower leaked court records indicate that Sacramento Bar Association Family Law Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For our complete investigative report, click here.

Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a California Rule of Court prohibiting temporary judges from serving in family law cases where one party is self-represented and the other party is represented by an attorney or is an attorney. The orders were renewed by Presiding Judge Laurie M. Earl in February, 2013. Click here for details.

Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to opposing parties when a judge pro tem working as a private attorney represents a client in family court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest posts.

Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law Executive Committee for the financial benefit of private sector attorneys, and often disadvantage the 70 percent of court users without lawyers, according to family court watchdogs and whistleblowers. For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial Performance, McBrien described seeking and obtaining permission from FLEC to change a local rule. Click here and here.

In November, 2012 Sacramento Family Court Judge Jaime R. Roman issued a rubber-stamped, kickback order declaring a family court party a vexatious litigant and ordering him to pay $2,500 to the opposing attorney, both without holding the court hearing required by law. The opposing attorney who requested the orders is Judge Pro Tem Charlotte Keeley. The blatantly illegal orders resulted in both an unnecessary state court appeal and federal litigation, wasting scarce judicial resources and costing taxpayers significant sums. Click here for our exclusive coverage of the case.

Judge Matthew Gary used an unlawful fee waiver hearing to both obstruct an appeal of his own orders and help a client of judge pro tem attorney Paula Salinger avoid paying spousal support. Click here for our investigative report.

An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of

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temporary judge Scott Buchanan. The rubber-stamped, kickback child support order, and other proceedings in the case were so outrageous that the pro per is now represented on appeal by a team of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster. For our exclusive, ongoing reports on the case, click here.

Judge pro tem attorneys Richard Sokol and Elaine Van Beveren helped conceal judge misconduct and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van Beveren failed to report the misconduct of Judge Matthew Gary as required by state law. Van Beveren is an officer of the SCBA Family Law Executive Committee. Click here for our exclusive report...

...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and misleading information about the unlawful contempt of court and resisting arrest incident. The apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct, trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government whistleblower. Click here for details.

In 2008 controversial family court Judge Peter J. McBrien deprived a family court litigant of a fair trial in a case where the winning party was represented by judge pro tem attorney Charlo

Documents

Judge Peter McBrien Prosecution: McBrien Opening Brief to the Commission on Judicial Performance by Attorneys James A. Murphy, Bryan L. P. Saalfeld, Murphy, Pearson, Bradley & Feeney