RECEIVED

JUN 2 3 2009
STATE OF CALIFORNIA

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BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE

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COMMISSJON ON
JUDICIAL PERFORMANCE

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F IL E D

INQUIRY CONCERNING
JUDGE PETER J. McBRIEN,

JU N 2 3 2
009

Commission
on
Judicial Perfor
mance

v.

No. 1 85

FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE SPECIAL

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MASTERS

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TABLE OF CONTENTS
SECTION

PAGE

Summary of Charges

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Applicable Canons

Standards for Imposition of Discipline

Summary of Findings

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Findings of Fact Standard

Introduction to Factual Findings

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10
10

Factual Findings
Part I
Part II
Part HI
Part IV

The System and the Interested Parties

Carlsson Pretrial Proceedings

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18

The Carlsson Trial

22

Post Trial Events

79

Part V Judge McBrien's Request and the Transmission of the

Transcript of Mr. Carlsson's Testimony

86

Part VI

The Commission's Proceedings

100

Prior Imposition of Discipline

105

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Part VII

Part VIII

Character Evidence

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Conclusions of Law

Count I(A)(1)

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121

Count I(A)(2)

125

Count I(A)(3)

127

Count I(A)(4)

137

Factors in Aggravation

141

Factors in Mitigation

141

Concurrence and Dissent

144

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

OF THE SPECIAL MASTERS

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INQUIRY CONCERNING JUDGE PETER J. MCBRIEN, No. 185

The Commission on Judicial Performance (the Commission or the CJP) charged

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S acramento Superior Court Judge Peter J . McBrien (Judge McBrien) with one count
(consisting of multiple subparts) of willful misconduct in office, persistent failure or
inability to perfonn his duties, conduct prejudicial to the administration of justice that
brings the judicial office into disrepute, and improper action within the meaning of article
VI, section 1 8 of the California Constitution. The Chief Justice of the California
Supreme Court appointed us, as special masters, to hear and take evidence in this matter.
We presided over a hearing of the charges, and submit this final report containing
findings of fact and conclusions of law in accordance with rule 1 29( c) of the Rules of the
Commission.

SUMMARY OF CHARGES

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The notice of fonnal proceedings charged Judge McBrien as follows :

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Count I( A)( 1 )-Judge McBrien violated the Code of Judicial Ethics, canons 2A
and 3 B(7), by abandoning and terminating a trial in a contested marital dissolution matter
in the middle of a party' s case-in-chief, without giving that party the opportunity to
complete the presentation of evidence or offer rebuttal evidence, and denied that party his
constitutional right to due process and a fair trial.

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Count I(A)(2)-Judge McBrien violated the Code of Judicial Ethics, canons 2 and
3 B( 4) by threatening the attorney for that same party in the marital dissolution action
with contempt if that party asserted his Fifth Amendment rights and declined to produce
documents that were not relevant to the pending matter.
Count I(A)(3)-Judge McBrien violated the Code of Judicial Ethics, canons 2 and
3 E(2) by engaging in embroilment in that same marital dissolution case when he ordered
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his courtroom clerk to ask the court reporter to prepare a partial transcript of certain
proceedings, sent that transcript to the party's employer, and notified the employer that
the party failed to disclose certain information on his Statement of Economic Interest,
without notifying the parties about these actions and continuing to preside over the
dissolution matter.

Canon 2

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APPLICABLE CANONS

Count I(A)(4)-Judge McBrien violated the Code of Judicial Ethics, canons 2 and
3B(4) by being discourteous to the party's attorney in that same marital dissolution
matter, and addressing the attorney in a derogatory manner while she was examining a
witness.

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the
Judge's Activities.

A. Promoting Public Confidence

A judge shall respect and comply with the law and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 3

A Judge Shall Perform the Duties of Judicial Office Impatiially and Diligently.
B . Adjudicative Responsibilities

( 4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses,

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l awyers, and others with whom the judge deals in an official capacity, and shall require

similar conduct of lawyers and of all court staff and personnel under the judge 's direction

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and control.

(7) A judge shall accord to every person who has a legal interest in a proceeding,

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or that person's lawyer, full right to be heard according to law. A judge shall not initiate,

permit, or consider ex parte cmmnunications, or consider other communications made to

the j udge outside the presence of the parties concerning a pending or impending
proceeding, except as follows:

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(a) A judge may obtain the advice of a disinterested expert on the law applicable
to a proceeding before the judge if the judge gives notice to the parties of the person

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consulted and the substance of the advice, and affords the parties reasonable opportunity
to respond.

(b) A judge may consult with court personnel whose function is to aid the judge in

canying out the judge 's adjudicative responsibilities or with other judges.

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(c) A judge may, with the consent of the parties, confer separately with the parties
and their lawyers in an eff01i to mediate or settle matters pending before the judge.
(d) A judge may initiate ex parte communications, where circumstances require,
for scheduling, administrative purposes, or emergencies that do not deal with substantive
matters provided:

(i) the judge reasonably believes that no party will gain a procedural or
tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the
substance of the ex patie communication and allows an opportunity to respond.
(e) A judge may initiate or consider any ex parte communication when expressly
authorized by law to do so.

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E. Disqualification

(2) In all trial court proceedings, a j udge shall disclose on the record infonnation

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that is reasonably relevant to the question of disqualification under Code of Civil

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Procedure section 1 70. 1 , even if the judge believes there is no actual basis for

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disqualification.
STANDARDS FOR IMPOSITION OF DISCIPLINE

A judge may be disciplined for willful misconduct in office, persistent failure or

inability to perfonn judicial duties, conduct prejudicial to the administration of justice
that brings the judicial office into disrepute, or engaging in improper action or dereliction
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censure, or removal from office. (Cal. Const. , art. VI, 1 8, subd. (d)(2) & (3);
v.

Commission on Judicial Performance ( 1 998) 18 Cal. 4th 1 079, 1 087

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Broadman

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of duty. The discipline that may be imposed consists of public or private admonishment,

(Broadman); Oberholzer v . Commission on Judicial Performance ( 1 999) 20 Ca1.4th 3 7 1 ,

3 84 ( Oberholzer).)

The most serious constitutional basis for discipline is "willful misconduct in

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office," which may result in censure or removal. (Cal. Const., art. VI, 1 8, subd. ( d)(2) ;
Geiler v. Commission on Judicial Qualifications ( 1 973) 1 0 Cal . 3 d 270, 283-284
( Geiler) .) To commit willful misconduct in office, a judge must ( 1 ) engage in conduct
that is unjudicial and (2) committed in bad faith, (3) while acting in a j udicial capacity.
(Dodds

v.

Commission on Judicial Performance ( 1 995) 1 2 Ca1.4th 1 63 , 1 72 (Dodds);

Broadman, supra, 1 8 Cal. 4th at p. 1 09 1 .)

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"First, in order to determine whether a j udge's conduct is ' unjudicial , ' we

measure that conduct with reference to the California Code of Judicial
Conduct. [Citations.] S econd, by 'bad faith' we mean that the judge
' intentionally committed acts which he knew or should have known were
beyond his lawful power' [citation] or ' acts within the lawful power of a
j udge which nevertheless [were] committed . . . for any purpose other than
the faithful discharge of judicial duties' [citations] . Third, a judge is ' acting
in his judicial capacity, ' when he is performing one of his 'judicial
functions,' i.e., one of the varied functions generally associated with his
position as a judge, whether adjudicative or administrative in nature.
[Citation.] In determining whether a j udge acted in his judicial capacity,
we give due weight to the location of the j udge's conduct. [Citation.] Thus,
when a judge is on the bench, he is presumptively acting in a judicial
capacity. [Citation.] S imilarly, when a j udge is in chambers during normal
working hours, he is generally, though not necessarily, acting in a judicial
capacity [citation] . In addition, if a j udge uses, or attempts to use, his
authority as a judge for improper ends, regardless of location, we consider
the judge to be acting in his judicial capacity. [Citation. ]" (Dodds, supra,
1 2 Ca1.4th at p. 1 72 .)
As applicable to willful misconduct, " [a] j udge acts in bad faith only by ( 1 )

perfonning a judicial act for a corrupt purpose (which is any purpose other than the
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faithful discharge of judicial duties), or (2) performing a judicial act with knowledge that
the act is beyond the judge's lawful j udicial power, or (3) perfonning a judicial act that

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exceeds the judge's lawful power with a conscious disregard for the limits of the judge' s
authority." (Broadman, supra, 1 8 Cal.4th at p. 1 092.)

A j udge also may be censured or removed for "conduct prejudicial to the

administration of justice that brings the judicial office into disrepute . . . . " (Cal. Const. ,

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art. VI, 1 8 , subd. (d)(2); Fletcher v. Commission o n Judicial Performance ( 1 998) 1 9

Cal.4th 865, 878 (Fletcher) .) Conduct prejudicial is less grave than willful misconduct,
and "distinguishable from willful misconduct in that a judge's acts may constitute
prejudicial conduct even if not committed in a judicial capacity, or, if committed in a
j udicial capacity, not committed in bad faith." (Broadman, supra, 1 8 Cal. 4th at p. 1 092;
Geiler, supra, 1 0 Cal. 3d at pp. 283 284.)

Conduct prejudicial includes "conduct which a judge undertakes in good faith but
which nevertheless would appear to an obj ective observer to be not only unjudicial
conduct but conduct prejudicial to the public esteem for the judicial office." (Geiler,
supra, 1 0 Cal .3d at p. 2 84; Broadman, supra, 1 8 Cal. 4th at p. 1 092.) " [P]rejudicial
conduct does not require the presence of bad faith, but may occur when a judge, though

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acting in good faith, engages in conduct that adversely would affect the esteem in which
the j udiciary is held by members of the public who become aware of the circumstances of

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the conduct. [Citations . ]" (Adams v. Commission on Judicial Performance ( 1 995) 1 0

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Ca1.4th 866, 878 (Adams II).)

"The provision that the conduct must be that which 'brings the judicial office into

disrepute' does not require actual notoriety, but only that the conduct, if known to an
obj ective observer, would appear to be prejudicial to public esteem for the judicial office.
[Citation.]" (Adams II, supra, 1 0 Ca1.4th at p. 878; Doan v . Commission on Judicial

Performance ( 1 995) 1 1 Cal. 4th 294, 325 (Doan).) The "public esteem for the judiciary"
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aspect of the conduct prejudicial is measured by an "obj ective observer" standard, such
that the views of actual observers are sufficient, but not necessary, to establish judicial

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misconduct under an objective observer standard. (Doan, supra, 1 1 Cal .4th at pp. 324

3 25 . ) The judge 's subj ective intent or motivation is not a significant factor in assessing

whether prejudicial misconduct has occurred under this standard. (Adams II, supra, 1 0
Ca1.4th at p . 878.)

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Conduct prejudicial also includes "wilful misconduct out of office, i.e., unjudicial
conduct cmmnitted in bad faith by a judge not then acting in a judicial capacity." (Geiler,
supra, 1 0 Cal. 3 d at p. 2 84, fn. 1 1 ; Fletcher, supra, 1 9 Cal. 4th at p. 878.) "In this context,
bad faith means a culpable mental state beyond mere negligence and consisting of either
knowing or not caring that the conduct being undertaken is unjudicial and prejudicial to
public esteem." (Broadman, supra, 1 8 Cal . 4th at p. 1 09 3 ; Fletcher, supra, 1 9 Cal. 4th at
p . 878.)

A judge may be censured or removed for "persistent failure or inability to perform

the judge' s duties . . . . " (Cal. Canst. , art. VI, 1 8, subd. (d)(2).) "Persistent
nonperfonnance of duties entails a pattern of legal or administrative omissions or
inadequacies in the perfonnance of a judge' s duties . [Citation. ]" (Doan , supra, 1 1

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Ca1.4th at p. 3 1 2.) Persistent nonperfonnance "focuses on a j udge' s legal and

administrative competence and omissions," and does not entail any intentional disregard

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of judicial duties. (McCullough

v.

Commission on Judicial Pe1jormance ( 1 989) 49

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Cal.3 d 1 86, 1 9 1 ; Doan, supra, 1 1 Ca1.4th at p. 3 1 2.)

Finally, a judge may be publicly or privately admonished for having "engaged in

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an improper action or dereliction of duty." (Cal. Canst. , 1 8 , subd. (d)(3).) "This fonn
of judicial discipline is imposed for a significantly lesser degree of judicial misconduct

than willful misconduct in office and conduct prej udicial to the administration of justice

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that brings the judiciary into disrepute." (Rothman, Cal. Judicial Conduct Handbook
(2007 3 d ed.) 1 2 . 87, p. 665.)

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"There are a variety of cases that deal with an improper action. Some examples of
improper action include : asking a clerk to bring a file concerning a traffic ticket of a

family member in the presence of family members, where the j udge took no other action

in regard to the matter; [and] personally returning a telephone call from a probationer

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who missed a court appearance and conversing with a probationer ex parte . . . "
(Rothman, supra, 1 2 . 74, pp. 659 660 .) In Adams II, numerous allegations of
misconduct were filed against a judge, and one instance was found to constitute improper
action, based upon the judge 's acceptance of dinner and loan of laptop computer from an
attorney who had prevailed in a case presided upon by judge. The judge had reserved
j urisdiction on issues and the matter was pending on appeal, and the lawyer was not
previously a social acquaintance. The computer loan was based on their agreement to
collaborate on a novel, and the judge failed to disclose the relationship in subsequent
cases in which the lawyer appeared. (Adams II, supra, 1 0 Ca1.4th at pp. 897 899.)
SUMMARY OF FINDINGS

As to count l(A)( l ), we find Judge McBrien violated the Code of Judicial Ethics,

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canons 2A and 3 (B)(7), and c01mnitted conduct prejudicial to the administration of

j ustice that brings the judicial office into disrepute. As to count I(A)(2) we find Judge

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McBrien violated canons 2 and 3 B (4), and committed an improper action. As to count

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I (A)(3), we find Judge McBrien violated canons 2 and 3 E(2), and committed conduct

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

an improper action.

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As to count l(A)(4), we find Judge McBrien violated canons 2 and 3 B (4), and committed

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FINDINGS OF FACT STANDARD

The clear and convincing evidence standard of proof applies to this inquiry, with

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the burden resting on the examiners for the Commission. (Geiler, supra, 1 0 Cal. 3 d at p.

275; Fletcher, supra, 1 9 Ca1.4th at p. 878; Doan, supra, 1 1 Ca1.4th at p. 3 1 3 .) Clear and

convincing evidence is evidence that is so clear as to leave no substantial doubt;

sufficiently strong to command the unhesitating assent of every reasonable mind.

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(Broadman, supra, 1 8 Cal. 4th at p. 1 090, citing In re Angelica P. ( 1 9 8 1 ) 28 Cal . 3d 908,

9 1 9.) "Evidence of a charge is clear and convincing so long as there is a ' high
probability' that the charge is true. [Citations.] The evidence need not establish the fact
beyond a reasonable doubt." (Broadman, supra, 1 8 Ca1 .4th at p. 1 090.)
INTRODUCTION TO FACTUAL FINDINGS

This matter concerns the actions of Judge McBrien in one case over a period of
months. We have reviewed numerous documents, including the following : ( 1 ) the
transcript of the trial presided over by Judge McBrien on March 2, 3 , and 9, 2006, (2) the
pleadings filed by the parties before and after the trial, (3) the pleadings filed by the
Commission and Judge McBrien before the hearing held by us, (4) the discovery
materials produced before the hearing, (5) the transcript of the hearing held by us on

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April 1 , 2, and 3 , 2009, (6) the statements and documents submitted to us as exhibits, (7)
the opinion rendered by the Third District Comi of Appeal, (8) the statements and

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documents from a prior matter involving Judge McBrien and the Commission submitted
after the hearing, and (9) the briefs submitted by the Commission and Judge McBrien

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after the hearing. We heard oral arguments on May 29, 2009.

We think the best way for us to tell the reader what we found happened is to

provide a narrative. The narrative will incorporate infonnation from all that we have
reviewed including the thoughts of the interested parties. When conflicts arise, we make
a specific factual finding. We believe that such a complete rendering is necessary as this
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matter is more nuanced and complex than reported by the media and described in the
opinion of the Third District Court of Appeal.

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Judge McBrien is a very experienced j udge in a high-volume court. He perfonns

well with well-prepared attorneys who have a clear grasp of the issues in their case. The

frustration evident in this matter occurred when he was confronted with an attorney who
was not well prepared and who did not grasp the impmiant issues in the case. That does

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not excuse what occurred here. 1

PART I
THE SYSTEM AND THE INTERESTED PARTIES

Judge McBrien

Judge Peter McBrien received his undergraduate degree from Stanford University
and his law degree from the University of Southern California in 1 970. He passed the bar
and briefly worked in private practice in Los Angeles. He then worked in the Attorney
General ' s Office in S acramento for over 1 0 years. He next served in the Governor's
Office in S acramento for over four years in a variety of capacities, including as education
advisor and criminal legal affairs advisor. He was appointed to the Sacramento County

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Municipal Court in 1 987, and elevated to the Superior Court in 1 989. He has been a
judge for 22 years . (HT 29, 1 84 1 86)

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Upon his elevation to Sacramento County Superior Court, Judge McBrien

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received a general trial assignment. In December 1 989, he was assigned to the family

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1 All references to "RT" are to the reporter' s transcript for the three-day Carlsson trial,
which occurred in March 2006. All references to "HT" are to the transcript of the three
day hearing conducted in April 2009 by the Special Masters, in the Inquiry Concerning
Judge Peter McBrien, CJP No. 1 8 5, including the numerical and alphabetical exhibits
introduced at that hearing. All references to "AT" are to the transcript of the oral
argument in this matter conducted on May 29, 2009. All references to Judge McBrien's
deposition are to the transcript of his December 2008 deposition. (Exhibit 5)

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law division, where he has remained. (HT 29, 1 86) He had not practiced family law as a
private practitioner. (HT 1 86)

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The Family Law Division

When Judge McBrien began hearing family law cases, the family law division was

located in the main courthouse. S ince 1 999, the family law division has been located in
the Ridgeway Courthouse in S acramento, a separate facility from the main courthouse.

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The family law division consisted of Judge McBrien and two other judges. The
three judges heard law and motion four days a week, and conducted settlement hearings
on the fifth day. The family law cases that did not settle were transferred to the master
calendar for trial. The family law trials, however, had a difficult time getting a comiroom
as they competed with all other criminal and civil trials. (HT 1 86 1 8 8 , 546 547)
The family law judges investigated ways to restructure the depatiment' s calendar
to expedite family law trials. The judges, including Judge McBrien, formed a working
group with attorneys from the Executive Committee of the Family Law Section of the
S acramento County Bar Association. The group reviewed the operations of family law
divisions in other counties, and they proposed an alternate plan to handle family law
cases . The proposal was presented to the Family Law Section, modifications were made,

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and then it was approved by the entire Superior Court in 1 99 1 . (HT 1 89- 1 9 1 , 463)
This system, which is still in use today, provides for the family law judges to hear

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law and motion on Mondays, Tuesdays, and Wednesdays, and conduct family law trials

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on Thursdays and Fridays . The attorneys for the patiies in a family law case advise the

court of the estimated time for trial. If the attorneys estimate a trial will be two days or

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less, the trial is assigned by the family law comi' s supervising judge to one of the judges
in the family law division. If the attorneys estimate the trial will be more than two days,

then the family law trial is sent to the master calendar in another building to be assigned
to a superior court judge. The settlement conferences are conducted by attorneys from
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the family law bar, who volunteer to sit as pro tem judges four days a week. If the trial
estimate is one day or less, the settlement conference is conducted one week before the

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scheduled trial date. If the trial estimate is more than one day, the settlement conference

is held two weeks before the scheduled trial date. (HT 1 89- 1 92, 445 447, 463 , 547 548)
Most family law attorneys in Sacramento County prefer to have their cases heard

by the judges in the family law division, and try to avoid trial estimates of more than two

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days . (HT 1 8 8- 1 89, 1 9 1 - 1 92, 446 448, 505 508) As a result, there is a constant squeeze
to complete family law trials in two days to avoid sending the case to the superior court's
master calendar. (HT 509) The parties frequently agree to bifurcate multiple issues into
separate two day trials, break the trial into phases, and obtain stipulations and orders so
the parties can keep their trials within the family law division. (HT 509-5 1 1 , 447 448)
There is no legal requirement for a family law trial to be held continuously on sequential
days . The court can return on other dates to finish a trial . (HT 58 )

I n 2006, there were four judges in the family law division. Judge McBrien was
assigned to Department 1 24. (HT 29 30, 1 8 8, 6 1 9) He typically arrives at work around
6:30 a.m. On trial days , he works until 4 : 3 0 p.m. (HT 30) The courthouse is locked at
6 :00 p.m. (HT 3 0) He believes he has heard 40,000 trials since joining the bench. (HT

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622)

In 2006, Judge McBrien was the substitute supervising j udge in the family law

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division, and he planned to retire in 2007. The judge who was designated to be the

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supervising judge was frequently away from the court teaching courses in a variety of

subj ects throughout the state, so she asked Judge McBrien to serve in her place when she

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was gone. (HT 209)

The Carlssons and the Dissolution

Ulf and Mona Carlsson married in 1 987 and had one child. (Exhibit 1 0, p. 3 70;
Exhibit 1 9, p. 5 3 9) Mrs. Carlsson was employed as an office manager at a dental office.
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Mr. Carlsson was a planning manager/supervisor in the real estate services division of the
State of California's Department of General Services (DGS). (Exhibit 1 0, pp. 3 70-3 7 1 ;

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Exhibit E, p . 3 03 ; RT 3 9 , 3 3 7-3 3 8 , 348)

On April 1 4, 2004, Mrs. Carlsson filed a petition for dissolution of marriage.

(Exhibit C , p. 343) On March 1 8, 2005 , Mr. Carlsson filed his response. (Exhibit D, p.
294)

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The Attorneys

Mrs . Carlsson was represented by attorney Charlotte Keeley for the entirety of the
case. Ms. Keeley practices in Sacramento and is a ce1iified family law specialist. She
has served as a judge pro tem in the family law division. Ms. Keeley is a member of the
Executive Committee of the Family Law Section of the Sacramento County Bar
Association, which has input in drafting the local family law court rules. Ms. Keeley has
known Judge McBrien since 1 990 and worked with him while she was on the Executive
Committee. Ms. Keeley has appeared before Judge McBrien on many occasions and has
a good working relationship with him. (HT 46 1 -465, 479, 488)

Ms. Keeley was familiar with the family law division' s procedure of conducting
trials estimated at two days or less on Thursdays and Fridays. (HT 46 1 465, 479, 488) In

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her opinion it was not common for Thursday/Friday family law trials to go beyond the
trial estimate. If the parties reached the end of the day, however, and someone needed

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another 1 5 or 20 minutes, the court typically gave the parties the extra time. (HT 488)

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Mr. Carlsson was represented by three attorneys in 2005 . In October 2005 , he

retained his fourth attorney, Sharon Huddle. (HT 289-290, 3 1 9, 465, 467) Ms. Huddle

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represented Mr. Carlsson until June 2006. She handled the trial that is at issue here. (HT
289-290)
Ms. Huddle has practiced family law in Sacramento County since 1 992, and her
office is in Roseville. She is not a certified family law specialist. She is not a member of
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the Executive Committee. She has never served as a judge pro tem in Sacramento

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County. (HT 2 1 1 -2 1 2, 2 87-290)

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the Family Law section of the S acramento County Bar Association and has not served on

Ms. Huddle tries one to three dissolution cases per year in Sacramento County,

and she is familiar with the family law division' s procedures. She knew that trials

estimated to last two days or less are heard on Thursdays and Fridays, and that family law

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j udges typically end their day at 4:30. In her opinion it was not uncommon for trials to
go beyond 4:30 p.m.; it happens half to three-fomihs of the time. She did not know that
trials estimated at more than two days are assigned from the master calendar at the main
courthouse. (HT 2 1 2-2 1 3 , 2 88, 3 05)

Ms. Huddle and Ms. Keeley had one case with each other in the 1 995, when the
family law division was still in the downtown comihouse. (HT 468, 575-576) Ms.
Keeley described their working relationship as average and not particularly negative.
(HT 469)

Mistrials in the Family Law Division

Judge McBrien believed he had the discretion to declare a mistrial if the attorneys
estimated the trial will be two days or less, and the trial is not completed in that time.

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(HT 1 92- 1 93) He believed this discretionary power derived from the culture of the
family law division. (HT 623 , 5 77) The 2006 local rules (exhibit 0; HT 529-530) did

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not authorize a family law judge to declare a mistrial if the trial exceeded the time

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estimate.

Judge McBrien testified that he insisted the attorneys meet their trial estimates.

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(HT 2 06-207)
"Well, the Bar, family law bar, volunteers their time to the Court in
expectation that they' re going to be able to get to trial when they set their
trials. And I don't want to say it's a, as the saying goes, tit for tat, but it
may well be, in their minds, something that they certainly expect of us.
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And quite frankly, it's part of the generalfamily law culture in Sacramento
County that you 're going to adhere to your estimate or you 're going to
make a request explaining the reasons you need more time." (HT 207,
italics added)

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Judge McBrien further testified the family law judges had discretion to threaten
mistrials if the attorneys exceed their trial time estimates .

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" We always make the threat. It' s rare to carry it out. It' s preferable to
bifurcate, get as much resolved in the case as possible so that the parties
don't have to redo it. And they may not be able to complete everything
they wanted to complete, but at least they can set it for further hearing on
remaining issues." (HT 5 77 578, italics added) 2
When a mistrial is declared, the parties are sent back to the family law
department' s trial setting calendar. (HT 575)

Judge McBrien was asked about his general response to a situation where an
attorney requests additional trial time beyond that given in their two day trial estimate.

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"First of all, I want to make sure that the other party is present, find out
what their position is regarding the need for additional time. And if there
appears to be a need or there' s a stipulation for additional time, then we' ll
schedule it for a time that they can-and I would recommend that-let's
say a Friday afternoon, simply because Friday cases tend not to go so long.
And-but if there 's another trial in progress, they would be taking the
second row. I mean, they would need to basically wait for that other case
to complete before they actually would get any time." (HT 1 97 1 98)
If one party requests additional time and the other party disagrees, Judge McBrien

would grant the request over the opponent' s obj ection if it appeared there was a

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legitimate issue that ought to be resolved. (HT 1 98) Judge McBrien had never granted

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additional trial time to a party without a request because he believed the attorneys were in

2 In his deposition, Judge McBrien testified that he generally used the threat of a mistrial
"in an effort to try to keep the attorneys on track for the time estimates that they have
made, so that I can then hear the next case on the dockets. " (Exhibit 5 , p. 3 6)
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control of their cases. He did not want to be perceived as taking control of a case from an
attorney. (HT 1 98)

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If the parties requested and received additional trial time, the matter would be set
at a time and date not usually given for a trial. Judge McBrien usually conducted the

specially set proceedings on the lunch hours on Mondays, Tuesdays, and/or Wednesdays,
or on Tuesday afternoons. (HT 620, 623)

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Judge McBrien presided over the Barrett trial in 1 995, where Ms. Keeley and Ms.
Huddle represented the opposing parties. The trial was set for two days . The trial went
to a third day because one or both of the parties made the request and he granted it, and
the case was completed on the third day. (HT 575-576, Exhibit M)

Judge McBrien presided over the Myles trial in 1 998 involving a very complicated
child custody issue. Ms. Huddle represented the father, who was a registered sex
offender, and another attorney represented the mother, who also had serious issues . The
parties estimated the trial would take two days. Judge McBrien granted the parties'
request for more time, but he declared a mistrial when the case was not even close to
being finished after two and one-half days. (HT 573 574, 604 606; Exhibit L) This was
the only occasion that Judge McBrien declared a mistrial in one of Ms. Huddle' s cases .

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(HT 3 67, 3 69-3 70)

Ms. Keeley had a family law judge other than Judge McBrien declare a mistrial in

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one of her cases because the parties went beyond the time estimate. (HT 498)

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On March I 0, 2006, the day after the Carlsson trial ended, the Fourth District

Court of Appeal published Blumenthal v. Superior Court (2006) 1 3 7 Cal .App.4th 672.

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The Court of Appeal held that a superior court judge could not declare a mistrial because

the parties exceeded the trial time estimate, unless there was a court rule that notified the
parties of that possibility and authorized the court to declare a mistrial on that basis. (HT
577, 578) Judge McBrien advised the family law bench about the Blumenthal case, and
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the Family Law Section' s Executive Committee was also advised. As a result of
Blumenthal, the local rules for the family law department of the Sacramento County

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Superior Court were amended as of January 2008, to authorize a j udge to declare a

PART II
CARLSSON PRETRIAL PROCEEDINGS

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Pretrial Estimate of Time for Trial

mistrial if the parties exceed their estimated trial time. (HT 577, 579, Exhibit N)

The Carlsson trial was initially scheduled for January 2006, but Ms. Huddle asked
Ms. Keeley to continue the matter since she just had been retained by Mr. Carlsson. The
parties ultimately agreed on dates in February and March 2006, for the settlement
conference and two day trial . (HT 466 468)

On December 1 3 , 2005, Ms. Keeley, on behalf of Mrs. Carlsson, filed a

memorandum to set, which stated the estimated time for Carlsson trial was two days, the
parties agreed to the trial dates of Thursday, March 2, and Friday, March 3 , 2006, and the
settlement conference would be held on February 1 5 , 2006. (Exhibit 6, pp. 294 295;
Exhibit D, pp. 2 94 295)

On December 2 3 , 2005, the family law trial clerk filed a notice that the mandatory

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settlement conference in Carlsson would be on February 1 5 , 2006, and the trial was set
for March 2, 2006. (Exhibit 7)

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Ms. Huddle was aware of Ms. Keeley' s estimate that the Carlsson trial would be

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two days . She never filed a document with a different estimate and she never indicated to

the court that she disagreed with the estimate. (HT 222, 283 284, 305, 347)

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Carlsson Pretrial Filings & Mr. Mayo's lawsuit

When the Carlssons separated, the community assets included the family residence

on Tunnel Hill Way in Gold River (the residence), and a fourplex rental property on 24th
Street in Sacramento (the fourplex). (Exhibit 8, p. 305) After the separation, Mr.
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Carlsson lived in the residence by mutual agreement. (RT 5 5 ; HT 29 1 , 292; Exhibit 8 , p.

3 04) Mrs . Carlsson moved out of the residence and had primary physical custody of their

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minor child. (HT 29 1 , 292) Mrs. Carlsson sought joint legal and sole physical custody

of their child, child and spousal support, division of property, and attorney fees. (Exhibit

C, pp. 343-344)

On February 2, 2006, Ms. Keeley, on behalf of Mrs. Carlsson, filed a pretrial

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statement of issues pursuant to the local rule that required such a statement to be filed 20
days before the settlement conference. (Exhibit 8 ; Exhibit E; HT 466) According to
Mrs. Carlsson's pretrial statement, the parties agreed to bifurcate the child custody issue
so it could be heard by a special master. (Exhibit 8, p. 303; Exhibit 20) The disputed
trial issues were child and spousal support, characterization and division of prope1iy,
including Mr. Carlsson's state pension, and attorney fees and costs . (Ex. 8, pp. 304 3 05)
Mrs . Carlsson declared the residence and fourplex each had an appraised fair market
value of $640,000, and requested the comi to award both properties to Mr. Carlsson,
subj ect to equalizing payments. (Exhibit 8, pp. 3 05, 307; HT 3 6, 2 1 7)
On February 1 4, 2006 (one day before the scheduled settlement conference (RT
2 1 3)), Joseph Mayo filed a complaint in pro per in the Sacramento County Superior

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Court against Mr. and Mrs . Carlsson for fraud and breach of contract. Mr. Mayo alleged
that in October 2003 , he signed a partnership agreement with Mr. Carlsson for a 50

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percent interest in the fourplex, he invested time and money in the renovations of the

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building, and the Carlssons breached the agreement and refused to transfer the half
interest to him. (Exhibit I) At some point, Mr. Mayo also filed a lis pendens against the

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fourplex, which would have clouded title if the property was sold. (HT 303, 5 1 2-5 1 3)
Ms. Huddle met Mr. Mayo at some point prior to the start of the Carlsson trial.
He told her about his lawsuit against the Carlssons, and she told him that he had to file a

j oinder in the dissolution case to claim an interest in the fourplex. (HT 295, 302-3 03,
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3 07) Ms. Huddle testified she did not prepare Mr. Mayo' s civil complaint or his motion
for joinder, and she did not know he filed the lis pendens against the fourplex. (HT 297,

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3 02-304) Ms. Huddle moved for a continuance, however, so all the issues about Mr.

Mayo ' s partnership interest and the joinder would be tried together in the same case. (HT

32 1 )

On February 1 5 , 2006, Ms. Huddle, on behalf of Mr. Carlsson, filed a pretrial

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statement for the settlement conference in the dissolution matter, and stated the contested
issues were child custody, child and spousal suppmi, and division of the community
assets of the residence and fourplex. (Exhibit 9; Exhibit F; HT 309) Mr. Carlsson argued
Mrs . Carlsson should not receive spousal supp01i because she was underemployed.
(Exhibit 9, p. 32 1 3 22; HT 293) Mr. Carlsson declared the fair market value of the
residence was $500,000, and the fourplex was $600,000. He requested to receive both
propetiies . (Exhibit F, p. 3 22; HT 36-37, 29 1 -292)

Mr. Carlsson further asserted the fourplex' s title was clouded by a lis pendens,
which had been filed by a third party (Mr. Mayo) . Mr. Carlsson argued the fourplex's
title needed to be addressed before the court resolved the patiies' cmmnunity interests in
the property. (Exhibit F, p. 322)

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On February 1 5 , 2006, the settlement conference in the Carlsson case was

conducted by two attorneys sitting as judges pro tem. The parties did not settle any of the

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issues and the case remained set for trial. (HT 467-468, 3 1 3)

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Also at the settlement conference, Ms. Huddle asked Ms. Keeley for a continuance

of the trial dates of March 2 and 3 , 2006. Ms. Keeley rej ected Ms. Huddle's request

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because she believed Mr. Carlsson would not resolve any of the issues without a trial, and
Mrs . Carlsson could not afford to delay the matter any further because she had limited
financial resources.

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Under the local rules, the parties have to file a statement of issues within 20 days
of the trial date; if one party timely files the statement, that party may unilaterally obtain

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a continuance at the settlement conference. If a party does not timely file the statement,
that party cannot unilaterally obtain a continuance and must obtain the other party' s

consent or have the court grant a motion for continuance. Since Ms. Huddle did not

timely file a statement of issues, she could not unilaterally obtain a continuance at the

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settlement conference, and she needed Ms. Keeley's consent to continue the matter. (HT
470 47 1 , 5 02-505)

On February 27, 2006, Mr. Mayo filed a motion in pro per for joinder in the
Carlsson dissolution action and alleged that he had a 50% interest in the fourplex based
on the October 2003 partnership contract executed by Mr. Carlsson. Mr. Mayo
acknowledged that Mrs . Carlsson did not sign the contract, but alleged she had
knowledge of and agreed to the partnership agreement. The petition for joinder was set
to be heard on April 3 , 2006. (Exhibit B, pp. 3 27-328; Exhibit C, pp. 348 3 58)
On March 1 , 2006, one day before the scheduled start of the Carlsson trial, Ms.
Huddle, on behalf of Mr. Carlsson, filed an ex parte motion to continue the trial. (Exhibit
C, pp. 337, 3 67 3 68; HT 469-470, 3 1 5) The motion was supported by Mr. Carlsson's

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declaration that a continuance was necessary to allow the court to rule on Mr. Mayo' s
j oinder motion and resolve the ownership of the fourplex prior to addressing the issues

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raised by the dissolution action. (Exhibit C, p. 34 1 )

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On March 1 , 2006, Judge McBrien denied Mr. Carlsson' s motion to continue the

trial. (Exhibit C, p. 3 3 7; Exhibit K; HT 3 1 7, 572-573, 1 93 1 94)

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Trial Briefs

On March 2, 2006, Ms. Keeley filed the trial brief and a declaration in support of
her request for attorney fees on behalf of Mrs. Carlsson. (Exhibits 1 0, 1 1 )

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Mrs. Carlsson requested spousal support based on her employment as a dental

office manager, where she worked 2 8 hours per work. The dental office was open four

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days a week for a total of 32 hours, and no employment was available in excess of those
hours at that dental office. (Exhibit 1 0, p. 3 7 1 ) Mrs. Carlsson did not want Mr.

Carlsson ' s pension divided into segregated accounts. (Exhibit 1 0, p. 3 76)

Mrs. Carlsson disagreed with Mr. Carlsson' s valuation of the two real properties .

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She asserted the residence was appraised at $61 5 ,000, whereas the fourplex was
appraised at $650,000. She agreed that Mr. Carlsson should receive both the residence
and fourplex subject to equalizing payments. (Exhibit 1 0 , p. 3 74)

Mrs. Carlsson disputed Mr. Mayo ' s pa1inership claim in the fourplex. She
claimed she did not sign and never knew about the alleged partnership agreement. The
agreement was never recorded, and title to the fourplex was in the name of only Mr. and
Mrs . Carlsson. And, Mr. Carlsson lacked the ability to convey an interest in community
property unilaterally. (Exhibit 1 0, pp. 3 74-376)

Ms. Huddle did not file a trial brief or a declaration concerning attorney fees on
Mr. Carlsson's behalf. At the hearing, Ms. Huddle testified she rarely prepared trial
briefs, and believed trial briefs are not submitted to the court in family law cases. (HT

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3 27-329)

PART III
THE CARLSSON TRIAL

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Judge McBrien presided over the Carlsson trial on the morning and afternoon of

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March 2, the morning of March 3 , and the afternoon of March 9, 2006. We will examine
the reporter' s transcript of each trial date, supplemented by testimony and exhibits

admitted at the Special Masters ' hearing, including Judge McBrien' s deposition in this

matter.

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Assignment of Carlsson Trial to Judge McBrien

On the morning of Thursday, March 2, 2006, the Carlsson trial was scheduled to

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begin in the family law department at the Ridgeway Courthouse. (Exhibits 7 & 12)

Judge Thomas Cecil was the department' s acting supervising judge that day and handled

the master calendar. He assigned the Carlsson trial to Judge McBrien. (HT 449, 452)

Five or six minutes after Judge Cecil assigned the case, Ms. Huddle returned to his

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courtroom and attempted to make an oral motion to recuse Judge McBrien pursuant to
Code of Civil Procedure section 170.6. The motion was denied as untimely. (HT 453)
Hearing evidence about assignment ofthe case

At the hearing, Ms. Huddle testified she had filed both oral and written motions in
numerous other cases to disqualify Judge McBrien. She also had moved to disqualify
other judges in other cases . (HT 327, 362-363, 366-367)

Ms. Huddle testified she had no independent recollection of Judge Cecil assigning
the Carlsson case to Judge McBrien, or that she made an oral motion to disqualify Judge
McBrien. (HT 326-327) Judge Cecil's testimony about the attempted disqualification is
convincing as he had a "vivid" recollection of the incident, and his description was
precise. (HT 453)

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Judge McBrien testified that when the Carlsson trial was assigned to him, he did
not know that one of the patiies considered that he had a bias that would require his

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disqualification. (HT 616-617)

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Thursday, March 2, 2006: Morning Session

At 9 : 1 8 a.m. on Thursday, March 2, 2006, Judge McBrien convened the Carlsson

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trial. (RT 25; HT 47; Exhibit 14, p. 408) Mrs. Carlsson was present with Ms. Keeley,
and Mr. Carlsson was present with Ms. Huddle. SharAnn Chessire was the clerk and
Robbie Joy was the court reporter.

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Ms. Chessire was Judge McBrien' s courtroom clerk, and had been his clerk since
1 987. Ms. Chessire and Judge McBrien did not socialize outside of work. (Exhibit 40)

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Judge McBrien did not have an assigned reporter in his courtroom. (HT 30)

There were two court reporters available for law and motion matters in the family law

division, but the attorneys have to provide the court reporter for family law trials. (HT

3 1 ) For the Carlsson trial, Ms. Huddle ' s office contracted with a court-reporting agency,

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which retained Ms. Joy, a freelance reporter. Ms. Joy had reported a trial involving Ms.
Huddle in a prior matter, but she and Ms. Huddle were not personal friends and did not
socialize. (HT 3 77 3 80, 40 1 403 , 2 1 3 2 1 5) Ms. Joy had been in Judge McBrien' s
comiroom a couple of time but never reported a trial with him. (HT 3 7 8 , 3 94 395) Ms.
Joy testified her agency informed her it was going to be a two and a half day trial . (HT
403-404)

Before Judge McBrien heard the evidence, he read the parties' pretrial statements
and understood the disputed issues were spousal suppmi, the division of the residence
and fourplex, and attorney fees. Based upon the pretrial briefs, the parties appeared to
agree that Mr. Carlsson should receive the residence and fourplex, but they disagreed as
to the value of both prope1iies. (HT 3 6 4 1 ) Judge McBrien did not recall being advised

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of the existence of the lis pendens. (HT 1 96)

The trial began with Ms. Keeley presenting the court with a sealed offer

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containing Mrs. Carlsson's final best settlement offer. Ms. Huddle replied that she was
aware of the offer but she had just received it and there was no time to draft a reply. (RT

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2 5 -2 6)

Ms. Huddle advised Judge McBrien that Mr. Carlsson previously wanted to keep

the fourplex and Mrs. Carlsson wanted to sell it, but Mr. Carlsson now decided he no
longer wanted the fourplex awarded to him. Ms. Huddle stated the maj or portion of

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longer necessary since Mr. Carlsson now agreed to sell that property. (RT 26)

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evidence was going to address the value of the fourplex, and such testimony was no

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Ms. Keeley replied that Mr. Carlsson always insisted that he wanted the fourplex,
Mrs. Carlsson never proposed to sell the fourplex, and it was Mrs. Carlsson' s position

that the fourplex should be awarded to Mr. Carlsson. (RT 26-27) Ms. Huddle objected

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pay off Mrs. Carlsson's share of both properties. (RT 27)

because Mr. Carlsson could not afford to keep both the residence and the fourplex, and

Judge McBrien indicated that the parties should have considered these issues when
they were in the settlement conference. (RT 27) Ms. Keeley replied that Mrs . Carlsson
would encourage Mr. Carlsson to sell the family residence. (RT 28) 3 Judge McBrien
stated the parties were posturing, but he was willing to adjourn for a short period of time
"if in fact there are some possibilities of settlement," and it seemed that all matters were
"settleable." (RT 2 8, 29)

Judge McBrien adj ourned for the parties to discuss the matter among themselves.
Judge McBrien did not participate in the settlement discussions. 4 When Judge McBrien

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3 At the hearing, Ms. Keeley conceded Mrs. Carlsson took different positions at different
times as to the disposition of the residence and fourplex. By the time of trial, Ms. Keeley
wanted Mr. Carlsson to receive the fourplex because of Mr. Mayo ' s civil lawsuit, his
joinder motion, and the lis pendens, which clouded title to the fourplex, so that Mr.
Mayo ' s lawsuit would be Mr. Carlsson's problem. (HT 500-501, 513)

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4 At the hearing, Judge McBrien testified he generally did not participate in settlement
discussions after a case was assigned to him, unless the parties stipulated that he could act
as both the potential settlement judge and the trial j udge. Judge McBrien believed he was
precluded from hearing the trial unless the parties stipulated that he could serve in both
roles . (HT 615) Judge McBrien testified that if the parties had stipulated to award the
fourplex to Mr. Carlsson, the trial testimony would have addressed only the fourplex' s
fair market value. (HT 49) Judge McBrien testified the Carlsson trial was the first time
he had seen one party try to force another party to take property. (HT 79)
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reconvened the trial, the parties stated they had not reached any agreements, and the
evidentiary portion of the trial began. (RT 29)

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As the petitioner, Ms. Keeley proceeded with Mrs. Carlsson's case-in-chief, and
Mrs. Carlsson testified about her employment at the dental office, the number of hours

she worked, the Carlssons ' purchase of the fourplex rental property in 2001, and that she
knew about Mr. M ayo ' s involvement in making repairs to the fourplex but she did not

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know about Mr. Mayo ' s partnership agreement with Mr. Carlsson. (RT 29-81) Mrs.
Carlsson testified that she wanted Mr. Carlsson to keep the residence in return for an
equalizing payment. (RT 56)

At about the midway point of Ms. Keeley' s direct examination of Mrs. Carlsson,
the parties conferred about a stipulation regarding tax returns; Judge McBrien asked the
patiies if they wanted a break and Ms. Huddle said yes because she wanted to use the
ladies room. (RT 81) At 10:12 a.m., Judge McBrien declared a five minute break.
(Exhibit 14, p. 408; RT 81)

At 10:17 a.m., the trial resumed and Mrs. Carlsson returned to the witness stand.
(RT 81; Exhibit 14, p. 408) After Ms. Keeley finished her direct examination of Mrs.
Carlsson, Judge McBrien permitted Ms. Huddle to take a witness out of order, and she

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called Mrs. Carlsson's employer to testify about her wages and hours . (RT 87-90)
Thereafter, Mrs. Carlsson returned to the stand and Ms. Huddle cross-examined her about

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her work hours and her knowledge of Mr. Mayo ' s involvement in the fourplex. (RT 91-

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136)

As Ms. Huddle cross examined Mrs. Carlsson about her work hours, the following

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exchange occurred:
"MS . HUDDLE :

Your Honor, I am going to have to eat.

"THE COURT:
The reason I am going forward is because tomorrow
afternoon I have a continuing trial. It has statutory preference. So, I ' m
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"THE COURT:

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"MS . HUDDLE :
Well, I have one witness driving up from Orange
County and another one is driving from Toulare [sic] County today.

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insuring that we're going to complete it by noon tomorrow. [ ]

Otherwise, we may as well call a mistrial right now. Statutory preference. 5

That's fine.

"MS . HUDDLE :
I don't know that-I didn't have any breakfast. I
assumed I was going to get some lunch.

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"THE COURT:
I ' m not intending to go with no break for anyone. I ' m
suggesting that maybe w e can finish with this witness and take a short
break?
"MS . HUDDLE:

Okay. I also have the two experts coming tomorrow.

"THE COURT :
a 1nistrial.

All I 'm telling you is fit 's not completed by noon, it 's

"MS . HUDDLE :
Well, I ' m-the value on the family residence has to be
decided. There has to be an expert on that.
"THE COURT:
I don't intend to argue with you either. I 'm telling you
exactly what my availability is and ifyou want a mistrial at this point,
you 're welcome to it.
"MS . HUDDLE :

Your Honor, we set the matter for two days.

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"THE COURT:
Ma'am. Ms. Huddle, I have told you, I am not going
to argue with you over it. You have your choices. I have given them to
you. You might want to discuss it with your client, I would presume,
discuss the potential witnesses. [ ] But certainly I have explained my
availability and I do have another continuing matter tomorrow afternoon
that has statutory preference.
"MS . HUDDLE:
I was just asking if [ we] could have another afternoon.
That 's what I was going to ask.
"THE COURT:

No.

5 At the hearing, Judge McBrien testified he was in the midst of presiding over another
trial when he sta1ied hearing the Carlsson trial . (HT 621)
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Why don't we take that up and not waste our time

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"THE COURT:
No. You don 't have to ask me. You have to always ask
the other party first before I will consider anything that either party wants.

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"MS. KEELEY:
now?

"MS . HUDDLE:
I didn't know that if the Court was willing to give us
another day. Then I will discuss it with-

"THE COURT :
I ' m not saying I am. I ' m just saying you have to
discuss it with the other party first before you bring it up with me.

I certainly don't want to go forward anymore and-

"THE COURT :

Do you want to complete this witness?

"MS . HUDDLE :
added) 6

I guess I can finish my list here." (RT 136-138, italics

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"MS . HUDDLE:

Hearing evidence about initial reference to a mistrial

At the hearing, Judge McBrien testified that when he made the above quoted
remarks, it was approaching 1:00 p.m. He was trying to complete the trial by noon the
following day, which would have resulted in a day and a half of trial, even though the
trial estimate was two days . (HT 57) He told Ms Huddle that he would call a mistrial "in
an effmi to try to encourage the people to move forward." (HT 57)

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"Q.
So do you not really mean it when you say 'a mistrial will happen
tomorrow at noon' ?
I did not mean it." (HT 57)

"A.

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Judge McBrien testified he used the possibility of a mistrial to push the parties

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along. (HT 58) He would not have declared a mistrial, however, if Ms. Huddle had

requested one at that point. (HT 58) Judge McBrien testified:

"I ' d been doing, at that time, family law for 16 years. I ' ve had several
cases with Ms. Huddle. Ms. Huddle never completes her case within the

6 All references in the reporter's transcript to "THE COURT" refer to Judge McBrien.
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time estimate. I 'm encouraging her to move the case along." (HT 59,
italics added)
Judge McBrien conceded Ms. Huddle correctly stated the trial estimate was two

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days , but he referred to a possible mistrial because he was "suggesting" that a day and a

half for the trial "would be desirous." (HT 59) Judge McBrien was asked what he meant

when he told Ms. Huddle that she had "choices." (HT 60)

Isn't the choice here finish by noon tomorrow or have a mistrial?

"A.

I don't believe so.

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"Q.

"Q.
Is that the words you used to her? That those were the choices,
finish tommTow or mistrial? I know you say you really wouldn't have
given her a mistrial, but that's not something you expressed; right?
"A.

Correct.

"Q.
What you 're telling her is 'Finish by noon tomorrow or mistrial
because I have this other case '?
"A.

Correct.

"Q.

So that's the choice you 're giving her; correct?

"A.

Right." (HT 60)

Judge McBrien testified it was his practice and procedure that one party had to ask

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the other party if they wanted more time before he would consider such a request. He
made that statement to Ms. Huddle in the above exchange, and he had made that

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statement to her "more than once." (HT 207-208)

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"[Q.] Did you believe that she understood what you were saying at that
time?
"A.

I hope so." (HT 208)

The trial continues

After the exchange between Judge McBrien and Ms. Huddle, the trial continued.
Ms. Huddle cross-examined Mrs. Carlsson about her work hours, and Mrs. Carlsson
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testified that she wanted Mr. Carlsson to keep the fourplex and sell the residence. (RT
1 3 8- 1 39)

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When Ms. Huddle concluded her cross examination, Judge McBrien asked Ms.
Keeley if she wanted to question the witness. (RT 1 4 1 )

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"MS . KEELEY:
Your Honor, I do have substantial redirect, but what I
would do is limit my redirect to a very few questions, but seek the Court
and Counsel ' s agreement that I could reserve the right to complete redirect,
time permitting, later on.
"THE COURT :

Any objection?

"MS . HUDDLE:
What I don't want to have happen is we go forward
and then there is a"THE COURT :
You know, ifyou didn 't think out loud, then do you
have any objection or not? You' re welcome to discuss it with your client.
Please do so privately." (R T 1 4 1 , italics added)
Ms. Keeley interjected that she would quickly conduct her redirect examination of
Mrs. Carlsson about her work hours, her monthly expenses, and Mr. Mayo ' s involvement
in the fourplex. (RT 1 4 1 1 42, 1 45- 1 47) Ms. Huddle obj ected to a question about living
expenses as beyond the scope of redirect. Ms. Keeley offered to discuss the matter at
break and reach a stipulation, and moved on with her redirect examination. (RT 1 42 1 4 3 )

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M s . Keeley completed her redirect examination of Mrs. Carlsson and Ms. Huddle

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said she did not have any more questions . At 1 2 : 57 p.m., the court declared the lunch

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recess. (RT 1 48; Exhibit 1 4, p. 408)

Thursday, March 2, 2006: Afternoon Session

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At 1 :3 5 p.m. on Thursday, March 2 , 2006, Judge McBrien convened the afternoon

session of the trial and the following exchange occurred. (RT 1 49 ; Exhibit 1 4, p. 408)
"MS . HUDDLE:
Before we proceed, your Honor, can we deal with this
matter of an additional half day, whether or not the Court is going to allow
us to have that at some other point in time?

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The Court has heard quite a bit on the four-plex.

"MS. HUDDLE :

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"THE COURT :
I ' m certainly willing to do so. I always have to
understand this. Whatever time we establish would run secondary to any
already scheduled trial. [ ] But I try to make it in the afternoon so that it
wouldn't likely pose a problem. [ ] Also, the parties might consider
bifurcating those issues. They can bifurcate from this trial, so that also
makes it a little easier.

"THE COURT :
I ' m not suggesting that you have to do anything. I ' m
just giving you some alternatives.

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"MS . HUDDLE:
With that in mind, we will pick another date that I
think the Court will be available.
"MS . KEELEY :
noon tomorrow?

Wouldn't we do that if we don't get concluded by

"THE COURT:

This is not the time to do that.

"MS. HUDDLE :
!just didn 't want to go forward and have a 1nistrial. I
wanted to know if that is available.
It' s available. And to the extent we can bifurcate, I ' m
"THE COURT:
intending to do that also. [ ] D o you want to call the next witness?" (RT
1 49- 1 50, italics added)
Hearing evidence about the request for an extra half-day

In his deposition, Judge McBrien testified he did not preclude Ms. Huddle from

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calling witnesses later in the trial, because "earlier in the transcript, I had offered them

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another option," that "was if they wanted to wait, they would not have any priority, but

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we could schedule them another day. If I was available, they would have that time. And
if l was in another trial, that other trial would take precedence." (Exhibit 5 , p. 1 7 ; HT 75)

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At his deposition, Judge McBrien testified that such an offer was reflected somewhere in
the trial transcript. (Ibid.)
At the hearing, Judge McBrien was asked what he meant in his deposition
testimony about offering an extra day to the parties. He testified that his deposition
referred to the above-exchange (RT 1 49), where he offered the parties an additional half31

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day. Judge McBrien conceded that he offered the parties an additional half-day so they
would receive the full two-day trial, consistent with their estimate, and he did not offer

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additional time in excess of their two-day trial estimate. (HT 76) Judge McBrien

testified he decided to add the second half day because the parties requested it. (HT 6 1 -

62)
The trial continues

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The trial continued with Ms. Keeley calling Richard Sutliffe, an expert who
testified about the fair market values of the residence and fourplex. (RT 1 50 1 70) Ms.
Huddle conducted an extensive cross examination as to the valuations . (RT 1 7 1 1 89)
Ms. Keeley conducted redirect examination (RT 1 89 1 9 1 ), Ms. Huddle conducted a very
brief recross-examination, and the witness was excused. (RT 1 9 1 ) The court asked the
court repmier if she wanted to take a break, and she replied that she was fine. (RT 1 92)
Ms. Keeley moved documentary exhibits into evidence, the parties addressed the
admissibility of some of the documents, and the documents were admitted into evidence.
(RT 1 92 1 96) Ms. Keeley rested Mrs. Carlsson's case. (RT 1 96; HT 62)
Ms. Huddle began Mr. Carlsson's case in-chief by calling Joseph Mayo. Mr.
Mayo testified that he worked in the real estate services division of the state ' s DGS, the

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same division where Mr. Carlsson worked. (RT 209-2 1 0) Mr. Mayo testified he started
to work at the fourplex in 2002, and he signed the partnership agreement with Mr.

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Carlsson in October 2003 . He filed the lawsuit against the Carlssons to enforce the

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partnership agreement, and he filed the joinder motion in the dissolution action to protect

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his alleged interest in the fourplex. (RT 1 96 207)

On cross-examination, Mr. Mayo testified he filed the lawsuit in pro per, but a

friend' s lawyer helped him draft the complaint, and Mr. Carlsson introduced him to this
friend. (RT 2 1 4-2 1 5) Ms. Huddle conducted a brief redirect examination and Mr. Mayo
was excused. (RT 2 1 8) Judge McBrien asked the court reporter if she wanted to take a
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short recess, she said yes, and he called a recess at 3 :20 p.m. (RT 2 1 8 ; Exhibit 1 4, p.
408.)

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At 3 : 32 p.m., the trial resumed and Ms. Huddle called Mr. Carlsson to testify. (RT
2 1 8-2 1 9; Exhibit 1 4, p. 408) Mr. Carlsson testified that his friend Scott Moore found the

fourplex property in S acramento. They planned to buy it as an investment rental

property, but it needed to be renovated and neither Mr. Carlsson nor Mr. Moore had any

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money to buy it. (RT 2 1 9)

Ms. Keeley objected to one of Ms. Huddle's questions to Mr. Carlsson as leading.
Judge McBrien replied that he would not strike the response "only because we have to
move along. You are leading." (RT 220, italics added)1

Mr. Carlsson continued with his testimony about the fourplex. He testified their
friend, Don Minkoff, agreed to purchase the property and fund the cost of the
renovation. 8 (RT 2 1 9) Mr. Carlsson met Mr. Minkoff through work. (RT 22 1 ) Mr.
Carlsson and Mr. Moore told Mr. Minkoff about their plan to invest in a rental property,
and Mr. Minkoff encouraged them volunteered to fund the proj ect. (RT 22 1 ) There were
no written contracts between the parties, but they verbally agreed that Mr. Minkoff would
finance the purchase of the fourplex, and Mr. Moore and Mr. Carlsson would renovate

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the property. After the reconstruction, Mr. Moore and Mr. Carlsson planned to refinance

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the fourplex and pay back Mr. Minkoff with interest. (RT 22 1 ) Mr. Minkoff was to

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At the hearing, Judge McBrien conceded Ms. Huddle had j ust started her case in-chief
when he told her to keep moving. (HT 65)

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8 As we will explain, post, Mr. Carlsson's direct examination testimony about his
business relationship with Mr. Minkoff led to Ms. Keeley' s extensive cross-examination
on this point. As we will also explain, post, two of the misconduct allegations against
Judge McBrien are based upon this exchange : his request for a transcript of Mr.
Carlsson' s cross-examination testimony, and his subsequent act in sending that transcript
to Mr. Carlsson's employer.

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receive no profit on the proj ect other than interest. The parties agreed that title on the
fourplex would be held by Mr. Carlsson, Mr. Moore, Mr. Minkoff, and their spouses .

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(RT 221, 222)

The fourplex was purchased with Mr. Minkoff' s money, and neither Mr. Carlsson

nor Mr. Moore used any of their own money to buy it. (RT 222) There were no written
agreements but the title was held j ointly by the three couples pursuant to their verbal

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agreement. (RT 222)

Ms. Huddle continued her direct examination of Mr. Carlsson and asked more
questions about how Mr. Minkoff financed the purchase of the fourplex. The following
exchange occurred:

"THE COURT:

I think we have that. Ijust want us to move along.

"MS . HUDDLE:
I want to make-there is a point of the money and the
no agreements because they made such a point that there was no agreement
between-or we don't know if there was this agreement between Mr.
Carlsson and"THE COURT :
I ' m just reminding you, you have a limited period of
time. If it's not important, keep going." (RT 222-223, italics added) 9
Ms. Huddle continued with her direct examination of Mr. Carlsson, who testified

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that Mr. Moore had to withdraw from the proj ect after they purchased the fourplex. Mr.
Carlsson asked Mr. Mayo if he wanted to become his pminer and help renovate the

fourplex. Mr. Mayo agreed and worked on the building renovations based on a verbal

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agreement that he would replace Mr. Moore as Mr. Carlsson's partner. (RT 226-229)

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Mr. Carlsson eventually entered into a written partnership agreement with Mayo in

9 At the hearing, Judge McBrien testified that he used this exchange to push Ms. Huddle
again and stress how little time was available. (HT 66)
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October 2003 . (RT 233) At about the same time, Mr. Carlsson tried to arrange for
refinancing so he could repay Mr. Minkoff. (RT 234)

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At 4:00 p.m., Judge McBrien called the evening recess and adjourned until the

next morning. Judge McBrien advised the parties that he had to call the calendar the next

morning but he would be quick about it. (RT 234; Exhibit 1 4, p. 408)
Friday, March 3, 2006: Morning Session

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At 8 :47 a.m. on Friday, March 3, 2006, Judge McBrien reconvened the trial. (RT
260; Exhibit 1 4, p. 4 1 1 ) Ms. Huddle advised Judge McBrien that she intended to call Mr.
Minkoff who lived in Newport Beach. (RT 260) Ms. Huddle explained Mr. Minkoff had
j ust been diagnosed with cancer and stmied his treatments . (RT 262) Mr. Minkoff called
her office the previous day and said he was going through chemotherapy. He had a bad
reaction to the treatment and his doctor would not allow him to fly because his immune
system was too low. He could travel only by car, and he could not appear that day. (RT
2 60-26 1 )

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" [M S . HUDDLE: ] . . . [N]ow he can't make it today, which I understand

we may be going another day, but if we could have finished it today, that
would have been good, if we could have finished it by noon, but it' s
obvious [Mr. Minkoff] is not going to be able to be here." (RT 260-26 1 ,
italics added)
Ms. Huddle further explained that Mr. Minkoff had chemotherapy treatments on

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Wednesdays and he was not able to travel for two days afterwards, but his doctor would

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allow him to travel on Mondays and Tuesdays . (RT 26 1 ) Ms. Huddle said Ms. Keeley
did not obj ect to having Mr. Minkoff testify on another day, but Ms. Keeley declined to

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stipulate to his testimony because she wanted to cross-examine him. (RT 26 1 )

Judge McBrien replied that he was not available for trial on Mondays, Tuesdays,

and Wednesdays, because law and motion was heard on those days, but he was available
the next Thursday or Friday. (RT 26 1 ) Ms. Huddle acknowledged the court's schedule,

35

Tuesday, or everyone would have to go to Newport Beach and take a videotaped

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deposition. (RT 262)

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but she hoped Judge McBrien could simply take Mr. Minkoff testimony on a Monday or

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"[MS. HUDDLE: ] I can't tell [Mr. Minkoff] that he should risk his health
and be here, but he is a maj or witness in the case. So, I wanted to bring it
to the Court's attention so that we can decide what we want to do about this
witness. [ ] I don't want to have my case heard without Mr. Minkoff
testifying about the arrangement and why everybody's name was on title
and what was the plan here.
"THE COURT:
Ms. Keeley? I don 't know whether this is a slow
Motion for a Mistrial or what?
"MS . HUDDLE:
No, it's a motion to have [Mr. Minkoff] heard on
another day, a separate day.
"THE COURT:
And I indicated next Thursday and Friday I would be
available in the afternoon." (RT 262, italics added)
Hearing evidence about "slow motion "for mistrial

At the hearing, Judge McBrien testified he made the comment about "a slow
motion" for a mistrial because "we were engaged in about seven pages of discussion over
when [Ms . Huddle] could schedule this witness . . . and I didn't quite know what the

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purpose of this grand discussion was ." (HT 68) Judge McBrien added that he was
"trying to interpret Ms. Huddle's involvement with this lengthy discussion over

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scheduling this witness ." (HT 68)

But you raised the possibility, again, of a mistrial; correct?

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"Q.

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"A.
No. I questioned whether this is what she was doing. I mean, I used
the word 'mistrial, ' yes .
"Q.

[Ms. Huddle] hadn't suggested a mistrial, had she?

"A.

She had not at that point, no." (HT 68-69)

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The trial continues

As Ms. Huddle continued her exchange with Judge McBrien, she explained that

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Mr. Minkoff would begin radiation in six weeks, and then there would be another 1 2
weeks of treatment. (RT 262) Judge McBrien asked Ms. Keeley if she wanted to

respond. Ms. Keeley argued Mr. Minkoff was not a party, he would not have compelling
information about Mr. Carlsson's arrangements with Mr. Mayo, and his testimony on that

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point would be hearsay. (RT 263)

Judge McBrien asked Ms. Huddle why Mr. Minkoff s testimony would be
relevant, and whether Mr. Minkoff was a witness to Mr. Carlsson ' s agreement with Mr.
Mayo. Ms. Huddle said no. (RT 264-265)

"THE COURT:
Then I would suggest that you think about your
options. Be that as it may, let's move forward.
"MS . HUDDLE:
Is the Court going to indicate that he can come and
testify when he physically is able or I will be allowed to do a video depo?
"THE COURT:
I ' m not. I 'm hoping we 're going to finish today and if
we can 't, we 're going to finish next week and the days I would have
available would be Thursday and Friday.

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"MS. HUDDLE:
So, then my request to let [Mr. Minkoff] come and
testify another day is being denied.

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"THE COURT:
I 'm just telling you what my schedule offers, and that
is the schedule that has been in place for the 1 6 or 1 7 years that I have been
involved in this assigmnent.

"MS . HUDDLE:
He can come Thursday and Friday, but it would
probably be twelve weeks down the road after his chemotherapy is over
with.
"THE COURT:
I don't intend to argue with you about it. I am just
indicating that you know what our schedule is. If in fact the parties are
willing to do it over a noon hour, I 'm willing to stay in session over a noon
hour. That 's not really something that you should raise with 1ne as an
initial point. Okay?
37

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"THE COURT:
Okay, I will rule. I 'm going to deny your request to be
in session on this trial on next Monday or Tuesday during the 8: 30 to 12:00
o 'clock calendars and the I : 30 to 4: 00 o 'clock calendars.

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"MS . HUDDLE:
I still think I ' m obligated to get some kind of ruling on
it that he can't testify at any other time. Are you indicating I should speak
with opposing Counsel about a noon hour? I will be happy to do that.

"MS . HUDDLE:
I ' m not asking for next Monday or next Tuesday, I am
asking for any time that's consistent with [Mr. Minkoff s] health.

Denied. It 's unspecific. Let 's move on.

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"THE COURT :

"MS . HUDDLE: Then I want to make it specific because this is an

important witness, your Honor. If I ' m not going to be allowed to have him
because the Court is not considering that this is an important issue, then I
need to know that the Court doesn' t feel like he is important and you are
just not going to let him testify.
"THE COURT :
I have told you three times why I' m making the ruling.
The ruling is based upon our calendars. I am not available. [ ] There is
absolutely nobody in the Sacramento Superior Court system that could sit
in, in my place on Monday or Tuesday of next week.
"MS . HUDDLE:

How about the deposition testimony videotaped?

"THE COURT:

I 'm not adverse to it.

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"MS . HUDDLE:
Okay, then I will discuss that with Counsel and maybe
make [arrangements] to try to get that done instead.
Okay.

"MS . HUDDLE:

Thank you, your Honor.

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"THE COURT:

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"THE COURT :
But I would also strongly urge you to keep in mind
that I intend, if we need to extend it, to extend it to next week, no matter
what your calendars reflect. The reason would be the longer these cases get
stretched out, the less that is recalled about it." (RT 265-267, italics added)
Thereafter, Ms. Huddle continued with Mr. Carlsson's case-in-chief and called a

friend of Mrs. Carlsson (RT 268-2 7 1 ) and a vocational consultant (278-290), whose
testimony supported Mr. Carlsson 's contentions that Mrs. Carlsson was underemployed.
38

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Ms. Huddle next called a mortgage loan consultant, who testified that when he met with
Mr. Carlsson to refinance the fourplex, Mr. Carlsson said Mr. Mayo was his partner.

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Mrs. Carlsson was not present during the conversation. (RT 272-277)

Ms. Huddle next called Scott Moore, who also worked with Mr. Carlsson as a real

estate officer for the state' s DGS. (RT 29 1 ) Mr. Moore testified they obtained a loan
from Mr. Minkoff to purchase the fourplex, and Mr. Minkoff carried the loan at six

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percent. The parties verbally agreed that Mr. Moore and Mr. Carlsson would renovate
the fourplex, then refinance the property and repay Mr. Minkoff. Mr. Moore and Mr.
C arlsson did not plan to make any financial investments in the fourplex, except for their
"sweat equity" to renovate and rent the property. (RT 292) The parties did not have a
written agreement but the Carlssons, Moores, and Minkoffs placed their names on the
fourplex' s deed. (RT 292, 297) Mr. Minkoff recommended a general contractor, who
was hired and placed in charge of the renovation. Mr. Moore had to withdraw from the
venture in July 2002, when he was recalled to active duty in the service, and the Moores
signed their title interests to the Carlssons and Minkoffs. Mr. Moore did not know
anything about Mr. Mayo ' s involvement in the fourplex. (RT 294-298)
Ms. Huddle advised Judge McBrien that her next witness was a real estate expert,

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the expert would arrive at 1 1 : 3 0 a.m., and he would take quite a bit of time to testify
about both the residence and fourplex. Ms. Huddle also planned to recall Mr. Carlsson.

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(RT 299) Judge McBrien said he had a judge' s meeting at noon. (RT 299) Ms. Huddle
asked what day they should return to finish the trial case. Judge McBrien told the parties

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to suggest an afternoon date. Ms. Keeley replied that she was serving as a pro tem the
following Thursday, but thought she could arrange a substitute. (RT 3 00)
Judge McBrien advised the parties that another day of trial would be held on
Thursday, March 9, 2006, at 1 : 3 0 p.m. (RT 300) Judge McBrien asked if the parties

39

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wanted a recess . Ms. Huddle replied it would be nice because she also wanted to use the
ladies room. (RT 3 00) At 9 :5 2 a.m., Judge McBrien called a recess . (Exhibit 1 4, p. 4 1 1 )

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At 1 0 :0 1 , the trial reconvened (Exhibit 1 4, p. 4 1 1 ) and Ms. Huddle continued with

Mr. Carlsson's case-in-chief. She recalled Mr. Carlsson and asked to mark several

exhibits. At 1 0 :07 a.m. , Judge McBrien took a brief recess so the parties could mark the
exhibits . At 1 0 : 1 2 a.m. , the trial resumed and Mr. Carlsson returned to the stand. (RT

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3 02-303 ; Exhibit 1 4, p. 4 1 1 )

Mr. Carlsson testified he brought Mr. Mayo into the fourplex deal after Mr. Moore
withdrew. Mrs. Carlsson knew Mr. Mayo was his new partner, but he never told her
about the written pminership agreement with Mr. Mayo. (RT 3 04-307) Mr. Carlsson
also testified about rental income he received from the fourplex, and the amount due on
the mortgages for the fourplex and residence. (RT 307-3 1 2)

In the course of Mr. Carlsson' s direct examination, Ms. Huddle paused to

introduce several documentary exhibits, and Ms. Keeley did not obj ect. (RT 3 1 3-3 1 4)
The following exchange occurred:

"MS . HUDDLE:
Your Honor, we just want to check on the
completeness of the exhibits to make sure there are signatures on them.

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"THE COURT:

Your tilne is waning, but go ahead. You can check.

I guess I will have to retrieve the exhibits from the

"MS . KEELEY :
Court, your Honor.

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"MS. HUDDLE:
Okay. This is the shortest way rather than reintroduce
them all over again.
"THE COURT :

This is the reason we have settlement conferences.

"MS . HUDDLE :
I was willing [to] stay, your Honor. I was there. I
said, 'These little issues should be decided. ' I said that." (RT 3 1 4-3 1 5 ,
italics added)

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Hearing evidence about "time is waning " comment

At the hearing, Judge McBrien testified he made the comment that Ms. Huddle's

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time was "waning" because "[s]he has a limited amount of time. Time is moving on,
but-1 was just reminding her of that, but check her exhibits ." (HT 69) Ms. Huddle

testified that when the judge said her time was waning, she took it "as him telling me I
was wasting my time." (HT 230)

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The trial continues

After the parties agreed about the exhibits, Ms. Huddle continued with her direct
examination of Mr. Carlsson, who testified that Mrs. Carlsson never asked about Mr.
Mayo ' s interest in the fourplex until after she filed for divorce. Mr. Carlsson told her that
they needed to put Mr. Mayo's name on the title because of the patinership agreement,
and she said that she just wanted her money and didn't care about Mr. Mayo. (RT 315319) Mr. Carlsson testified that he still owed about $16,000 to Mr. Minkoff on the

fourplex loan, the loan was due in 2005, and Mr. Minkoff had never attempted to collect
it. (RT 330)

Ms. Keeley' s cross-examination of Mr. Carlsson focused extensively on the nature

of Mr. Minkoff s loan to purchase the fourplex. Mr. Carlsson answered all of Ms.

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Keeley's questions without any objections from Ms. Huddle.

Mr. Carlsson testified there was no written loan agreement between the parties, but

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Mr. Carlsson and Mr. Moore placed the Minkoffs on the title for the fourplex to make

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sure Mr. Minkoff was repaid. (RT 343) Mr. Carlsson explained that his own background

was in planning, but Mr. Moore was a real estate officer and Mr. Minkoff was a

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developer, and Mr. Carlsson trusted them to handle the legal matters for the loan. (RT

343)

" [M S . KEELEY:] Yesterday, Mr. Carlsson, you testified, 'Nobody works

for free. ' Do you recall that?

41

Correct.

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You also testified, I believe, that Mr. Minkoff borrowed money on

"Q.
his equity loan, gave it to you and you paid him back the money he
borrowed plus the interest he would have paid on the money; correct?

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"A.

That's what I was told.

"Q.

So, Mr. Minkoff would have been working his money for free?

"A.

That' s correct, which was very hard for me to believe.

"Q.

How long have you known Mr. Minkoff?

"A .

For at least ten years ." (RT 347)

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"A.

Mr. Carlsson testified he met Mr. Minkoff while he worked on a proj ect in his
employment as a space planner for the real estate services division of the state ' s DGS.
(RT 348)

Who does Mr. Minkoff work for?

"A.

He works for himself.

"Q.

What does Mr. Minkoff do?

"A.

He's a Developer.

"Q.

A Real Estate Developer?

"A.

Correct." (RT 348)

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"Q.

Mr. Carlsson testified he worked with Mr. Minkoff on a project in West Covina.

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Mr. Carlsson was one of the people assigned to the project, and he worked as a space

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planner to lay out the design work. (RT 348-349)

"Q.

What was Mr. Minkoff s interest in that proj ect?

"A.
He owned the building. He had owned it for 3 0 years and there had
been a long lease on it.
"Q.

Who was the lessee?

"A.

The State of California.

42

The General Services Department, specifically?

"A.

Correct.

When you met him?

"A.

Correct.

"Q.

Correct.

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"A.

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Q.
So, there was a contractual relationship between the General
Services Department, of which you are an employee, and Mr. Minkoff?

"Q.
Did Mr. Minkoff continue to have other contractual relationships
with the Department of General Services?
"A.

Yes, he did.

"Q.
Did he have contractual relationships with the Depmiment of
General Services in 200 1 ?
"A.

I don't recall .

"Q.
Did he have contractual relationships with the Department of
General Services after 200 1 and through the current date?
"A.

Yes.

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"Q.
Are there rules promulgated by the Depmiment of General Services
that prohibit employees of the State of California from having contractual
relationships with vendors or other entities with whom their Department
does business .
There are certain rules ; correct.

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"A.

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"Q. Is it not a conflict of interestfor Mr. Minkoff to have a contractual

relationship with your employer and have a personal, financial relationship
with you ?
"A.

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"Q.

I don 't believe so.

"Q.
But it is your testimony that Mr. Minkoff borrowed money and had
loaned it to you at no cost to you for no reason, other than he was a nice
guy?

43

"Q.

For no compensation ?

"A.

That is correct. No compensation .

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He loaned it to Scott Moore and I.

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"A.

He does lots of work with lots of people in the office.

"A.

"Q.
Is it possible that Mr. Minkoff was hoping for compensation in the
fonn of continuing to have a good business relationship with the State of
California?

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"Q.
Does your Supervisor know that you and Mr. Minkojfwere on title to
real property together from 2001 to 2004?
"A.

I don 't know.

"Q.

Did you ever tell him?

"A.

I don't know. We don't discuss it.

"Q.
Do you fill out any forms, for example, a document required by the
Office ofFair Political Practices as a State employee?
"A.

Yes.

"Q. Don 't you have to list all of the investments that you have on that
form ?
Not all the investments; certain investments.

"Q.

Did you list the 24th Street property [fourplex] on that form ?

"A.

No, I don 't believe I did.

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"A.

Why not?

"A.

Because I didn 't think it was applicable to what I had to list.

"Q. Did you, on that form, indicate in any way that you had a personal,
business relationship with Mr. Minkoff?

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"Q.

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"A. No. There was nowhere on the form that would askfor that." (RT
3 49-3 5 1 , italics added) 1 0
When Ms. Keeley completed her cross-examination, the following exchange

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occurred between Judge McBrien and Mr. Carlsson, who was still on the witness stand:

"THE COURT:
Ms. Huddle? [ ] First, let me, just for a point of
clarification, when you said you filed this statement or document with the
Fair Political Practices Board, is that a document commonly called a,
'Statement ofEconomic Interests '?

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"[MR. CARLS S ON] :

I would have to look at it. It gets thrown in
front of us, we sign it, turn it in.
"THE COURT:

You don't have to complete any documents.

" [MR. CARLSSON] :

There is a box where you like-whatever I have
doesn't apply, and with so many other forms that we are given, it's just like
a formality of paperwork. It just gets filed.
"THE COURT:

This is filed with the Secretary of State?

" [MR. CARLSSON] :

I have no idea. I give it to our Secretary and
she takes care of it. " (RT 3 59, italics added)
Ms. Huddle conducted her redirect examination of Mr. Carlsson, and asked about
his specific title and duties . (RT 3 59-360) Mr. Carlsson testified he was a supervising
space planner with the state' s DGS, and he did not negotiate or make any decisions about

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which bids are accepted by the state. Mr. Carlsson testified that leasing officers negotiate

the deals, he was a space planner and he was not involved in the extensive bidding

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process, he did not select the builders or buildings for lease, and he only assigns proj ects

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to the space planners after "the deal is put together." (RT 3 60-3 6 1 )
10 As we will discuss in Part V, post, at some point after Mr. Carlsson' s cross
examination testimony on March 3 , 2006, Judge McBrien requested a transcript of the
testimony set forth above, and subsequently sent that transcript to Mr. Carlsson' s
employer, the state ' s DGS. Mr. Carlsson was later dismissed from his j ob because o f his
relationship with Mr. Minkoff.
45

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Mr. Carlsson testified he did not make any decisions on any pieces of property
related to Mr. Minkoff: "I don't sign leases. I don't negotiate deals. No." (RT 362)

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Mr. Carlsson testified he met Mr. Minkoff on a government project, Mr. and Mrs .

Carlsson later became social friends with Mr. and Mrs . Minkoff, and they spent time at

the Minkoffs ' house in Newport Beach. (RT 3 6 1 -3 62)

Ms. Huddle then asked Mr. Carlsson to review documents regarding the fourplex's

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income and expenses. (RT 3 62-3 63) Judge McBrien interrupted and the following
exchange occurred while Mr. Carlsson was still on the witness stand. (HT 7 1 , 232)
"THE COURT:
I am going to have to adjourn this proceeding. They
are awaiting me downtown. So we will resume on Thursday at 1 : 30. [ ] I
would ask you to bring a copy ofyour 2004, whatever this document is, that
you filed with the Fair Political Practices Commission with the Secretary of
State.
"THE WITNESS :

Okay.

"THE COURT :

Thank you.

"MS . KEELEY :
Your Honor, would we need copies of that document
for 2 002 and 2003 ?

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"THE COURT:
You should probably bring them for those years, but
you also might want to talk to an attorney who specializes in that area
because there are potential penalties far beyond what we 're talking about
today.

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"MS. HUDDLE: Your Honor, on the issue of Mr. Minkoff testifying,

which I think is more impmiant now, are you intending that we be allowed
an opportunity-

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"THE COURT:

Have you talked to Ms. Keeley about this?

"MS . HUDDLE:
Yes, we did a little bit. We ' re wondering, if we have
to do it between now and Thursday"THE COURT :
I have no intent regarding it. I' m just advising you for
the most part that the following week, I am not here.

46

Thank you, your Honor.

"THE COURT:
that either.

And that is not to suggest you will have the week after

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"MS . HUDDLE:
Well, as soon as possible as far as I ' m concerned."
(RT 363-364, italics added)

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"MS . HUDDLE:

Thursday, March 9, 2006, at 1:30 p.m. (RT 364; Exhibit 14, p. 411)

At 12:07 p.m., Judge McBrien declared a recess, with the trial to resume on

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Hearing evidence about request for Mr. Carlsson 's Statement of Economic Interest

At the hearing, Judge McBrien testified he asked Mr. Carlsson to produce his
Statement of Economic Interest after he heard Mr. Carlsson' s testimony, and conceded
that Ms. Keeley did not request the documents . (HT 131 132) He testified it was a
request and not an order, and it would have been reasonable for Ms. Huddle to interpret
his statements as a request. (HT 132) Judge McBrien explained that when he spoke of
" 'potential penalties far beyond what we're talking about,"' he referred to whether Mr.
Carlsson disclosed his business relationship with Mr. Minkoff, who conducted business
with Mr. Carlsson's employer, the state ' s DGS . (HT 132-133) Judge McBrien testified:

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"From the testimony, it appeared that his evidence, his testimony, could
have involved a violation of the Fair Political Practices Act. And if he
included it in his Statement of Economic Interest, it becomes a nonissue. If
he doesn 't include it, then it becomes an issue for our hearing." (HT 133,
italics added) 1 1

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1 1 As we will discuss post, a person who knowingly or willfully violates any provision of
the Political Reform Act (PRA) is guilty of a misdemeanor (Gov. Code, 91000, subd.
(a)), but the Fair Political Practices Cmmnittee (FPPC) does not conduct any criminal
investigations or prosecutions. Instead, the Attorney General and/or the District Attorney
are responsible for enforcing the criminal provisions of the PRA. (Gov. Code, 91001,
subd. (a) .)

47

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Judge McBrien testified he was "looking to see whether there would be a problem
for this case as it related to the rules" of the Fair Political Practices Act, and whether Mr.

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Carlsson disclosed his business relationship with Mr. Minkoff. (HT 1 3 3)

" Q . Why did you suggest that perhaps Mr. Carlsson should talk to an
attorney who specializes in the area?

"Q.

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"A.
Because he had testified that he did not include that information.
And I was concerned that he, frankly, was potentially in violation of the law
and might want to talk to an attorney to get s01ne legal advice.
And someone who specializes in the area rather than Ms. Huddle?

"A. Ms. Huddle did not appear to have an idea of what we were talking
about." (HT 1 34, italics added)
Judge McBrien testified he also believed Mr. Carlsson' s Statement of Economic
Interest would reflect Mr. Carlsson's opinion as to the annual income from the fourplex
rental property. (HT 1 3 3 - 1 34)

Thursday, March 9, 2006: Afternoon Session

At 1 :25 p.m. on Thursday, March 9 , 2006, Judge McBrien reconvened the trial .
(RT 3 66; Exhibit 1 4, p. 4 1 8) Ms. Huddle stated that Mr. Minkoff had been driven from
Newport Beach to S acramento and he was prepared to testify. Judge McBrien asked if

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the case had settled and the attorneys said no. (RT 3 66)
Thereafter, the following exchange occurred :

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"THE COURT:
On the record, did your client consult some legal
advice regarding that issue?
"MS. HUDDLE:

I found him a lawyer.

"THE COURT:

Did he bring the documents with him?

"MS . HUDDLE :
have them.

He never went to work. He is on disability; he doesn't

"THE COURT:
documents ?

So, he has violated my request to bring those

48

"THE COURT:

Do you want me to have the record read?

"MS . HUDDLE:
copy.

He would have to go to work to see if he even has a

"THE COURT:
Ma 'am, I would suggest that he send somebody to his
workplace to get those documents before we conclude this trial.

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"MS . HUDDLE:
Your Honor, I would like to impose an objection. I
know it's what the Court would like, but I would like to impose an
obj ection to those records because they are irrelevant to the division of the
conununity property"THE COURT:
Oven-uled. I am not indicating that they are relevant.
They are going to clar(fj; his testimony. However, they may be relevant to
other proceedings. That 's why I advised him to go and talk to independent
Counsel.
"MS . HUDDLE:
The independent Counsel wanted $5,000. He doesn't
have $5 ,000 to give him before they will talk to him. The firm is Sweeney
and Greene"THE COURT :
records.

In any case, he can send somebody to go get those

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"MS . HUDDLE:
I am going to have to advise him to take the Fifth
A mendment if there is some claim, some potential criminal action and he
has been unable to discuss it with an attorney who actually knows the law.
I can't have him testify and-

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"THE COURT:

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"MS . HUDDLE :

I think you 're too late for that.

Too late?

"THE COURT:
He has already testified regarding the sum and
substance ofthat and his employer will have a copy of the documents.
"MS. HUDDLE :
Amendment now?

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The way I heard you say it, it was a suggestion that he

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"MS . HUDDLE:
bring them.

Are you indicating that he can't take the Fifth

"THE COURT :
I ' m not indicating anything. I 'm indicating that you
need to send sonzebody to his employment to pick up those documents.
49

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"THE COURT:
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.

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"MS . HUDDLE:
If he is taking the Fifth Amendment, then those
documents would be part of it.

"MS . HUDDLE:
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-

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Ms. Huddle, you are out of the [sic] order. It was my

"THE COURT:
request, not Ms. Keeley 's request.
"MS. HUDDLE:

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

"THE COURT:
Ms. Huddle, do you wish to ask your client to send
somebody to get the records?
"MS . HUDDLE:
If he provides those and he gets charged with
something for having provided them"THE COURT:

Yes or no?

"MS . HUDDLE:
Amendment?

Is the Court indicating that he cannot assert his Fifth

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"THE COURT:
I'm not indicating any such thing. The docwnents are
not a part of the Fifth Amendment. It 's what he states out of his mouth that
is a part of the Fifih Amendwtent. [,] ] Those are public documents at this
point. They are on file-assuming they are the ones that he described-on
file at the Secretary of State ' s Office. As a convenience to the Court, I have
asked him to bring us a copy.

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"MS . HUDDLE:
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 COURT:
the possibility of contempt?
"MS. HUDDLE:

No. I will tell him to go get the records-

"THE COURT:

I ' m not suggesting that he needs to50

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

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"THE COURT:
-absent himself. I 'm suggesting he needs to send
somebody, given the fact that he hasn 't done it in the week that 's transpired
to go get it so he can also attend this trial.

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"MS . HUDDLE:

"MS . HUDDLE:
We will have to find if somebody here will go and do
it and if it's thereMs. Huddle.

"MS . HUDDLE :

I don't know who-

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"THE COURT:

"THE COURT:
Ms. Huddle, you don 't need to think out loud. " (RT
3 66-370, italics added)
Hearing evidence about contempt discussion

At the hearing, Judge McBrien was asked about each aspect of the above
exchange with Ms. Huddle, beginning with his initial statement that Mr. Carlsson
" 'violated my request"' to bring the documents to comi. (HT 1 3 5)
"Q.

How could he violate a request?

" [JUDGE MCBRIEN] .

Maybe it's a poor choice of words. He did not
comply with the request. How' s that?
It' s still a request, not an order?

"A.

It was." (HT 1 3 5)

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"Q.

Judge McBrien was asked about the next sequence, when Ms. Huddle said he had

suggested that Mr. Carlsson bring the documents, and Judge McBrien asked Ms. Huddle

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whether he should have the record read. (HT 1 3 5)

"[Q.] What did you mean by that?

"A.
I thought that clearly one of us was wrong or both of us were wrong,
and that was an option that was available.
"Q.

What did you think the record would show?

51

What the form of the request was.

"Q.

Whether it was a request or order?

"A.

Correct.

"Q.

Mandatory or not?

"A.

Correct.

"Q.

You already told us you think it was a request?

"A.

Correct.

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"A.

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"Q. There was no question about what had been requested; correct? We
knew what documents you're talking about?

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"A.
What had actually been requested more so than our memories, a
week later, seem to suggest it-suggest.

"Q.
And she ' s telling you, ' I think it was a suggestion, the way I heard
it' ; correct?
"A.

That's what she said.

"Q.
So did you want to look at the record because it might show it was
an order?
"A . I wanted to give the option of looking at the record so we could
clar(/Y this discussion that we were having.

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"Q . So to this point at least, they had a choice, though, whether or not to
bring the docwnents in?
They did." (HT 1 3 5 - 1 3 6, italics added)

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"A.

Judge McBrien was asked about the next sequence, when he " ' suggest[ed] ' " that

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Mr. Carlsson send someone to his office to retrieve the documents before the completion
of trial. (HT 1 3 6- 1 3 7)
"[Q.] And you're still using the word ' suggest' here. Is it still a request?
"A.
It is. It 's becoming a little stronger, but it is still a request." (HT
1 3 7, italics added)
52

said the documents might not be relevant. He testified:

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"Since I didn't have the document, I didn't know what the document said.
If Mr. Carlsson had disclosed this relationship and this property on the
document, it becomes irrelevant for my needs, which is basically seeing
what impact the FPPC potential action might have on this piece of
property. If it isn 't included, then, frankly, I intended to have the attorneys
give me their respective opinions as to what impact, if any, this lack of
information 1night have. But we never got to that point." (HT 1 3 7- 1 3 8 ,
italics added)

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Judge McBrien was asked why he overruled Ms. Huddle's relevance objection and

Judge McBrien testified about why he believed nondisclosure would affect the
prope1iy interests in the dissolution case. (HT 1 3 8)
"Q.

Can you explain how you thought that might work?

"A.
Well, in my experience, the FPPC rules are a little bit difficult. And
while we can read in the paper about them issuing fines against various
politicians and such, I was unclear as to whether they also had powers of
corifiscation or liens or anything else that might impact thefour-plex.
"Q.
So you thought that if someone didn't disclose a prope1iy in their
Statement of Economic Interest, the FPPC might have the right to take
action against the property?

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"A.
I thought that was a possibility, but I was expecting the attorneys to
tell me.
So you thought maybe the FPPC could put a lien on the property?

"A.

Possibly.

"Q .

Acquire an ownership interest?

"A.

Possibly.

"Q.

Do you have any idea {the FPPC has that kind of authority?

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"Q.

"A. Since that time, I called them and asked then1, and they do not. At
that time, I did not want to call them because I didn 't want to be
investigating independent of the evidence that was presented to me.
53

Q
At this time, when you were asking for these documents, had you
ever heard of the FPPC putting a lien on someone' s property for failure to
disclose?
.

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"A.
I, frankly, don't really follow that much about the FPPC. So I would
have to say I hadn't heard of a particular instance." (HT 1 3 8- 1 39, italics
added)

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"

Q. By the way, did you ever say on the record that the reason you
wanted those documents was because of this possibility of an FPPC lien?
I didn 't." (HT 1 40- 1 4 1 , italics added)

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"A.

"

Judge McBrien conceded that in his initial response to the Commission, he did not
state that he thought the FPPC could have placed a lien on the fourplex for a disclosure
violation, because he did not have the trial transcript to refresh his recollection as to the
reasons he asked for the documents . (HT 1 48, Exhibit 2)

Judge McBrien testified that he told Mr. Carlsson to retrieve the records even
though Ms. Huddle advised him that Mr. Carlsson had not been able to consult an
attorney. (HT 1 40) Judge McBrien rejected Ms. Huddle ' s Fifth Amendment obj ection
because he felt any privilege was waived when Mr. Carlsson testified about these issues.
(HT 1 40)

Judge McBrien was asked about the sequence when he told Ms. Huddle that he

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was not " ' indicating anything, "' but that " ' you need to send somebody to his employment

to pick up those documents . "' (HT 1 4 1 )

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"Q.

It 's becoming one." (HT 1 4 1 , italics added)

Judge McBrien next explained his response when Ms. Huddle said that she did not

want to produce possibly incriminating documents not requested by their opponent. (HT
1 43)

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"A.

So is this an order now?

54

"Q.

So why did you raise the possibility of contempt?

"A.

I'm explaining the landscape.

"Q.

What does that mean?

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I couldn 't. There hadn 't been a clear order.

"A.

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"[Q.] . . . And your response at that point . . . is: ' Ms. Huddle, am I to take
that as a no, placing you in the possibility of contempt? ' [ ] What were
you going tofind her in contemptfor?

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"A.
That means that she 's resisting. I 'm getting, for the 1nost part,
stronger and stronger in my wording. And eventually it 's going to become
an ever-so-clear order, (fneed be, at which point ifshe continues her
course of resistance, the possibility of contempt bec01nes an option." (HT
1 43 - 1 44, italics added)
Judge McBrien testified he was not being impatient or discourteous with Ms. Huddle
during this exchange. (HT 1 44)

Judge McBrien was asked about a statement in his initial letter to the Commission
where he regretted "' mentioning even the possibility of contempt to Ms. Huddle under
the circumstances and believes that he was momentarily and inappropriately frustrated
with Ms. Huddle's misapplication of the Fifth Amendment. "' (HT 1 45, Ex. 2, p. 37)
So you were frustrated with her?

"A.

At least with her misapplication of the Fifth Amendment.

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"Q.

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"Q.
You were frustrated with her that she was resisting your request to
get the documents?

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"A.
Not necessarily that, but with her construction of the Fifth
Amendment and how it applied or didn't apply.
"Q.

And is that why you threatened her with contempt?

"A.

No.

"Q. You state here that you were inappropriately frustrated. Why was it
inappropriate?
55

Were you being impatient with her?

"A.

Or be impatient.

"Q.

Were you being impatient with her?

"A.

I don't believe so." (HT 1 45- 1 46)

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"Q .

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I don't believe a judge should ever be frustrated.

"A.

Also at the hearing, Judge McBrien was asked about a statement in his initial letter

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to the Commission, when he said that Mr. Carlsson' s Statement of Economic Interest was
relevant to the dissolution trial because it likely contained his opinion about the
fourplex ' s value and rental income. (HT 1 46- 1 47, 1 5 3 , Exhibit 2, p. 37) Judge McBrien
testified the documents would have been relevant if they contained valuation information.
(HT 1 48) Judge McBrien was asked to review the trial testimony, where Mr. Carlsson
testified that he did not list the fourplex in his statement of economic interest. (HT 1 49)
If he hadn't disclosed it-if he' s conect, as he says here, that he
"Q.
didn't disclose anything, then the documents aren' t going to be useful in
determining the fair market value of the property or the rental it receives;
correct?
"A.

For that purpose, no." (HT 1 50)

Judge McBrien testified he was familiar with the FPPC Statements of Economic

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Interest because he also was required to complete the documents, and the Commission
introduced a sample fonn into evidence at the hearing. (HT 1 50, Exhibit 3 5) Judge

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McBrien conceded that while the form requested disclosure of both the fair market value

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and rental income from property, both inquires provided only check boxes with ranges

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for such values, such as $ 1 00,00 1 to $ 1 , 000,000 for property values, and $ 1 0,00 I to

$ 1 00,000 for rental income. Upon reviewing the sample form, Judge McBrien conceded
Mr. Carlsson's Statement of Economic Interest would not have helped settle the dispute
about the value or the income of the fourplex. (HT 1 52- 1 54)

56

in August 2008, where he stated that Mr. Carlsson' s testimony about the fourplex

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Judge McBrien was asked about the letter he personally wrote to the Commission

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presented "'possible criminal activity or at least a conflict of interest. "' (HT 1 54- 1 55 ,

Exhibit 3 , p. 72) Judge McBrien testified the letter reflected his thinking at the time, but

he did not have the benefit of the trial transcript to refresh his recollection as to his
reasons. (HT 1 55)

Now that you 've had that benefit, why did you want the documents?

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"Q.

"A.
I wanted the documents to determine whether or not there was going
to be an issue in terms of the disposition of the four-plex based upon the
FPPC rules that, were it not included, I was going to have the attorneys
each provide their insight as to what the rules required, if any impact.
"Q.

As it happened, did you ever get those documents?

"A.

I did not.

"Q.

So you nwde your decisions without seeing the documents?

"A.

I did. " (HT 1 5 5- 1 56, italics added)

In his deposition, Judge McBrien testified that he asked Mr. Carlsson to produce
his Statement of Economic Interest to clarify his testimony about his business

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relationship with Mr. Minkoff in the fourplex. Mr. Carlsson' s failure to disclose that
relationship might have "in some fashion" affected the value of the fourplex . (Exhibit 5 ,

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pp. 3 9 , 40) Judge McBrien thought the FPPC might have the power to "either file liens

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or otherwise take property" if Mr. Carlsson failed to disclose his business relationship in

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the fourplex with Mr. Minkoff. (Exhibit 5, p. 3 9)

At the hearing, Ms. Huddle testified that when Judge McBrien said she

' "violated"' his request to produce Mr. Carlsson's Statement of Economic Interest, she

thought she had "misheard or something, and he had made an order that there was a
violation of his order," because "it would have been a direct contempt of my client" for

57

extremely concerned as the exchange continued and Judge McBrien mentioned the

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failing to produce his Statement of Economic Interest. (HT 23 5) Ms. Huddle was

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possibility of contempt, and she perceived Judge McBrien' s comments as a threat "that I
could potentially be put in j ail if l didn't comply with what he wanted." (HT 23 6-237)

Ms. Huddle testified that she was trying to assert Mr. Carlsson ' s Fifth Amendment
privileges when Judge McBrien requested the production of his Statement of Economic

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Interest, and she also argued the statement was irrelevant to the dissolution trial . (HT
340-342) She conceded that she did not obj ect to Mr. Carlsson' s testimony when Ms.
Keeley cross-examined him about Mr. Minkoff s financial involvement in the fourplex.
(HT 3 44)

The trial continues

The trial continued after the court's exchange with Ms. Huddle regarding Mr.
Carlsson ' s Statement of Economic Interest. Ms. Keeley stated that she had just received
a new appraisal for the fourplex from Mr. Carlsson' s appraiser. Ms. Keeley asked for a
recess to deliver the new appraisal to Mrs. Carlsson' s appraiser, Mr. Sutliffe, who was in
the courthouse on another case. Judge McBrien agreed and adj ourned for a few minutes.
(RT 3 70)

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When the trial resumed, Ms. Huddle called Mr. Minkoff to the stand. (RT 3 70)
Ms. Huddle asked Mr. Minkoff to explain why he could not appear the previous week.

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Mr. Minkoff testified he had chemotherapy the previous Wednesday. He lived in

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Newport B each and could not fly because it would make him sick, and he could not find

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anyone to drive him to S acramento. (RT 3 7 1 )

Ms. Keeley objected to Mr. Minkoff s testimony about his health as irrelevant and

Judge McBrien sustained the objection. (RT 3 72) The following exchange ensued:
"MS. HUDDLE:
There were previously requests made and I do believe
there was some disbelief in that regard, so I wanted to make clear that this
indeed was the case, that he was not available and that he is here today.
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"THE COURT :
You know when you tendered that explanation last
week, no one objected to it. I think we ought to move on with the trial, with
the substance of the matter." (RT 3 72 , italics added)

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Ms. Huddle continued her direct examination of Mr. Minkoff, who testified that he
was a real estate investor, he met Mr. Carlsson in 1 994, and Mr. Carlsson and Mr. Moore
approached him in 200 1 and asked for money to purchase the fourplex. Mr. Minkoff

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condemned and had to be rehabilitated. (RT 3 72-373)

agreed to provide them with the money as a loan against the fourplex, which had been

Ms. Huddle paused from questioning Mr. Minkoff and addressed the comi:
"M S. HUDDLE:
Your Honor, I got cut short on some preliminary
questions. I did want to ask, because you do judge demeanor and I want
the Court could [sic] to be aware of Mr. Minkoff s condition so that, that
can be factored"THE COURT:
Ma 'am, move on with the question ing. This is not a
law school class. Move on with the questioning. You don 't have to explain
every one ofyour motives." (RT 3 73 374, italics added)
Hearing evidence about "law school" comment

At the hearing, Ms. Huddle testified that she wanted Mr. Minkoff to testify about
his physical condition because Judge McBrien and Ms. Keeley expressed some disbelief
about Mr. Minkoff s illness during the previous court hearing. (HT 3 57 3 5 8) Ms.

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Huddle testified Mr. Minkoff was very ill and he wore a mask at the trial. She wanted to

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advise Judge McBrien "where my line of questioning was going so that we wouldn't end

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up with a bunch of obj ections as irrelevant and have to argue about it." (HT 237)
Ms. Huddle testified she found Judge McBrien' s comment about law school as

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demeaning and his voice "was like a parent scolding a child." (HT 2 3 8) She felt belittled

because her client and other people were present in the courtroom when he made the
statement, and "I felt like he was making me look like, you know, I should go back to
school or something." (HT 23 8)

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Also at the hearing, Judge McBrien testified he made the comment about law
school because "in law school, professors and/or students would explain why they' re

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going through a procedure, as a learning tool," and he was "trying to give a concrete

example of what, in fact, was needed. All she needed to do was ask the question." (HT

1 80) He did not believe the statement was demeaning, but he understood that someone
could perceive it as demeaning. (HT 1 8 1 )

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"It, to me, is not a pej orative conunent. It's simply another way of saying,
' move on; we don't need this at this point. ' It just-law school is not a
negative, quite frankly. Other than the-pmis of the law students possibly
that are in law school. But just as readily, one could conclude that the
comment refers to someone who' s a professor at a law school."(HT 205)
The trial continues

The trial continued as Ms. Huddle asked Mr. Minkoff to testify about his physical
condition, and then returned to the topic of the fourplex. Mr. Minkoff testified the
fourplex was the security against his loan of the down payment to Mr. Carlsson and Mr.
Moore, and Mr. Minkoff received only the principal and interest as payment for his loan.
(RT 3 74 3 75) Mr. Minkoff engaged a contractor and financed the remodeling. Mr.
Moore withdrew from the project, Mr. Minkoff was repaid for the loan and interest, and

3 79)

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Mr. and Mrs. Minkoff signed over the grant deed to Mr. and Mrs. Carlsson. (RT 378

On cross examination by Ms. Keeley, Mr. Minkoff testified he met Mr. Carlsson

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in Mr. Carlsson's capacity as a state employee when the state leased one of Mr.

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Minkoff s buildings in 1 994. Mr. Minkoff conducted business with the state before and
after that time, and he regularly dealt with the real estate division of DGS. (RT 3 83 3 84)

Mr. Minkoff believed that he was repaid slightly more than his principal and interest
payments, but he was not sure of the amount because he relied upon the escrow agent' s
calculations. (RT 3 82 383)

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"A.
Well, from the goodness of my heart, yes, I would say at 6 percent it
would be out of the goodness of my heart." (RT 3 83)

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"[MS. KEELEY.] If Mr. Carlsson testified that you loaned this money
from the goodness of your heart, without receiving any benefit from
loaning the money, he would be inaccurate?

At 2 : 1 8 p.m. , Mr. Minkoff was excused and Ms. Huddle called Pakhtun Shah, a

real estate appraiser. Mr. Shah testified extensively about the fair market values of the

residence and fourplex, and disagreed with the appraisal methods used by Mrs.

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Carlsson's expert. (Exhibit 1 4, p. 4 1 8 ; RT 3 87 422) Ms. Keeley cross examined Mr.

Shah about his appraisal (RT 422 442), and Mr. Shah admitted he made a mistake in
calculating the value but insisted the mistake did not change the prope1iy' s fair market
value. (RT 422 425)

After Ms. Keeley completed her cross examination of Mr. Shah, the following
exchange occmTed:

"MS . HUDDLE:
Your Honor, is there any way I could get a break to
use the ladies ' room?
"THE COURT:

You know, you 're approaching a mistrial.

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"MS . HUDDLE:
I haven't even been able to talk to the gentleman who
went to work to get the records you requested. He has returned. I don 't
know what he has to say.
Okay. Is that why you' re asking for a break?

"MS . HUDDLE:
here-

No, I do need to use the ladies ' room. We have been

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"THE COURT:

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"THE COURT :
Why don't we take a 5 minute recess, but I guarantee
you, if this is not completed by 4:30, there will be a mistrial.
"MS. HUDDLE:

I have records to get in.

"THE COURT:

I didn't estimate the length for the trial.

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"MS . HUDDLE:
My client is asking me about a mistrial. I need to
confer with my client. I think five minutes I can race down the hall, race
back and talk to him-

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"MS . KEELEY:
Of the records that Ms. Huddle has provided to me
today, I have no opposition to them being admitted as exhibits in this
matter.

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"MS . KEELEY :
If l may ask where we ' re going? I had hoped for
rebuttal testimony by Mr. Sutliffe [Mrs . Carlsson' s appraiser] . There may
not be time and I don 't want a mistrial, but I will try to get Mr. Sutliffe
organized and ready to go within that five minutes. If we have additional
witnesses?
"THE COURT:
443 , italics added)

We ' ll see you at two minutes to 4:00 . . . . " (RT 442-

Hearing evidence about "approaching a mistrial" comment

At the hearing, Judge McBrien testified he told Ms. Huddle that she was
approaching a mistrial to raise "the specter of the limited time that they had estimated. "
He did not believe there had been any breaks since court convened that afternoon. (HT
73) Judge McBrien admitted he said that a mistrial would be declared if the case was not
finished by 4:3 0 p.m.

So had you ever offered them more courtroom time beyond March

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"Q.
9?
"A.

It' s not my obligation to do so." (HT 74)

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Judge McBrien testified he did not have any recollection of offering the parties more

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comi time beyond March 9, 2006. (HT 76)

Judge McBrien also testified that when he said that a mistrial would occur if the

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trial was not over by 4:3 0 p.m., he "intended to convey" that he had no intent of the trial
going beyond 4:3 0 p.m. (HT 77) When Ms. Huddle said she had more records to

introduce, Judge McBrien replied that he did not estimate the length of trial. (HT 77)
"Q.
So you're telling them here, once their two days is up-they have a
two-day estimate. Once they get to the end of that, this is over; right?
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A far as I knew, yes.

"A.

Absolutely.

"Q.

Isn't that pretty cmmnon?

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"Q.
Have you ever presided over a trial that took longer than the
attorneys estimated it would.

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"A.

"A.
They have to make a request. And, in fact, I have a Minute Order
there from a trial of Ms. Huddle' s-

"A.

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Q.
The question is: Isn 't that relatively common, to go over the
estimated time period?
No, it is not common, but it does happen ." (HT 77-78, italics added)

At the hearing, Judge McBrien was asked if he threatened mistrials in other cases
that went beyond the time estimate. "I couldn't tell you because they occurred in the mid
' 90s." (HT 78) Judge McBrien had no recollection of using the word "mistrial" when
Ms. Keeley called witnesses during Mrs. Carlsson's case-in-chief. (HT 78)
Ms. Huddle testified she asked to use the ladies room because the trial was not
proceeding as most hearings. They were not getting the usual breaks, and "everything
was very truncated." (HT 240) Ms. Huddle testified that at this point in the trial, she
knew she had more evidence to present and assumed "we certainly wouldn' t want to retry

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the entire case just over a small amount of time left to finish the case off," but she did not

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consider asking Judge McBrien for more time because "I didn't even believe additional
time would be acceptable. It was not my impression that Judge McBrien was willing to

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do anything other than end it at 4 : 3 0." (HT 3 5 1 ) She did not ask Ms. Keeley if she could

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request more time because "[t]hat's just not done." (HT 3 5 1 )

The trial continues

When the trial reconvened after the recess, Ms. Huddle and Ms. Keeley stated they
had stipulated to the admission of Mrs. Carlsson's exhibits. (RT 443-445) Thereafter,
the following exchange occurred regarding whether Mr. Carlsson had produced his
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office to try and retrieve the documents :

That's not my decision.

"(Off the Record Discussion.)

"THE COURT :

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"MS . HUDDLE:
Your Honor, would you like me to speak with Mr.
M ayo? I have not spoken with him to find out if he, in fact, got anything
from the employer.

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Statement of Economic Interest. Apparently, Mr. Carlsson had sent Mr. Mayo to his

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"MS . HUDDLE:
For the Court's information, Mr. Mayo went [to] the
place of employment and the Supervisor he spoke to said that they would
not release any of these fonns to him and that they would have to get
permission from a different boss in order to get it and that different boss
wasn't there today." (RT 445)
Ms. Huddle and Ms. Keeley stipulated as to the division of tax liability and other
community liabilities . (RT 445 446) Ms. Huddle stated she agreed to the stipulations
because the introduction of such evidence would consume too much time "and may risk a
mistrial." (RT 445 )

M s . Huddle asked to recall Mr. Shah to the stand to move his reports into
evidence. Ms. Keeley did not object to the admission of the reports . Ms. Huddle also
wanted to ask Mr. Shah about an issue in the report. Judge McBrien replied Mr. Shah

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might be able "to just respond from there frankly." (RT 446) Ms. Huddle apparently
asked Mr. Shah additional questions without having him return to the stand, as suggested

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by Judge McBrien. (RT 446; HT 8 1 - 82) Thereafter, Ms. Huddle asked to introduce

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points and authorities as to the value of the fourplex and Mr. Mayo ' s partnership claim,

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and Judge McBrien agreed to accept the document for filing. (RT 447, HT 202, Exhibit
1 3)
At 4:09 p.m. (Exhibit 1 4, p. 4 1 8 ; HT 86), Ms. Keeley recalled her appraiser, Mr.
Sutliffe, who criticized Mr. Shah's appraisal methods, testified that Mr. Shah's

calculation of the fourplex' s rental rates was inaccurate, and Mr. Shah' s mistake resulted
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in an erroneous appraisal by $ 1 00,000. (RT 447-455 ; HT 83) According to the

reporter' s transcript, Ms. Huddle then conducted "surrebuttal" 1 2 of Mr. Sutliffe as to why

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Mr. Shah' s calculations were inaccurate. (RT 457-46 1 ; HT 84-85) Mr. Sutliffe was
excused.

Judge McBrien told Ms. Huddle to "call your witness while you still have any

time. " (RT 46 1 , italics added; HT 85) At 4:27 p.m. (Exhibit 1 4, p. 4 1 8, HT 86), Ms.

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Huddle recalled Mr. Shah and asked him to respond to Mr. Sutliffe ' s criticisms. Mr.
Shah admitted he made a mathematical error but it did not substantially change his
appraisal of the fourplex, and testified in detail as to different valuation calculations and
why his appraisal was more accurate. (RT 46 1 -462)
The EPO call and the end of the trial

As Mr. Shah testified about the different appraisal methods, the following
exchange occurred:

"[MS. HUDDLE : ]
approach-

I f you redid your capitalization and your sales market

"THE COURT :

Pardon me. I have an EPO. Court is in recess.

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"MS . HUDDLE:
I think he' s j ust taking an Emergency Protective Order
request. Is that it, like a domestic violence, it' s his week; right?
"THE CLERK:

He's always assigned EPOs.

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"THE COURT :
We 're going to have to adjourn this. The County
operator is on the phone. This trial has ended.

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1 2 As we will discuss, post, there is no evidence that Ms. Huddle rested Mr. Carlsson' s
case o n March 9, 2006. (Exhibit 1 4, p. 4 1 8 , HT 1 00, 463) At the hearing, Ms. Joy
testified that she used the phrases "rebuttal" and "surrebuttal" in the trial transcript, based
upon whether the attorneys said they were calling a witness for those purposes. (HT 40 1 403) Ms. Keeley testified the parties called witnesses out of order and did not go in order
as in a civil trial. (HT 476)
65

Your Honor, I don't even have my client's attorney

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"THE COURT:
Then I 'll reserve over that issue or you can get a
mistrial, one or the other.

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"MS . HUDDLE :
fees costs put on.

We don't want a mistrial. We ' ll reserve over that

"MS . HUDDLE:

But your Honor, the house that we' re evaluating-

"MS . KEELEY:
ISSUe.

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"(Judge Exits Room)

"MS . KEELEY :

We 'll aiTange another date. Don't panic.

"MS . HUDDLE:

Is that what he said?

"MS. KEELEY :

I 'm going to ask for the him [sic] to reserve.

"THE WITNES S :

May I go?

"MS. HUDDLE:
examination.

Is he coming back? I 'm in the middle ofmy

"MS . KEELEY:
Ms. Huddle, I 'm not prepared for a mistrial. " (RT
462 463 , italics added)
The reporter' s transcript states that the proceedings ended at 4:29 p.m., which
marked the end of the Carlsson trial. There is no indication in the minute order that Ms.

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Huddle rested Mr. Carlsson's case. (HT 463 ; Exhibit 1 4, p. 4 1 8)

Hearing evidence about EPO calls and cell phone records

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At the hearing, Judge McBrien testified that at the time of the Carlsson trial, he

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was on the rotation to receive telephonic requests from law enforcement officers to issue

Emergency Protective Orders (EPO) in domestic violence situations . Judge McBrien

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cmTied a mobile telephone on his belt during the trial, and left it on vibrate to know if he

was receiving an EPO call.

When he received an EPO call, it was his general practice to adjourn court, explain
that he is receiving an EPO call, and go into chambers to take the call "because that' s
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where the windows are" to get better reception on the EPO cell phone. (HT 88, 1 00) The
county operator will be on the line, and briefly inform him that a peace officer is calling

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for an EPO. (HT 89) A peace officer then comes on the line, and explains the

circumstances surrounding the EPO request. Judge McBrien usually asks a series of

questions to substantiate the EPO request. If he decides to issue the EPO, he does so

telephonically and the officer at the scene completes the paperwork. (HT 90-9 1 ) When

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he completes an EPO call, he typically returns to the courtroom to explain to the parties
what just happened and the proceedings resume. (HT 88-89) He receives EPO calls
anywhere from twice a week to four times a day. (HT 1 00)

At the hearing, the Commission introduced the March 9, 2006, records for Judge
McBrien' s EPO cell phone. At 4:28 p.m., a call was received on that line and it lasted
one minute. (Exhibit 1 5 , p. 1 69 . 3 ; HT 1 02- 1 03) Judge McBrien testified this call was
from the county operator. (HT 1 03 1 04) At 4 :29 p.m., another call was received on that
line and it lasted one minute 53 seconds . (Exhibit 1 5, p. 1 69 . 3 ; HT 1 04) Judge McBrien
testified this call would have been from the law enforcement officer requesting the EPO.
(HT 1 04)

The records further reflect that at 4 : 3 5 p.m., an outgoing call was placed from

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Judge McBrien's EPO cell phone to his house, and it lasted one minute. (Exhibit 1 5 , p.
1 69 . 3 ; HT 1 04- 1 05) Judge McBrien testified he did not have an independent recollection

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of making the telephone call to his house or the subject of the call. (HT 1 04 1 0 5)

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Hearing evidence about the end of the trial

In his deposition, Judge McBrien testified that he could not remember the subject

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of the EPO call he received during the Carlsson trial (Exhibit 5 , p. 1 1 ), but he testified

about what happened as a result of that call :

"I sent a note out with the clerk to inform the people that we're past the
time; we have options. One is to reserve an issue if, in fact, it hasn' t been
completed-basically reserve, mistrial or submit on paperwork. I don' t
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know if I told them all of that at one time, you know, or through that one
note or-I just don't recall particularly. But I mean, I was trying to give
them options, recognizing that we were not really going to have a chance to
go into session for any substantial period of time that day." (Exhibit 5, p.
1 3)

Upon further questioning at the deposition, Judge McBrien clarified that he might

have given verbal instructions to the clerk instead of a note, and offered the following

options to the parties :

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"I believe they were a mistrial, reserve over any issue that wasn 't-because
. . . this was a partial judgment case. This was only a patiial judgment that
they were even addressing that day. And so the other would have been
let's see. Mistrial, reserve, and submit by paper." (Exhibit 5, pp. 1 4, 2 1 )
Judge McBrien examined the reporter' s transcript of the trial, and testified that he
told the parties that '"this trial is over"' because he meant the testimony "at this point in
time has ended." (Exhibit 5 , p. 1 6) Judge McBrien testified he did not preclude Mr.
Carlsson from completing the testimony of his expert " [b] ecause earlier in the transcript,
I had offered them another option." (Exhibit 5, p. 1 7)

"That was if they wanted to wait, they would not have any priority, but we
could schedule them another day. If I was available, they would have that
time. And if I was in another trial, that other trial would take precedence."
(Exhibit 5 , p. 1 7)

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As the deposition continued, Judge McBrien was unable to find the location in the
trial transcript when he offered the parties another day of evidence but insisted it was in

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the record, and that he offered an additional trial day to trail on the calendar. (Exhibit 5 ,

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pp. 1 7 1 8, 29.)
"Q.

Did you give them the option of coming back another day?

"A.

I had earlier. I ' ll have to find that.

But . . . you said ' the trial has ended. ' Those are your words;
"Q.
correct?
"A.

Right.
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"Q.
That doesn' t sound like 'this trial has ended unless you want three
other dates down the road, ' does it? It sounds final, doesn't it?
It does." (Exhibit 5 , p. 2 1 ) 1 3

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Judge McBrien testified he was trying to save time for the parties "because I didn't
know how long this [EPO] call would take. So I was basically just trying to-you know,

didn't want people standing around particularly when we weren't going to be able to

return to the trial that day because it was after 4:30." (Exhibit 5 , pp. 20-2 1 ) Judge

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McBrien did not return to the courtroom after the EPO call because "there was nobody
there-nobody to get input from." (Exhibit 5, p. 22)

Judge McBrien testified that at some point, he instructed his clerk to tell the
attorneys they could submit written closing arguments, "anything they wanted to submit,
or request for another day." (Exhibit 5, p. 23)

"Q.
So did you then, a few minutes later, tell your clerk, ' Tell them they
could have another day; that's one of the options '?
"A.
I did not at that point. It was earlier in the transcript that I
mentioned that as an option." (Exhibit 5, p. 24, italics added)
Judge McBrien testified the trial had to end by 4:30 p.m. that day based upon the
parties ' estimate that the trial would take two days, and he believed they received their

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two days . (Exhibit 5, pp. 28-29)

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"Q.
. . . do you always cut off trials right at the time when they have
reached the estimate?

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"A.
No. What I do is typically-and I would have typically done it in
this. I would have tried to determine what more, if any, evidence was

1 3 As we explained ante, Judge McBrien testified at the hearing that his deposition
testimony referred to an exchange on page 1 49 of the trial transcript, where he offered the
parties an additional half-day, which only enabled the parties to have two full trial days,
consistent with their trial time estimate, and he did not offer the parties an additional day
of trial evidence. (HT 76)
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needed to be presented; and if more time were needed, they were welcome
to try that option of a day trailing." (Exhibit 5, p. 29)
At the hearing, Judge McBrien testified about the end of the Carlsson trial, and

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when he received the EPO call. He felt the vibration from his mobile telephone and
infonned the parties that an EPO call was coming in. He started to walk out of the

courtroom, he said that court was in recess, and he left the courtroom to take the call.

(HT 9 1 -94) Judge McBrien reviewed the trial transcript, and believed he was still talking

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to the county operator when he briefly returned to the courtroom and said they were
going to have to adjourn and the trial had ended. (HT 94 95) Judge McBrien conceded
Mr. Shah was still on the witness stand when he left the courtroom. (HT 99)
Judge McBrien testified he did not have an independent recollection of his brief
exchange with Ms. Huddle when he advised her to reserve over attorney fees or he would
give her a mistrial. (HT 96) He lacked an independent recollection of when he left the
courtroom for the last time, but testified that he told the parties that the "evidentiary
portion" of the trial was over. (HT 97 -98)

There's not going to be any more testimony in this case; coiTect?

"A.

There's not going to be any more testimony that day in this case.

"Q.

Or any day?

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"Q .

I did not state that.

"Q.

Okay. Well, 'This trial has ended' is your statement?

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"A.

"A.

CoiTect.

"Q.

Sounds pretty final, doesn't it?

"A.

It sounds that way.

"Q.
And you didn't, in fact, allow any additional testimony after this
point, did you?

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"A.
There was no requestfor an opportunity to provide additional
testimony, at least made to me." (HT 98, italics added)
At the hearing, Judge McBrien was asked to address a statement in his October 1 4,

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200 8 , response to the Commission, where he stated that the Carlsson trial ended the way
it did because " ' all testimony and argument had to be concluded by 4 : 3 0 . "' (HT 1 09-

1 1 0; see 1 0/ 1 4/08 "Notice of Fonnal Proceedings," p. 4.) Judge McBrien testified "that

was the extent of the estimate they had given." (HT 1 1 0) He conceded the courthouse

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was open until 6:00 p.m. and he never inquired whether the attorneys and/or staff could
have stayed beyond 4 : 3 0 so they could complete the testimony. (HT 1 1 0) Judge
McBrien testified he took the Carlsson matter under submission when he left for the EPO
call and adj ourned, but conceded he did not do so formally in the courtroom. (HT 6 1 4)
Judge McBrien testified neither Ms. Huddle nor Ms. Keeley approached him after
March 9, 2006, to ask for additional trial time or advise him of an agreement for a joint
request, " [a]nd it surprised me that no one did." (HT 200)

"SPECIAL MASTER CORNELL:

At any time did you consider
asking the attorneys if they wanted more time?

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" [JUDGE MCBRIEN] :

I actually considered asking the attorneys what
they were doing and concluded that they were running the evidence to 4:30,
j ust to use every bit of time that was readily available, and they would
then-they would then decide how they wanted to move forward, whether
it was worth their while to try to schedule it for another day, trail possibly.
They attorneys generally do not like to do that simply because they have no
guaranteed hearing. So all-I did consider all those, but I just thought I ' d
let them go the way they wanted to go.
"SPECIAL MASTER CORNELL :
stringing the evidence out?
" [JUDGE MCBRI EN] :

Did it appear to you they were

They were. That's what it appeared to me.

"SPECIAL MASTER CORNELL:

"[JUDGE MCBRIEN] :

Both sides?

A bit." (HT 1 29- 1 30)

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Judge McBrien testified he did not return to the courtroom after he handled the
EPO call because "the trial had ended." (HT 1 06) He conceded the trial ended rather

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abruptly, but he had no independent recollection of whether he looked into the courtroom
to see if anyone was still there. (HT 1 06)

At the hearing, Judge McBrien was asked to explain his deposition testimony, that

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compatible. (Exhibit 5 , p. 62; HT 1 27- 1 2 8) He testified:

he had two responsibilities, to hear the trial and respond to EPOs, and they were not

"They were not compatible because the EPO interfered with our conclusion
of the trial in one minute. Partly, there is the expectation that the attorneys
are going to comply with the rules and the procedure or ask for more time;
and partly, we have the insight or lack of insight of the public, and I think
that' s what was of some concern to me, who may not know the rules ." (HT
1 28)
Judge McBrien conceded the cell phone records showed the EPO took about three
minutes to complete, and insisted his duty to hear the trial was incompatible with dealing
with that EPO request. (HT 1 2 8)

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"They were [incompatible] , because I had already terminated the trial by

the time the EPO had concluded. My expectation was that the parties were
not waiting for me, but rather were gathering their books, were very likely
going to meet and confer, decide how to go forward. Ms. Huddle was
going to talk to her client regarding his request for-or his whispering to
her for a mistrial. And it was going to take some time for them to figure
out how they wanted to go forward." (HT 1 2 8- 1 29)

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Judge McBrien conceded that when he received the first EPO call, he decided to

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end the trial "[ f]or that day" and he did not return to the courtroom to hear more
evidence. (HT 1 29) He acknowledged that he called his house after completing the EPO

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calls, and he was sure that he left the courthouse shmily afterwards, although he lacked
an independent recollection. (HT 1 29)
Judge McBrien testified that he could have called a recess to handle the three

minute EPO and then returned to the courtroom, but decided against that:
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"But it could have been one of those 1 5 or 20-minute EPOs. And I was
concerned that we were not going to be hearing more evidence that day;
this is costing people money to stand around in court with their attorneys,
and there was no real purpose for them to wait, for me, in court for us all to
gather again. They still needed to meet and confer. They needed to-Ms.
Huddle needed to talk to her client regarding his request for a mistrial, or
mumbling. And I think they needed some time." (HT 1 3 0- 1 3 1 )

At the hearing, Ms. Huddle testified that around 4:00 p.m. of the last afternoon

session, she realized she was not going to finish her case. She did not approach Ms.

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Keeley and ask for more time because Ms. Keeley did not have "the power to decide
when I get extra time or not." (HT 346) She did not ask Judge McBrien for additional
time because "I've never known a situation where you have to ask for additional time. A
trial just keeps going . . . . The judge is typically the one that does that, not the opposing
side." (HT 346) She thought they would be able to continue past 4:30 p.m. that day
since she had seen that happen many times . (HT 3 64)

Ms. Huddle testified that she was asking Mr. Shah about the appraisal when Judge
McBrien said he had an EPO and left the courtroom. (HT 256, 272-274) Ms. Huddle
assumed Judge McBrien would take the call and then return to the trial, because she
intended to call more witnesses. (HT 3 64) Judge McBrien returned to the courtroom,
stood in the doorway behind the bench, and said they were going to adj ourn and the trial

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was over. (HT 257, 2 59-260) Ms. Huddle testified she tried to tell Judge McBrien that

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she still had more evidence to introduce, but he left the courtroom. (HT 2 6 1 -262, 275,

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3 65)

Ms. Huddle testified she stayed in the courtroom with the court reporter, the clerk,

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M s . Keeley, the parties, and Mr. Carlsson' s friends and relatives, who were in the
audience. (HT 262-263) They waited for about 1 0 to 1 5 minutes for Judge McBrien to

return. She had never seen anything like this happen in a trial. (HT 265) The clerk went
back and forth between the comiroom and chambers more than once. The clerk finally

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told them the proceedings were over, and Judge McBrien never returned to the
courtroom. (HT 266-267)

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Ms. Keeley testified that Judge McBrien left the bench to take the EPO telephone
call and she did not remember whether he returned. (HT 480) Ms. Keeley believed the

parties stayed in the courtroom for ten minutes after he left. (HT 48 1 ) When they were

off the record, Ms. Keeley heard Ms. Huddle say that she did not get in all her evidence.

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Ms. Keeley verbally offered that Ms. Huddle could submit a declaration from Mr.
Carlsson, and Ms. Keeley waived her right to cross-examination, but Ms. Huddle did not
accept the offer. (HT 496)

At the hearing, Ms. Joy, the court reporter, testified Judge McBrien left the
comiroom when he received the EPO call. He later "stuck his head around the corner"
and said the trial was over but he never resumed the bench. (HT 3 87-3 8 8) Ms. Joy
testified the parties, attorneys, and court personnel sat there and wondered what to do
because they were never fonnally dismissed. (HT 3 89) After about 1 5 or 20 minutes,
Judge McBrien's clerk said he was gone and everyone decided to leave. She had never
seen a trial end like that. (HT 3 90-3 92)

Hearing evidence about t the Minute Order for March 9, 2006

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A typed minute order for the March 9, 2006, session of the Carlsson trial,
describes the end of the trial :

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"The Court recessed.

"[The Comi instructed the clerk to notify Counsel that they may submit a 3
page Brief re: Attorney Fees and a 3 page Closing Brief if they choose by
311 7/06. Clerk verbally gave notice.]" (Exhibit 1 4, p. 4 1 8)
At the hearing, Judge McBrien testified that he did not recall when he instructed

the clerk as to the statements in the minute order, but suspected he spoke to the clerk on
March 1 0, 2006. (HT 20 1 , 1 08 , I l l ) Judge McBrien conceded that while a previous
minute order stated that Mrs. Carlsson, the petitioner, had rested her case, there was no
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indication in any of the minute orders that Mr. Carlsson, the respondent, rested his case.
(HT 1 00)

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Ms. Huddle testified that on the morning of Friday, March 1 0, 2006, she was in
the Ridgeway Courthouse on another case, and the bailiff told her that the clerk from

Depmiment 1 24 wanted to speak with her. (HT 267) Ms. Huddle went to that

department and met with Judge McBrien' s clerk, Ms. Chesshire. Ms. Chessire infonned

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her that Judge McBrien "said that I had a right to file a closing brief with arguments and a
brief about attorney' s fees, but there was a page limit on it, and it had to be done by next
Friday." (HT 268) Ms. Huddle reviewed the March 9, 2006, minute order, and stated it
contained the instructions that Judge McBrien' s clerk verbally gave her on March 1 0,
2006. (HT 269, 3 65)

At the hearing, the parties stipulated to the admission of the statement given by
Judge McBrien's clerk, Ms. Chessire, regarding the end of the trial. (HT 3 74, Exhibit 40)
According to the statement:

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" [Ms. Chessire] doesn't recall the exact sequence after the EPO call came,
but knows that the judge ultimately did not return to the comiroom. She
knows that at some point when the attorneys were still there she left the
courtroom to check on the status. She does not recall if the j udge had
already left or was still there. If he wasn' t there, she would have asked him
about the status of the case the following morning. If he was there and
gave her instructions for the attorneys, she would have passed on that
information to the attorneys that day.

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" [Ms. Chessire] doesn't recall when she talked to the judge about the status
of the case and what to tell the attorneys. It wouldn't have been by
telephone; he never calls her unless he' s not coming in because he ' s sick.
She doesn't know for sure when she talked to the attorneys about what the
judge wanted them to do." (Exhibit 40)
Ms. Chessire stated her usual practice was to take notes during the proceedings,

then prepare the minute order the next day or sometimes the day after. (Exhibit 40) If

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going. (Ibid.)

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Additional hearing evidence about the trial

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"[Ms. Chessire states she] 'probably' did not prepare the March 9[,] 2006
minute order on M arch 9. She does not know when she typed in the
infonnation in parenthesis on the March 9 minute order, concerning the
judge' s instructions to the attorneys . The fact that it' s in parenthesis
indicates to her that she had an ' open' minute order when she typed it in."
(Exhibit 40)

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she has time during a hearing, she will start the minute order while the proceedings are on

At the hearing, Ms. Joy, the court reporter, testified about an incident that occurred
during a five-minute recess on the second or third day of trial. Ms. Joy testified that Ms.
Huddle, Mr. Carlson, and the clerk left the comiroom. Judge McBrien remained on the
bench. Ms. Keeley, Mrs . Carlsson, and the bailiff were in the courtroom but the parties
were not on the record. (HT 3 83 , 393 395) According to Ms. Joy, Ms. Keeley said,
'" She doesn't get it yet, does she? "' Judge McBrien replied, " ' She doesn't seem to. "'
Ms. Keeley said, " ' I guess she doesn' t see what's happening here."' (HT 3 83 )
Ms. Keeley testified she never had an ex pmie communication with Judge
McBrien. (HT 475)

We find this allegation is not proven.

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Judge McBrien testified that he made various statements during the trial to try and

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move the case along. 1 4 (HT 206)

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"In my experience with Ms. Huddle, she would never complete her cases
within the estimate. And if it' s a child custody case, I can understand the
complexity and variations that might arise that would create some
uncertainty. And, in fact, have on at least two occasions extended the time
for the trial. In the case of Barrett, I believe, we went a third-a third day.

1 4 In his deposition, Judge McBrien testified he repeatedly advised Ms. Huddle there
would be a mistrial if the case was not finished on time, because "in my experience, Ms.
Huddle never completes her work within the time allotted." (Exhibit 5, p. 5 5)
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In the case of Myles, I believe we went two and a half. Both of which had
involved custody issues." 15 (HT 206)
Judge McBrien admitted he repeatedly told Ms. Huddle that he would declare a

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mistrial if she did not finish at a certain time. (HT 1 78)

"Q. Initially, you were telling her it would be a mistrial ifshe didn 't
finish in a day and a half; right?

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"A.
I was leading her to believe that, yes. Well, I don 't know if! was
successful, but I was saying it, I guess.
"Q.
Do you feel-in your opinion, did you display impatience with Ms.
Huddle at any time during this trial?
"A.
Depends on what you mean by ' impatience. ' Ms. Huddle has the
ability to not necessarily get to the point, and I try to move her along
toward the point. So if that's impatience-but I don' t believe it was .
"Q.

In your opinion, were you ever discourteous to her?

"A.

No." (HT 1 78)

Judge McBrien testified he did not believe that he denied Mr. Carlsson 's right to
due process and a fair hearing, because the parties had the opportunity to present
evidence during the time "they had estimated it would take, and they presented it. They
never asked for more time. And it' s-under our system, it' s their obligation to ask for

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more time. But they did not." (HT 32) Judge McBrien testified Ms. Huddle never

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15 As explained ante, Judge McBrien introduced evidence that he presided over the
Barrett trial in 1 99 1 , Ms. Keeley and Ms. Huddle represented the opposing pm1ies, the
trial was set for two days, he granted the request of one or both parties for a third day,
and the trial was completed on that third day. (HT 575-576, Exhibit M) Judge McBrien
testified he presided over the Myles trial in 1 998, Ms. Huddle represented one of the
parties, the trial estimate was two days, it involved a very complicated child custody case,
Judge McBrien granted the parties ' request for more time, but he declared a mistrial after
two and one-half days of trial because the case was not closed to being finished. (HT
573-574, 604-606; Exhibit L)
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indicated she needed more time, and the clerk' s minute orders showed the parties
received a total of two court days for the trial. (HT 32, 54-56)

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Ms. Keeley testified Judge McBrien "urged both of us to basically get it in gear"
during the trial. (HT 475) Ms. Keeley believed Ms. Huddle was "a bit slow" in

presenting her case, and Judge McBrien was " [n] ot impatient in a critical way, but he

certainly communicated to us that he wanted us to speed things up. Both of us." (HT

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493)

Ms. Keeley testified Judge McBrien did not show any anger towards Ms. Huddle,
and he was courteous to Ms. Huddle, Mr. Carlsson, and Mrs. Carlsson during the trial.
He appeared fair and open to the issues presented to him, and his demeanor was
"excellent." (HT 477 47 8) He directed them to "move things along" because the case
"was moving slower than is typical in a family law comiroom, and nobody wants a
mistrial." (HT 478)

Ms. Huddle testified that while she initially wanted a continuance in the Carlsson
trial to consolidate all the fourplex issues, she was ready for trial when the continuance
was denied and she was not trying to create a mistrial. (HT 3 3 0 332) She did not want a
mistrial declared because it would have been very expensive for the parties to "redo the

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thing all over again," but Judge McBrien kept raising the possibility of a mistrial
throughout the trial . (HT 224 225) She described Judge McBrien as being "very

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impatient" during the trial. (HT 225) Ms. Huddle testified that judges in general don't
"make this statement about a mistrial this many times. It' s not uncommon for a judge to

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mention maybe once towards the end of the trial and you ' re trying to wrap it up and you

don't want to go another day. It's not uncommon for the judge to say, ' Well, you know,
we don't want a mistrial in this case, do we? "' (HT 226)
"Usually it doesn't come up until the end of the case where they are trying
to wrap it up, and the judge might make the comment to-and it doesn't
happen in every case; but on occasion, the bench has said it to make sure
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Ms. Joy, the court reporter, testified the trial was "pretty much a push" and

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you realize there ' s a finite amount of time here, to please move on and get
things done." (HT 226)

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"everyone" was working hard to complete the case. (HT 405) Ms. Joy testified that Ms.

Keeley and Ms. Huddle comported themselves as professionals. Ms. Joy described Judge

McBrien' s behavior toward Ms. Huddle as "[d]emeaning," while he "seemed to have an

amicable relationship with Ms. Keeley," and he treated Ms. Keeley in a "much more

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respectful manner." (HT 3 80, 3 82) Ms. Joy's opinion was based on Judge McBrien' s
responses when Ms. Huddle asked for breaks, and when he repeatedly threatened to
declare a mistrial. (HT 3 8 1 ) Ms. Huddle was never rude to Judge McBrien. (HT 3 82)
Ms. Joy testified Judge McBrien did not treat her poorly when she repmied the trial, but
she had never seen a judge behave the way Judge McBrien did toward Ms. Huddle, "not
even on television." (HT 3 82)

PART IV
POST TRIAL EVENTS

We now turn to additional hearing evidence as to what happened after the

Carlsson trial ended on March 9, 2006.

The Parties ' Exchanges after March 9, 2006

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Ms. Keeley tried to reach an agreement with Ms. Huddle on several different
occasions to submit stipulated statements or offers of proof, so they could avoid a

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mistrial. Ms. Keeley also sent a letter to Ms. Huddle making such offers . Ms. Huddle,

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however, never responded to any of Ms. Keeley' s offers. (HT 478, 4 8 1 482)
On March 1 3 , 2006, Ms. Keeley faxed a letter to Ms. Huddle about her complaint

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that she had not finished her case. (Exhibit 42)

"If you seek an opportunity for Mr. Carlsson to testify further, I believe
Judge McBrien will declare a mistrial. Considering that the comi provided
us an entire day on Thursday, March 2nd, and a half day on both March 3rd
and March 9th, additional testimony will exceed your two-day trial
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estimate. If a mistrial is declared on account of Mr. Carlsson' s insistence

on having an opportunity for additional testimony, I believe it very likely
that Judge McBrien, who also serves as the law and motion judge in this
matter, would grant Mrs. Carlsson a very substantial award of attorney
fees." (Exhibit 42, p. 1 )

Ms. Keeley offered to enter into a settled statement about the remaining contested issues,

and believed Judge McBrien would not obj ect or declare a mistrial if the settled statement
was reasonably brief. (Exhibit 42, p. 2)

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Ms. Keeley testified that she believed Judge McBrien might declare a mistrial if
they asked for more trial time because he had "hurried us along, urged us to get it in
gear" several times during the trial, and they had used up their allotted two days of trial
time. She thought they would be "skating on thin ice" to ask for more comi time, and
that's why she suggested a settled statement. (HT 485, 487) Ms. Keeley was trying to
avoid a mistrial because of Mrs. Carlsson ' s limited financial resources. (HT 487, 489)
On March 1 3 , 2006, Ms. Huddle faxed a letter to Ms. Keeley, and proposed a
settlement of the entire case in order to avoid a mistrial, appeal or "other horrendous
attorney fee expenditures." The settlement offer suggested a complete denial of spousal
support, the sale of the fourplex, the awarding of the residence to Mr. Carlsson, and for
each party to pay their own attorney fees. (Exhibit 43) Ms. Huddle wrote: "There is

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very little time to respond or negotiate given the Friday deadline for our briefs, or
potential mistrial, so I have not built in any negotiation room." (!d. at p. 2.)

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Ms. Huddle testified that while Ms. Keeley offered to arrange another court date,

she did not accept that offer because Ms. Keeley had no authority to set extra trial dates,

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and Judge McBrien did not offer additional dates . (HT 3 53) Ms. Huddle never

considered filing a motion to request additional trial time because she believed "[ s ]uch a

request would actually be more damaging to my client." (HT 3 56) She never considered
filing a motion for mistrial. (HT 3 55) She did not want to risk "the ire" of Judge
McBrien, "after being told this is it, I am now back asking for more," and feared her
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(HT 3 66, 3 68)

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On March 1 5, 2006, Ms. Keeley faxed a letter to Ms. Huddle in which Mrs.

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client would be sanctioned, receive an adverse ruling, or ordered to pay attorney fees.

Carlsson rejected Mr. Carlsson's settlement proposal and made her own settlement offers,

which included the award of the residence and fourplex to Mr. Carlsson. (Exhibit 44, pp.
1 -2)

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Closing Briefs

On March 1 7, 2006, Ms. Huddle filed a closing brief on behalf of Mr. Carlsson.
(Exhibit 1 8) Ms. Huddle 's brief began as follows :

"Respondent's counsel was verbally noticed and instructed by the court's

clerk on March 1 0, 2006, that the trial in this matter was deemed concluded
and no further testimony will be taken. Further, the court clerk stated that
the parties were permitted to submit a declaration regarding attorney fees
and costs and a closing argument brief with a three (3) page maximum
limit. Respondent objects to this procedure, as Respondent 's redirect
testimony was not concluded and rebuttal testimony [was] not allowed.
Respondent submitted several exhibits for which testimony was to be
elicited. While Petitioner's counsel graciously agreed to admit the
documents without testimony, the testimony regarding the documents, as
stated below, would support Respondent' s contentions in this case."
(Exhibit 1 8, p. 436, italics added)

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Ms. Huddle 's closing brief stated that Mr. Carlsson wanted to sell the fourplex,
and argued Mrs . Carlsson should not receive any proceeds "based on her breach of

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fiduciary duty" when she refused to acknowledge Mr. Mayo ' s partnership interest in the
property. (Exhibit 1 8, p. 43 7) Mr. Carlsson asked to receive the residence, with the

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value based on a new, mutually agreed-upon appraisal, and that he would have testified

that selling the family residence would traumatize their minor child. (!d. at p. 43 8.) As
for his state pension, Mr. Carlsson requested division of the pension pursuant to the time
rule, and that he would have testified "that his repayment into his retirement is

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Also on March 1 7, 2006, Ms. Keeley filed a closing brief on behalf of Mrs.

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mandatory, but that Petitioner has an option when she gets her own account to repay or

Carlsson, and requested the sale of the residence. She also requested the court to find the
Carlssons were the sole legal and beneficial owners of the fourplex, that Mr. Carlsson' s

attempt to transfer title to Mr. Mayo was invalid, and to award the fourplex to Mr.

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Carlsson. (Exhibit 1 9, p. 540) As to Mr. Carlsson's state pension benefits, she requested
the court reserve and divide the community property portion of his pension pursuant to
the time rule, and award each party one-half of community propetiy contributions to his
deferred compensation plan. (!d. at p. 54 1 . ) Mrs . Carlsson requested attorney fees of
$40,000. (Ibid.)

Hearing evidence about the closing briefs

At the hearing, Judge McBrien testified he read the parties' closing briefs prior to
ruling on the case, and he was aware of Ms. Huddle's complaint about the abrupt ending
of the trial and that she needed more time to introduce evidence. (HT 1 1 0 1 1 1 , 20 1 , 602603) Judge McBrien testified that if the attorneys had jointly requested more time, he
might have granted their request. (HT 1 1 1 )

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"Q.
Did it concern you that an attorney was representing to you that she
hadn't been allowed to finish her case, her testimony?

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"A.

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"Q.

It did.

So what did you do in response to that concern you had?

"A.
Well, one, [she] doesn 't ask or doesn 't offer a remedy. Namely,
more time. So there really wasn 't a lot I could do." (HT 1 1 2, italics added)
Judge McBrien testified he read Ms. Huddle's closing brief and decided the case.

(HT 1 1 3 )
"Q.
S o you did nothing in response to her comment about finishing her
case; correct?
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"A.
I did not initiate any contact with the attorneys regarding what they
wanted to do." (HT 1 1 3 )
At the hearing, Judge McBrien testified that he decided to order the sale of the

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properties "once I ' d heard all the evidence," which included the parties ' closing

arguments, and he conceded that the value of both properties was still a relevant issue on

March 9, 2006, when he left the courtroom to accept the EPO call. (HT 1 1 5)

Judge McBrien's Tentative Decision

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On March 22, 2006, Judge McBrien issued a three-page tentative decision in the
Carlsson dissolution. It was handwritten on minute order forms. 1 6 (Exhibit 2 1 ; Exhibit
G)

Judge McBrien awarded each pmiy half of the community interest in Mr.
Carlsson' s retirement and did not order a segregated account. (Exhibit 2 1 , p. 403 )
Judge McBrien awarded spousal support to Mrs. Carlsson and rej ected Mr. Carlsson' s
argument that she was underemployed. (Exhibit 2 1 , p . 404) A s for the real properties,
Judge McBrien acknowledged the parties disputed the fair market values, but ordered the
sale of both the residence and the fourplex. (!d. at p. 405 .) As to attorney fees, Judge
McBrien noted that some of the fees might be attributed to Mr. Carlsson' s decision, on
the eve of trial, that he no longer wanted the fourplex awarded to him. Judge McBrien

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found that if Mr. Carlsson' s decision had been revealed earlier, the parties could have

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ananged for the sale of the fourplex, instead of obtaining competing appraisals and
requiring substantial trial time. Based upon the pmiies ' respective abilities to pay and "in

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part on this change of desire" of Mr. Carlsson, Judge McBrien awarded $3 5 ,000 in

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attorney fees to Mrs . Carlsson. (!d. at p. 40 5 .)

1 6 At the hearing, Judge McBrien testified that only Sacramento County had family law
j udges fill out minute orders, for both law and motion matters and trials, and identified
the handwriting as his own. (HT 42)
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Hearing evidence about the tentative decision

At the hearing, Judge McBrien testified he drafted the tentative decision after he

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reviewed the pleadings, his trial notes, and the entire file, including the parties ' post-trial

briefs. (HT 20 1 , 5 6 1 - 5 62) Judge McBrien disagreed that he entered j udgment in favor of

Mrs. Carlsson on the maj ority of the issues. (HT 1 1 9) Judge McBrien testified that he
did not order a segregated account for the division of Mr. Carlsson' s state retirement

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benefits because Mrs. Carlsson provided the only trial evidence on that topic, that she did
not want a segregated account, Ms. Huddle did not cross examine her on that issue, and
Mr. Carlsson did not offer any contrary testimony. (HT 1 1 7 1 1 9, 562-563 , 60 1 )
Judge McBrien testified he decided to award spousal support to Mrs. Carlsson
because Mr. Carlsson made twice her income. Mrs . Carlsson's evidence showed she
worked full time, and he rejected Mr. Carlsson' s argument that she was underemployed.
(HT 1 22- 1 23 , 5 66 567)

Judge McBrien testified he found the Carlssons were the only title holders to the
residence and fourplex, and ordered the sale of both prope1iies. (HT 1 23 1 24, 568)

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"First of all, nobody wanted the-the four-plex. And secondly, I was

aware that Mr. Carlsson wanted the house. However, he presented no
evidence to suggest that he qualified for any-or had any ability to buy out
Mrs. Carlsson. And so I really didn't want to put the parties in a position of
l imbo where I make an order awarding it to Mr. Carlsson but he really
couldn't qualify for the loan or to buy out her interest in it. So I figured that
by doing that, by ordering it sold, certainly if it was still Mr. Carlsson' s
desire to obtain the house, that they would be able to get to a point of an
amount, in a descending market, that would be-that both would feel fair
and that he could qualify for a loan on. And the testimony indicated that
the house was going down in value, and the duplex was holding its own
simply because commercial or rental property at the time hadn't yet started
tanking." (HT 5 68-569)

Judge McBrien testified Mr. Carlsson failed to present any evidence that Mrs. Carlsson
agreed to the partnership agreement with Mr. Mayo. (HT 202-203)

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reasons. (HT 1 24, 5 69)

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"First of all, Mr. Carlsson made significantly more money, more than two
times the amount that Mrs. Carlsson made. Secondly, we had spent
probably, I want to say, a third of the trial dealing with this third party
interest in this property, and there was no way that I could adjudicate that
without the third party present. [ ] . . . [] And also, I was a little
concerned about the changes in position. Not from the perspective of it' s
fair to change or unfair to change your position; it's fine to change your
position. But one of the points that was brought to my attention during the
trial was that Mrs . Carlsson had two appraisals on both the house and the
four plex, one six months earlier and one a month before the trial . And in
an effort to try to reach some agreement regarding the times-or the price,
you know, the price that it would be valued-and that's where I determined
that the price of the house, of the family residence, was falling. And then in
the-I had indicated early on, when they had both indicated they didn't
want her-actually, Mr. Carlsson had indicated he did not want the four
plex, that we could address simply the issue of attorney' s fees for the need
to get that extra appraisal at a later point, if they were willing to agree to
sell the four plex, which would have reduced i1mnensely the amount of
time spent in the trial on that issue. But I-then I sent the attorneys off to
discuss it, but no agreement was reached." (HT 569 57 1 )

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Judge McBrien testified he awarded attorney fees to Mrs. Carlsson for several

Judge McBrien's Statement of Decision

On March 29, 2006, Ms. Huddle filed obj ections to the tentative decision on Mr.

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Carlsson's behalf. He objected to the court's rulings on child and spousal support, the
failure to segregate the pension benefits, the sale of the residence, the award of attorney

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fees to Mrs . Carlsson, and the failure to find that Mrs . Carlsson breached a fiduciary duty

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and committed fraud by refusing to transfer a partnership interest to Mr. Mayo. (Exhibit

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22, pp. 5 5 1 5 5 3 ; Exhibit H)

On March 3 0, 2006, Judge McBrien issued a handwritten minute order and

overruled Mr. Carlsson 's objections to the tentative decision, except to clarify that a final
child support order would not be issued until custody was resolved. In all other respects,
Judge McBrien adopted the tentative decision as the statement of decision. (Exhibit 23)
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Hearing evidence about the Statement ofDecision

At the hearing, Judge McBrien testified he reviewed Mr. Carlsson's obj ections to

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the tentative decision, and adopted the tentative decision as the Statement of Decision

except for the child support issue. (HT 1 2 5) He conceded that when he made the final

ruling, he was aware that Mr. Carlsson obj ected to the termination of the trial, and that

some of the proposed testimony might have been relevant to the contested issues. (HT

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1 25)

"Q.
Do you see a problem with making a ruling under those
circumstances?

"A.
It's their obligation to ask for more time if they want more time."
(HT 1 26)
PART Y
JUDGE MCBRIEN'S REQUEST AND THE TRANSMISSION OF
THE TRANSCRIPT OF MR. CARLSSON 'S TESTIMONY

As set forth ante, on March 3 , 2006, Mr. Carlsson was extensively cross-examined
by Ms. Keeley as to his relationship with Mr. Minkoff. Also, Judge McBrien, on his
own, made a request that day for Mr. Carlsson to produce his Statements of Economic
Interest from 200 1 to 2004, but Mr. Carlsson was unable to produce the documents

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during the trial.

As we will explain post, it is undisputed that Judge McBrien obtained a partial

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transcript of this portion of Mr. Carlsson's trial testimony after three requests . Judge

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McBrien then sent that transcript to Mr. Carlsson's employer, the state' s DGS. The
hearing evidence reveals the following sequence of events.

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Judge McBrien's first request for the transcript

At the hearing, Judge McBrien testified that at some point after Mr. Carlsson' s
trial testimony o f March 3 , 2006, Judge McBrien asked his court clerk to have the court

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reporter prepare a partial transcript of Ms. Keeley's cross-examination of Mr. Carlsson.

(HT 1 56)
Why did you want that?

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"Q .

"A.
I wanted to ensure that what I thought I had heard, I had actually
heard.
What was it that you thought you heard?

"A.

I thought I heard the admission of the violation of the FPPC rules.

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"Q.

"Q .
So you wanted the document to determine
whether Mr. Carlsson had violated the law?

or help determine

"A. No. I wanted to double-check what I thought I had heard to ensure

that I heard accurately heard that.
"Q.

And you needed that to help you make a decision in the case?

"A.
Well, I think that was-would be helpful to know. If, in fact, I had
misheard that information, this whole pursuit of the Statement of Economic
Interest may have been irrelevant. As it turns out, I never received the
Statement of Economic Interest." 1 7 (HT 1 56 1 57, italics added)
Judge McBrien did not recall what he said to his clerk when he asked for the
transcript, just that he wanted Mr. Carlsson's cross-examination testimony "to ensure that

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I actually heard what I did think I heard." (HT 1 5 8)

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"Q .
When you asked your clerk to get the transcripts, did you tell her
that the attorneys should not be informed about the request?

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"A. I have no-I 'm fairly certain I wouldn 't do that, but I have no
recollection . [,-r] . . . [,-r]
"Q.
Is this request of the transcript something you would want the
attorneys to know about?

1 7 In his deposition, Judge McBrien testified he asked for the transcript of Mr. Carlsson' s
testimony about Mr. Minkoff because "it smelled. And I was trying to ensure that it
actually was an odd dealing, and I hadn't misheard anything." (Exhibit 5, pp. 44-45)
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Judge McBrien did not know when he made the first request for the partial

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"A.
I would assume they would get a copy of whatever it is I requested."
(HT 1 5 8- 1 59, italics added)

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transcript, or whether the request was made after the trial concluded on March 9, 2006.
(HT 1 57) He reviewed Exhibit 1 7, the partial transcript of Mr. Carlsson's cross

examination testimony of March 3 , 2006, prepared by Ms. Joy, the court repmier, who

did not sign the transcript but certified it March 1 0, 2006. He conceded his first request

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was made sometime between March 3 and 1 0 , 2006. (HT 1 5 8 , 1 59 ; Exhibit 1 7 , p . 1 23 )

M s . Joy, the court reporter, testified that Judge McBrien's clerk approached her at
some point during a break in the trial (HT 407, 427), and said Judge McBrien wanted the
particular portion of the March 3 , 2006, transcript that dealt with Mr. Carlsson's
employment, '" and he instructs you not to tell anyone. "' (HT 3 84) Ms. Joy testified that
shortly after the conversation with the clerk, she approached both Ms. Huddle and Ms.
Keeley in the lobby and told them exactly what the clerk asked her, and asked if they also
wanted copies of the transcript. (HT 3 85) Ms. Joy could not recall their reactions or if
they asked for copies. (HT 408-409) Ms. Joy testified she had never received such a
request from any judge before. (HT 3 85) Ms. Joy only spoke to the clerk and never
spoke to Judge McBrien. (HT 407)

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Ms. Joy testified she transcribed the requested portion of the transcript that
evening. She sent it the next day to Linda Lucky, the court coordinator in the

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administrative office, and directed it to Judge McBrien' s department. (HT 3 8 5, 3 86, 406407, 4 1 1 ; Exhibit 1 7) Ms. Joy believed the clerk requested the transcript on March 9,

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2006, and she sent it to the administrative office on March 1 0, 2006. (HT 426-427)
In her statement admitted at the hearing, Ms. Chessire, Judge McBrien' s

courtroom clerk, addressed the first request for the transcript:

" [Ms. Chess ire] recalls the judge asking to ask the court reporter for a
partial transcript. She doesn't recall his exact words, but does not recall the
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judge telling her not to tell the attorneys that he had asked for a transcript,
or any words to that effect. She ' can' t imagine ' that he would say
something like that. She thought that it was like a read back situation,
where the judge wanted to review the testimony, but did not need
something 'official and bound. "' (Exhibit 40)
In his deposition, Judge McBrien was asked if he gave instructions that the

"Not to my recollection." (Exhibit 5, p. 46.)

reporter could not tell the attorneys he wanted the transcript. Judge McBrien testified:

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"Q.
Is it possible that you told the clerk, ' let the reporter know that the
attorneys shouldn't hear about this ' ? [] . . . []
"[A.] Anything is possible. [ ] I don' t quite understand why anybody
would do that, but . . . " (Exhibit 5, p. 47)
Judge McBrien testified he would have expected the attorneys to know about the request
because they would have received a copy of the transcript. (Exhibit 5 , p.47)
We find the allegation is not proven.
The second request for the transcript

While Judge McBrien requested the transcript sometime between March 3 and 1 0,
2006, it is undisputed that he did not receive the transcript at that time. He issued the
Statement of Decision on March 3 0, 2006, before he received the transcript. (HT 1 59)

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Judge McBrien testified that he believed that he asked for the partial transcript
again in May 2006, because some procedure had not been followed and "we needed to

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make a formal request through the Comi system for a copy of the transcript." (HT 1 59-

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1 60) Judge McBrien reviewed (HT 1 60) a hand-written minute order, entitled, "Request

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for P artial Transcript," which stated:

"The court requests a partial transcript of the proceeding to include
Respondent[ ' ] s testimony only given on this date." (Exhibit 25, p. 1 65)

The minute order was signed by Judge McBrien. (Exhibit 25, p. 1 65) There is a date
stamp for "May 1 2 2006" at the bottom of the minute order. (Ibid.) Ms. Joy's name and

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address is written at the bottom of the page, and Ms. Chessire, the courtroom clerk, also
signed the minute order. (Ibid.)

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Judge McBrien did not have an independent recollection of making a second

request for the transcript. (HT 1 65) He acknowledged, however, that the minute order

with the May 1 2 , 2006, date stamp represented a formal request for the transcript, and it
"sound[ ed] reasonable" that the minute order reflected that his second request for the

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transcript was made on that date. (HT 1 60)

So why did you want the transcripts at this time?

"Q.

"A. It was really more follow-up out ofcuriosity. I was curious what
had happened to the transcript.
"Q.
So are you saying you didn't patiicularly want the transcript
anymore?
"A.
I didn 't if it had never come, I wouldn 't have been particularly
upset. (HT 1 6 1 , italics added)
"

Judge McBrien agreed that on May 8, 2006, Ms. Keeley filed a motion on behalf
of Mrs. Carlsson. The motion sought the entry of the judgment, an order compelling Mr.
Carlsson to execute a listing agreement for the sale of the family residence and the
fourplex, and attorney fees . The motion alleged Mr. Carlsson was not complying with

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the court's previous order to sell both properties. (Exhibit 24, pp. 567-568; HT 1 6 1 - 1 62)

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Judge McBrien set the hearing for June 20, 2006. (Exhibit 24, p. 567, HT 1 64)

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"Q.
Could that [motion] be why you made the second request to get the
transcript?
"A.

No. Totally unrelated.

"Q.

So at this point, it was just curiosity?

"A.
I believe that the Minute Order was brought-was given-the
Minute Order with the fonnal request for the transcript was a procedure that
the Court possibly told my clerk needed to be done in order to get the
transcript. In other words, there apparently had been some oral request at
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But you signed [the minute order] for a reason; right?

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"Q.

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an earlier point, but accounting and other procedures needed to be followed

that eventually resulted in that Minute Order that-my only involvement in
that Minute Order was signing it.

"A.
I signed it because I made the request sometime earlier, yeah." (HT
1 62- 1 63 )

Judge McBrien testified that Mrs. Carlsson's May 8, 2006, motion would have

been filed with the clerk 's office, which would have affixed his signature with a stamp.

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(HT 1 63 ) Judge Carlsson would not have seen Mrs. Carlsson's motion until about a
week before the scheduled hearing of June 20, 2006. (HT 1 64)

At the hearing, Ms. Joy, the court rep01ier, testified that about three weeks after
the trial, Judge McBrien's clerk called and said they never received the transcript that
was previously requested. Ms. Joy sent another copy directly to Judge McBrien's
chambers. (HT 3 84-3 86, 4 1 1 )
Post-trial motions

In early June 2006, Ms. Huddle filed an ex parte motion to withdraw as Mr.
Carlssons ' s attorney. Judge Robert Hight granted the motion, and Ms. Huddle did not
represent Mr. Carlsson again in this case. (HT 290, 3 59-3 60, 459)

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On June 20, 2006, Judge McBrien continued Mrs. Carlsson' s pending OSC motion
to July 1 0, 2006. (Exhibit 24, p. 664)

On July 1 0, 2006, Judge McBrien conducted the hearing. Ms. Keeley represented

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Mrs. Carlsson, and Mr. Carlsson represented himself. (Exhibit 26, p. 665) Judge

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McBrien granted the motion. He ordered the entry of judgment, and ordered each party

to execute a listing agreement for both properties, with the residence at $6 1 5,000, and the
fourplex at $599,900; if either party refused to execute the listing agreement, the clerk of

the court would sign the listing agreement. (Exhibit 26, p. 665 ; Exhibit 30, p. 790)

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On July 1 5 , 2006, the judgment of dissolution was filed consistent with the
tentative decision. (Exhibit 27) On July 24, 2006, the clerk of the court executed listing

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agreements for both the residence and fourplex. (Exhibit 3 0, p. 790)

On August 1 8 , 2006, Judge McBrien filed the findings and orders after the July

1 0, 2006, hearing on Mrs. Carlsson's motion, which designated the listing agents and

prices for the residence and the fourplex, and ordered the parties to cooperate in the sales.

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(Exhibit 28)

On August 24, 2006, Mr. Carlsson filed a notice of appeal from Judge McBrien ' s
judgment of dissolution. (Exhibit 29) 1 8

On September 6, 2006, Ms. Keeley, on Mrs. Carlsson' s behalf, filed another

motion asking the court to compel Mr. Carlsson to cooperate in the sale of the fourplex,
and sign all appropriate contracts and escrow documents; she also sought attorney fees.
(Exhibit 3 0) Mrs. Carlsson declared that an offer was made to purchase the fourplex for
$575 ,000, but Mr. Carlsson refused to accept the offer or communicate with the real
estate agent. (Exhibit 30, p. 790) Mrs. Carlsson declared that Mr. Carlsson made it
difficult for the real estate agent to market the residence, he allowed the residence ' s
swimming pool to deteriorate from lack of maintenance, and he removed the "For Sale"

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s ign from the property. (Exhibit 3 0, p. 792)

On September 6, 2006, Judge McBrien set Mrs. Carlsson' s motion for a hearing

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on S eptember 20, 2006, and ordered Mr. Carlsson to comply with temporary orders to

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produce i1mnediately all documents required to complete the sale of the fourplex, to sign

1 8 Mr. Carlsson was represented by attorney Brendan Ishikawa on appeal. (Exhibit 29)
At the hearing, Ms. Huddle testified that during her representation of Mr. Carlsson, she
retained Mr. Ishikawa to draft points and authorities on various pre- and post trial
matters . (HT 279, 323-3 24) Also at the hearing, Judge McBrien testified he did not
know about Mr. Carlsson's appeal until the Third District Court of Appeal published the
opinion in 2008, which reversed the judgment. (HT 1 78)
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all contracts and escrow documents, and hire a service to maintain the swimming pool at
the residence. (Exhibit 3 0, pp. 782, 788)

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The third request for the transcript

Judge McBrien testified he still did not receive the partial transcript of Mr.

Carlsson' s cross examination testimony after the second request was made in May 2006.

(HT 1 64) He had no recollection of making a third request for the transcript, but testified

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that he finally received the transcript some time in September 2006. (HT 1 65 1 66)
Ms. Joy, the court repmier, testified that she received a telephone call from Judge
McBrien's clerk around September 2006. The clerk said they never received the
transcript, and asked Ms. Joy to email it to the clerk' s email address. Ms Joy complied
with the request and emailed the transcript to the clerk. (HT 3 85 3 86, 4 1 4 4 1 5 ; Exhibit
1 7)

While Ms. Chessire, Judge McBrien's clerk, filed a statement in this matter, her
statement did not address the second and third requests for the trial transcript. (Exhibit
40)

Judge McBrien sends the transcript to Mr. Carlsson's employer

At the hearing, Judge McBrien testified the trial evidence showed that Mr.

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Minkoff had a lender's interest in the fourplex from 2002 to 2004, he was paid off in
2004, and he still had a $ 1 6,000 note on the family residence at the time of the 2006 trial .

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(HT 2 04 205)

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Is that what caused you concern with respect to the Fair Political
"Q.
Practices Act disclosures?
That, plus the fact that Mr. Carlsson worked for the State and Mr.
"A.
Minkoff leased property to the State." (HT 205)
Judge McBrien testified that when he finally received the transcript, he read Mr.

Carlsson' s cross examination testimony and he had "the overlying concern as to whether
or not Mr. Carlsson had violated the FPPC rules" by not disclosing his business
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relationship with Mr. Minkoff. (HT 1 66) Judge McBrien believed the transcript might
contain some evidence of improper activity by Mr. Carlsson. (HT 1 7 1 )
So what did you do with the transcript after you read it?

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"Q.

"A.
Well, I discussed with some other judges, and had been discussing
with some other judges throughout this time, this circumstance. And I
think that I concluded-or we concluded that, at this point, just send it to
the FPPC rather, to the General Services, since nobody knew anybody at
the FPPC, and let them deal with it." (HT 1 66 1 67, italics added)

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Judge McBrien testified he had been thinking and talking about the issue for some
period of time prior to receiving the transcript of Mr. Carlsson' s testimony, and continued
to consider the issue after he received it. (HT 1 67)
"Q.

Why were you still concerned with that issue?

"A.
1 believe that a judge has an obligation to report any potential
violation of the law.
"Q.
But you said you don't know whether or not you actually ordered the
document?
"A.

1 did

order the document sometime, I presume, in March.

"Q.
. . . You told us you don't know if you actually requested the
document the third time in September?

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"A.
I don 't believe that I requested the document a third time in
September. I believe it eventually got to me, but I don 't have any
recollection .

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"Q.
But leading up to receiving it, you're considering this issue,
wondering what to do?

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"A.

I was ." (HT 1 67- 1 68, italics added)

Judge McBrien testified he never had reported a litigant or attorney for possible

criminal activity in any case, except for a response to a State Bar inquiry about an
attorney who failed to appear. (HT 1 68- 1 69, 6 1 5) In prior dissolution cases, he had
received conflicting evidence between a witness ' s testimony about income and that
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party' s tax return, but he usually accepted the tax return as truly reflective of the party's
situation. (HT 6 1 6)

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Judge McBrien testified he consulted with Judges Hight and Sumner about the
matter, and Judge Sumner knew that Linda Cabatic was the general counsel for Mr.

Carlsson's employer, the state 's DGS. Judge McBrien had a passing recognition of Ms.
Cabatic from their j oint service in the Attorney General' s office in the late 1 970s and

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early 1 980s. He decided to send the transcript of Mr. Carlsson' s testimony to Ms.
Cabatic. (HT 1 69- 1 70)

Judge McBrien testified he obtained Ms Cabatic ' s telephone number from Judge
Sumner. Judge McBrien called Ms. Cabatic and asked for her fax number. Ms. Cabatic
wanted to know what it was about, and Judge McBrien replied that "it might be
something about reporting. And I faxed it." 19 (HT 1 70) He did not send the transcript to
the FPPC. 20 (HT 1 70 1 7 1 , 1 65 1 66)

At the hearing, it was stipulated that in September 2006, Judge McBrien placed a
telephone call to Linda Cabatic, the deputy director and chief counsel for the legal
services division of the state 's DGS; that Judge McBrien said "words to the effect that a
DGS employee had testified in court and that he was concerned about the testimony in

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connection with disclosure of a reporting issue. The judge said he would fax the
transcript that day." (HT 254 255)

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On September 1 1 , 2006, Judge McBrien faxed the transcript of Mr. Carlsson' s

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cross examination testimony to M s. Cabatic. (HT 1 70 1 7 1 , 1 65 1 66; Exhibit 2, p. 3 8 )

1 9 I n his deposition, Judge McBrien testified he said " [a]s little a s possible" to Ms.
Cabatic about the transcript, just that "it may have something to do with some reporting."
(Exhibit 5 , p. 49)

20 In his deposition, Judge McBrien testified he sent the transcript to DGS and not the
FPPC because "I know nobody at the FPPC." (Exhibit 5 , p. 50)
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Judge McBrien continues to preside in the Carlsson case

When Judge McBrien faxed the transcript to Ms. Cabatic on September 1 1 , 2006,

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there was a pending motion filed by Mrs . Carlsson on September 6, 2006, to compel Mr.
Carlsson to cooperate in the sale of the fourplex, maintain the swimming pool at the

residence, sign all appropriate contracts and escrow documents, and for attorney fees.

Judge McBrien had set the hearing on the motion for September 20, 2006. (Exhibit 30;

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HT 1 73 - 1 74)

"Q.
Don 't you think you should have either gotten off the case at that
point or at least disclosed what you had done to the parties?
At that point, I didn 't know whether that was disclosing any
"A.
particular ilformation to the employer that the employer didn 't already
have through an FPPC report that included information regarding this
relationship. So at that point, I didn 't believe there was a problem." (HT
1 7 1 , italics added) 2 1
Judge McBrien was asked whether an objective observer would believe he was
still fair and impartial after he requested the transcript and sent it to Mr. Carlsson ' s
employer as possible evidence of criminal activity. (HT 1 7 1 - 1 72)

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"Only if the judge believes the testimony from Mr. Carlsson that, in fact, he
didn't have to-he didn't have to include this. And quite frankly, I had the
opportunity to observe Mr. Carlsson's demeanor at that time and did not
believe that he was truly aware of what he was including and not including.
In fact, he testified that he had his secretary fill it out and all he did was
affix a signature." (HT 1 72)

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21 In his deposition, Judge McBrien testified he sent Mr. Carlsson's transcript to Ms.
Cabatic because "I couldn't determine anything from it, so I sent it to General Services
. . . for them to make any determinations that needed to be made." (Exhibit 5, p. 48) He
thought the transcript was relevant to Mr. Carlsson's employment because "it appeared
that there was some violation [of law] that Mr. Carlsson was admitting." (Exhibit 5 , pp.
48, 5 0- 5 1 )
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On S eptember 1 4, 2006, Ms. Keeley, on Mrs. Carlsson ' s behalf, filed another

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circumstances, to pay the attorney fees pursuant to the court's prior orders, and to award
attorney fees for the pending appeal because she had exhausted all her resources .

She further declared a hearing was held on Mr. Mayo' s pending lawsuit. Mr.

Carlsson appeared at the hearing and opposed Mrs . Carlsson's motion to expunge the lis

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pendens filed against the fourplex. 22 (Exhibit 3 1 , pp. 839-840) On the same day, a
hearing was set on the motion for October 25, 2006; Judge McBrien' s signature was
stamped on the order. (Exhibit 3 1 , p. 83 5)

On September 20, 2006, Judge McBrien conducted a hearing on Mrs. Carlsson' s

motion that was filed o n September 6, 2006, for an order that Mr. Carlsson cooperate in
the sale of the properties. Ms. Keeley represented Mrs. Carlsson; Mr. Carlsson was
represented by attorney Margaret Shannon. (HT 1 74 1 76; Exhibit 32, p. 847) Judge
McBrien granted the motion and ordered the courtroom clerk to sign the listing for the
fourplex. He set a hearing to review the sale of the residence, and ordered Mr. Carlsson
to pay Mrs. Carlsson 's attorney fees. (Exhibit 32, p. 847)

On October 1 0 and 2 5 , 2006, Judges Winn and McBrien, respectively, continued

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the hearing on Mrs. Carlsson's motion that was filed on September 1 4, 2006, to
November 2006. (Exhibit 3 3 , pp. 859-860)

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At the hearing, Judge McBrien testified that when he faxed the transcript to Mr.

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C arlsson' s employer, he suspected Mr. Carlsson engaged in improper conduct but he did

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not know for sure. (HT 1 72) He conceded that he did not disclose his actions to the
22 At the hearing, Ms. Keeley testified that another attorney represented Mrs . Carlsson in
the lawsuit filed by Mr. Mayo, but she knew that Mr. Mayo ' s lawsuit was subsequently
dismissed with prejudice, and Mr. Mayo was ordered to pay $5,000 in attorney fees to
Mrs . Carlsson. (HT 47 1 -472, 503)
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motions in the case. (HT 1 73 )

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" [T]oday, I ' d hear a case with either attorney. I don't believe I do have a
bias that would require my recusal from hearing one for-a case from
either attorney. [ ] . . . [T]here are no attorneys in Sacramento County
that I would not be willing to hear a case from." (HT 6 1 6-6 1 7)

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parties, he did not recuse himself from the Carlsson case, and he continued to hear

In his deposition, Judge McBrien was asked to explain a statement in his response

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to the Commission, where he wrote that in retrospect, he should have recused himself
from the Carlsson case on September 1 1 , 2006, when he faxed Mr. Carlsson's transcript
to Ms. Cabatic. (Exhibit 2 , p. 3 8 ; Exhibit 5 , p. 5 1 ) Judge McBrien testified at his
deposition that he made that statement because "by that time, I had known that adverse
action had been taken. It wasn't until I heard that adverse action was taken against Mr.
Carlsson and then, once I heard that, I disqualified myself." (Exhibit 5 , pp . 5 1 52)
Also in his deposition, Judge McBrien testified he did not recuse himself from the
Carlsson case after he sent the transcript to Mr. Cabatic, because "I didn' t have enough
facts to make that determination." "If . . . his Statement of Economic Interest had
disclosed this relationship and this four-plex, there would be no reason for me to
disqualify myself. It's only in the absence of disclosure that I needed to disqualify

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myself, where they might take action." (Exhibit 5 , p. 5 1 )

Judge McBrien disqualifies himself from the Carlsson case

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On November 7, 2006, Judge McBrien disqualified himself from the Carlsson

case pursuant to Code of Civil Procedure section 1 70. 1 . (Exhibit 2 , p . 3 8) He made this

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decision after he gave "the matter some thought" and learned the state ' s DGS took
disciplinary action against Mr. Carlsson. (Exhibit 2, p. 3 8)

Disciplinary action against Mr. Carlsson

As explained ante, Judge Carlsson called Ms. Cabatic, general counsel for his
employer, DGS, and faxed the transcript of Mr. Carlsson' s testimony to her on September
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1 1 , 2006. After Ms. C abatic received the transcript, she assigned the matter to a staff
counsel. (HT 255)

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The state' s DOS subsequently filed a Notice of Adverse Action and dismissed Mr.
Carlsson from his employment. (Exhibit A, p. 1 .) In March and April 2007, an

administrative law judge presided over hearings before the State Personnel Board. In
December 2007, the Board sustained the decision of the state' s DOS to dismiss Mr.

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Carlsson from his employment. On January 8, 2008, the State Personnel Board adopted
the Administrative Law Judge 's findings and upheld Mr. Carlsson' s dismissal, based
upon his willful failure to disclose his joint ownership of the fourplex with Mr. Minkoff
in his Statement of Economic Interest, and that the nondisclosure occurred during a
period when Mr. Carlsson was overseeing amendments to a lease entered into between
Mr. Minkoff and the DOS . (Exhibit A, pp. 1 , 2, 5-6, 1 2- 1 6)

The Third District's Reversal of Judge McBrien's judgment in Carlsson

On May 8, 2008, the Third District filed the published opinion in Mr. Carlsson' s
appeal and reversed Judge McBrien' s judgment in the dissolution trial . (Exhibit 34; In re
Marriage o.f Carlsson (2008) 1 63 Cal.App.4th 2 8 1 .) 23 In doing so, the court did not find
any aspect of Judge McBrien's ruling was erroneous. Instead, the court concluded that

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Judge McBrien violated Mr. Carlsson' s due process right to a fair hearing when he
"suddenly declared an end to the trial before [Mr. Carlsson] had finished putting on his

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case-in-chief. After displaying impatience and reluctance in allowing the parties

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2 3 At the hearing, Judge McBrien testified he did not know Mr. Carlsson had filed a
notice of appeal until the Third District reversed the judgment in 200 8 . (HT 1 78) Mrs .
C arlsson's motion of September 1 4, 2006, sought attorney fees to pay for Mr. Carlsson's
pending appeal. (Exhibit 3 1 , pp. 8 39- 840.) While that motion was set for a hearing, the
matter was continued, Judge McBrien disqualified himself, and there is no evidence that
he ruled on, acquired knowledge of, or saw the contents of her motion for appellate
attorney fees prior to his disqualification.
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adequate time to complete their presentations, [Judge McBrien] ended the trial while an
expert witness for [Mr. Carlsson] was on the witness stand and counsel was in the midst

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of asking him a question." (In re Marriage of Carlsson, supra, 1 63 Cal.App.4th at p.

2 84.) The court further held:

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" [Judge McBrien] essentially ran the trial on a stopwatch, curtailing the
parties ' right to present evidence on all material disputed issues. Using the
constant threat of a mistrial, Judge McBrien pressured Attorney Huddle
into rushing through her presentation and continuing without a break.
Despite his avowed, compelling need for brevity, the judge himself
frustrated the trial 's progression with a sua sponte order that [Mr. Carlsson]
produce documents which, as the judge conceded, were not relevant to the
issues before it. Most damning, the judge abruptly ended the trial in the
middle of a witness 's testimony, prior to the completion of one side' s case
and without giving the parties the opportunity to introduce or even propose
additional evidence. This was reversible error." (!d. at p. 292.)

The court concluded that by "arbitrarily cutting off the presentation of evidence,
Judge McBrien rendered the trial fundamentally unfair" and violated Mr. Carlsson' s due
process right; such errors infected "the integrity of the trial" and required reversal
"without regard to an assessment of actual prejudice. [Citation.]" (In re Marriage of
Carlsson , supra, 1 63 Cal.App.4th at p. 294.) The court vacated the judgment, remanded
the matter for a new trial, and directed the assignment of the case to a different judge.

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(Ibid.)

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In his deposition testimony, Judge McBrien stated he did not believe that he

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denied Mr. Carlsson's due process rights but he respected the Third District' s conclusion.

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(Exhibit 5 , p. 3 5)
PART VI
THE COMMISSION'S PROCEEDINGS

On January 1 7, 2007, Judge McBrien was infonned that the Commission on

Judicial Performance had ordered a preliminary investigation regarding his conduct in the
Carlsson trial on the following matters : ( 1 ) the abrupt end of the trial when he left the

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courtroom to take the EPO call; (2) his alleged threats to Ms Huddle that she would be
held in contempt if Mr. Carlsson failed to produce his Statement of Economic Interest,

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when the documents were irrelevant to the pending trial; (3) his request for the partial

transcript of Mr. Carlsson's cross-examination testimony about his business relationship

with Mr. Minkoff, and his alleged instruction to the clerk to tell the court reporter not to
inform the attorneys about the request; (4) his sending the transcript to Mr. Carlsson's

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employer and continuing to preside over matters in the dissolution action; (5) his failure
to disclose his actions to the parties ; and (6) his discomieous toward and displayed bias
against Ms. Huddle based on his repeated threats of declaring a mistrial and other
derogatory remarks. (Exhibit 1 , pp. 3 1 32)

The response filed by Judge McBrien 's attorney

On March 7, 2007, Judge McBrien ' s attorney, James Murphy, responded by letter
to the Commission's preliminary investigation notice. (Exhibit 2, p. 3 5) As to the abrupt
end of the trial, Mr. Murphy stated that Judge McBrien left the courtroom to take the
EPO call, "but he was apparently prevented" from returning to the courtroom after
handling the matter "because of the nature of the EPO request," and asked his clerk to
advise the parties that "the case was concluded when it become apparent to him that he

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would not be able to return to preside over the proceedings before the end of the day."
(Exhibit 2, p. 3 6) Mr. Murphy noted the EPO call was made at 4:29 p.m. , "which would

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be very close to the conclusion of the third and final day of trial ." (Exhibit 2, p. 3 6)
Mr. Murphy stated that the parties were informed they could submit closing briefs

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in writing. (Exhibit 2, p. 3 6) The letter continues :

"Neither party asked for more trial time. Nevertheless, if Ms. Huddle had
requested more time to present evidence then that request would have been
considered. The allegation that Ms. Huddle was prevented from calling
certain witnesses was not brought to the attention of the Court. If such a
concern had been raised, then Judge McBrien would have certainly
considered a request by either side for more trial time." (Exhibit 2, p. 3 6)
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As to the request for Mr. Carlsson' s Statement of Economic Interest, Mr. Murphy
stated that Judge McBrien asked for the documents because "it was likely" the forms

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would contain Mr. Carlsson's opinion about "the value of the rental property and the

amount of income from the rental property." (Exhibit 2 , p. 37) As for the discussion of

contempt, Mr. Murphy stated that Judge McBrien only raised the '"possibility"' of
contempt. (Exhibit 2, p. 37)

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"Nevertheless, Judge McBrien regrets mentioning even the 'possibility' of

contempt to Ms. Huddle under the circumstances and believes that he
became momentarily and inappropriately frustrated with Ms. Huddle' s
misapplication of the Fifth Amendment." (Exhibit 2, p. 37)
As to Judge McBrien's request for the transcript of Mr. Carlsson' s testimony
about Mr. Minkoff, Mr. Murphy stated that Judge McBrien asked his clerk to ask the
court report to prepare the transcript, but Judge McBrien did not instruct anyone to keep
that information from the parties, attorneys, or anyone else. Mr. Murphy stated that
Judge McBrien faxed the transcript to Ms. Cabatic on September 1 1 , 2006, because he
was concerned "there was at least the possibility of a conflict of interest resulting from
Mr. Carlsson' s relationship with the silent partner in Southern California and that Mr.
Carlsson had not disclosed this relationship," which would be a misdemeanor under the

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FPPA. (Exhibit 2, pp. 37-38)

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"Judge McBrien reasonably felt he had an obligation to report the issue to

General Services under the circumstances. However, he did not suggest to
General Services what the transcript reflected or his impressions of the
transcript. The transcript of the proceedings and Mr. Carlsson' s Statement
of Economic Interests (which Judge McBrien has never seen) speak for
themselves . General Services was free to reach its own conclusions and it
did so without input or guidance from Judge McBrien." (Exhibit 2, p. 3 8)
Mr. Murphy stated that Judge McBrien learned about the adverse action taken

against Mr. Carlsson "[ s ]ome time later," and disqualified himself from the Carlsson case
on November 7, 2006. (Exhibit 2, p. 3 8) Mr. Murphy' s letter concluded:
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Judge McBrien's letter to the Commission

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"In retrospect, Judge McBrien believes that he should have recused himself
on September 1 1 , 2006, after faxing the transcript to General Services."
(Exhibit 2, p. 3 8) 2 4

On August 8 , 2008, Judge McBrien sent a letter to the Commission addressing the
allegations which had been raised regarding the Carlsson trial . (Exhibit 3) The letter

was not written by his attorney or sent on the attorney' s letterhead. Instead, Judge

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McBrien testified he wrote the letter himself, to share his "insight" about the Carlsson
trial. (HT 1 54, Exhibit 3 , p. 7 1 )

Judge McBrien began his letter by addressing the Third District' s reversal of his
ruling in Carlsson :

"I understand and respect the opinion o f the Third District Court of Appeal
in Carlsson regardless of what the California Supreme Court does with the
case. The insights I share here were not before that Court, nor would they
have necessarily influenced their opinion. Though unusual, I ask that
someone on the C01mnission read the trial transcript to see if agreement
with those conclusions are appropriate for your very different scope of
responsibility."
Judge McBrien next addressed Ms. Huddle' s practice in family law cases :

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"The reputation and experience of the family law bar with Ms. Huddle has
almost always involved cases which far exceed declared and expected time
frames. (I have served as a Judge in family law in Sacramento since 1 990).
Thus my constant reminder to her was my effort to avoid a very lengthy
trial, to the disadvantage of those waiting next. I certainly understand on
its face how it could appear that I was badgering her in an improper
manner. At the return from the lunch recess on the first day, I offered
suggestions on how to be able to complete the matter within the time
available. (RT 1 49) .

2 4 As explained ante, in his deposition, Judge McBrien explained this statement was in
his response to the Commission "because, by that time, I had known that adverse action
had been taken. It wasn't until I heard that adverse action was taken against Mr. Carlsson
and then, once I heard that, I disqualified myself." (Exhibit 5, p. 52)
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" The case started to deteriorate during the late afternoon ofthefirst day
when Mr. Carlsson testified regarding his purchase of a 4-plex with none of
his money down and 1 00% of the down paymentfrom a state contractor
with whom he did business through his employment with General Services.
(RT 222) Why Ms. Huddle raised this whole line of questioning is still
unknown to me. This is why I raised the issue of the Statement of
Economic Interest and whether Mr. Carlsson had included this transaction."
(Exhibit 3, pp. 7 1 -72, italics added)

Judge McBrien wrote that he had been employed by the state, in one capacity or

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another, for over 3 5 years, and he was familiar with the need to disclose certain
information in the financial statements. (Exhibit 3 , p. 72)

"Then when it became ever so apparent that no disclosure nor any concern
regarding this matter rested with Mr. Carlsson or his attorney, I was faced,
to my mind, with the disclosure o.fpossible criminal activity or at least with
a conflict o.f interest.
"In my years as a judge I have never before faced this. It has long been
said that in family law, you have basically good people, acting at their
worst. Generally they do not become involved or even admit to possible
criminal behavior.
"I admit I acted badly andfor which actions I deserve to be rebuked. It
would be helpful, however, if some guidance were to come from this lesson
rather than just punishment." (Exhibit 3 , p. 72, italics added)
Judge McBrien also addressed the merits of his ruling against Mr. Carlsson, and

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stated the record refuted any claim his ruling was '"one-sided,"' and he properly ordered

the sale of the properties, denied Mr. Carlsson's motion for no spousal support, and Mr.

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Carlsson failed to prove that a third person had an interest in the fourplex. (Exhibit 3 ,

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p.72)

At the hearing, Judge McBrien was asked about the passage in his letter, where he

stated that he deserved to be rebuked for acting badly, and he testified about what he

meant. (HT 1 83 )
"As important as the substance of a ruling or procedure, is sometimes the
perception. And I believe in this case, I was remiss in not protecting the
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record, given the Court ofAppeal 's sLifjicient iriformation to where they
could understand what I was doing, that any members of the public that
were present also wouldn 't have an idea of what was going on. I believe,
though, that the attorneys and their clients, should they have discussed it
with them, would know exactly what was happening." (HT 1 83 , italics
added)

Also at the hearing, Judge McBrien testified that in his letter to the Commission,

where he wrote that he deserved to be rebuked, he meant that an informal letter would be

an appropriate resolution to the disciplinary allegations of misconduct arising out of the

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Carlsson trial. (HT 1 83 - 1 84) Judge McBrien testified his alleged misconduct was "not
keeping in mind the need to appear to the public that I completed everything according
to, possibly, the public's perception of how things should happen as opposed to the way
in which S acramento 's family law system is structured." (HT 1 84)

"Q.
So are you saying the only thing you feel you did wrong in this
whole case is to leave a record that is misleading?
"A.

Incomplete.

"Q.

Incomplete. You did nothing else wrong?

"A.

I don't believe that I did." (HT 1 84)

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PART VII
PRIOR IMPOSITION OF DISCIPLINE

We now tum to the prior imposition of discipline against Judge McBrien, which

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was a public admonishment in 2002. At the hearing, the Commission introduced

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evidence of the public admonishment (exhibit 4) . For reasons that are not clear, Judge
McBrien felt compelled to testify extensively about the matter. After the hearing, the

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Commission requested to introduce additional exhibits regarding the underlying facts of

the prior disciplinary matter to refute Judge McBrien' s hearing testimony on the matter.
Judge McBrien stipulated to the admission of the Commission' s exhibits, and submitted a

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statement to clarify his hearing testimony. (See 5/4/09 Request by Commission and
Stipulation.)

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Public Admonishment

On April 2 5 , 2002, the Commission publicly admonished Judge McBrien based on

his no contest plea to a misdemeanor violation of Penal Code section 3 84a, the willful or
negligent cutting or mutilation of any tree growing upon public land or the land of

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another without permission. (Exhibit 4) The public admonishment stated:

"Judge McBrien's criminal conviction arose out of the 1 999 cutting of
trees, and removal oflimbs.from trees, on public land adj acent to his
residence. The trees were growing in a nature center located in a public
park owned by the County of Sacramento. The trees included mature oaks,
and were cut for the purpose of improving the view of a nearby river from
the McBrien residence. The trees were cut without the permission of the
County of S acramento." (Exhibit 4, italics added)
According to the public admonishment, Judge McBrien was placed on probation,
ordered to pay $20,000 in restitution to Sacramento County, and to pay a $500 fine. 2 5 He
complied with the terms of probation, probation was terminated, and his subsequent
petition pursuant to Penal Code section 1 203.4 was granted. (Exhibit 4)
The public admonishment stated:

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"Judge McBrien's conduct evidenced disregard of the principles of

personal and official conduct embodied in the California Code of Judicial
Ethics, including failure to observe high standards of conduct so that the
integrity and independence of the judiciary will be preserved (canon 1 ), and
failure to respect and comply with the law and to act at all times in a
manner that promotes public confidence in the integrity and impartiality of
the judiciary (canon 2), and constituted conduct prejudicial to the
administration of justice that brings the judicial office into disrepute.
(California Constitution, Article VI, section 1 8(d).)" (Exhibit 4)

2 5 On October 27, 2000, Judge McBrien pleaded no contest in Sacramento County

Superior Court to one misdemeanor violation of Penal Code section 3 84a. (Exhibit 45, p.
454 1 ; Exhibit 45, RT 1 0/27/00, p. 9)
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According to the public admonishment, Judge McBrien's conduct "was the subject
of numerous news articles, including in the Sacramento Bee and Sacramento News &

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Review." (Exhibit 4) Judge McBrien wrote to the Commission: ' " I sincerely regret my

misdemeanor violation of the law, primarily because it brings dishonor and disrespect to

Hearing evidence about the public admonishment

the bench. "' (Exhibit 4)

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On the last day of the hearing, Judge McBrien was on the stand and his attorney,
Mr. Murphy, asked him about the public admonishment for cutting trees on public
property. Special Master Cornell interrupted and said the public admonishment had been
introduced as an exhibit and spoke for itself. (HT 5 80) The following exchange
occuned:

"MR. MURPHY: But I want an explanation of what he actually did and

show that it' s not related to his judicial duties . It' s mitigation. I don' t think
the judge has had an opportunity to explain.
" [JUDGE MCBRIEN] :

I ' ve never spoken in public regarding it.

"SPECIAL MASTER CORNELL:

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" [JUDGE MCBRIEN] :

but they aren't.
"MR. MURPHY :

Go ahead.

And I was hopeful that the Bee would be here,

Okay.

Why were you hopeful that the

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"SPECIAL MASTER CORNELL:

Bee-the Bee is the local newspaper.

" [JUDGE MCBRIEN] :

Because they' re the ones-and the various news
media have not ever spoken to me, but I haven' t also spoken to them.
Everyone assumes that I ' m the Paul Bunyan of Sacramento. In fact, it
involved one limb on one tree. And at the time that the tree was cut-by an
arborist, not me personally-! did not know that it was against the law.
There exists a Sacramento County Parks and Rec code provision that makes
it a misdemeanor to cut any Oak tree in Sacramento County, whether it be
on private or public land, without a permit." (HT 5 80 5 1 8, italics added)
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appropriate because he pleaded no contest to a misdemeanor, but the incident was

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Judge McBrien testified he thought the Commission' s public admonishment was

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unrelated to any of his judicial duties . (HT 5 8 1 ) " [A ]t the full monthly judges' meeting,
I apologized to my fellow jurists for the embarrassment that I had brought to them, and

gave them some examples of how they could avoid the same calamity in the future." (HT
581)

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Judge McBrien testified there was some question whether the tree limb was on his
property, where his backyard sloped down to a 75 foot cliff, and a river was below the
cliff. (HT 5 82, 609) The tree trunk was in the "crotch" of the land. (HT 5 82) He
testified that a fire district official had infom1ed him, about six months prior to the tree
incident, that the particular limb from that tree posed a fire threat. (HT 5 82) "It was not
cut for viewing purposes." (HT 5 82) He hired an arborist to cut the limb, but later
discovered that Sacramento County ordinances prohibited any cutting of oak trees, even
on private property. (HT 5 82)

On cross-examination by the Commission, Judge McBrien testified that a hearing

was not held on the prior disciplinary matter, and the public admonishment was an
agreed upon disposition. (HT 606)

So did you agree t o the language i n the admonishment?

"A.
did.

No. I don't know that I had the language, but possibly my attorney

"Q .

Well, if your attomey had it, wouldn't you have looked at it as well?

"A.

Presumably." (HT 607)

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" Q.

Judge McBrien testified the underlying basis for the initial felony charge was his

violation of a county ordinance about cutting trees. 26 He admitted the public

2 6 On October 26, 2000, Judge McBrien was charged by information with a felony
violation of Penal Code section 594, subdivision (a), the unlawful and malicious damage
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admonishment was based on his conviction for violating Penal Code section 3 84,
subdivision (a), and not for violating a county ordinance. (HT 607)

"A.

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"[Q.] The trees in question were on public land?

That was in dispute, but certainly not worth going to trial regarding.

"Q.
But it's now a part of the Statement of Facts [in the public
admonishment]?

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"A.
I understand that. I ' m not disputing what the Commission did. [,] ]
All I was trying to do was explain the underlying circumstances that
actually existed." (HT 608)
Judge McBrien was asked about the factual statement in the public admonishment,
that his conviction was based on cutting of trees and removal of limbs on public land.
(HT 608-609)
"Q.

Is it accurate?

"A.
Is it accurate? There was one tree involved, and there was a fencedowned fence between the tree and the river.
"Q.
You had the tree and/or limb, if you wish to call it a limb, removed
for what purpose?

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"A.
From my perspective, it was to enhance the fire safety of our
residence and the residence next to us." (HT 609, italics added)
Judge McBrien testified only one limb was removed: "It was a lengthy one. I

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mean-I mean, it was probably 20 or 3 0 feet long." (HT 609)

The trees that were cut included mature Oaks . Is that true?

"A.

The limb that was cut by me involved a mature Oak.

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"Q.

and destruction of real and personal property, oak trees, not belonging to him, and
belonging to the S acramento County Department of Parks and Recreation. (Exhibit 45, p.
4530) On the same day, he pleaded no contest to a misdemeanor. There is no reference
in the information or plea proceedings to any county ordinances.
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It says 'trees, ' not ' limb . '

"A.

I understand what it says .

"Q.

And you agreed to this language.

"A.

I did not dispute it.

"Q.

Why would you agree to it if you believed it to be untrue.

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"Q.

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"A. The language of the actual charge was presented to me on the

morning of the [no contest] plea, and I accepted it.

"Q.
Are you saying you didn 't have adequate time to review it and ask
for changes to make the document true?
"A .
I ' m just saying-explaining what-what, in fact, happened." (HT
6 1 0, italics added)
Judge McBrien testified he did not dispute the language in the public
admonishment, but "I'm telling you what happened," and he agreed to the public
admonishment "[p]robably to avoid a hearing." (HT 6 1 1 )
"Q.

You were ordered to pay $20,000 in restitution?

"A.

Correct.

"Q.

For one branch?

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"A.
Correct-no. It was a limb. It was measured, apparently, by so
many dollars per inch. And as I indicated, it was a lengthy limb." (HT
6 1 1 , italics added)

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Judge McBrien was asked about the statement in the public admonishment that the

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trees were cut for the purpose of improving the view of a nearby river from his house.

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"[Q.] Is that the reason the trees, or limb, were cut?

"A.

That is what that statement says.

"Q.

I asked you if that's the real reason?

"A.
That 's the real reason in that it was a side benefit, but it wasn 't the
reason we did it." (HT 6 1 2, italics added)
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Judge McBrien further testified he wanted to explain what happened in the tree
incident because he had been "vilified" by the Sacramento News and Review, which

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called him "Chainsaw McBrien" and still portrayed him "as the Paul Bunyan of
S acramento." (HT 6 1 3 )

Judge McBrien's sworn statement to the Commmission

In response to his hearing testimony, the Cotmnission introduced another exhibit

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in this matter, consisting of Judge McBrien's sworn statement to the Commission during
the investigation about the charges related to the tree-trimming incident. (See 5/4/09
Commission Request.) Judge McBrien gave the sworn statement in August 200 1 , after
he pleaded no contest to the misdemeanor violation. (Exhibit 46)

In his sworn statement, Judge McBrien said his house and backyard were on a flat
parcel, the backyard was not fenced, and the backyard extended to the edge of a steep
bluff that sloped down to the American River. (Exhibit 46, Sworn Statement at pp. 243 1)

He returned home from work on a day in 1 999, and saw the tree trimmer
"pruning" an oak tree on the downhill slope from his backyard. (Exhibit 46, pp. 57-58,
62-63, 1 20- 1 2 1 ) He watched for about 10 or 1 5 seconds, and saw the tree trimmer "take

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a chain saw and cut the tree," and he saw "some part of a tree come off of that tree that he
was pruning. " (!d. at pp. 63-64, 65, bold omitted.)

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"Q
At some point did you gain an understanding as to why [the tree
trimmer] was working on that tree, the one that you saw him working on
the first day in 1 999?
"A

Yes.

"Q

What was that understanding?

"A

That he was cutting it to improve the view.

"Q

Okay. And from whom did you obtain that understanding?

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"A
I don't specifically recall. I would-if I had to guess, I would
imagine my wife." (Exhibit 46, p. 66, bold omitted.)
Judge McBrien had no recollection of discussing the work with the tree trimmer,

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directing the work, helping the tri1mner with his equipment or lowering him down the

slope, or speaking with his family about the trimmer's work. (Exhibit 46, pp. 5 8 60, 63

64, 6 8 69) When Judge McBrien saw the trimmer working, he was not concerned that

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working on a limb that was about six feet long . (!d. at p. 74.)

the tree might not be on his property. (!d. at p. 72.) He believed the trimmer was

Judge McBrien testified he again saw the tree trimmer at his house, most likely on
the very next day. He believed the trimmer returned to work on a hanging limb, and he
saw the trimmer in different oak tree. (Exhibit 46, p. 5 8 , 75 76, 94 96) After the trimmer
came down from the tree, Judge McBrien heard a loud noise and the limb fell. (!d. at pp.
77 7 8 .) Judge McBrien did not recollect running into his house as the limb made noise
and fell, and he could not say whether such a description of his was correct or incorrect.
(!d. at pp. 98 1 00.) He did not speak, communicate, or assist the trimmer that day. (!d. at
pp. 80, 87 8 8 .)

Judge McBrien testified he later learned the trimmer worked on more than two
trees, he did not know the exact number, and he believed the number was similar to that

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reflected in a search warrant affidavit. (Exhibit 46, pp. 90 92 .) He disputed the

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allegation that he directed or assisted the trimmer' s work, and testified his wife hired the

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trimmer and directed his work. (!d. at pp. 97 98, 1 22.)

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"Q Okay. And so your present understanding is five mature trees and
three small trees, as described in the search warrant affidavit?
"A
That' s the basis for my understanding." (Exhibit 46, p. 92, bold
omitted.)
Judge McBrien was asked if he and/or his wife spoke to their neighbors, the

Arthurs, about the investigation into the tree trimming, and whether he told them not to
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Judge McBrien testified he had no recollection that either he or his wife made such

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speak with the investigators, or that they should answer questions with more questions .

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statements . He denied making those statements, and stated that it would have been out of
character for him to do that. (Exhibit 46, pp. 1 03 - 1 06, 1 23 1 24)

Judge McBrien and the tree trimmer were charged with a felony arising out of the
incident, and they both pleaded to a misdemeanor. Judge McBrien testified he paid the

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$500 fine levied on the tree trimmer and apologized to him for the resulting distress from
the incident. (Exhibit 46, pp. 1 08- 1 09) During the plea proceedings, the tree trimmer
told Judge McBrien that he cut about three or four branches. (!d. at p. 1 20.)
Judge McBrien testified that at some point in 1 997, 1 998, or 1 999, a fire district
official indicated the trees on the slope to the river provided an enhanced fire danger, but
that official did not make any recommendations. (Exhibit 46, pp. 1 1 1 - 1 1 2) His
understanding "today" was that the work was done on the trees to reduce fire danger. (!d.
at pp. 1 1 2 1 1 3 .)

At the conclusion of his sworn statement, Judge McBrien' s attorney introduced

mitigating evidence. Judge McBrien became involved in various proj ects on his own
initiative. (Exhibit 46, p. 1 27) The projects included working in a soup kitchen on a

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weekly basis, joining the board of directors of the Sacramento Tree Foundation, and
serving on the board of a coalition that provides housing to the disabled and

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disadvantaged. (Id. at pp. 1 25 1 2 8 .) Judge McBrien had apologized at a judges meeting

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for any embarrassment his situation may have caused. His apology was accepted and he

received the support of the bench. His attorney stated these actions were all expressions

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of Judge McBrien' s remorse and deep contrition, and to show his rehabilitation. (!d. at

pp. 1 27- 1 2 8 .)
Judge McBrien's attorney further stated:

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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

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Commission' s introduction of his prior sworn statement, Judge McBrien submitted the
following statement to the Special Masters after the hearing:

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"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 ofJudge McBrien on April 3, 2009 was true and
correct to his best recollection." (Exhibit P, italics added)
PART VIII
CHARACTER EVIDENCE

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

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character and judicial demeanor.

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

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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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he was willing to stay in the division, and he provided continuity and experience in

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dealing with family law cases . (HT 432-437)

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Judge Mize felt Judge McBrien brought great benefits to the family law division because

After Judge Mize' s appointment, he served in the family law division with Judge

McBrien, who willingly answered his questions and provided assistance in his early days
on the bench. Judge Mize considered Judge McBrien to be a mentor and the bench' s

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family law expe1i, because he had been there the longest and handled all types of cases .
(HT 43 9-44 1 ) As the presiding judge, Judge Mize described Judge McBrien as "one of
the judges that you are delighted to have . . . because you don't hear anything. You don't
get any complaints . You just get the j ob done, and . . . you're not constantly cleaning up
messes." (HT 443 )

Judge Mize testified Judge McBrien was a great asset and invaluable to the family
law bench and the superior court. (HT 44 1 , 443-444) Judge Mize testified Judge
McBrien' s reputation among the local bar was consistent with his own beliefs: "He was
consistent. He was predictable. And you knew that if you had him, you weren't going to
expect something outrageous or unusual. You would get an appropriate ruling. Whether
it was in your favor or not, was not necessarily always the case; but at least you would

444)

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have gotten a ruling that was within the bounds of what you would have expected." (HT

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Judge Thomas Cecil was retired but he was sitting by assignment in the family law

division, and he was the division' s supervising judge in 200 8 . Judge Cecil lacked prior

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family law experience, and testified that Judge McBrien helped him with his duties when

he joined the family law division. Judge Cecil spent some time in Judge McBrien' s
courtroom before he started to hear his own cases . Judge McBrien was "always there

before anybody else" because of the hours he kept, and had an open door policy to
discuss general or complicated issues. (HT 450 45 1 )
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Judge Robert Hight of the S acramento County Superior Court testified he was
assigned to the family law division in 2006. He did not have any experience in family

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law and Judge McBrien served as his mentor. (HT 45 5-456) Judge Hight and another

new judge began their family law assignment by sitting in Judge McBrien's courtroom

and watching him, and he was impressed with Judge McBrien's patience and

understanding of the issues. (HT 457) Judge Hight testified that Judge McBrien was

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patient and dignified, acted warm and hospitable to parties, and his demeanor broke the
tension often present in family law cases . (HT 457) He was particularly courteous to
pmiies who were representing themselves and he helped them through their arguments.
(HT 457 45 8) Judge Hight testified he "never observed anything other than comiesy to
all attorneys and pro pers ." (HT 458)

Judge Hight testified that when he stmied to hear family law cases, "every day, I
would go in and ask [Judge McBrien] some question; and he either [gave] me an instant
answer or would say, you know, ' I just read a recent Appellate Court case on that, ' and
he had a big stack behind his desk of Appellate Court cases j ust related to family law, and
he would go through them and pull out of the middle this recent case and say, 'This is
exactly on point."' (HT 456) Judge McBrien was presiding judge for a period of time,

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and had the ability to organize the division: "I mean, it' s a back breaking job because
you ' ll have 20 cases in the morning, easily, and another 20 in the afternoon; and it' s

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j ust-it' s just a tough j ob." (HT 458)

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Judge Michael Garcia of the Sacramento County Superior Court met Judge

McBrien in 1 98 1 , when they served in the Attorney General' s Office. Judge Garcia

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testified Judge McBrien was helpful and they enj oyed a good professional relationship

when they worked together. (HT 5 35 536) On the bench, Judge Garcia testified that
Judge McBrien "wanted to be in family law, and that was unique at the time. Family law
was not a sought out assignment by many judges," but he enj oyed the assignment. (HT
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division's procedures. (HT 5 3 8-539)

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Judge Garcia was presiding judge in 2002 and 2003 , when Judge McBrien

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5 3 9) Judge McBrien was instrumental in changing and improving the family law

continued to serve in the family law division. (HT 534) Judge Garcia testified Judge

McBrien had a very good judicial temperament, he was inquisitive, and he made rulings

based on the law and not on what he might want to do. (HT 536-537) "Judge McBrien is

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not that type of judge. He knows the law well. He researches the law." (HT 53 7)
Judge Garcia appointed Judge McBrien as supervisor of the family law division
because Judge McBrien had great "people" and organizational skills, and "he had a lot of
respect from the family law bar at that time because he had worked in family law." (HT
5 3 7) Judge McBrien also provided continuity in the family law division, which was
important for the court and the family law bar. (HT 537 538)

Judge Garcia testified Judge McBrien was an asset to the bench because he
respected the family law bar and the mental health professionals, he still displayed
intellectual curiosity, he kept up with the law and made very good decisions, and his
"people skills" were very positive. (HT 539-540)

Presiding Justice Arthur Scotland of the Court of Appeal, Third Appellate District,

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was a native of Sacramento. He had known Judge McBrien for 32 years, and they served
together in the Attorney General ' s office and the Office of the Governor. (HT 548-550)

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Justice Scotland testified there had been 1 1 0 appeals to the Third District from Judge

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McBrien' s cases, and seven cases had been reversed. (HT 549, 5 5 1 552) Justice
Scotland testified that one of the seven reversals was the Carlsson case; two other cases

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were reversed in full, and the other four were reversed in part, such that Judge McBrien' s

reversal rate was six percent, "a remarkably good reversal rate. " (HT 5 52 553) Justice
Scotland testified the Third District' s average reversal rate in civil cases was 20 to 2 5
percent. (HT 5 5 3 )
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Justice Scotland testified he contacted family law specialists in the area and asked
them about Judge McBrien's reputation. He determined from those conversations that

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Judge McBrien had an excellent reputation as a dedicated family law judge. He was very
knowledgeable, thorough, and careful, he had a great ability to understand sophisticated

and complicated issues related to the division and valuation of property, and attorneys

were pleased to be assigned to him because he was able to grasp the more difficult issues.

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(HT 5 5 3 - 5 54)

Justice Scotland testified that Judge McBrien' s reputation was that he applied the
law without any bias, and he would change his mind if convinced it was the appropriate
thing to do. (HT 554- 5 5 5)

"All of [the family law attorneys] commented that he-you have to

understand the family law court in Sacramento County. You have so many
cases and you have such limited time. And to be honest with you, one of
the things I would struggle with as a family law judge is to let
attorneys/parties present their case for as long as you can; but at a certain
point, you just have to-you have to move on. You can't spend hours and
hours on every single case.

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"And Judge McBrien-a number of [ attorneys] mentioned that he didn't

he doesn't let attorneys waste time. And that he could, from time to time,
perhaps, appear abrupt. Maybe that' s the wrong word, but . . . he would not
allow attorneys to waste time. If attorneys did not understand the law or
were unprepared, then he would-he would call them on it, so to speak.
They didn't use that word; I ' m using that word . . . .

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"But, in other words, he wouldn't allow people just to go on and on. He

would expect attorneys to be prepared." (HT 555)
Justice Scotland testified that Judge McBrien had a reputation for being very calm,

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thorough, open, always dignified, fair, and not biased in any way, "but expecting that

people do the job well. And if you don't do the j ob well, you know, responding
appropriately. In fact, several of the attorneys said any time that they ever saw him

perhaps being short with an attorney, it was a pro per." (HT 5 56, 5 57) "What I heard is:
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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

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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 5 57)

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

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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 5 58 560)

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
j udicially 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

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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

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Judge McBrien. He testified that Judge McBrien was courteous to litigants and attorneys,

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patient, and dignified. Judge McBrien was always fair, even when Mr. Carlson did not

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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 )

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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 S ection, and he served on that section' s executive committee. (HT 5 83-5 86)
He worked with Judge McBrien in that capacity on methods to streamline family law

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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 5 8 8 , 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 5 8 8 5 89)

Camille Hemmer testified she had exclusively practiced family law in Sacramento
since 1 98 5 , and she was a certified family law specialist. (HT 59 1 ) She was a member

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of the S acramento County Bar Association, and held every post in that organization. She
also served on the Family Law Section' s executive committee. She briefly represented

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

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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

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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
5 94-595)
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Thomas Russell, a licensed clinical social worker, testified he worked with the
S acramento County Superior Court's family law division, to provide private mediation

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services and serve as a special master for high-conflict cases. (HT 597) He had testified
as an expert witness before Judge McBrien about 40 to 50 times . (HT 598, 599) Mr.

Russell testified Judge McBrien was very patient, fair, impartial, and dignified, and

always been extremely courteous when he testified in his courtroom. (HT 598-599) He

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was absolutely impressed by Judge McBrien's perfonnance in his judicial duties. (HT
5 99)

CONCLUSIONS OF LAW
COUNT I(A)(l)

The notice of formal proceedings charged as follows : On March 9, 2006, Judge

McBrien abandoned and terminated the Carlsson trial, in the middle of Mr. Carlsson' s
case-in-chief, without giving Mr. Carlsson the opportunity to complete the presentation
of evidence or offer rebuttal evidence, which resulted in the denial of Mr. Carlsson' s
constitutional rights to due process and a fair trial.

We conclude Judge McBrien violated canons 2A and 3B(7) by abandoning and

terminating the trial in the middle of Mr. Carlsson' s case-in-chief, and in the middle of a

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witness ' s testimony. He did not take the case under submission, allow the parties to
make oral closing arguments, or infonn the parties whether they could file post-trial

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documentary evidence or closing briefs. We further conclude Judge McBrien violated

Mr. Carlsson's constitutional right to due process and a fair trial because he did not allow

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Mr. Carlsson to be heard, complete the presentation of evidence in his case-in-chief, or

provide the opportunity to present rebuttal evidence. These actions caused the Third
District Court of Appeal to reverse Judge McBrien's ruling in a published decision.
Judge McBrien's conduct was prompted by his receipt of the EPO call. Judge
McBrien's typical practice when he received an EPO call while on the bench was
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immediately to call a recess, step out of the courtroom, speak to the caller (the county
operator and/or a law enforcement officer), and deal with the telephonic request. Judge

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McBrien typically returned to the bench after he completed the EPO call, explained what
just happened to the attorneys and parties, and resumed the proceedings that were

interrupted by the call.

Canon 2 (A) requires a judge to act at all times in a manner that promotes public

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confidence in the integrity of the judiciary. Canon 3 (B)(7) requires a judge to accord
every person, or that person' s lawyer, the full right to be heard according to the law.
Judge McBrien violated these canons when he instantly and inappropriately terminated
the Carlsson trial upon receiving the EPO call at 4:28 p.m. on March 9, 2006, while a
witness was on the stand and testifying. Judge McBrien did so prior to addressing or
even determining the exact nature of the EPO call, or the length of time it would take to
address the particular telephonic request.

The EPO call was completed in less than three minutes. The parties, the attorneys,
the testifying witness, court personnel, and the public remained in the courtroom, in the
reasonable expectation that Judge McBrien would return to the courtroom or otherwise
inform them of the situation. He called his residence at 4 : 3 5 p.m. Judge McBrien then

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left the courthouse while all the interested parties were still waiting for him to return to
the courtroom, and without determining, either personally or through his clerk, whether

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the parties were still present. (Exhibit 1 5, p. 1 69 . 3 ; HT 1 04 1 05)

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Judge McBrien repeatedly declared on the afternoon of March 9, 2006, that the

Carlsson trial would end at 4:30 p.m. or there would be a mistrial. He received the EPO

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call at 4:28 p.m., and he immediately declared the trial was over, left the bench, and

never returned. Judge McBrien was obliged to return to the courtroom after he
completed the extremely brief EPO call, explain if (and why) he was going to excuse the
testifying witness, advise the parties as to whether they would have the opportunity to
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submit additional evidence and file closing briefs, and take the case under submission.

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determined the nature of the EPO request, and acted in a way that was contrary to his
usual practice in such a situation. The entirety of the record demonstrates that Judge

McBrien was preoccupied with efficiency at the expense of ensuring a party' s

constitutional right to be heard.

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We note that aside from the incident with the final witness, Judge McBrien never
prevented a witness from testifying and never cut off a witness ' s testimony. Based upon
the undisputed time notations in the minute orders, Judge McBrien provided the parties
with more trial time in the courtroom than a normal two day court calendar would have
allowed.

The Commission 's Notice of Formal Proceedings alleged Judge McBrien entered
j udgment in favor of Mrs. Carlsson "on almost every issue ." ( 1 0/2 5/08 Notice at p. 2.)
The Third District' s opinion stated that as to the substantive rulings in the Carlsson
dissolution, Judge McBrien 's termination of the trial rendered an assessment of prejudice
impossible because the appellate court could not speculate "on what evidence would have
been submitted had [Mr. Carlsson] been permitted to complete his presentation, much

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less determine whether it would have made a difference in the judgment. [Citation.]" (In
re Marriage of Carlsson, supra, 1 63 Cal.App.4th at p. 294.)

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At oral argument, counsel for the Commission asserted Judge McBrien should

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have returned to the bench to conclude the trial and allowed Mr. Carlsson the opportunity
to be heard and introduce additional evidence. Counsel for the Cmrunission, however,

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conceded it would have been within Judge McBrian ' s discretion if he briefly returned to

the bench, entertained offers of proof, excluded the bulk of the remaining evidence as
cumulative, allowed the parties to submit the remaining issues in writing, took the matter
under submission, and then adj ourned. (AT 1 1 - 1 2, 1 9-2 1 , 52)
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We conclude Judge McBrien' s rulings and decisions in the dissolution case did not
reflect any bias or prejudice against either Mr. Carlsson or Ms. Huddle, particularly as to

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the spousal support order, the division of property, and the order to sell both the residence
and the fourplex, all of which were supported by the weight of the evidence. While

reasonable minds might differ as to the award of attorney fees, we cannot say that any

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prejudice against Mr. Carlsson or Ms. Huddle.

aspect of Judge McBrien's decision was so unreasonable as to reflect any bias or

We further note that Ms. Huddle was presented with numerous opportunities to
pursue options to submit additional evidence or request more time, but she repeatedly
failed to take full advantage of those oppmiunities . Immediately after Judge McBrien left
the bench on March 9, 2006, Ms. Keeley verbally advised Ms. Huddle that they could
confer and request another trial date ("We'll arrange another date. Don' t panic.") . (RT
463) In addition, Ms. Keeley and Ms. Huddle exchanged several post-trial letters, in
which Ms. Keeley offered several suggestions as to how they could submit additional
evidence to Judge McBrien on the contested dissolution issues . Ms. Huddle did not
accept or discuss any of Ms. Keeley' s proposals to introduce additional evidence
pursuant to a stipulation or settled statement. Instead, Ms. Huddle responded with a

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settlement offer, which included the provision that Mrs. Carlsson would not receive any
spousal support.

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ended, she failed to pursue any of the avenues presented to her to introduce additional
evidence in the dissolution case, or attempt to reach any agreement with Ms. Keeley to

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file stipulations or a settled statement that would have resolved any evidentiary concerns,

particularly since Ms. Keeley was willing to waive cross-examination on such issues.
Ms. Huddle's failure to pursue these reasonable options was indicative of her overall
conduct during the Carlsson case. Judge McBrien was presented with an attorney who
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was not prepared for trial. Ms. Huddle filed a late settlement conference statement, she
did not conduct a pretrial meet-and-confer with her opponent to mark exhibits, and she

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did not file a trial brief. Ms. Huddle rebuffed Ms. Keeley' s repeated offers, made during

and after the presentation of testimony, to pursue options to submit additional evidence or
request more time.

Trial judges frequently are confronted with attorneys who are not well prepared

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and who do not perform well. The conduct of trial judges is governed by the canons, not
the actions of attorneys. At oral argument in this matter, Judge McBrien's counsel
conceded that Judge McBrien's conduct in leaving the bench and declaring the trial was
over, "[ u ]nder the circumstances, given the appellate decision, . . . would probably
amount to" prejudicial conduct. (AT 53)

We conclude that McBrien's conduct was intemperate and precipitous when he

terminated and abandoned the trial as he did. He violated Mr. Carlsson' s constitutional
rights to due process and a fair trial, and his actions constituted conduct prejudicial to the
administration of justice that brings the judicial office into disrepute.
COUNT I(A)(2)

The notice of fonnal proceedings charged as follows : During the Carlsson trial,

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Judge McBrien made a sua sponte request for Mr. Carlsson to produce his Statements of
Economic Interests filed as part of his employment at the state' s DGS, which were not

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relevant to the pending dissolution matter. Judge McBrien advised Mr. Carlsson to

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consult an attorney regarding his exposure to potential penalties beyond the dissolution
action, and threatened Mr. Carlsson's attorney, Ms. Huddle, with contempt if Mr.

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Carlsson asserted his Fifth Amendment rights and declined to produce the documents .
We conclude Judge McBrien made a sua sponte request during trial for the

production of Mr. Carlsson's Statements of Economic Interests, and those documents

were not relevant to the pending dissolution matter. We further conclude Judge McBrien
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violated canons 2 and 3 B (4) during his lengthy exchange with Ms. Huddle on March 9,
2006 . An attorney would perceive the language and tone used by Judge McBrien as

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threatening contempt if the attorney failed to comply with his request for the production
of the document, and such conduct constituted improper action.

At the close of testimony on March 3 , 2006, Judge McBrien requested Mr.

Carlsson to produce his Statements of Economic Interests at the next trial day. When the

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trial resumed on the afternoon of March 9, 2006, Judge McBrien immediately asked Mr.
Carlsson if he complied with his request and obtained the documents, and Ms. Huddle
said no. A lengthy exchange ensued between Judge McBrien and Ms. Huddle, during
which Ms. Huddle repeatedly argued that Judge McBrien did not order Mr. Carlsson to
produce the documents and the documents were not relevant. Judge McBrien agreed the
documents were not relevant, but asked if she wanted the record read, and responded to
her stated refusal to produce the document by asking: "[A]m I to take that as a 'no'
placing you in the possibility of contempt?" (RT 370)

Judge McBrien agreed that he could not have found either Mr. Carlsson or Ms.
Huddle in contempt because he "requested" and did not order the production of the
documents, but he admitted that his "request" to produce the documents became

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"stronger and stronger" as his exchange with Ms. Huddle continued, at which point "the
possibility of contempt becomes an option." (HT 1 4 1 , 1 43 - 1 44) Nevertheless, Judge

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McBrien acknowledged that he never issued an order that could have supported a finding

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of contempt as to either Mr. Carlsson or Ms. Huddle.

Canon 2 states a judge shall avoid impropriety and the appearance of impropriety

in all activities . Canon 3 (B)(4) states a judge shall be patient, dignified, and courteous to

all p arties with whom the judge deals in an official capacity. While the threats of
contempt may have been empty, Judge McBrien violated these canons because his
statements during this exchange would have been perceived as threatening contempt.
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We further conclude that Judge McBrien did not threaten to find either Mr.
Carlsson or Ms. Huddle in contempt for the potential assertion of a Fifth Amendment

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right. Mr. Carlsson testified at trial that he filed yearly Statements of Economic Interests
with his employer, and Judge McBrien requested Mr. Carlsson to produce those

documents for the years that Mr. Minkoff had an interest in the fourplex. The documents
were not produced. During the lengthy exchange on March 9, 2006, Ms. Huddle

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attempted to raise a Fifth Amendment obj ection against production of the Statements of
Economic Interests. Once a Statement of Economic Interest is filed, however, it is a
public document that must be made available to the public upon request. (Gov. Code,
8 1 00 8 , subd. (a) .) Ms. Huddle failed to perceive that she could not asse1i a Fifth

Amendment privilege to prevent disclosure of documents that were a matter of public

record.27

Judge McBrien admittedly became frustrated with Ms. Huddle' s inability to

perceive the distinction. While Judge McBrien may have been frustrated with Ms.
Huddle, he did not raise the possibility of contempt in response to her attempt to claim
the Fifth Amendment privilege against production of Mr. Carlsson' s Statements of
Economic Interests. We conclude that Judge McBrien' s conduct constituted improper

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action.

COUNT I(A)(3)

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The notice of fonnal proceedings charged as follows : Shortly after the end of the

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Carlsson trial, Judge McBrien ordered his courtroom clerk to ask the court reporter to

prepare a partial transcript of certain proceedings regarding Mr. Carlsson's real estate

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ownership and Statements of Economic Interests, his clerk instructed the court reporter

2 7 The record strongly implies that Mr. Carlsson' s employer, DGS, similarly failed to
realize the document was public record, because it refused to provide the document to
Mr. M ayo when he tried to retrieve it.
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not to tell anyone about the request, he sent the transcript to Mr. Carlsson' s employer,
DGS, notified DGS that Mr. Carlsson failed to disclose certain information, and Mr.

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Carlsson was removed from his j ob. Judge McBrien failed to notify the pmiies about his
actions and continued to preside over the dissolution matter.

We conclude Judge McBrien violated canons 2 and 3 (E)(2) by becoming

embroiled in the action. Judge McBrien ( 1 ) ordered his comiroom clerk to ask the court

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reporter to prepare a partial transcript of Mr. Carlsson's testimony, (2) made two
additional requests for that transcript when it was not transmitted to him, (3) subsequently
sent the transcript to Mr. Carlsson 's employer and stated that the transcript involved a
reporting matter, ( 4) failed to notify the parties about his actions, and (5) continued to
preside over post-trial motions in the Carlsson case. All of these actions constituted
conduct prejudicial to the administration of justice that brings the judicial office into
disrepute.

As a family law judge of nearly 20 years, Judge McBrien admittedly had faced
situations where parties have given sworn testimony about their financial affairs contrary
to their state and federal income tax returns, which were executed under penalty of
perj ury and introduced as exhibits in family law proceedings. Judge McBrien had never

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reported a party for the possible commission of a crime, even when presented with
contradictory testimony that raised the possibility that a party committed a felony in the

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execution of state and/or federal tax returns or in testifying before him. Judge McBrien

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explained that when he was presented with conflicts between a party' s testimony and tax

returns, he usually accepted the tax returns as truly reflective of the party' s financial

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condition. This approach is in sharp contrast to what Judge McBrien did here.
Judge McBrien testified that his request and transmission of the transcript of Mr.

Carlsson's testimony to DGS was based upon his belief that he had a duty to report Mr.
Carlsson's possible cmmnission of a crime. Mr. Carlsson testified he may not have
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disclosed his business relationship in the fourplex with Mr. Minkoff in his Statements of
Economic Interests, and that nondisclosure may have violated the Fair Political Practices

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Act (FPPA).

While Judge McBrien may have believed he had a duty to report Mr. Carlsson' s

testimony because i t raised the possibility that he c01mnitted a crime, we conclude that
Judge McBrien's conduct went far beyond the consideration of whether he had such a

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duty in this case, and that Judge McBrien engaged in an investigation during the course
of the trial and post-trial period, as to whether Mr. Carlsson's conduct violated the FPP A.
Mr. Carlsson testified on direct and cross examination about his business and
working relationship with Mr. Minkoff, Mr. Minkoff s loan to purchase and rebuild the
four lex, that he worked with Mr. Minkoff in his capacity with DGS, and his uncertainty
as to whether he disclosed their joint ownership of the fourplex in documents that he was
required to file as a state employee pursuant to the FPP A. After the completion of his
testimony, however, Judge McBrien independently questioned Mr. Carlsson and asked if
the documents were known as Statements of Economic Interests, filed with the Secretary
of State ' s office, and Mr. Carlsson was not sure. Thereafter, Judge McBrien made a sua
sponte request for Mr. Carlsson to produce his Statements of Economic Interests by the

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next trial day, and suggested that Mr. Carlsson consult with an attorney about his possible
failure to comply with the FPP A because of "potential penalties far beyond what we're

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talking about today." (RT 3 63 ) While Ms. Keeley suggested that Mr. Carlsson should

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produce documents for particular years, the request to produce the document originated
with Judge McBrien. When Mr. Carlsson failed to produce the documents, Ms . Keeley

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did not lodge any objections but, as we have explained, Judge McBrien raised the

possibility of contempt with Ms. Huddle.

Judge McBrien offered several explanations as to why he requested Mr. Carlsson
to produce his Statements of Economic Interests. They were: ( 1 ) he was not sure what he
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heard; (2) Mr. Carlsson might have violated the FPP A if he failed to disclose Mr.
Minkoff' s interest in the fourplex, but it would not have been an issue if Mr. Carlsson had

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disclosed the matter; (3) Mr. Carlsson' s nondisclosure might have constituted a violation

of law, and Mr. Carlsson needed to speak to another attorney because Ms. Huddle did not

have any idea of what they were talking about; (4) the Fair Political Practices

Cmmnission (FPPC) might have placed a lien or confiscated the fourplex as a penalty for

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nondisclosure, which would have prevented the division and disposition of property in
the dissolution action; and, (5) the documents would have been relevant to the dissolution
trial if Mr. Carlsson disclosed his ownership of the fourplex because the documents
would have contained Mr. Carlsson's opinions as to the fourplex ' s fair market value and
annual rental income.

During the course of the hearing, however, Judge McBrien conceded he was
familiar with Statements of Economic Interests based upon his own lengthy government
employment, and that the documents he requested Mr. Carlsson to produce would not
have contained any valuation or income information. Judge McBrien also admitted he
had never heard that the FPPC had the power to place a lien or confiscate property as a
penalty for nondisclosure.

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Mr. Carlsson never produced his Statements of Economic Interests . Judge

McBrien' s investigation in this matter, however, continued after the conclusion of the

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Carlsson trial. Judge McBrien asked his courtroom clerk to contact the court reporter

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and request a transcript of Mr. Carlsson's cross examination testimony. This request was

made either on March 3 , 2006, the day of Mr. Carlsson ' s testimony, or March 9, 2006,

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the last day of trial. The court reporter complied with the request on March 1 0, 2006, the
day after the trial ended.
It is undisputed that Judge McBrien did not receive the transcript after the March
2006 request, and he issued the statement of decision in the dissolution trial without the
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benefit of either the Statements of Economic Interests or the transcript of Mr. Carlsson' s
testimony. Judge McBrien thus ruled upon the case without these documents, which

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refutes his assertion that he needed the documents, or that he believed nondisclosure

might have interfered with the disposition of the fourplex, which he ordered to be sold.

Judge McBrien continued to investigate this matter. A second request was made

for the transcript, based upon a minute order filed on May 1 2, 2006, signed by both Judge

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McBrien and his courtroom clerk. The court reporter sent the transcript to Judge
McBrien ' s chambers but he still did not receive it at that time.

A third request was made for the transcript in September 2006. By that time,
Judge McBrien had heard and ruled upon Mrs. Carlsson' s post-trial motions in July and
August 2006, to compel Mr. Carlsson to comply with Judge McBrien' s earlier rulings to
sell the residence and fourplex. In making the third request, Judge McBrien's courtroom
clerk instructed the court repmier to email the transcript directly to the clerk' s email
address. The court reporter complied and Judge McBrien finally received the transcript
of Mr. Carlsson' s cross-examination testimony about his relationship with Mr. Minkoff.
When Judge McBrien finally received the transcript, he read Mr. Carlsson's
testimony and was concerned that Mr. Carlsson violated FPPC rules by failing to disclose

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his business relationship with Mr. Minkoff in his Statements of Economic Interests .
Judge McBrien believed a judge had an obligation to repmi any potential violation of

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law, and that he had been considering what to do in the intervening period between his

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first request for transcript in March 2006, and his receipt of the transcript in September

2006. (HT 1 67- 1 68) Judge McBrien had been discussing the matter with Judges Hight

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and Sumner throughout this time. They concluded that the transcript should be sent to

DGS, Mr. Carlsson's employer, rather than the FPPC , because no one knew anyone at the
FPPC, but one of the judges knew Linda Cabatic was DGS ' s general counsel. (HT 1 65 1 67, 1 68- 1 7 1 , 2 54-2 5 5 )
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On September 1 1 , 2006, Judge McBrien faxed the transcript to Ms. Cabatic,

DGS 's general counsel and someone with whom he had a passing recognition from his

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past state service. Judge McBrien called Ms. Cabatic, and infonned her that he was
sending something regarding a reporting matter. (Exhibit 5 , p. 49)

Judge McBrien did not advise the patiies and the attorneys about his actions. He
continued to hear and rule upon Mrs. Carlsson ' s post trial motions to compel Mr.

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Carlsson' s compliance with the court's prior orders. He did not recuse himself from the
case until November 2006, when he learned DGS took disciplinary action against Mr.
Carlsson.

Judge McBrien argues he had a duty to report Mr. Carlsson to his employer
because his possible failure to disclose his business relationship in the fourplex with Mr.
Minkoff in his Statements of Economic Interests could have been a misdemeanor.
(Respondent's Proposed Findings of Fact and Conclusions of Law, p. 24)
Judge McBrien is correct that Mr. Carlsson' s testimony implicated a possible
violation of law. The conflict of interest provisions of the Political Refonn Act (PRA)
require certain state officials and employees to file Statements of Economic Interests,
which disclose investments, interests in real property, and income. (Gov. Code,

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87200-872 1 0, 87500.) Moreover, the PRA provides that no public official at any level
of state or local government shall make, participate in making or in any way attempt to

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use his official position to influence a governmental decision in which he knows or has

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reason to know he has a financial interest. (Gov. Code, 87 1 00.) A public official has a
financial interest in a decision within the meaning of Government Code section 87 1 00 if

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it is reasonably foreseeable that the decision will have a material financial effect,

distinguishable from its effect on the public generally, on the official, a member of the
official ' s family, or on a business entity or real property in which the public official has a
financial interest worth more than $2000. (Gov. Code, 87 1 03 .)
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Any person who knowingly or willfully violates any provision of the PRA is
guilty of a misdemeanor, and may be ordered to pay a fine of up to $ 1 0,000, or three

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times the amount that was not properly reported, upon conviction for each violation.

(Gov. Code, 9 1 000, subds . (a) & (b) .) The FPPC, however, does not conduct criminal

investigations or prosecutions for violations of the PRA. Instead, the Attorney General is
responsible for enforcing the criminal provisions with respect to state agencies, lobbyists,

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and state elections, and the district attorney of the county in which the violation occurs
has concurrent powers and responsibilities with the Attorney General. (Gov. Code,
9 1 00 1 , subd. (a).) In addition, any person who violates a provision of the PRA is subject
to discipline by his or her agency, including dismissal, consistent with any applicable
civil service or other personnel laws. (Gov. Code, 9 1 003 . 5 .)

We agree that a judge is in "a special position" to observe potential criminal

conduct in the courtroom, whether it consists of a witness' s perjury or revelations of
crime emerging from the evidence. (Rothman, Cal. Judicial Conduct Handbook, supra,
5 . 68, p. 252.) "The obligation of a judge to report a crime that takes place in the
courtroom is the same as that of an ordinary citizen, unless the judge is the only person
who has knowledge ofthe criminal conduct." (Rothman, Cal. Judicial Conduct

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Handbook, supra, 5 .68, p. 2 5 3 , bold omitted, italics added.) Such situations frequently
arise in family law cases :

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"Perjury and tax fraud (especially in family law cases) are two crimes that
can be revealed in the course of court proceedings. In such cases, the
lawyers and parties, as well as the courtroom visitors, clerks, court
reporters, and bailiffs are all not only aware of what is taking place, but
are also in a position to report it. In such circumstances, some j udges
believe that they should report the criminal conduct, whereas others do not,
" (Rothman, Cal. Judicial Conduct Handbook, supra, 5 .68, p. 2 5 3 .)

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A judge does not necessarily have a duty greater than an ordinary citizen to report
a crime unless the judge is the only person aware of the criminal act. (Rothman, Cal.

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Judicial Conduct Handbook, supra, 5 .68, p. 253 .)

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"Judges are not expected to bear the additional burden of trying to figure
out whether or not the judge is the only person ' in a position' to report the
criminal conduct, or whether law enforcement is aware of a particular
' significant' violation of law . If that were the rule, a judge would have a far
greater duty than an ordinary citizen. {f, however, the judge is the only
person aware of the circumstances, then the judge should act. [ ] This
sort of event is not common, however, in the ordinary courtroom context,
where the parties, lawyers and many other people have the necessary
information to report and the interest in doing so. Under these
circumstances the judge is not required to do anything." (Rothman, Cal.
Judicial Conduct Handbook, supra, 5 .68, pp. 253 254, italics added.)

While a judge may not have an ethical obligation to report a crime in cetiain
circumstances, it is not improper for the judge to do so. (Rothman, Cal. Judicial Conduct
Handbook, supra, 5.68, p. 254.)

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"The courts cannot prevent parties to a dissolution from lying to each other.
But, when they lie to the court they do so under penalty of pe1jury
subj ecting themselves to criminal prosecution. A trial court is not required
to refer such cases to the district attorney or the Internal Revenue Service
and Franchise Tax Board when it believes a crime has been committed.
But, it should not be faulted for doing so. [Citation.]" (In re Marriage of
Calcaterra and Badakhsh (2005) 1 3 2 Cal.App.4th 28, 3 8 . )

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I f the judge does report the crime, he o r she must avoid "becoming an advocate" in
the process of making the report. (Rothman, Cal. Judicial Conduct Handbook, supra,

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5.68, p. 254.) "If a trial comi, in the exercise of its discretion, elects to report a crime

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to an appropriate agency, it should not become an advocate. It should simply make the

referral and let the agency exercise its powers whether or not to go forward." (In re

Marriage of Calcaterra and Badakhsh, supra, 1 32 Cal.App.4th at p. 3 8 ; Rothman, Cal.

Judicial Conduct Handbook, supra, 5 .68, p. 254.) More importantly, however, if the
j udge reports the criminal act, the judge must inform the parties that such a report has
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Judicial Ethics Update, I.C.2, p. 2.)

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Canon 2 states that a judge shall avoid impropriety and the appearance of

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been made. (Rothman, Cal. Judicial Conduct Handbook (Apr. 2008 supp.) 2006/2007

impropriety in all of the judge' s activities . Judge McBrien' s investigating whether Mr.

Carlsson violated the FPP A, repeatedly requesting the transcript of Mr. Carlsson's
testimony, and transmitting that transcript to Mr. Carlsson' s employer, constituted

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j udicial embroilment.

"Embroilment is the process by which the judge surrenders the role of

impartial factfinder/decisionmaker, andjoins the fray. This can manifest
itself in improper ex pmie communications out of a need to ' expedite' the
case, acceding to improper procedures under an intense need to move the
calendar, attempting to see to it that a certain result prevails out of a
misguided perception of the judicial role, abusing the power to impose
contempt and other sanctions out of a perception by the judge that his or her
power is being challenged, or simple loss of self control." (Rothman, Cal.
Judicial Conduct Handbook, supra, 2 .0 1 , p. 3 7, italics added; see also
Offutt v. United States ( 1 954) 348 U . S . 1 1 , 1 7 ["[I]nstead of representing
the impersonal authority of law, the trial j udge permitted himself to become
personally embroiled with the petitioner"] .)
Judge McBrien did not simply learn of a possible violation of law by presiding over the
Carlsson trial, he "j oined the fray" through his investigation and lengthy pursuit of the

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issue. Also, Judge McBrien did not report Mr. Carlsson' s testimony to the appropriate
agency, which would have been the Attorney General or the District Attorney, but instead

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sent the transcript to the general counsel for Mr. Carlsson' s employer.

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Canon 3 (E)(2) states that a judge shall disclose on the record information that is

reasonably relevant to the question of disqualification, even if the judge believes there is

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no actual basis for disqualification. A judge may be required to recuse himself from a

pending case when the judge has become so '"personally embroiled"' as to make him
"unfit" to conduct further proceedings. (Mayberry v. Pennsylvania ( 1 97 1 ) 400 U.S. 455,
465; see also In re Martin ( 1 977) 71 Cal.App.3d 472, 480; In re Wagner (2005) 1 27
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disapproved on another point in Doan, supra, 1 1 Cal. 4th at pp. 3 1 9, 325.)

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Cal.App.4th 1 3 8, 1 47- 1 48 ; Wenger v. Commission ( 1 98 1 ) 29 Cal.3d 6 1 5 , 642-643,

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Judge McBrien failed to infonn the parties and the attorneys that he had reported
Mr. Carlsson' s possible criminal violation to his employer, and he continued to preside

over post-trial motions in the Carlsson case. It was not until adverse action was taken
against Mr. Carlsson that Judge McBrien recused himself. (Exhibit 5 , pp. 5 1 -52)

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We further conclude that Judge McBrien's conduct did not constitute willful
misconduct because he did not engage in unjudicial conduct c01mnitted in bad faith,
while acting in a judicial capacity. (Dodds, supra, 1 2 Cal. 4th at p. 1 72 ; Broadman,
supra, 1 8 Cal. 4th at p. 1 09 1 .) "[I]n determining whether a judge's conduct is 'unjudicial, '
we measure that conduct with reference to the California Code of Judicial Conduct.
[Citations .]" (Dodds, supra, 1 2 Cal.4th at p. 1 72.) "A judge acts in bad faith only by ( 1 )
performing a judicial act for a corrupt purpose (which is any purpose other than the
faithful discharge of judicial duties), or (2) perfonning a judicial act with knowledge that
the act is beyond the judge's lawful judicial power, or (3) perfonning a judicial act that
exceeds the judge's lawful power with a conscious disregard for the limits of the judge's
authority." (Broadman, supra, 1 8 Ca1.4th at p. 1 092 .)

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At oral argument, counsel for the Commission argued Judge McBrien' s actions as
alleged in count I(A)(3 ) constituted prejudicial misconduct at a minimum. Counsel for

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the Commission, however, conceded Judge McBrien' s actions did not constitute willful

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misconduct if the Special Masters found his conduct was not indicative of bad faith, and
counsel declined to argue that Judge McBrien's failure to consult with the California

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Judge' s Association constituted bad faith or raised his actions to willful misconduct. (AT
3 6-3 8) Also at oral argument, Judge McBrien' s counsel conceded Judge McBrien was
"probably . . . involved" in improper action for failing to disclose his actions to the

pmiies. (AT 70)

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We conclude that Judge McBrien believed, in good faith, that he had the duty, as a
judicial officer, to report a possible violation of law. He consulted with two judges as to

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his duties and responsibilities. His actions, while inappropriate and in violation of the

canons, did not involve bad faith or rise to willful misconduct, but amounted to conduct

prej udicial to the administration of justice that brings the judicial office into disrepute.
COUNT I(A)(4)

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The notice of fonnal proceedings charged as follows : During the Carlsson trial,
Judge McBrien displayed impatience with Ms. Huddle, repeatedly threatened a mistrial if
the proceedings were not concluded quickly enough, and addressed Ms. Huddle in a
discourteous and derogatory manner.

We conclude Judge McBrien violated canons 2 and 3 B(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. We further conclude such conduct constituted improper action.
It is undisputed that Judge McBrien works very hard in a high volume court. The
family law division constantly is pressured for time, and the system that Judge McBrien
helped devise functions only if the attorneys comply with their time estimates for trial.

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The system was revised to enable family law trials to be conducted by judges in the
family law division in an expeditious manner, and to avoid placing family law cases on

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the master trial calendar where they would compete for courtrooms with other criminal

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and civil trials.

As we have noted, Ms. Huddle was not as prepared for trial as her counterpart,

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Ms. Keeley. This affected the presentation of Mr. Carlsson' s case.

Canon 2 states that a judge shall avoid impropriety and the appearance of
impropriety in all activities. Canon 3 (B)(4) states a judge shall be patient, dignified, and
courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in
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an official capacity. Judge McBrien violated these canons through his derogatory and
discourteous remarks toward Ms. Huddle.

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This conduct began almost i1mnediately upon the commencement of the Carlsson
trial. Ms. Huddle did not engage in any conduct to trigger or provoke Judge McBrien's
comments . Judge McBrien admitted his remarks toward Ms. Huddle were based upon

his history with her. Judge McBrien testified he had several prior cases with Ms. Huddle,

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and his experience was that she never completed her cases within the time estimates. Ms.
Huddle also admitted she had a history with Judge McBrien. He declared a mistrial in
one of her prior cases, and she had filed oral and written motions to disqualify Judge
McBrien from hearing other cases . She made an unsuccessful oral motion to disqualify
Judge McBrien within minutes of learning the Carlsson trial was assigned to him,
although there is no evidence that Judge McBrien was aware of the motion.
During the course of the trial, Judge McBrien repeatedly stated that he would
declare a mistrial if the patiies failed to complete the trial within the two day estimate.
While Ms. Keeley testified that he tried to keep both parties moving, we find that Judge
McBrien ' s mistrial threats were exclusively directed at Ms. Huddle, and were triggered
by such conduct as questioning witnesses, asking for breaks when the trial went through

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the lunch hour, making objections, or discussing evidentiary issues.

Judge McBrien's first threat of a mistrial was made when Ms. Huddle asked for a

break on the first morning of trial. (RT 1 3 6- 1 3 8) Shortly after Ms. Huddle began Mr.

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Carlsson' s case-in-chief, on the afternoon of the first trial day, Judge McBrien

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admonished her to "move along," and reminded her that she had "a limited period of

time" to present her evidence. (RT 220, 222) On the second morning of trial, Ms.
Huddle tried to explain that Mr. Minkoff could not appear because of a serious illness.

Judge McBrien responded by asking whether "this is a slow motion for a Mistrial." (RT
2 62) As Mr. Huddle continued with Mr. Carlsson' s case-in-chief, she paused to
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introduce several exhibits and Judge McBrien again admonished that her time was
"waning." (RT 3 1 4) He never directed such remarks to Ms. Keeley or raised the threat

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of a mistrial while she questioned a witness, made an obj ection, or introduced an exhibit.
Judge McBrien testified that he did not mean it when he repeatedly threatened to

declare a mistrial. Judge McBrien testified he merely used the threat of a mistrial, and

other comments about the limited time available to the parties, to keep the trial moving

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because of his prior experience with Ms. Huddle. Judge McBrien, however, repeatedly
and unambiguously informed Ms. Huddle that he would declare a mistrial if she failed to
complete the case within a day and a half, even though the attorneys provided him with a
trial estimate of two days . Judge McBrien ultimately relented and agreed to conduct the
trial for another half-day, to comport with the parties ' two-day estimate. 2 8
During the last afternoon of trial, however, Judge McBrien ' s immediate response
to Ms. Huddle' s request for a break was to threaten a mistrial. When she asked to recall
Mr. Carlsson' s appraiser to respond to Ms. Keeley' s evidence about the appraiser's
mathematical error, Judge McBrien agreed but again admonished her to call the witness
"while you still have time." (RT 46 1 ) Judge McBrien did not threaten a mistrial in
response to Ms. Keeley's request to recall Mrs. Carlsson' s appraiser, or when Ms. Keeley

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cross-examined Mr. Carlsson's appraiser about the mathematical error.

Judge McBrien made additional derogatory and discourteous remarks to Ms.

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Huddle independent of his mistrial threats. He admonished her not to think out loud as

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she hesitated to conduct redirect examination of a witness. When Mr. Minkoff finally

was able to appear on the final afternoon of trial, Ms. Huddle attempted to make a record

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as to the seriousness of his illness and weakened physical condition. Judge McBrien

2 8 As we have noted ante, the parties received more than two days of actual courtroom
time based upon the timings in the minute orders.
1 39

or
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again admonished her to move on, and said " [t]his is not a law school class" and she did
not have to explain her motives. (RT 373-374) Ms. Huddle testified that Judge McBrien

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used a demeaning voice when he made this comment, as if she was being scolded in front
of her client and the public in the courtroom. Judge McBrien testified he was just trying

to give her an example of what she needed to do, but admitted that someone could have
perceived his cmmnent as demeaning. Again, Judge McBrien never directed such

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cmmnents to Ms. Keeley during the trial.

We find all of Judge McBrien's discourteous comments to Ms. Huddle were made
in open court in the presence of her client and the public.

In his briefing before the Special Masters, Judge McBrien suggested that Ms.
Huddle was trying to get a mistrial declared, based upon her unsuccessful attempt to
obtain a continuance on the day before the trial. (Respondent' s Proposed Findings of
Fact and Conclusions of law, p. 1 1 .) We find there is no evidence to suppmi this
suggestion.

Judge McBrien also suggests that Ms. Huddle's strategy was to obtain a mistrial
because she retained an appellate attorney to prepare various pre- and post-trial motions
in the Carlsson case. We find this suggestion puzzling since a mistrial would have

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foreclosed an appeal. We also note it is not uncommon for attorneys to retain an

appellate attorney during the course of trial to prepare for the inevitable appellate

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proceedings .

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We also reject the Commission' s assertion that Judge McBrien and Ms. Keeley

engaged in an ex parte conversation in the courtroom, during a break in the testimony,

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allegedly about Ms. Huddle's lack of competence. We find this allegation not proven.
We conclude that Judge McBrien's statements toward Ms. Huddle violated canons

2 and 3 (B)(4) and constituted improper action. As we have already explained, however,
we conclude that Judge McBrien 's rulings and decisions in the dissolution case did not
1 40

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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

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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

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FA CTORS IN A GGRA VA T/ON

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

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

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

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

FA CTORS IN MITIGA TION

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

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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

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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 j udges.

141

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

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

take to report a possible criminal violation.

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

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

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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.

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

McBrien ' s misconduct on the bench.

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

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front of him, and judges who serve with him.

1 4 . Judge McBrien has a very low reversal rate on appeal considering the nature

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of his lengthy assignment in the family law division.

1 42

j udicial demeanor.

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Respectfully submitted,

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

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Presiding Special Master

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Special Master

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CONCURRENCE AND DISSENT

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I concur in part and dissent in part in the findings and conclusions contained
within the report of the Special Masters.

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The Commission on Judicial Performance has charged Judge McBrien with a

single count, separated into four "sub-counts", of violating the Code of Judicial Ethics.

All of the charges pertain to Judge McBrien's conduct in connection with the family law

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Masters.

trial, referred to as the Carlsson trial, and more fully described in the report of Special

It appears beyond dispute that Judge McBrien acted improperly in at least some
respects in conducting the trial. Indeed, as stated in the report of the Special Masters,
"Judge McBrien' s counsel conceded that Judge McBrien' s conduct in leaving the bench
and declaring the trial was over, "[u ]nder the circumstances, given the appellate decision,
. . . would probably amount to" prejudicial conduct. (AT 53)." As further stated in the
report of the Special Masters, "at oral argument, Judge McBrien's counsel conceded
Judge McBrien was "probably . . . involved" in improper action for failing to disclose his
actions to the parties. (AT 70)". In light of these concessions, and in light of the
evidence presented, I join my colleagues in finding that Judge McBrien violated the Code

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of Judicial Ethics in the manner in which he terminated the Carlsson trial, and in
contacting Mr. Carlsson's employer while the matter was still pending. I find that the

Examiner has not met his burden of proving the other allegations by clear and convincing

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evidence.

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The salient facts are as follows. In family law proceedings in Sacramento Superior

Court, the parties are responsible for giving accurate time estimates for trial. The trial for

the Carlsson matter was estimated by both sides to be two days, and the dates were set by

the agreement of the attorneys. Although Ms. Huddle, who represented Respondent,
agreed to the dates set for trial, it appears from the record that she did not want to go to
1 44

trial on those dates, and did not want to try the case in front of Judge McBrien. Ms.

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Huddle was able to obtain the agreement of Ms. Keeley, who represented Petitioner, to

continue the original trial date in January 2006 to the March 2 and March 3 2006 dates .

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However, she was unable t o convince M s . Keeley a t the February 1 5 ,2006 settlement
conference to again continue the trial date. She did not file a Motion to Continue, but

instead unsuccessfully brought an ex parte motion to continue the trial the day before

trial. On the date set for trial, Judge Cecil assigned the matter to Judge McBrien. Ms.

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Huddle brought an oral motion to recuse Judge McBrien, which was denied by Judge
Cecil. The matter then proceeded to trial before Judge McBrien.

Throughout the trial, Judge McBrien warned Ms. Huddle of the possibility of a
mistrial when he believed she was acting in disregard of the time estimate by asking
irrelevant questions and offering what he believed to be unnecessary commentary. He
mentioned the possibility of a mistrial in an effort to prompt her to move things along.
Ultimately, the trial lasted the equivalent of two days before ending abruptly as described
below.

The trial consumed a full court day, March 2, and a half court day on March 3 .
Judge McBrien had encouraged the attorneys to try to complete the case by noon on

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M arch 3 because he was engaged in a continuing trial with statutory priority that was
coming back the afternoon of March 3 . When it was clear that the Carlsson trial would

not be completed by noon on March 3, Judge McBrien agreed to set aside the afternoon

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of March 9. Judge McBrien had previously offered to work through the noon hour if

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necessary to accommodate the schedule of a witness. During the trial on March 9 Judge
McBrien indicated that he was unable to go past 4:30. Shortly after 2 : 00 Judge McBrien
said that if the matter did not conclude by 4 :30 there would be a mistrial. The trial ended

abruptly after the approximate equivalent of two court days on March 9, 2006 j ust before
4 : 3 0, when Judge McBrien left the bench in order to handle an emergency telephonic
1 45

request from law enforcement for a domestic violence restraining order. As he was

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leaving the courtroom Judge McBrien announced that the county operator was on the

phone and "this trial has ended." The call from the county operator lasted one minute,

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followed immediately by a call at 4:29 p.m. which Judge McBrien believes was from law
enforcement, lasting less than two minutes.

Judge McBrien did not return that afternoon to the courtroom to further address

the parties and counsel, instead, apparently making a call to his home and then leaving

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the courthouse. The parties and counsel remained for 1 0- 1 5 minutes. Judge McBrien
testified that he believed they were not waiting for him, but were gathering their books
and likely meeting and conferring on how to go forward. The following day Judge
McBrien instructed his clerk to notify counsel that they could submit their closing
arguments in writing, and briefs on attorney fees. The post trial proceedings are
described in the report of the Special Masters.

Judge McBrien, through his counsel, concedes he committed prej udicial

misconduct by ending the trial in this manner, in light of the published appellate decision.
I agree with the finding that as to count I(A)( l ), Judge McBrien violated the Code
of Judicial Ethics, canons 2A and 3 (B)(7), and committed conduct prej udicial to the

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administration of justice that brings the j udicial office into disrepute.

As to count I (A)(2), I find that the Examiner has not proven by clear and

convincing evidence that Judge McBrien's comments and requests constituted "threats"

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of contempt or other conduct in violation of canons 2 and 3B(4).

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As to count I(A)(3), I j oin in part with the findings of the Special Masters, as

follows. During the trial Judge McBrien heard testimony from Respondent which he

believed may have constituted a crime or a violation of the Fair Political Practices Act.

Judge McBrien obtained and reviewed the transcript of the testimony, and after
discussing the matter with two other j udges he concluded that he had the obligation to
1 46

report the conduct. Rather than reporting the matter to law enforcement or the FPPC, or

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asking his staff to transmit the information, Judge McBrien telephoned the general

counsel of Respondent's employer to advise that he was faxing to her "something about

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reporting." Judge McBrien faxed the transcript to her. Judge McBrien did not advise the
parties and attorneys about his actions, even though post-trial motions were pending.

Judge McBrien did not recuse himself until he learned, in November 2006, that

disciplinary action had been taken against Respondent by his employer. Ultimately,

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administrative hearings ensued, and Respondent was terminated by his employer.

Based on these facts, I find Judge McBrien violated canons 2 and 3 E(2), and
committed an improper action.

As to count I (A)(4) , I find that the Examiner has not proven by clear and
convincing evidence that Judge McBrien violated canons 2 and 3 B (4). As to this count
and as to the others, I find that the balance of credibility favors witness Charlotte
Keeley's testimony.

Finally, I concur in the findings of the Special Masters as to the Factors in

Aggravation and Factors in Mitigation.

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Respectfully submitted,

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Gail Andler
Special Master

1 47

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18 July 2013

SHORTCUTS TO POPULAR
SUBJECTS AND POSTS

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

JUDICIAL MISCONDUCT

(63)

Leaked Transcript Indicates Vance Raye & Judge

Peter McBrien Enabled Family Law Bar Control of
Court in 1991

ATTORNEY MISCONDUCT

(35)

In 1991, as a superior court judge, current3rd District Court

of Appeal Presiding JusticeVance Raye partnered with
controversial family court Judge Peter J. McBrien and
attorneys from the Sacramento County Bar Association
Family Law Sectionin establishing the current, dysfunctional
Sacramento Family Courtsystem, 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.

SCBA
(22)

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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.

MATTHEW J. GARY
(33)
FLEC
(28)

ARTS & CULTURE

(21)
CHILD CUSTODY
(21)
PETER J. McBRIEN
(20)
ROBERT SAUNDERS
(20)
WATCHDOGS
(19)
CHARLOTTE KEELEY
(18)
CJP
(18)

PRO PERS
(18)

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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.

JUDGE PRO TEM

(49)

EMPLOYEE MISCONDUCT

(18)

DOCUMENTS
(16)
DIVORCE CORP
(13)
Vance Raye and Peter J. McBrien were the
architects of the current family court system.

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Privacy Policy

ATTORNEY MISCONDUCT

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HOME

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 hereto view.
But before his sworn 2009 CJP testimony,
McBrien gave the public a differentaccount of
the road trip and who restructured the family

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)

LAURIE M. EARL
(10)

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.

NO CONTACT ORDERS
(10)

or
k

SHARON A. LUERAS
(10)
WHISTLEBLOWERS
(10)

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:

Sacramento Family Court judges and local, Sacramento Bar

Association attorneys openly acknowledgetheir close relationship.

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N

FERRIS CASE
(8)
JESSICA HERNANDEZ
(8)

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 hereto view theDaily Journalreport.

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.

Posted by
PelicanBriefed
at
11:20 AM

CHRISTINA VOLKERS
(8)

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'This is how we came up with the system

today,' McBrien said. 'It was probably the
best trip Sacramento County ever paid
for.'

RAPTON-KARRES
(9)

"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.

CARLSSON CASE
(9)

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)

+3 Recommend this on Google

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

NEWS EXCLUSIVE,
PETER J. McBRIEN,
SCBA,
VANCE W. RAYE
- William R. Ridgeway

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

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

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COMMISSION

ON

JUDICIAL

--

PERFORMANCE

-oOo

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INQUIRY

CJP

-- ---- ------ -- - -- - -- ---- --1

CONCERNING

PETER

J.

ORIGINAL

McBRIEN

185

NO.

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7
8
9
10
11
12

TRANSCRIPT

13

HEARING

14

1,

THE

MASTERS

CALIFORNIA

2009

PAGES

- 250

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VOLUME

OF

SPECIAL

1,

APRIL

16

18

BEFORE

SACRAMENTO,

15

17

JUDGE

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21
22

REPORTED

BY:

SANDRA LEHANE

REGISTERED PROFESSIONAL

23

CERTIFIED

SHORTHAND
155

24

Alameda,

Orr

NO.

7372

Road

California

(510)

REPORTE:R

REPORTER

94502

864-9645

25

------- ----

IN RE

CJF NO.

185 - 4/1/09

------- ----

720 9th Street.

A.

It's actually 920 -

Q.

That's the main Sacramento County courthouse?

A.

It is.

Q.

And how long were the family law departments

A.

building.
Q.

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when we moved out to the Ridgeway

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Until 1999,

in that particular courthouse?

no.

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Going back to when you were first appointed

to the family law department or assigned to the family

10

law department,

11

master calendar system?

12

A.

what were the problems with this

The trials never got to trial.

So the Bar

the family law bar,

and it was a fairly strong bar

14

here in Sacramento,

initiated the concept of a trip to

15

Orange County and San Diego County to pick up some

16

ideas about how their courts were structured.

17

myself and Judge Ridgeway and two family law attorneys

made that trip and came back with various i

And

as of how

18

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13

to restructure the system.

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20

21

Q.

Now,

is there a family law section of the

Sacramento County Bar Association?

22

A.

There is.

23

Q.

And was there a family law section of the

24
25

Sacramento County Bar Association back in 1991?

A.

There was.

b-------------------------IN RE CJF NO. 185 -

4/1/09----------------------~

188

Q.

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

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bar e ects to take care of the administrative needs

for the section.

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9
10

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?

11
12
13

A.

We did.

Q.

Could you describe what that wor

A.

Okay.

We

first of all,

i t ' s a very

16

We keep making adjustments to the system when there

17

are problems.

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good relationship.

We meet -- we still meet monthly.

But basically,

we moved to a system

where we have law and motion in the family

19

departments on Monday,

20

the trials on Thursday and Friday if,

21

trials are two days or less.

22

than two days,

23

calendar.

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we I,

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relationship was?

14

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Is there an organization called the Family

24

25

Q.

Tuesday,

Wednesday,

aw
and we hear

in fact,

those

And if they are more

they go down through the master

Backing up,

the Family Law Executive

Committee is appointed in what fashion?

~------------------------IN

RE CJF NO. 185 -

/09----------------------~

189

family law bar.

Q.

County Bar Association?

A.

Correct.

Q.

And you and other judges worked together with

this Family Law Executive Committee in developing the

current system?

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10
11

12

Correct.

Q.

Who are the other judges?

A.

Well,

Q.

14

at the time,

there was Justice Raye

Justice Vance Raye of the Third District

Court of Appeal?

A.

15
16

Yes.

And another individual whose name always

17

escapes me,

but he left the bench after about two

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years.

19

Q.

Dave Sterling?

20

A.

Dave Sterling.

21

Q.

Now,

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if

A.

now Justice Raye.

13

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The family law bar section of the Sacramento

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They are elected by the membership of the

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A.

after you went to Orange County,

you met

22

with the Family Law Executive Committee and

23

developed

24

presented to the Superior Court for its approval?

25

A.

or started to develop a plan.

It was.

Was that

And what happened is the Bar culled

L------------------------IN RE CJF NO. 185

4/1/09 - -_ _ _ _ _ _ _ _--1

190

through the various ideas and options,

plan,

what adjustments we felt were appropriate and then

presented the whole of it to the full bench.

And was that plan approved?

A.

It was.

Q.

When?

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A.

In 19

Q.

And since 1991,

want to say late

12

is that the current plan that

A.

It is.

Q.

You testified that on Mondays,

Tuesdays and

14

matters and trials of two days or less on Thursday and

15

Friday;

16

A.

Correct.

Q.

Who hears the settlement conferences?

A.

The family law bar indicated that they would

ly law courts hear law and motion

right?

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Wednesdays f

18

be willing to volunteer,

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91 .

13

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is employed in the family law departments?

11

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Q.

We made

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presented it to the family law bench.

10

came up with a

and they serve as the

20

settlement pro terns.

21

the week except for Monday.

22

week where they have two volunteers.

23

make it gender neutral,

24

and they hear the settlement conferences.

25

Q.

There are two for each day of

So they have four days a
And they try to

have one male and one female,

And are settlement conferences assigned

~----------------------IN

RE CJF NO. 185 -

4/1/09----~------------------

191

dependent upon the length of the trial?

A.

They are.

Q.

How does that work?

A.

If,

less trial,

week before the trial date.

two days or less,

10

13

14

it would be two weeks before.

And in connection with the estimation of the

is that something that you as a

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

Ju

16

estimated length of the case,

at least from the

18

And if i t ' s going to be

judge would do?

12

17

i t ' s going to be a one-day or

the settlement conference would be one

length of the trial,

1.1

15

in fact,

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Q.

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judicial perspective of the Sacramento County Superior

20

Court judge?

21

A.

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i

19

I believe that -- you know,

22

many of them,

23

aren't always accurate,

24

be accurate,

25

Because quite frankly,

having seen many,

that they generally are accurate.

but I

They

think they are trying to

stay within the guidance that we have.

if,

in fact,

L-------------------------IN RE Cc7F NO. 185 -

they don't

411109----------------------~

192

complete it,

Q.

And when you say "mistried," meaning that the

A.

They would.

Q.

You were involved,

Carlsson vs.

A.

Correct.

Q.

obviously,

Carlsson case?

would like you to take a look at Exhibit C

in the respondent's

10

A.

11

think mine is over there.

MR. MURPHY:

12

May I

approach the witness?

SPECIAL MASTER CORNELL:

13

with the

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parties will then be given a new trial date?

they can be mistried.

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Yes.

You don't need

to seek permission.

THE WITNESS:

14

MR.

15

Q.

Okay.

yes.

have it before me.

MURPHY:

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BY MR.

For the record,

could you describe what

ia

18

Exhibit C,

THE WITNESS:

16
17

MURPHY:

you said C?

or
n

19

Exhibit Cis?

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if

20

A.

This is an Order to Show Cause filed by

21

Ms.

22

continue the trial,

23
24
25

Huddle on behalf of Mr.

Q.

Carlsson asking to

fi ed on March 1st of 2006.

What was the basis of the request for a

continuance?

A.

That she was just served with a

' - - - - - - - - - - - - - I N RE CJ.F NO.

185

joinder

411109------------~

193


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Sacramento Family Court News

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JUDGE PRO TEM RACKETEERING

Sacramento Superior Court Temporary Judge

Program Controversy

Judge Pro Tem Attorney "Cartel" Controls Court

Operations, Charge Whistleblowers
Sacramento Family Court News Exclusive Investigative Report
This investigative report is ongoing and was last updated in April, 2015.

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As many of the articles on our main page reflect,

Sacramento Family Law Court whistleblowers
and watchdogs contendthat a "cartel" of local
family lawattorneys receive kickbacks and other
forms ofpreferential treatment from family
courtjudges, administrators and
employeesbecause 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.

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)

CJP
(18)
PRO PERS
(18)

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DOCUMENTS
(16)

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DIVORCE CORP
(15)
JAMES M. MIZE
(15)
COLOR OF LAW SERIES

(11)

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JUDICIAL MISCONDUCT

(67)

CHARLOTTE KEELEY
(18)

The kickbacks usually consist of "rubberstamped" 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 specialColor 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.

SHORTCUTS TO POPULAR
SUBJECTS AND POSTS

Sacramento Family Court reform advocates assert that collusion

between judges and local attorneysdeprives financially disadvantaged,
unrepresented pro per court users of their parental rights, community
assets, and due process and access to the court constitutional rights.

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

CONFLICT OF INTEREST

(11)
RAPTON-KARRES
(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER


(11)

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

CARLSSON CASE
(10)
JAIME R. ROMAN
(10)

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.

LAURIE M. EARL
(10)

or
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NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)

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.

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JESSICA HERNANDEZ
(8)

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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
fourcases 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 theGround Zeroof family court
corruption and collusion in the U.S. Click here for our complete coverage of Divorce Corp.

FERRIS CASE
(8)

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.

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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.

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Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law
Executive Committeefor 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.

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In November, 2012 Sacramento Family Court Judge Jaime R. Romanissued a rubber-stamped,

kickback orderdeclaring 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 judgepro 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

JULIE SETZER
(7)

Court reform and accountability advocates assert that the local family law bar- through the Family Law
ExecutiveCommitteeor 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:

CHRISTINA VOLKERS
(8)

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)

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temporary judge Scott Buchanan. The rubber-stamped, kickback child supportorder, 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.

California Lawyer Magazine

Courthouse News Service
Metropolitan News
Enterprise

Judge pro tem attorneys Richard Sokol and Elaine Van Beverenhelped 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 isan officer of the SCBA Family Law Executive Committee.Click here for our exclusive
report...

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...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.

California Official Case Law

Google Scholar-Includes
Unpublished Case Law

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California Statutes

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CALIFORNIA JUDICIAL
BRANCH

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In 2008controversial family courtJudge Peter J. McBriendeprived a family court litigant of a fair trial
in a case where the winning party was represented by judge protemattorney Charlotte Keeley. In a
scathing, published opinion, the 3rd District Court of Appealreversed in full and ordered a new
trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's
conduct in thecase 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.

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Judge pro tem attorneysCamille Hemmer,Robert O'Hair,Jerry GuthrieandRussell Carlsoneach

testified in support ofJudge Peter J. McBrienwhen thecontroversialjudge was facing removal from
the bench by theCommission on Judicial Performancein 2009.As a sworn temporary judges aware
of McBrien's misconduct, each wasrequired byCanon 3D(1)of theCode of Judicial Ethicsto take or
initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a
character witnessin supportof the judge. In theCJP'sfinal disciplinary decision allowing McBrien to
remain on the bench, theCJPreferred specifically to the testimony as a mitigating factor that reduced
McBrien's punishment.Click here. Court records indicate thatJudge McBrienhas not disclosed the
potentialconflict of interestto opposing attorneys and litigants in subsequent appearances by the
attorneys in cases before the judge.Click hereforSFCNcoverage of conflict issues.
Judge pro temattorneysTerri Newman,CamilleHemmer,Diane WasznickyandDonna

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

Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
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

Reedwereinvolved in a proposedscheme to rig a recall electionofcontroversialJudgePeter J.

McBrienin 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the
Year" before the November election.Click herefor theSacramento News and Reviewreport.
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 & Salingerwas later granted a waiver of the requirements to
become ajudge pro tem. A family court watchdog asserts the waiver was payback for O'Hair's
testimony for McBrien.Click hereto read our exclusive investigative report.

Divorced Girl Smiling

Family Law Case Law from
FindLaw
Family Law Courts.com
Family Law Updates at
JDSupra Law News

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 bySCBA Family Law Section officer
and temporary judgePaula Salinger. To view the pro per responsive declaration objecting to the illegal
filing click here, and click here for the pro per points & authorities.

Fathers 4 Justice
HuffPost Divorce
Leon Koziol.Com

or
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Moving Past Divorce

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.

News and Views Riverside

Superior Court

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Weightier Matter

Sacramento Family Court temporaryjudgeandfamily law lawyerGary 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 fourof
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
hereto read our report.

CONTRIBUTORS

Cathy Cohen
ST Thomas

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Judge pro tem and SCBA Family Law Section attorneyScott 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.

PR Brown
PelicanBriefed
FCAC News

Judge pro tem attorneys Nancy Perkovich and Jacqueline Estonin 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.

RoadDog

Total Pageviews

164279
167

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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.

PR Brown
Follow

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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.

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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.

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The Sacramento County Bar Association Family Law Section is led by an "Executive Committee"
("FLEC") of judge pro tem attorneys composed ofChair 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 otherarticles 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

Labels

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office. To view the applicable Code of Judicial Ethics Canons,Click here. For a Judicial Council
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AWONIYI

Sandy

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

Ju

Street, Ste. 2B Galt, CA 95632.

Gary Appelblatt, Gary Michael Appelblatt, SBN 144158, 3610 American River Drive #112,

Beth

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.

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(4)

CHARLOTTE
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Appelsmith, Beth Marie Appelsmith, SBN 124135,1430 Alhambra Blvd. Sacramento CA

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95816.

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Sacramento, CA 95864. Appelblatt was disbarred by the State Bar on Sept. 24, 2010 afterbeing convicted of
sexual battery against clients. Click here for our exclusive report. Appelblatt is a graduate of McGeorge School of
Law.

LAWYER
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CALIFORNIANS AWARE
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(2)
CEO

Amara, Sandra Rose Amara, SBN 166933, Law Office of Sandra Amara,1 California

Street,Auburn, CA95603.

Mark

For-profit, private sector

lawyers who also hold the
Office of Temporary Judge:

CALIFORNIA

or
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(1)
CALIFORNIA

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A number of family court whistleblowers have leaked court

recordsindicating that judge pro tem attorneys receive from
judges kickbacks and otherpreferential treatment in exchange
for operating the familycourt settlement conference program.

(1)

JUDICIAL CONDUCT HANDBOOK

For information about the role of temporary judges in

family court,click here.For officialSacramento County
Superior Courtinformation about theTemporary 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 Countyjudge pro tem list
withCalifornia 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 officialState Bar data for each attorney. The
State Bar data was obtained using thesearch function
at the State Bar website.

OBAMA
(1)
BARTHOLOMEW
and WASZNICKY
(3)
BUNMI

EMILY

GALLUP

(3)

EMPLOYEE CODE OF ETHICS

(4)

EMPLOYEE
MISCONDUCT
(19)

EQUAL PROTECTION
(2)

EUGENE L. BALONON
(1)

EVIDENTIARY OBJECTIONS

(2)
EX PARTE
(1)
F4J
(4)

FAMILY COURT
(9)
FAMILY
COURT

Roseville, CA 95678.

COURT

AUDITS
(1)
FAMILY

CONDITIONS
(2)

FAMILY COURT

MEDIA COVERAGE

(1)
FAMILY COURT PROCEDURE

(1)

FAMILY
COURT
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(2)
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Third District Court of Appeal:

Justice, Ideology & Conflicts of Interest

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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

SHORTCUTS TO POPULAR
SUBJECTS AND POSTS
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)

This ongoing investigative project was updated in April, 2015.

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Sacramento Family Court Newsis conducting an ongoing investigationof 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.

DOCUMENTS
(16)
DIVORCE CORP
(15)
JAMES M. MIZE
(15)

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.

COLOR OF LAW SERIES

(11)

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.

RAPTON-KARRES
(11)

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PRO PERS
(18)

In addition, a separateSFCN 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

CONFLICT OF INTEREST

(11)

SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER

dismissed on legal technicalities, which are often caused by the deliberate acts of government employees.

(11)

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.

CARLSSON CASE
(10)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
NO CONTACT ORDERS
(10)

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.

CHRISTINA VOLKERS
(8)

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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.

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SHARON A. LUERAS
(10)

FERRIS CASE
(8)

Friends in Low Places

JESSICA HERNANDEZ
(8)
JULIE SETZER
(7)

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For example, 3rd District unpublished opinions

show that Court of Appeal justices who were
elevated to the appellate courtfrom Sacramento
CountySuperior 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. Rayepreviously
were trial court judges inSacramento County
Superior Court.

3rd District Court of Appeal watchdogs assert that appeal

outcomesare inconsistent, and in large part determined by
the work history,and social or professional connections
ofthe three judges assignedtodecide an appeal.

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.

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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.

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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.

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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 fromSacramento 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 courtJudge Peter McBrien. To view the 2002 Raye recusal andCJP 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.

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)

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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 Californiadue to personal
and professional relationships with local state court judges.

Above the Law

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

LEGAL NEWS &

INFORMATION

The Divorce Artist

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.

California Lawyer Magazine

Courthouse News Service
Metropolitan News
Enterprise

History & Origins of the Current Sacramento County

Family Court System

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Google Scholar-Includes
Unpublished Case Law

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In 1991, as a superior court judge, current3rd District

Justice Vance Raye partneredwith controversial family
court Judge Peter J. McBrien and attorneys from the
Sacramento County Bar Association Family Law
Sectionin establishing the current, dysfunctional Sacramento
Family Courtsystem, according to the sworn testimony of
McBrien at his 2009 judicial misconduct trial before the
Commission on Judicial Performance.

California Statutes

CALIFORNIA JUDICIAL
BRANCH

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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.

California Official Case Law

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

Tani Cantil Sakauye worked with Peter J. McBrien
here in Sacramento, initiated the concept of a trip

in Sacramento County Superior Court from 1997-2005.

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 hereto view.

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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
McBriendishonestly impliedthat 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.

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"[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.

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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.

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"[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 theneeds 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

California Courts
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Performance
Sacramento County Family
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3rd District Court of Appeal
State Bar of California
State Bar Court
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Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory
California Coalition for
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California Protective
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Divorced Girl Smiling
Family Law Case Law from
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Family Law Courts.com
Family Law Updates at

JDSupra Law News

accountability of California judges - the structure is known as a "two-track system of justice."

Fathers 4 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.

HuffPost Divorce
Leon Koziol.Com

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Moving Past Divorce

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.

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News and Views Riverside

Superior Court
Weightier Matter

Keeping Neutral Judges Out-of-the-Loop

CONTRIBUTORS

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.

Cathy Cohen

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"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.

PR Brown
PelicanBriefed
FCAC News
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Justice Ronald Robie performs in the "Judge's Choir" for the

Sacramento County Bar Association Family Law Section

Holiday Luncheon.

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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
justicesbecause 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.

ST Thomas

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Court watchdogs have catalogued and documented examples of judge pro tem attorney favoritism, and
flagrantbias 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.

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Carlsson Case Exposes 3rd District Ideology &

Undisclosed Conflict of Interest Issues

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(1)
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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.

One of the few Third District opinions to critically, and scathingly scrutinize the problematic Sacramento Family
Court system was the 2008 decisionIn re Marriage of Carlsson, authored by Associate JusticesM. 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 Districtdecision subjected McBriento a second disciplinary action by the state
Commission on Judicial Performance.

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The judge's first go-round with the CJPstemmed 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 2001Sacramento 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.

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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 thevalue 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.

LAWYER
(1)

CALIFORNIANS AWARE
(2)

CAMILLE HEMMER
(3)

CANTIL-SAKAUYE
(5)

CARLSSON CASE
(10)

CECIL and CIANCI

(2)
CEO

(4)

CHARLOTTE
KEELEY
(18)
CHILD
CUSTODY
(22)
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SUPPORT
(4)
CHRISTINA

ARCURI
(5)
CHRISTINA
VOLKERS
(8)
CIVICS
(1)

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(1)
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(6)
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(3)
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(3)
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(1)
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COURT

In the documentary film Divorce Corp, Ulf Carlsson describes egregious misconduct by Sacramento Family Law Court Judge Peter McBrien. Using

COURT

misleading sworn testimony about McBrien's reversal rate in the appellate court, 3rd District Court of Appeal Presiding Justice Arthur G. Scotland

AUDITS
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FAMILY

CONDITIONS
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FAMILY COURT

effectively saved McBrien from being removed from the bench by the Commission on Judicial Performance.

(1)
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(9)

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LAW
COUNSELOR
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LAW
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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.

Tani Cantil-Sakauye, Arthur Scotland, George Nicholson and

Peter McBrien all workedfor former California Attorney General

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While under oath before the CJP, Scotland verified

and Governor George Deukmejian.All were appointed to the

Sacramento County bench by Deukmejian.

that he was aware ofMcBrien's misconduct in the
Carlsson case.Scotland essentially defied the selfpolicing 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 reducedMcBrien'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.

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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
CaliforniaAppellate 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 beingborn 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.

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LAW

COURTHOUSE
(1)
FAMILY

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On his second trip to the CJP woodshed, Judge

PeterMcBrien 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.

(1)

FAMILY
COURT
SACRAMENTO
(2)
FAMILY

Presiding Justice Arthur G. Scotland Intervenes in

McBrien CJP Prosecution

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

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FOX

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(1)
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M.
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(2)
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NICHOLSON
(1)
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(1)
GINGER

GREGORY

SYLVESTER
(1)

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(1)

HAL

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(1)
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(1)
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(2)
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(4)

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MIZE
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(1)

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JERRY BROWN
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(7)
KIDS FOR CASH
(2)

LAURIE M. EARL
(10)
LAW
LIBRARY
(1)
LAW SCHOOL

(5)
LAWYER
(1)
LAWYERS

(7)
LEGAL AID ASSOCIATION of
CALIFORNIA
(1)
LEGISLATURE
(1)

LOLLIE
LINCOLN

(1)

ROBERTS
(5)
LOUIS MAURO
(1)

LUAN

CASE

(4)

MALPRACTICE
(4)
MARY
MOLINARO
(1)
MATTHEW
HERNANDEZ

(7)

MATTHEW J. GARY

(33)
MCGEORGE

SOL
(2)

or
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MEDIA
(1)
MICHAEL

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.

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GRACE
(1)
NANCY PERKOVICH

(4)
NEW YORK TIMES
(2)

NEWS
(24)
NEWS
EXCLUSIVE
(26)
NEWS

YOU CAN USE

(3)
News10
(1)

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.

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25 years after he obtained his license to practice law, Justice Arthur G. Scotlandexploited 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.

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The Artifice

NO CONTACT ORDERS

(10)
OPEN GOVERNMENT

(2)
OPINION
(12)
PARENT

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"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
Arthur Scotland used a family connection to get into
knew people and he set me up with jobs. And I'm sure

a law schoolwith liberal admission standards.

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.

T. GARCIA

(1)
MIKE NEWDOW
(4)
NANCY

RIGHTS

In his Commission on Judicial Performance sworn character witness testimony for his old friend and law
enforcement co-workerPeter 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

PARENTAL

PAULA
(15)
SALINGER

PETER J. McBRIEN

(22)
PHILLIP HERNANDEZ
(1)

(3)
PRESIDING JUDGE
(2)

PRO
PERS
(18)

PROTEST
(9)
PSY
(1)
PUBLIC
RECORDS

(1)

RAOUL

THORBOURNE
(1)

M.

RAPTON(11)

KARRES

RECOGNITION/AWARDS
(3)

REVISIONISM SERIES
(2)

RICHARD SOKOL
(12)

ROBERT
HIGHT
(9)

ROBERT
O'HAIR
(8)

ROBERT SAUNDERS

(21)
ROLAND

L. CANDEE
(1)

RON BURGUNDY
(1)
RONALD

ROBIE
(1)
RUSSELL CARLSON

(4)
RUSSELL L. HOM
(1)
RYDER
SALMEN
(2)
S. HINMAN
(3)

SACRAMENTO BEE
(4)

SACRAMENTO
COUNTY
SUPERIOR
COURT
(2)

SACRAMENTO
FAMILY
COURT
(13)
SACRAMENTO
SUPERIOR COURT
(12)

SANCTIONS
(2)
SANTA

CLARA

LAW SCHOOL
(1)
SARAH ANN

STEPHENS
(1)
SATIRE
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SCBA

(22)

SCHWARZENEGGER
(1)
SCOTT
BUCHANAN
(5)
SCOTT
KENDALL
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SCSD
(1)
SEATON
CASE

(1)

SELF-HELP

(1)

SETTLEMENT CONFERENCE

(2)
SFCN READERSHIP DATA

(4)
SHARON A. LUERAS

(10)
SHARON HUDDLE
(6)

SO YOU WANT TO GO TO
LAW

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.

(1)

ALIENATION

SCHOOL

(4)

SOCIOECONOMIC BIAS

(5)
STATE AUDITOR
(6)

STATE BAR
(5)
STEPHEN
WAGNER

(2)

LEAVENWORTH

WHITE

BURLINGHAM

GEVERCER

(1)

(2)

(1)

(1)

STEUART

STEVE
STEVEN
STEVEN
STEVEN

performance.

SUNDAY
(15)
FUNNIES

SPIELBERG
(1)

While testifying for McBrien,Scotland also revealed that his appearance on the troubled judge'sbehalf effectively
was voluntary. Before subpoenaing Scotland to testify, McBrien's defense attorney confirmed that Scotland would
not object to the subpoena. Click here. Judicial ethics Canon 2B restricts use of the prestige of judicial office to
advance the personal interests of the judge or others. Canon 2B(2)(a) permits a judge to testify as a character
witness only when subpoenaed.

SUNSHINE
WEEK
(2)

SUPERIOR COURT
(2)

SUPREME COURT
(3)
TAMI

The transcript of Scotland's testimony also showed that -to prepare his CJP testimony - the presiding justice of the
3rd District affirmatively and voluntarily took theinitiative (presumably on his own time) to research 3rd District
family court appeals where McBrien was the trial court judge. His objective was to show the CJP that McBrien had
a low reversal rate in the appellate court.

STEVENS
(1)
THE RUTTER GROUP

THOMAS WOODRUFF
(5)

TIMOTHY ZEFF
(5)
TOMMY
ULF
LEE
JONES

(1)

CARLSSON
(6)
UNITED
NATIONS
(1)
UPDATE
(2)

VANCE W. RAYE
(3)

VEXATIOUS LITIGANT
(2)

VICTORY OUTREACH CHURCH

(1)

VL-CLASS-ACTION

[McBrien had] seven reversals in whole or in part, out of 110 appeals, which is about 6%,
which actually is a remarkably good reversal rate. Because our average reversal rate in civil
cases is 20 to 25 percent." Scotland testified at pages 549-553 of the reporter's transcript. Click
here.
Scotland's claim that McBrien had a
"remarkably good reversal rate" was,
at best, a half-truth. Under the legal
and ethical standards applicable to
lawyers and judges, a half-truth is the
same as a "false statement of fact" or
what the general public refers to as a
lie. Click here.

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What Scotland withheld from the CJP

is the fact that the vast majority of
appeals from family court are never
decided on the merits. Unlike appeals
from civil cases, most family court
appeals are taken by unrepresented
parties who fail to navigate the
complexities of appellate procedure
and never make it past the preliminary
stages of an appeal. In other words,
Scotland rigged his statistics. While
McBrien may have had seven
reversals out of 110 appeals filed, only
a small portion of the 110 appeals filed
were actually decided on the merits.

Arthur Scotland poses with the fruits of a drug bust from his days as an

undercover cop. Trained to lie and deceive in order to make undercover

drug buys, Scotland acknowledged his skill in the role.

"You have to be an actor, you have to play the game," he said in 2011.

Scotland then made a disingenuous, self-serving apples-to-oranges comparison between the reversal rate in civil
case appeals - where both sides are usually represented by an attorney, or team of attorneys, and appeals are
decided on the merits - with the reversal rate in family court cases, where neither qualifier is true.SFCNcurrently is
conducting an audit of 3rd District family court appeals, and will have more on this subject in the near future.

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THADD

THADDEUS

(1)
THOMAS M. CECIL
(4)

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I've known Judge McBrien for 32 years. I got to know, then, Deputy Attorney General Pete
McBrien. When I left the Sacramento County District Attorney's Office and went to work for
the California Attorney General's Office, he was already a Deputy Attorney General there. So I
got to know him there, mainly professionally. Socially to a relatively minor extent. We had -we had two co-ed softball teams. He played on one; I played on another. Of course, we would
attend office functions together. His -- one of his very best friends was my supervisor in the
Attorney General's Office. So, on occasion -- not frequently, but on occasion we would attend
social events with others from the office....

BLIZZARD
(5)

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"I also, by the way -- when you called me to ask if I would object to being Subpoenaed as a
witness, and I said no, I did research. I looked up -- I knew what this was all about, so I
researched the number of appeals from cases from Judge McBrien's court. And so I -- and I
looked -- I read all the opinions in which he was reversed in full or in part...

BOGERT
(1)
TAXPAYERS
(1)
TERRY FRANCKE
(1)

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Blame the Victim

In a final act of both flagrant cronyism to his friend and former Department of Justice co-workerPete McBrien,
and disrespect to the work of his fellow 3rd District Court of AppealJusticesKathleen Butz, Cole Blease and
Rick Sims whose published opinion in the Carlsson caseresulted in McBrien's prosecution by the CJP, Scotland

(1)
WALL

STREET JOURNAL
(1)
WASTE
(1)

WATCHDOGS
(20)

WHISTLEBLOWER
PROTECTION
ACT
(2)

WHISTLEBLOWERS
(11)

WHITE HOUSE
(1)
WOODRUFF
O'HAIR POSNER and
SALINGER
(11)
XAPURI B.
VILLAPUDUA

(4)

YOLO

COUNTY
(1)
YOUTUBE
(7)

had the balls to suggest that disciplining McBrien for his conduct in Carlsson would be a "miscarriage of justice,"
that would allow "incompetent attorneys to run the court instead of competent judges."

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"And you haven't asked me this question, but if [McBrien] were, for some reason, to be found
to have violated the canons of judicial ethics, or whatever, I frankly -- I know about these
cases; I know about the Carlsson case. I think it would be a miscarriage of justice. I think it
would send the wrong signal to judges and practitioners that you don't allow -- that you would
be allowing incompetent attorneys to run the court instead of competent judges," Scotland
testified at the CJP.

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However, Scotland's incompetence assertion to the CJP

did, coincidentally, perfectly dovetail with
thecarefullycrafted defense McBrien's legal team
presented during three days of CJP testimony to the
three-judge CJP panel assigned to decide McBrien's
fate.

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Like Scotland, 6th District Court of Appeal Presiding Justice Conrad Rushingknew well the Carlsson case,
which he said "developed a certain notoriety."Unlike Scotland, Rushing wasn't an old friend and coworker of
McBrien who would disingenuously suggest the blame for McBrien's "reign of terror" lay with an incompetent
attorney. Scotland's colleagues at the 3rd District,Butz, Blease and Sims reversed and remanded the Carlsson
case for retrial based on extremely rare, reversible per se, egregiousstructural and constitutional error by Judge
McBrien.Aftercarefully scrutinizing the trial court record, the panel made no mention of attorney "incompetence" in
their published opinion.

A key component of McBrien's defense relied on

suspiciously consistent witness testimony portraying Ulf
Carlsson's attorneySharon Huddle as incompetent and
effectively provoking McBrien's multiple violations of the
Code of Judicial Ethics. CJP prosecutor Andrew Blum
mocked the risible defense in a confidential court
reporter transcript leaked to SFCN. Click here to view
the transcript.
Ironically, the time-tested, repugnant but effectiveblame
the victim strategy, was coldly aided and abetted by
Scotland, a justice who rose to power with the backing
and endorsements of victims rights groups
includingCrime Victims United of California, and the
Doris Tate Crime Victims Bureau. To help McBrien's
defense team, Scotland dusted off thedog-eared
playbook of exploiting victims, one way or another, to
advance his personal agenda.

Contrary to the explicit findings by his colleagues at the 3rd District

Court of Appeal, in his deceptive CJP testimony JusticeArthur
Scotland blamed attorney Sharon Huddlefor the egregious
misconduct of his old friend, Judge Peter McBrien.

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Scotland's irony-infusedblame the victim testimony,

misleading appeal reversal data, and theweight of character witness testimonyfrom a sitting Court of Appeal
presiding justice, along with similar character testimony from Sacramento CountySuperior Court Judges James
Mize, Thomas Cecil (currentlyOf Counsel at the family, family law firm Cecil & Cianci) , Michael Garcia and
Robert Hight, and Sacramento County Bar Association Family Law Section attorneys and judge pro
temsCamille Hemmer, Jerry Guthrie, Robert O'Hair and Russell Carlson all tipped the scale just enough to
enable McBrien to keep his job. Click here to view the complete, 12-page CJP summary of the McBrien character
witness testimony.

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Despite the parade of former law enforcement co-workers, friends, and family court judge pro tem
croniesMcBrien marshaled on his behalf, two of the voting CJP members saw through the ruse and dissented
from the decision to let the judge remain on the bench, stating they would have removed McBrien from
office.Click here.When he referred to McBrien's conduct in the Carlsson case as a "judicial reign of terror," 6th
District Justice Rushingalso noted that "two of the nine participating members [voted] to remove him from
the bench." Click here.
The Carlsson case is prominently featured in Divorce Corp, a documentary film that "exposes the corrupt and
collusive industry of family law in the United States." The production team for the film conducted a nationwide
search for the most egregious examples of family court corruption and collusion, and four Sacramento County
cases are included in the movie. Narrated by Dr. Drew Pinsky,Divorce Corp opened in theaters in major U.S.
cities on January 9, 2014. Following the theatrical run, the documentary will be released on DVD, RedBox, Netflix,
broadcast and cable TV. Click here for our continuing coverage of Divorce Corp.To view trailers for the movie on
YouTube, click here.

Rehabilitation FAIL

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The near-career death experience apparently has had no discernible corrective effect on the ethically-challenged
judge. In subsequent proceedings in his courtroom involving the judge pro tem attorneys (and lawyers at the
same firms as the judge pro tems) whose CJP testimony effectively saved his $170,00 per year job,McBrien
reportedly has never disclosed to opposing parties and attorneys the potential conflict of interest as required by
Canon 3E(2) of the Code of Judicial Ethics. The failure to disclose the potential conflict is a violation of the canon
and other state laws, according to the CJP, Judicial Council, and California Judges Association. For the
exclusive SFCN report on conflict of interest law, click here.

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In addition, unpublished Third District Court of

Appealdecisions indicate that justices who come
from a law enforcement background appear to take
to the bench with them the "Blue Code of Silence"
culture often found in law enforcement agencies.
3rd District Associate Justice George Nicholson
worked as a prosecuting attorney for more than
15 years before being appointed to the bench in
Sacramento County. The first time Governor
George Deukmejian submitted Nicolson's name to
the bar for review as a judge in 1983, he was rated
as "not qualified," according to the Sacramento
Bee.

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Justice George Nicholson & the Law Enforcement

BlueCode of Silence

"George Nicholson, Republican candidate

for attorney general in 1982, has been
pursuing all manner of public legal
positions: U.S. District Court judge,
California Superior Court judge, U.S. Attorney, public defender in Riverside County. The other
day, when Gov. George Deukmejian appointed him a Sacramento Municipal Court judge, he
finally got one. It's an appointment that ought to cause serious concern both within the State
Bar and in the community. When Deukmejian submitted Nicholson's name to the bar for
review on a possible appointment to the Superior Court in 1983, he was rated 'not qualified.'
The bar now ranks him 'qualified', the lowest acceptable rating of three the bar can give.

Third District Court of Appeal Associate Justice George Nicholson

rode to the benchon a "law and order" agenda.

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No one can be certain precisely why Nicholson received such low ratings, but there is enough
in his public record to raise serious questions about his temperament and judgment. In 1979,
he left a job as director of the District Attorneys Association after an audit showed that the
organization's finances had been badly mismanaged and that it was on the verge of
bankruptcy. Later, as a senior assistant attorney general, he was twice admonished by
superiors for promoting a ballot measure in ways that could be mistaken as an official state
Justice Department endorsement of the measure. More recently, a federally funded $4 million
'National School Safety Center' affiliated with Pepperdine University that he directed was
embroiled in an extended controversy during which 18 of 30 staff members either resigned or
were fired.

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The U.S. General Accounting Office, which conducted an audit into the management of the
Pepperdine program and into how the federal money was being spent, cleared the center of
fiscal irregularities, attributing the problems to Nicholson's 'combative' personality and
management style. But because of those problems, Pepperdine named a new executive
director, who, the auditors said, restored stability to the management of the program 'while
retaining Nicholson's creative talents,'" the Sacramento Bee said in 1987. Click here.

Nicholson subsequently was elected to both Sacramento County Superior Court and the 3rd District Court of
Appeal with backing from law enforcement, Crime Victims United and other Astroturf "victims rights" and "law
and order" groups. Crime Victims United is funded by - and acts essentially as asubsidiaryof - the California
Correctional Peace Officers Association, the controversial prison guard union.
A principal architect of Proposition 8 the "The Crime Victims' Bill of Rights", after a failed run as the GOP
candidate for attorney general Nicholson rode an anti-Rose Bird, tough-on-crime platform to the bench. Over
several decades, Associate Justice Nicholson played a significant role in giving the United States one of the
highest per capita rates of incarceration in the world. Thanks to Nicholson, the prison guard union, and
Astroturf "victims rights" groups bankrolled by the union, California now spends a significantly larger portion
of the state budget on corrections than on higher education.

Role of Political Ideology

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In 1985, Nicholson was demoted from his position as

director of the federally financed National School Safety
Center in Sacramento. The center was administered by
Pepperdine University at Malibu, and established with a
$3.8 million Justice Department grant awarded without
competitive bidding.

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Under Nicholson's leadership, 20 of the original 30 staff

members who set up the Center resigned or were
dismissed. The Associated Press reported that that the
debacle was rooted in ideological conflicts between
Nicholson and staff whom Nicholson perceived as too
liberal. According to the AP coverage:

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"Several [staffers] described Nicholson as a

political conservative who mistrusted his
mostly liberal staff members, argued with them
unceasingly about the direction of projects, and
accused them of disloyalty when they
questioned his ideas.
'When it became obvious to him he attracted a
number of us with a different political
philosophy, we were not permitted to do our
work,' said Shirley Ruge, a former principal of
schools for delinquent children and one of
those dismissed. 'We were considered
troublemakers and he wanted to shut us up.'"

Nicholson and former 3rd District Presiding Justice

Arthur Scotland have been close friends and colleagues
for more than 30 years. For the California Appellate
Court Legacy ProjectNicholson conducted an almost
three-hour interview with Scotland on December 8, 2011.
The transcript of the interaction reads like a meeting of the
Nicholson-Scotland mutual admiration society. Nicholson
opened the interview detailing the joint work history of the
BFFs.

3rd District Court of Appeal watchdogs assert that

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Justice George Nicholson is ethically-challenged,

"George Nicholson: We are here with retired
and not particularly qualified to speak on the subject.
Presiding Justice Arthur G. Scotland, who
served on the Court of Appeal, Third Appellate
District, for more than 20 years, from 1989 to 2011, and that...the last dozen of which he was
the Administrative Presiding Justice. I'm George Nicholson, Justice of the Court of Appeal,
Third Appellate District, and I had the pleasure of serving with Presiding Justice Scotland for
20 years on this court. Before that, we served together as trial judges on the Sacramento
Superior Court, and even before that we served together in the Governor's Office during the
Deukmejian administration and in the California Department of Justice. This has been a long
time coming, Scotty, hasn't it?Arthur Scotland: Nick, it has, and it's a delight for me to have you
interview me for this project."

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Click here to view the full interview transcript.

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"Judgment Roll" Standard of Review Hits Hardest

Indigent and Low-Income Litigants

In addition, the Third District Court of Appealin Sacramento applies a unique and previously rarely used
"judgment roll" standard of review that in virtually every case where applied results in affirmance of trial court
rulings. Appeals brought by self-represented indigent and low-income litigants make up the vast majority of appeals
where the 3rd District applies the judgment roll standard of review. Although the appellate court has authored
dozens of decisions invoking the draconian standard against family court litigants, it has managed to keep the
assembly line, boilerplate process under the radar. The court has not published a single judgment roll appeal
originating from family court. Click here to see a list of unpublished 3rd District opinions archived by Google
Scholar. The judgment roll summary affirmance process helps the court maintain its title as the most
efficientCourt of Appeal in the state. Equal protection of the law is implicated because other appellate court
districts do not apply the standard nearly as often as the Third District. Equal application of the law is a

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foundational attribute of American Democracy.

Justices of the Third District Court of Appeal in Sacramento:

Vance W. Raye, Administrative Presiding Justice.
Cole Blease
Ronald Robie
William Murray Jr.
George Nicholson
Kathleen Butz
Elena Duarte
Harry Hull Jr.
Louis Mauro
Andrea Lynn Hoch

For additional Sacramento Family Court News reporting on the Court of Appeal for the Third Appellate
District, click here.

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Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter.

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Chief Justice Tani Cantil-Sakauye, Justice Goodwin Liu, Justice Marvin R. Baxter, Justice Ming W. Chin, Justice Kathryn M. Werdegar,
Justice Joyce L. Kennard, and Justice Carol A. Corrigan of the Supreme Court are responsible for oversight and accountability of the 3rd
District Court of Appeal, and the other appellate courts in the state.

+2 Recommend this on Google

Home

Tani G. Cantil-Sakauye & Oversight of California Courts

State officials and agencies responsible for oversight and accountability of California courts, Sacramento Family Law Court, administrators, judges and employees include:Tani

G. Cantil-Sakauye Chief Justice - Elaine M. Howle State Auditor Bureau of State Audits - Victoria B. Henley Director Chief Counsel

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Commission on Judicial Performance - Steven Jahr Administrative Director of the Courts - Phillip J. Jelicich Principal Auditor Bureau of State Audits - Janice M.
Brickley Legal Advisor to Commissioners Commission on Judicial Performance - Judicial Council and Court Leadership Services Division Jody Patel Chief of Staff - Doug D. Cordiner
Chief Deputy State Auditor Bureau of State Audits - Bradford L. Battson Senior Attorney III Commission on Judicial Performance - Judicial and Court Operations Services
Division Curtis L. Child Chief Operating Officer Donna L. Neville Staff Counsel IV Bureau of State Audits - Sei Shimoguchi Senior Attorney III Commission on Judicial
Performance - Tani Cantil-Sakauye Judicial Council of California - Judicial and Court Administrative Services Division Curt Soderlund Chief Administrative Officer -

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The Chief Justice Tani G. Cantil-Sakauye is the leader of the state's third branch of government, the Judicial Branch. Her responsibilities include serving as Chief
Justice of the California Supreme Court, chair of the Judicial Council, and chair of the Commission on Judicial Appointments.

former Sacramento County Superior Court Judge Tani G. Cantil-Sakauye -

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Sacramento Family Court News reports on

Sacramento Family Court News Subjects and Topics

Judge Pro Tem, Temporary Judges, Office

of Temporary Judge, Oath of Office of Temporary Judge, California Rules of Court, California Code of Judicial

Ethics, County of Sacramento Superior Court, Sacramento Family Law Court, Family Court Sacramento, William R. Ridgeway Family Relations Courthouse, Judge Stephen W.

White, Judge Steve White, Judge Matthew J. Gary, Hon. Matthew J. Gary, Judge Laurie M. Earl, Hon. Laurie M. Earl, Judge Peter J. McBrien, Hon. Peter J. McBrien, Judge Jaime
R. Roman, Hon. Jaime R. Roman, Judge Sharon A. Lueras, Hon. Sharon A. Lueras, Judge Thadd A. Blizzard, Hon. Thadd A. Blizzard, Sacramento County Superior Court Supervising
Family Law Facilitator, Sacramento County Superior Court Court Executive Officer Christina Volkers, Sacramento Family Court Director of Operations Julie Setzer, Sacramento
Family Court Manager Colleen McDonagh, Sacramento Family Court Supervising Courtroom Clerk Denise Richards, County of Sacramento Superior Court, Attorney Steven R.
Burlingham; Gary, Till & Burlingham,

Attorney Camille H. Hemmer; Law Offices of Camille Hemmer, Attorney Jeffrey Posner; Woodruff, OHair, Posner &
Attorney Diane Wasznicky, Family law attorney Charolotte Keeley, Charlotte Leigh Keeley,
Attorney Fredrick Cohen, Law Offices of Fredrick Cohen, Attorney Bunmi Awoniyi, Law Office of Bunmi Awoniyi, Attorney Richard Sokol, Law Offices
of Richard Sokol, Attorney John OMalley, Downey Brand, attorney Robert OHair, Robert James OHair, Attorney Joseph Winn, Law Offices of Winn &
Salinger, Attorney Hal Bartholomew; Bartholomew & Wasznicky,

Winn, Family Law Paula Salinger, attorney Paula Dawn Salinger, Attorney Elaine Viola Van Beveren,

Elaine Van Beveren, Attorney Mark Ambrose, Law

Offices of Mark Ambrose, Attorney Nancy Perkovich, Perkovich Law Offices, Attorney Gary Michael Appelblatt, attorney D. Thomas Woodruff, Daniel
Thomas Woodruff, family law attorney Russell Carlson, Russell William Carlson, Sacramento County Bar Association, Family Law Section, Family Law
Executive Committee,

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Sacramento Family Court News - Newsroom Law Library & Legal Resources

Index

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Index

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The news analysis and opinion content at Sacramento Family Court News is partly based on the legal references and treatises used by judges and attorneys. Click here for a
description of our newsroom law library and the publications we use to research and report Sacramento Family Law Court issues. Most family law attorneys belong to the
Sacramento County Bar Association Family Law Section. The section is headed by the Family Law Executive Committee, also known by the acronym FLEC. The committee is
composed of CHAIR RUSSELL CARLSON, VICE CHAIR ELAINE VAN BEVEREN, TREASURER FREDRICK COHEN, and SECRETARY PAULA SALINGER. Family court watchdogs charge that
the committee acts as a shadow government controlling most operations, including dictating local court rules in Sacramento family law court.

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Sacramento Family Court News Terms &

Conditions and Privacy Policy

Sacramento County Bar Association Family Law

Section - Family Law Executive Committee FLEC

By Using This Site You Agree To The Terms &

Conditions and our Privacy Policy Sacramento Family Court News

Family Court: Sacramento Superior Court - Family and

Children

California Judicial Branch oversight and

accountability is the responsibility of Commission
on Judicial Performance Director Victoria B.
Henley, California State Auditor Elaine M. Howle,
Judicial Council Director Steven E. Jahr, Supreme
Court Chief Justice Tani G. Cantil-Sakauye, State
Bar of California Chief Trial Counsel Jayne Kim,

Family Court & Judicial Branch Information,

Resources and Links

Family Court Services - Sacramento Superior Court - Child

Custody Recommending Counseling, Family Court
Services, Confidential Mediation, and Evaluation

The Sacramento County Bar Association Family Law

Section - Family Law Executive Committee - FLEC Sacramento Family Law Court - Sacramento County

Family Court Self-Help Center: Sacramento Superior

Court - Self-Help Center - Family Law Facilitator
Family Court Records: Sacramento Superior Court - Order
a File and Records
Family Court Resource Referral Program: Sacramento

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Sacramento Family Law Court, Family Court

Sacramento and all California courts are
subject to oversight by Tani G. Cantil-Sakauye
the Chief Justice of the Supreme Court of
California, the California State Auditor, the
whistleblower act, also known as the
Whistleblower Protection Act, the Bureau of
State Audits, the Commission on Judicial
Performance or CJP, and the Judicial Council
under the leadership of Chief Justice Tani
Cantil-Sakauye. The Judicial Council operates
the Judicial Branch California Courts website.
The motto of the California Judicial Branch
website is "Committed to providing fair and
equal justice for all Californians." Assertions
by family court watchdogs and whistleblowers to
Sacramento Family Court News indicate that
the motto may not apply in Sacramento Family
Court.

Divorce / Legal Separation / Annulment: Sacramento

Superior Court - Divorce / Legal Separation / Annulment
Child Custody / Visitation: Sacramento Superior Court Child Custody / Visitation
Family Relations Courthouse: Sacramento Superior Court
- William R. Ridgeway Family Relations Courthouse
Public Case Document Search - Sacramento Superior
Court
Complex Case Calendar: Sacramento Superior Court
Tani Cantil-Sakauye Supreme Court of California Chief
Justice
Civil Motions and Hearings General: Sacramento Superior
Court
Gordon D. Schaber Sacramento County Courthouse:
Sacramento Superior Court

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Sacramento Family Law Court users and our

readers search for subjects including the
California Supreme Court and Justices
Goodwin Liu, Marvin Baxter, Ming Chin, Kathryn
Werdegar, Joyce Kennard, Carol Corrigan, and
Tani Cantil-Sakauye, and ATTORNEY
DIVORCE, family laws in California, legal
separation, judges and other family court
information. Sacramento Family Court
Judges include Thadd A. Blizzard, Peter J.
McBrien, Matthew J. Gary, Jaime R. Roman,
and SHARON LUERAS, and the Hon. Steve
White. The current SACRAMENTO FAMILY
COURT SUPERVISING JUDGE is JAMES
MIZE. Family Court Sacramento judges are
required to comply with the CODE OF
JUDICIAL ETHICS. The Sacramento County
Superior Court Supervising Family Law
Facilitator is attorney LOLLIE ROBERTS. You
can find an attorney for divorce or attorneys for
divorce online. DIVORCE COUNTY COURT is a
popular search, and so is California legal
separation. A lot of people want to know WHAT
IS A LEGAL SEPARATION. Sacramento
Family Court News reports on changes in
California divorce law, also searched for using
CA DIVORCE LAW, and Supreme Court of
California. Judge Sharon Lueras has been
implicated in contributing to the deaths of
two children as a result of rulings she
issued. In the baby Ryder Salmen case
Judge Lueras was featured on Nancy Grace.
Click here. Sacramento Family Law Court is
a common search made by court users.

Family Law - Court Appearances: Sacramento Superior

Court - Court Hearings and Orders

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SACRAMENTO COUNTY SUPERIOR COURT

- Popular Searches and Subjects

Superior Court - Resource Referral Program

E-Correspondence (Family Law Self-Help Assistance) Family Law Facilitator

Superior Court Court Executive Officer - Sacramento Bar

Association - Sacramento Family Court Presiding Judge child custody and visitation - divorce - spousal support child support - alimony - family law attorneys - family
law judges

3rd District Court of Appeal Justice Vance Raye,

and U.S. Attorneys Benjamin B. Wagner and
Melinda L. Haag. The officers of the Sacramento
County Bar Association Family Law Executive
Committee are Elaine V. Van Beveren, Fredrick S.
Cohen, Paula D. Salinger, and Gregory W. Dwyer.

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Most Sacramento Family Court attorneys are

members of the Sacramento Bar Association,
formally known as the Sacramento County Bar
Association. The Sacramento Bar
Association has a Family Law Section and a
Family Law Executive Committee known by
the acronym FLEC. The Sacramento County
Family Law Section Executive Committee is
composed of CHAIR Russell Carlson, VICE
CHAIR Elaine Van Beveren, TREASURER
Fredrick Cohen, and SECRETARY Paula
Salinger. The PAST CHAIR is Judith Winn.
Each member of the Family Law Section
Executive Committee also holds the Office of
Temporary Judge, also known as a Judge Pro
Tem. The Bar Association Family Law
Section publishes a monthly newsletter called

Family
Law Counselor is available at the
Bartholomew & Wasznicky
website. Click here. UPDATE: In February,

The Family Law Counselor.The

2013 Bartholomew & Wasznicky terminated online

public access to the Family Law Counselor

Tani Gorre Cantil-Sakauye - About the Chief Justice

Tani G. Cantil-Sakauye - Outreach Activities
Joyce L. Kennard Supreme Court of California Justice
Justice Cantil-Sakauye - Civics Initiatives
Chief Justice Tani G. Cantil-Sakauye - Chief in the News
Tani Cantil-Sakauye - Chief Justice Speeches
Marvin R. Baxter Supreme Court of California Justice

The Supreme Court of

California is the ultimate
authority on California law.
Justices include Kathryn
Werdegar, Joyce Kennard,
Ming Chin, Carol Corrigan,
Marvin Baxter, Goodwin Liu
and Tani Sakauye.

Kathryn M. Werdegar Supreme Court of California Justice

Other search topics include:

ATTORNEY DIVORCE, lawyers
for divorce, family law, Sacramento
Court, divorce, attorneys divorce,
bar association, child custody
California, lawyers, CALIFORNIA
DIVORCE LAW, child custody,
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dissolution, pro per, county superior,
state bar, family lawyer, court rules,
judge pro tem, family court
attorneys, family law facilitator, legal
representation, child support
services, lawyer divorce, child
support payment, attorney at law,
domestic violence,

Barbara J.R. Jones Presiding Justice 1st District Court of

Appeal

court, child support, attorney, lawyer,

attorneys, TANI G. CANTIL-SAKAUYE,
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support California, family lawyers, attorneys at law,
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county bar association, Superior Court in California, in
pro per, Sacramento County records, family facilitator,

Ming W. Chin Supreme Court of California Justice

Carol A. Corrigan Supreme Court of California Justice
Goodwin Liu Supreme Court of California Justice
J. Anthony Kline Presiding Justice 1st District Court of
Appeal
Ignazio John Ruvolo Presiding Justice 1st District Court of
Appeal

Sandra L. Margulies Acting Presiding Justice 1st District

Court of Appeal
Robert M. Mallano Presiding Justice 2nd District Court of
Appeal
Roger W. Boren Presiding Justice 2nd District Court of
Appeal
Joan Dempsey Klein Presiding Justice 2nd District Court
of Appeal
Norman L. Epstein Presiding Justice 2nd District Court of
Appeal
Paul Turner Presiding Justice 2nd District Court of Appeal
Arthur Gilbert Presiding Justice 2nd District Court of
Appeal
Dennis M. Perluss Presiding Justice 2nd District Court of
Appeal
Tricia A. Bigelow Presiding Justice 2nd District Court of
Appeal
Vance W. Raye Presiding Justice 3rd District Court of
Appeal
Arthur G. Scotland Presiding Justice 3rd District Court of
Appeal
Manual A. Ramirez Presiding Justice 4th District Court of
Appeal
Kathleen O'Leary Presiding Justice 4th District Court of
Appeal
Judith McConnell Presiding Justice 4th District Court of
Appeal
Brad R. Hill Presiding Justice 5th District Court of Appeal

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Counsel Jayne Kim, 3rd District Court of Appeal Justice

Vance Raye, and U.S. Attorneys Benjamin B. Wagner
and Melinda L. Haag are responsible for the
prosecution of federal crimes, including honest
services fraud. The officers of the Sacramento County
Bar Association Family Law Executive Committee are
Elaine V. Van Beveren, Fredrick S. Cohen, Paula D.
Salinger, and Gregory W. Dwyer.

William R. McGuiness Presiding Justice 1st District Court

of Appeal

California Judicial Branch oversight and accountability is

the responsibility of Commission on Judicial
Performance Director Victoria B. Henley, California
State Auditor Elaine M. Howle, Judicial Council Director
Steven E. Jahr, Supreme Court Chief Justice Tani G.
Cantil-Sakauye, State Bar of California Chief Trial

Conrad L. Rushing Presiding Justice 6th District Court of

Appeal

court order, court hearing, in pro se, and Tani CantilSakauye

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newsletter, and scrubbed all Family Law

Counselor newsletters from the firm
website. CLICK HERE for our report on the
controversy. Other common search terms include
HON. LAURIE M. EARL, state audits, judges,
divorce attorneys, state auditor California,
family law facilitators, spousal support, protest,
county superior, self-represented, legal
representation, in pro per, social injustice,
judicial misconduct, pro se, social justice,
Sacramento family law, judge, James Mize, civil
disobedience, unrepresented, PRO PER PRO SE,
family superior court, whistleblowing
protection act, sacramento family court,
Sacramento Superior Court family law facilitator,
judges in California, judicial judges. Sacramento
family law court is located at the William Ridgeway
Courthouse.
"So you can hurt, hurt us bad
But still we'll raise, we'll raise the flag"

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