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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
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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
Rothman, California Judicial Conduct Handbook, section 2.46
..............................................................................................
19
Rothman, California Judicial Conduct Handbook, section 5.68
..............................................................................................
15
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.
Commission ( 1995) 1 1 Cal.4th 294, 324-325.)
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.
Commission ( 1995) 1 1 Cal.4th 294, 324-325.)
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)
2. Objections to the Masters' Conclusions of Law
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.
Commission ( 1995) 1 1 Cal.4th 294, 324-325.)
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.
2. Objections to the Masters' Conclusions of Law
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
2009-07-07-Respondent-Opening Brief
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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)
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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
Add a comment
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.
+3 Recommend this on Google
LAURIE M. EARL (10)
NO CONTACT ORDERS (10)
SHARON A. LUERAS (10)
WHISTLEBLOWERS (10)
CARLSSON CASE (9)
RAPTON-KARRES (9)
CHRISTINA VOLKERS (8)
FERRIS CASE (8)
JESSICA HERNANDEZ (8)
JULIE SETZER (7)
YOUTUBE (7)
3rd DISTRICT COA (6)
CIVIL RIGHTS (6)
CHRISTINA ARCURI (5)
CONTEMPT (5)
THADD BLIZZARD (5)
FAMILY LAW FACILITATOR (4)
LUAN CASE (4)
CANTIL-SAKAUYE (3)
MIKE NEWDOW (2)
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COMMISSION ON JUDICIAL PERFORMANCE
- -oOo
4 INQUIRY CONCERNING JUDGE PETER J. McBRIEN
5 CJP NO. 185 ORIGINAL 6 -- ---- ------ -- - -- - -- ----
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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 -
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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 -
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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
4/1/09 --________--1L------------------------IN RE CJF NO. 185
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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
~----------------------IN RE CJF NO. 185 -
4/1/09----~------------------191
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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
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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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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.
JUDICIAL MISCONDUCT (67)
JUDGE PRO TEM (50)
ATTORNEY MISCONDUCT (35)
MATTHEW J. GARY (33)
FLEC (28)
ARTS & CULTURE (23)
CHILD CUSTODY (22)
PETER J. McBRIEN (22)
SCBA (22)
ROBERT SAUNDERS (21)
WATCHDOGS (20)
EMPLOYEE MISCONDUCT (19)
CHARLOTTE KEELEY (18)
CJP (18)
PRO PERS (18)
DOCUMENTS (16)
DIVORCE CORP (15)
JAMES M. MIZE (15)
COLOR OF LAW SERIES (11)
CONFLICT OF INTEREST (11)
RAPTON-KARRES (11)
SATIRE (11)
WHISTLEBLOWERS (11)
WOODRUFF O'HAIR POSNER and SALINGER
SHORTCUTS TO POPULAR SUBJECTS AND POSTS
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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
(11)
CARLSSON CASE (10)
JAIME R. ROMAN (10)
LAURIE M. EARL (10)
NO CONTACT ORDERS (10)
SHARON A. LUERAS (10)
CHRISTINA VOLKERS (8)
FERRIS CASE (8)
JESSICA HERNANDEZ (8)
JULIE SETZER (7)
YOUTUBE (7)
3rd DISTRICT COA (6)
CIVIL RIGHTS (6)
CANTIL-SAKAUYE (5)
CHRISTINA ARCURI (5)
CONTEMPT (5)
THADD BLIZZARD (5)
FAMILY LAW FACILITATOR (4)
LUAN CASE (4)
MIKE NEWDOW (4)
Electronic Frontier Foundation
First Amendment Coalition
Californians Aware
WE SUPPORT
Family Law Professor Blog
Law Librarian Blog
Law Professor Blogs
Thurman Arnold Family Law Blog
Kafkaesq
Above the Law
The Divorce Artist
LAW BLOGS WE LIKE
LEGAL NEWS & INFORMATION
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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