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COMMISSION ON JUDICIAL PERFORMANCE
--000--
INQUIRY CONCERNING
JUDGE PETER J. McBRIEN oRI-GINALCJP NO. 185
- -- -- - ---- -- - ----- -- --I
TRANSCRIPT OF THE
HEARING BEFORE SPECIAL MASTERS
SACRAMENTO, CALIFORNIA
APRIL 2, 2009
VOLUME 2, PAGES 251 525
REPORTED BY: SANDRA LEHANE
REGISTERED PROFESSIONAL REPORTER
CERTIFIED SHORTHAND REPORTER NO. 7372
155 Orr Road
Alameda, California 94502
(510) 864-9645
L-----------IN RE CJF NC. 185 4/2/09--------~-----l 251
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STATE OF CALIFORNIA
RECEIVED JUN 2 3 2009
COMMISSJON ON JUDICIAL PERFORMANCE
BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE
INQUIRY CONCERNING JUDGE PETER J. McBRIEN,
v.
No. 1 85
FILED JUN 2 3 2009
Commission on Judicial Performance
FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE SPECIAL
MASTERS
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"[T]his is a very serious proceeding. There 's no question about
it. And the problem is, when people 's livelihood is on the line, I
think that you should be able to show as much positive aspects of
somebody, especially Judge McBrien here, who has gone out-he's not
been prodded. He got into the soup kitchen right after the search
warrant was filed [in the tree case] . And these are things he said
he wants to do. He wants to make amends, and I think that' s quite
good." (Exhibit 46, pp. 1 29- 1 30)
Judge McBrien's post-hearing statement
In response to his hearing testimony about the prior
disciplinary matter, and the
Commission' s introduction of his prior sworn statement, Judge
McBrien submitted the
following statement to the Special Masters after the
hearing:
"Judge McBrien's [hearing] testimony regarding the arborist ' s
trimming of oak trees related to his own personal observation and
not to the extent of the tree trimming activity that was the
subject ofthe misde1neanor charge. Judge McBrien observed only one
large limb cutfrom the oak tree in question and apologizes if there
was any COJ?fitsion regarding this testimony. Judge McBrien
acknowledges that the limb he observed being removed was not the
only cutting done by the arborist. The point Judge McBrien was
attempting to make by way of his testimony was that it did not make
any difference whether the oak tree was on private or public land;
the prohibitory ordinance made any cutting without a permit a
misdemeanor. While view enhancement was an intended effect of the
trimming, the testimony of Judge McBrien on April 3, 2009 was true
and correct to his best recollection." (Exhibit P, italics
added)
PART VIII CHARACTER EVIDENCE
At the hearing, Judge McBrien called numerous witnesses to
testify to his good
character and judicial demeanor.
Judge James Mize, the presiding judge of the Sacramento Superior
Court, often
appeared before Judge McBrien in the family law division before
his own appointment to
the bench in 2000. Judge Mize testified that when he appeared as
an attorney in family
law cases, Judge McBrien was fair, impartial, courteous,
dignified, and patient, and Judge
Mize considered him an asset to the family law bench. As a
family law practitioner,
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If you're a good, prepared family law attorney, you want to be
in his court. If you're
unprepared and you' re not a good family law attorney, you may
not necessarily want to
be in his court." (HT 5 56) Justice Scotland testified that
Judge McBrien did not act
inappropriately, even if an attorney was not prepared. (HT
557)
Justice Scotland testified Judge McBrien was an asset to the
family law bench, and
it would be a great blow to family law practitioners and the
bench if he left the division
for any reason. Justice Scotland greatly respected Judge McBrien
for voluntarily staying
in the family law division because it was a tough assignment and
involved very
contentious proceedings with difficult issues. (HT 558-560)
Jerry Guthrie testified he practiced family law for 25 years,
and had regularly
appeared before Judge McBrien in family law cases since Judge
McBrien's assignment to
that depatiment. Judge McBrien was courteous to litigants and
attorneys, patient, and
judicially dignified. Judge McBrien's demeanor was "what I would
expect of a judge."
(HT 5 1 4-5 1 6) Judge McBrien had ruled against Mr. Guthrie but
he had always been fair.
(HT 5 1 5)
Russell Carlson, an attorney for 1 3 years, testified his
practice was about 80
percent family law, and he was a member of the Family Law
Section of the Sacramento
County Bar Association. He also served voluntarily as a pro tem
judge in the family law
division. (HT 5 1 8-5 1 9) He had tried cases and argued law and
motion matters before
Judge McBrien. He testified that Judge McBrien was courteous to
litigants and attorneys,
patient, and dignified. Judge McBrien was always fair, even when
Mr. Carlson did not
agree with his rulings. (HT 520)
Judge McBrien was " [a]bsolutely" an asset to the family law
bench. "He's been
the mainstay throughout my career in family law . . . . So if I
have cases where I have
questions on how to judge my role, this is who I will go to,
Judge McBrien, to ask those
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questions . When I 'm pro temming, if l have particular problems
or need to bring litigants
or attorneys down, this is the judge I ' ll bring them to." (HT
52 1 )
Robert O'Hair testified he had practiced family law since 1 98 1
or 1 982 . He was a
certified family law specialist, a member of the Sacramento
County Bar Association's
Family Law Section, and he served on that section's executive
committee. (HT 583-586)
He worked with Judge McBrien in that capacity on methods to
streamline family law
cases and improve the local rules . (HT 5 86-5 8 8) Mr. O'Hair
testified Judge McBrien
was dedicated to the improvement of family law in Sacramento
County, and he was "one
of the more active judges" in that area compared to other
members of the bench. (HT
5 88)
Mr. O'Hair conducted four or five trials before Judge McBrien,
and "[s]ome of my
biggest defeats have probably come from Judge McBrien." (HT 588
, 5 89) Mr. O'Hair,
however, considered Judge McBrien an asset to the family law
bench, and described him
as fair, patient, courteous to litigants and attorneys, hard
working, and knowledgeable
about the law . (HT 588-589)
Camille Hemmer testified she had exclusively practiced family
law in Sacramento
since 1 985 , and she was a certified family law specialist. (HT
59 1 ) She was a member
of the Sacramento County Bar Association, and held every post in
that organization. She
also served on the Family Law Section's executive committee. She
briefly represented
Mr. Carlsson in his dissolution. (HT 592-593)
Ms. Hemmer regularly appeared before Judge McBrien. She tried
five or six cases
and argued about 40 law and motion matters before him, and
worked with him on the
Family Law Section's Executive Committee. (HT 593-594) She
testified Judge McBrien
was patient, courteous to litigants and attorneys, and an asset
to the superior court bench.
He was a good judge and she would continue to accept trial
assignments before him. (HT
594-595)
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reflect any bias or prejudice against either Mr. Carlsson or Ms.
Huddle. Aside from the
incident on the last afternoon of trial, Judge McBrien never
prevented a witness from
testifying and never cut off a witness ' s testimony. While
Judge McBrien improperly and
inappropriately terminated the trial, Ms. Huddle failed to
pursue other opportunities to
introduce evidence through a settled statement or stipulation,
and her failure to do so was
based upon her own decisions and not on Judge McBrien's
conduct.
FACTORS IN A GGRA VA T/ON
1 . Judge McBrien lacked insight as to the impropriety of
continuing to preside
over the Carlsson matter after sending the transcript of Mr.
Carlsson's testimony to his
employer and not notifying the parties.
2 . Judge McBrien continues to lack insight into how his actions
in the Carlsson
matter would be perceived by the public .
3 . Judge McBrien has a prior public admonishment.
4. At the Special Masters ' hearing, Judge McBrien gave
testimony inconsistent
with his prior sworn statement regarding the underlying matter
of his prior public
admonishment.
5 . Judge McBrien improperly tried to use the Special Masters '
hearing as a public
forum to address a grievance with the media on a prior
disciplinary matter.
FACTORS IN MITIGA TION
1 . Judge McBrien is extremely hard working, keeps long hours,
willingly works
through lunch hours, and takes short breaks to make sure parties
get their trial time.
2 . Judge McBrien voluntarily stayed in the family law division
for nearly 20
years .
3 . Judge McBrien played an active role in revising the family
law system to allow
trials to be heard expeditiously by experienced family law
judges .
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4. Judge McBrien had a good faith belief in his duty to repmi a
possible criminal
violation.
5 . Judge McBrien consulted with judicial colleagues as to the
appropriate steps to
take to report a possible criminal violation.
6. The disciplinary action taken against Mr. Carlsson by his
employer was based
upon his own misconduct, and not influenced by Judge
McBrien.
7. Judge McBrien admitted in a personal letter to the
Commission: "I admit I
acted badly and for which actions I deserve to be rebuked."
(Exhibit 3 , p. 72)
8. Judge McBrien apologized to his judicial colleagues for his
prior public
admonishment.
9. Judge McBrien voluntarily performed public service, unrelated
to any
condition of a criminal plea, upon the filing of criminal
charges in the underlying matter
that resulted in the prior public admonishment.
1 0 . Judge McBrien has served as a mentor to new judges in the
family law
division.
1 1 . Judge McBrien has continued to work with the family law
bar to improve the
trial system in family law division.
1 2 . In over 40,000 contested hearings, this is the only
instance of Judge
McBrien 's misconduct on the bench.
1 3 . Judge McBrien is widely respected by attorneys who
frequently appear in
front of him, and judges who serve with him.
14 . Judge McBrien has a very low reversal rate on appeal
considering the nature
of his lengthy assignment in the family law division.
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1 5 . Numerous character witnesses testified favorably about
Judge McBrien's
judicial demeanor.
Respectfully submitted,
kd /Hon. Dennis A. Cornell Presiding Special Master
Special Master
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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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Top comments
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)
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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 -- ---- ------ -- - -- - -- ----
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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 -
/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
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
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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------------~
193
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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.
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DOCUMENTS (16)
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CONFLICT OF INTEREST (11)
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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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CONTEMPT (5)
THADD BLIZZARD (5)
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LUAN CASE (4)
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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
Charlotte Keeley. In a scathing, published opinion, the 3rd
District Court of Appeal reversed in full and ordered a new trial.
6th District Court of Appeal Presiding Justice Conrad Rushing
characterized McBrien's conduct in the case as a "judicial reign of
terror." McBrien subsequently was disciplined by the Commission on
Judicial Performance for multiple acts of misconduct in 2009. Click
here to read the court of appeal decision. Click here to read the
disciplinary decision issued by the CJP.
Judge pro tem attorneys Camille Hemmer, Robert O'Hair, Jerry
Guthrie and Russell Carlson each testified in support of Judge
Peter J. McBrien when the controversial judge was facing removal
from the bench by the Commission on Judicial Performance in 2009.
As a sworn temporary judges aware of McBrien's misconduct, each was
required by Canon 3D(1) of the Code of Judicial Ethics to take or
initiate appropriate corrective action to address McBrien's
misconduct. Instead, each testified as a character witness in
support of the judge. In the CJP's final disciplinary decision
allowing McBrien to remain on the bench, the CJP referred
specifically to the testimony as a mitigating factor that reduced
McBrien's punishment. Click here. Court records indicate that Judge
McBrien has not disclosed the potential conflict of interest to
opposing attorneys and litigants in subsequent appearances by the
attorneys in cases before the judge. Click here for SFCN coverage
of conflict issues.
Judge pro tem attorneys Terri Newman, Camille Hemmer, Diane
Wasznicky and Donna
Reed were involved in a proposed scheme to rig a recall election
of controversial Judge Peter J. McBrien in 2008. The plan involved
helping McBrien defeat the recall by electing him "Judge of the
Year" before the November election. Click here for the Sacramento
News and Review report.
Judge pro tem attorney Robert J. O'Hair testified as a character
witness for controversial Judge Peter J. McBrien at the judge's
second CJP disciplinary proceeding in 2009. Paula Salinger, an
attorney at O'Hair's firm, Woodruff, O'Hair Posner & Salinger
was later granted a waiver of the requirements to become a judge
pro tem. A family court watchdog asserts the waiver was payback for
O'Hair's testimony for McBrien. Click here to read our exclusive
investigative report.
California Lawyer Magazine
Courthouse News Service
Metropolitan News Enterprise
California Official Case Law
Google Scholar-Includes Unpublished Case Law
California Statutes
California Courts Homepage
California Courts YouTube Page
Judicial Council
Commission on Judicial Performance
Sacramento County Family Court
3rd District Court of Appeal
State Bar of California
State Bar Court
Sacramento County Bar Association
CALIFORNIA JUDICIAL BRANCH
ABA Family Law Blawg Directory
California Coalition for Families and Children
California Protective Parents Association
Center for Judicial Excellence
Courageous Kids Network
Divorce & Family Law News
Divorce Corp
Divorced Girl Smiling
Family Law Case Law from FindLaw
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Family Law Updates at JDSupra Law News
Local & National Family Court-Family Law Sites & Blogs
(may be gender-specific)
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In cases where one party is unrepresented, family court clerks
and judges permit judge pro tem attorneys to file declarations
which violate mandatory state court rule formatting requirements.
The declarations - on blank paper and without line numbers - make
it impossible for the pro per to make lawful written evidentiary
objections to false and inadmissible evidence. Click here for our
report documenting multiple state court rule violations in a motion
filed by SCBA Family Law Section officer and temporary judge Paula
Salinger. To view the pro per responsive declaration objecting to
the illegal filing click here, and click here for the pro per
points & authorities.
Family court clerks and judges allow judge pro tem attorneys to
file a fabricated "Notice of Entry of Findings and Order After
Hearing" in place of a mandatory Judicial Council Notice of Entry
of Judgment FL-190 form. The fake form omits critical appeal rights
notifications and other information included in the mandatory form.
Click here for our exclusive report.
Sacramento Family Court temporary judge and family law lawyer
Gary Appelblatt was charged with 13-criminal counts including
sexual battery and penetration with a foreign object. The victims
were clients and potential clients of the attorney. The judge pro
tem ultimately pleaded no contest to four of the original
13-counts, including sexual battery, and was sentenced to 18-months
in prison. Court administrators concealed from the public that
Appelblatt held the Office of Temporary Judge.Click here to read
our report.
Judge pro tem and SCBA Family Law Section attorney Scott Kendall
was disbarred from the practice of law on Nov. 24, 2011. Kendall
was disbarred for acts of moral turpitude, advising a client to
violate the law, failing to perform legal services competently, and
failing to keep clients informed, including not telling a client
about a wage garnishment order and then withdrawing from the same
case without notifying the client or obtaining court permission.
Court administrators concealed from the public that Kendall held
the Office of Temporary Judge. Click here to view our report.
Judge pro tem attorneys Nancy Perkovich and Jacqueline Eston in
2008 helped Donna Gary - the wife of Judge Matthew J. Gary -
promote and market ClientTickler, a client management software
program for attorneys. The judge reportedly has never disclosed the
conflict of interest as required by the Code of Judicial Ethics.
Click here for our exclusive report on the controversy.
In February, 2013 the website of family law firm Bartholomew
& Wasznicky cut off the public from the only online access to
The Family Law Counselor, a monthly newsletter published by the
Sacramento Bar Association Family Law Section. Lawyers at the firm
include judge pro tem attorneys Hal Bartholomew, Diane Wasznicky
and Mary Molinaro. As SFCN has reported, articles in the newsletter
often reflect an unusual, collusive relationship between SCBA
attorneys and court administrators and judges. Click here for our
report.
Family court reform advocates assert that judge pro tem
attorneys obtain favorable court rulings on disputed issues at a
statistically improbable rate. The collusion between full-time
judges and judge pro tem attorneys constitutes unfair, fraudulent,
and unlawful business practices, all of which are prohibited under
California unfair competition laws, including Business and
Professions Code 17200, reform advocates claim.
Unfair competition and the collusion between judges and judge
pro tem attorneys ultimately results in unnecessary appeals
burdening the appellate court system, and other, related litigation
that wastes public funds, exposes taxpayers to civil liability, and
squanders scarce court resources.
Watchdogs point out that the court operates what amounts to a
two-track system of justice. One for judge pro tem attorneys and
another for unrepresented, financially disadvantaged litigants and
"outsider attorneys." Two-track systems are prohibited by the Code
of Judicial Ethics, according to the Commission on Judicial
Performance and the California Judicial Conduct Handbook, the gold
standard reference on judge misconduct. Click here for articles
about the preferential treatment given judge pro tem attorneys.
Click here for examples of how pro pers are treated.
After representing a client in Sacramento Family Court, San
Francisco attorney Stephen R. Gianelli wrote "this is a 'juice
court' in which outside counsel have little chance of
prevailing...[the] court has now abandoned even a pretense of being
fair to outside counsel." Click here to read Gianelli's complete,
scathing account.
The Sacramento County Bar Association Family Law Section is led
by an "Executive Committee" ("FLEC") of judge pro tem attorneys
composed of Chair Russell Carlson, Vice Chair Elaine Van Beveren,
Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the
four have been involved in legal malpractice litigation, violations
of the Code of Judicial Ethics, or as a defendant in federal civil
rights litigation. Click here to read SFCN profiles of the
Executive Committee members. Click here for other articles about
FLEC.
Judge pro tem attorneys are by law required to take or initiate
corrective action if they learn that another judge has violated any
provision of the Code of Judicial Ethics, or if a lawyer has
violated any provision of the California Rules of Professional
Conduct. Family court watchdogs assert that temporary judges
regularly observe unethical and unlawful conduct by family court
judges and attorneys but have never taken or initiated appropriate
corrective action, a violation of the judge pro tem oath of
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office. To view the applicable Code of Judicial Ethics Canons,
Click here. For a Judicial Council directive about the obligation
to address judicial misconduct, a critical self-policing component
of the Code of Judicial Ethics, click here.
For information about the role of temporary judges in family
court, click here. For official Sacramento County Superior Court
information about the Temporary Judge Program click here. Using
public records law, Sacramento Family Court News obtained the list
of private practice attorneys who also act as judge pro tems in
Sacramento Family Law Court. Each lawyer on the list below is
currently a temporary judge, or was a temporary judge in 2009,
2010, 2011, 2012 or 2013. SFCN cross-checked each name on the
Sacramento County judge pro tem list with California State Bar
Data. The first name in each listing is the name that appears on
the Sacramento County judge pro tem list, the second name, the
State Bar Number (SBN), and business address are derived from the
official State Bar data for each attorney. The State Bar data was
obtained using the search function at the State Bar website.
For-profit, private sector lawyers who also hold the Office of
Temporary Judge:
Sandy Amara, Sandra Rose Amara, SBN 166933, Law Office of Sandra
Amara,1 California Street, Auburn, CA 95603.
Mark Ambrose, Mark Anthony Ambrose, SBN 141222, Law Offices of
Mark A. Ambrose, 8801 Folsom Blvd. Ste. 170, Sacramento, CA 95826.
Ambrose unethically advertises himself as a temporary judge.
Kathleen Amos, Kathleen Swalla Amos, SBN 112395, Attorney at Law
& Mediator, 206 5th Street, Ste. 2B Galt, CA 95632.
Gary Appelblatt, Gary Michael Appelblatt, SBN 144158, 3610
American River Drive #112, Sacramento, CA 95864. Appelblatt was
disbarred by the State Bar on Sept. 24, 2010 after being convicted
of sexual battery against clients. Click here for our exclusive
report. Appelblatt is a graduate of McGeorge School of Law.
Beth Appelsmith, Beth Marie Appelsmith, SBN 124135, 1430
Alhambra Blvd. Sacramento CA 95816.
Bunmi Awoniyi, Olubunmi Olaide Awoniyi, SBN 154183, Law Office
of Bunmi Awoniyi a PC, 1610 Executive Ct. Sacramento, CA 95864.
Awoniyi unethically advertises herself as a temporary judge.
Awoniyi was appointed a Superior Court Judge in December 2012 and
holds court in Department 120 of Sacramento Family Court.
Alexandre C. Barbera, C. Alexandre Barbera, SBN 70071,915
Highland Point Drive, Ste. 250 Roseville, CA 95678.
A number of family court whistleblowers have leaked court
records indicating that judge pro tem attorneys receive from
judges kickbacks and other preferential treatment in exchange
for operating the family court settlement conference program.
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Investigative Reporting, News, Analysis, Opinion &
Satire
Sacramento Family Court NewsHOME JUDGE PRO TEM RACKETEERING 3rd
DISTRICT COURT of APPEAL SACRAMENTO
RoadDog SATIRE ABOUT FAMILY COURT NEWS CONTACT FAMILY COURT NEWS
Terms & Conditions
Privacy Policy ATTORNEY MISCONDUCT DOCUMENT LIBRARY
3rd DISTRICT COURT of APPEAL SACRAMENTO
This ongoing investigative project was updated in April,
2015.
Sacramento Family Court News is conducting an ongoing
investigation of published and unpublished 3rd District Court of
Appeal decisions in trial court cases originating from family
courts. This page is regularly updated with our latest news,
analysis, and opinion. Our preliminary findings reveal an
unsettling link between how an appeal is decided and the political
ideology, work history, and family law bar ties of the court of
appeal judges assigned to the appeal.
Our investigation indicates that the outcome of an appeal is in
large part dependent on the luck of the justice draw and the
undisclosed connections between the trial court judge whose order
is appealed, the trial and appellate court attorneys, and the
judges assigned to resolve the appeal.
The collusive atmosphere falls hardest on unrepresented or "pro
per" appeal parties who can't afford to hire a local appellate
attorney. 3rd District appeal outcome statistical data reveals a
virtually perfect record of success for attorneys in cases where
the opposing party is a pro per. Appeals taken by pro per litigants
rarely, if ever, succeed.
In addition, a separate SFCN investigation has uncovered
evidence that both trial and appellate court judges, part-time
judges, and court employees deliberately obstruct appeals by
indigent, unrepresented parties. Appeal data from the Third
District reveals that most pro per appeals are never decided on the
merits and are instead
Third District Court of Appeal:
Justice, Ideology & Conflicts of Interest
A Sacramento Family Court News investigation indicates that
ideology and undisclosed conflicts of interest play a significant
role in the outcome of appeals in the Third District Court of
Appeal.
An Exclusive Sacramento Family Court News Investigation
JUDICIAL MISCONDUCT (67)
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PETER J. McBRIEN (22)
SCBA (22)
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dismissed on legal technicalities, which are often caused by the
deliberate acts of government employees.
Court whistleblowers assert and have documented that the family
law division of Sacramento Superior Court and the 3rd District
Court of Appeal effectively operate as a RICO racketeering
enterprise that deprives the public of the federally protected
right to honest government services, and includes predicate acts of
mail and wire fraud. Click here to read our full report on the
allegations.
The 2014 documentary film Divorce Corp, designated Sacramento
County as the most corrupt family court in the United States. Court
watchdogs contend that the scale and scope of the corruption rivals
the Kids for Cash scandal in Luzerne County, Pennsylvania, which
also became a documentary film.
Third District Court of Appeal cases are assigned to three of
ten judges. The background of each appears to be a critical factor
in how an appeal is decided.
For example, 3rd District unpublished opinions show that Court
of Appeal justices who were elevated to the appellate court from
Sacramento County Superior Court will often effectively cover for
judicial errors in appeals from the same court.
Third District Justices George Nicholson, Harry E. Hull, Jr.,
Ronald B. Robie, and Presiding Justice Vance W. Raye previously
were trial court judges in Sacramento County Superior Court.
Each have personal, social, or professional ties to family court
judges and attorney members of the Sacramento County Bar
Association Family Law Section. After his retirement in 2011, 3rd
District Presiding Justice Arthur Scotland described the
professional and personal relationships he had with attorneys
during his career on the bench.
"[I] enjoy friendships...I go to all the county bar events. I do
that for two reasons. One, I think it's a responsibility of a judge
to be active in the community, and the attorneys appreciate it. But
I really like the people. I really like going to these events. I
enjoy friendships and that sort of thing." Click here to view
Scotland's statement.
Sacramento Lawyer, the monthly magazine of the Sacramento County
Bar Association each month publishes accounts of recent social,
educational and charitable events sponsored by the association, its
17 specialty law sections - including the family law section - and
its eight local affiliates, including the Asian/Pacific Bar
Association, and Women Lawyers of Sacramento. Most are well
attended by a mix of state and federal judges, court
administrators, supervisors and employees, and lawyers.
To get a sense of the collusive atmosphere in Sacramento Family
Law Court, we recommend reading our special Color of Law series of
investigative reports, which document the preferential treatment
provided by family court employees and judges to SCBA Family Law
Section lawyers at the trial court level. Click here to view the
Color of Law series. Financially disadvantaged, unrepresented
litigants who face opposing parties represented by SCBA attorneys
assert that the collusive collegiality taints appeal proceedings in
the appellate court.
Pro per advocates contend that under Canon 3E(4)(a) and (c) of
the Code of Judicial Ethics, Raye, Robie, Hull and Nicholson should
disqualify themselves from participating in any appeal originating
from Sacramento Family Law Court. Advocates argue that the same
conflict of interest principles apply to family court appeals that
resulted in the self-recusal, or removal, of Vance Raye from
participating in the 2002 Commission on Judicial Performance
prosecution of family court Judge Peter McBrien. To view the 2002
Raye recusal and CJP decision against McBrien, click here. The CJP
has disciplined judges for violating the Code of Judicial Ethics
rules requiring judges to disclose conflicts. Click here for
examples of CJP conflict of interest disciplinary decisions.
It is a basic principle of law that state appellate justices and
federal judges with personal or professional relationships with
trial court judges connected to an appeal or federal court action
should disqualify themselves to avoid the appearance of partiality.
Click here to view a recent order issued by a federal judge
disqualifying the entire bench of the Fresno Division of the US
District Court for the Eastern District of California due to
personal and professional relationships with local state court
judges.
The conflict disclosure problem infects the Superior Court as
well. To the benefit of local family law attorneys who also hold
the office of temporary judge in the same court, Sacramento Family
Law Court judges effectively have
3rd District Court of Appeal watchdogs assert that appeal
outcomes are inconsistent, and in large part determined by
the work history, and social or professional connections of the
three judges assigned to decide an appeal.
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institutionalized noncompliance with state conflict of interest
disclosure laws. Click here. For an example of a Sacramento County
civil court trial judge who fully complied with conflict laws,
click here. Without oversight or accountability, family court
judges routinely - and in violation of state law - ignore the same
disclosure requirements.
In 1991, as a superior court judge, current 3rd District 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. The public court system was built to the specifications
of private-sector attorneys from the SCBA Family Law Section Family
Law Executive Committee, 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 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 court system in 1991. As reported by the Daily Journal legal
newspaper McBrien dishonestly implied that the 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 trip with McBrien and the late Judge William
Ridgeway.
"[M]cBrien 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 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..." the
Daily Journal reported. Click here to view.
Under oath, McBrien admitted that the private-sector, for-profit
family law bar dictated the public court facility restructuring
plan - conceived to serve the needs and objectives of SCBA Family
Law Section member attorneys - which then essentially was
rubber-stamped by the bench.
"[T]he Bar culled 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," and the plan was approved. Click here to
view.
In essence, McBrien disclosed that the current public court
system was set up by and for local attorneys with little, if any,
consideration of the needs of the 70 percent of court users unable
to afford counsel. The system also has shown it is designed to
repel carpetbagger, outsider attorneys, like Stephen R. Gianelli of
San Francisco, and Sharon Huddle of Roseville. Click here and
here.
"[T]his is a 'juice court' in which counsel outside Sacramento
have little chance of prevailing...[the] court has now abandoned
even a pretense of being fair to out-of-town counsel," Gianelli
said.
According to the Commission on Judicial Performance - the state
agency responsible for oversight and
History & Origins of the Current Sacramento County Family
Court System
Tani Cantil Sakauye worked with Peter J. McBrien in Sacramento
County Superior Court from 1997-2005.
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accountability of California judges - the structure is known as
a "two-track system of justice."
"In this case, we again confront the vice inherent in a
two-track system of justice, where favored treatment is afforded
friends and other favored few, and which is easily recognized as
'corruption at the core of our system of impartial equal justice,
and...intolerable," the CJP said in a 2005 judicial discipline
decision involving a Santa Clara County judge. To view a list of
similar CJP decisions, click here.
According to the gold standard reference on judicial ethics, the
California Judicial Conduct Handbook [pdf], published by the
California Judges Association, providing preferential treatment to
local, connected attorneys also is known as "hometowning," and is
prohibited by the Code of Judicial Ethics. To view this section of
the Handbook, click here.
One objective of the revamped system was to keep all family
court proceedings in-house: within the isolated family relations
courthouse. Prior to the change, trials were conducted at the
downtown, main courthouse and before judges more likely to have a
neutral perspective on a given case, and less likely to have ties
to the family law bar.
"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," the Daily Journal reported.
Family court watchdogs and whistleblowers allege that under the
system set up by Raye and McBrien, the local family law bar -
through the Family Law Executive Committee or FLEC - now controls
for the financial gain of members virtually all aspects of court
operations, including local court rules. A cartel of local family
law attorneys receive preferential treatment from family court
judges and appellate court justices because the lawyers are members
of the Sacramento Bar Association Family Law Section, hold the
Office of Temporary Judge, and run the family court settlement
conference program, court reform advocates charge.
Court watchdogs have catalogued and documented examples of judge
pro tem attorney favoritism, and flagrant bias against
unrepresented litigants and "outsider" attorneys. Click here for a
list of watchdog claims. Published and unpublished 3rd District
opinions indicate that Court of Appeal justices without direct ties
to the same superior court are more likely to follow the law, and
less likely to whitewash trial court mistakes.
Keeping Neutral Judges Out-of-the-Loop
Justice Ronald Robie performs in the "Judge's Choir" for the
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Holiday Luncheon.
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One of the few Third District opinions to critically, and
scathingly scrutinize the problematic Sacramento Family Court
system was the 2008 decision In re Marriage of Carlsson, authored
by Associate Justices M. Kathleen Butz, Cole Blease and Rick Sims.
The opinion criticized explicitly the conduct of controversial
Sacramento County Family Court Judge Peter J. McBrien. None of the
three 3rd District justices who decided the appeal had ever worked
as a judge in Sacramento County.
A fourth outsider jurist, Sixth District Court of Appeal
Presiding Justice Conrad L. Rushing subsequently characterized
McBrien's conduct in the Carlsson case as a "judicial reign of
terror." In addition to ordering a full reversal and new trial, the
3rd District decision subjected McBrien to a second disciplinary
action by the state Commission on Judicial Performance.
The judge's first go-round with the CJP stemmed from McBrien's
2000 arrest for felony vandalism under Penal Code 594 in connection
with the destruction of public-owned trees - valued at more than
$20,000 - at the Effie Yeaw Nature Center in Ancil Hoffman Park,
Carmichael, California. McBrien had the trees cut to improve the
view from his home on a bluff above the park. Click here for the
2001 Sacramento News and Review coverage of the case. Click here to
view the original summons charging McBrien with felony vandalism.
Click here to view the report of Sacramento County District
Attorney's Office Criminal Investigator Craig W. Tourte detailing
the complete investigation of McBrien's crime, posted online for
the first time exclusively by SFCN.
Less than 48 hours after the judge was charged with the felony,
McBrien negotiated a plea bargain, pleading no contest to a
misdemeanor violation of Penal Code 384a, paying restitution of
$20,000, and a fine of $500. The improved view increased the value
of the judge's home by at least $100,000, according to a local real
estate agent, and the sweetheart deal outraged the Ancil Hoffman
Park personnel who originally discovered the butchered trees and
conducted the initial investigation. McBrien's subsequent 2009
sworn testimony before the CJP recounting his criminal case starkly
contradicted Tourte's report and the truth about his criminal
conviction.
One of these things is not like the others, One of these things
just doesn't belong, Can you tell which thing is not like the
others, By the time I finish my song?
Third District Court of Appeal Justices Ronald B. Robie, Harry
E. Hull Jr., George Nicholson and Cole Blease. Only Blease (R) has
no past connection to Sacramento County Superior Court.
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In the documentary film Divorce Corp, Ulf Carlsson describes
egregious misconduct by Sacramento Family Law Court Judge Peter
McBrien. Using
misleading sworn testimony about McBrien's reversal rate in the
appellate court, 3rd District Court of Appeal Presiding Justice
Arthur G. Scotland
effectively saved McBrien from being removed from the bench by
the Commission on Judicial Performance.
On his second trip to the CJP woodshed, Judge Peter McBrien
needed all the help he could get to save his job, and then-Third
District Court of Appeal Presiding Justice Arthur Scotland
delivered in a big way.
Among other slight-of-hand tricks, Scotland devised a clever
artifice to make it appear to the CJP judges assigned to decide
McBrien's fate that the trial court judge had a much lower than
average rate of reversal in the court of appeal.
Scotland's 2009 testimony on McBrien's behalf also was
controversial and may itself have violated the Code of Judicial
Ethics. A critical self-policing component of the Code, Canon 3D(1)
requires judges who have reliable information that another judge
has violated any provision of the Code take "appropriate corrective
action, which may include reporting the violation to the
appropriate authority." Click here to view Canon 3D(1). Click here
to view a Judicial Council directive about the duty to take
corrective action, and the types of corrective action required.
While under oath before the CJP, Scotland verified that he was
aware of McBrien's misconduct in the Carlsson case. Scotland
essentially defied the self-policing Canon and, in effect, the
published Carlsson opinion authored by his co-workers Butz, Blease
and Sims, and instead testified in support of McBrien at the CJP.
In it's final decision allowing McBrien to remain on the bench, the
CJP specifically cited Scotland's testimony as a mitigating factor
that reduced McBrien's punishment. Click here. An examination of
Scotland's career in government - funded by the taxpayers of
California - provides insight into the tactics, motives, and
questionable ethics behind his unusual involvement in the McBrien
matter.
By his own admission, Scotland's career in the Judicial Branch
of government was the result of connections and preferential
treatment. The former justice candidly recited his life history in
a nearly three-hour interview for the California Appellate Court
Legacy Project in 2011. Like other gratuitous "tough-on-crime"
conservative ideologues from a law enforcement background who rose
to power in the 1980's, Scotland apparently lived the cliche of
being born on third base and going through life thinking he hit a
triple. His interest in law developed when he worked as an
undercover narcotics agent for the state Department of Justice.
"[I] bluffed my way through the interview, and I got hired as a
narcotics agent in 1969...I was an undercover narcotics agent. I've
bought a lot of dope in my life...all lawfully, but I've bought a
lot of dope," Scotland said. "And I testified in court. And that's
what got me fascinated in the legal process...and it got me
involved in the law." Click here to view.
Having worked with prosecutors as an undercover cop, Scotland
decided he wanted to be one. But due to his lackluster performance
as a college student, law school presented a problem, albeit a
problem easily solved through a family connection.
"[I] thought, I want to be a prosecutor. I'm going to go to law
school; I want to be a prosecutor. So I applied in 1971. I applied
to only one school: University of the Pacific, McGeorge School of
Law...[M]y grades weren't
Presiding Justice Arthur G. Scotland Intervenes in McBrien CJP
Prosecution
Tani Cantil-Sakauye, Arthur Scotland, George Nicholson and Peter
McBrien all worked for former California Attorney General
and Governor George Deukmejian. All were appointed to the
Sacramento County bench by Deukmejian.
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all that great. I did very well on the LSAT test: I did
excellent on that. But I didn't figure I could get accepted
anywhere else, 'cause I really hadn't been a serious student. So I
went to University of Pacific, McGeorge School of Law," Scotland
explained.
"I didn't know [McGeorge Dean Gordon D. Schaber], but my dad
did. And my dad had done some life insurance, estate planning work
for McGeorge. And again, my dad was an influence on my life because
he knew people and he set me up with jobs. And I'm sure that one of
the reasons I got selected for McGeorge School of Law is my dad's
relationship with the dean." Click here to view.
After graduation, but before he was licensed to practice law,
Scotland nonetheless practiced law while employed as a deputy
district attorney for Sacramento County. In the outside world, the
unauthorized practice of law is a crime. But in Scotland's
protective law enforcement bubble, "laws" are only enforced against
drug addicts and the unwashed masses. As Scotland explained in his
own words, laws are actually only "rules" when a sworn peace
officer breaks one.
"Actually, before I even got sworn in in the bar, I was assigned
out to juvenile hall and we prosecuted...I prosecuted cases without
any supervision - you know, against...really against the rules...we
were trying cases without any supervision." Click here.
In McGregor v. State Bar, the seminal case on the unauthorized
practice of law, the California Supreme Court explained why a
nonlicensed person is prohibited from exercising the special powers
and privileges of a lawyer.
"The right to practice law not only presupposes in its possessor
integrity, legal standing and attainment, but also the exercise of
a special privilege, highly personal and partaking of the nature of
a public trust. It is manifest that the powers and privileges
derived from it may not with propriety be delegated to or exercised
by a nonlicensed person." Click here.
25 years after he obtained his license to practice law, Justice
Arthur G. Scotland exploited the implied integrity of his court of
appeal office and exercised his special privilege in a way that to
many Sacramento Family Court litigants was a manifest violation of
the public trust.
In his Commission on Judicial Performance sworn character
witness testimony for his old friend and law enforcement co-worker
Peter McBrien, Arthur Scotland drew on his training and experience
in deceit from his days as a narc. "[Y]ou have to be an actor, you
have to play the game," Scotland explained in the 2011 interview.
In front of the three CJP judges responsible for hearing evidence
and deciding McBrien's fate, Scotland concocted a clever, deceptive
plan - an artifice in legal terminology - and convincingly
delivered an award worthy actor's
Arthur Scotland used a family connection to get into a law
school with liberal admission standards.
The Artifice
To help his old friend Pete McBrien keep his job, Justice Arthur
G. Scotland concocted a clever plan intended to deceive the judges
deciding McBrien's punishment at the Commission on Judicial
Performance.
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