CJP 1 8 5 Oral Argument

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I MAY 29, 2009

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INQUIRY CONCERNING

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SPECIAL MASTER CORNELL: Good morning. We're

4 on record in the matter of the Inquiry Concerning

1. McBRIEN

5 Judge Peter McBrien, No. 185. I note that

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JUDGE PETER
CJP NO. 185

9:00A.M.

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COMMISSION ON JUDICIAL PERFORMANCE

6 Judge McBrien is present, with counsel, as is

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7 Mr. Blum. This is the time set for oral

8 presentations.

We are fully familiar with the facts of the

I 0 case and the exhibits and transcripts. We're fully

II familiar with the briefs that you filed. So please
12 keep that in mind when you're making your

TRANSCRIPT OF THE
ORAL ARGUMENT BEFORE SPECIAL MASTERS

13 presentations. All of us view this as an opportunity

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SAN FRANCISCO, CALIFORNIA

MAY 29,2009

14 to ask you questions concerning the positions you've

15 taken, so expect questions from the panel. And also,

16 because of all of this, we expect you to be brief and

17 to the point in your presentations.

18

So with that in mind, Mr. Blum, you go first.

19

MR. BLUM: Thank you, Your Honor.

20

REPORTED BY: SANDRA LEHANE

REGISTERED PROFESSIONAL REPORTER

21

CERTIFIED SHORTHAND REPORTER NO. 7372

155 Orr Road

22

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ORAL ARGUMENT BY EXAMINER

MR. BLUM: Good morning. There really isn't

23 a lot of factual dispute in this case. The

A lameda, California 94502

(51 0) 864- 9645

24 transcripts and the court records make it pretty clear

25 what happened.

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Judge McBrien left the Carlsson trial with a

1 PARTICIPANTS:

2 witness on the stand, and he didn't return. The

SPECIAL MASTERS:

Honorable Dennis A. Cornell

6 a little bit longer than estimated. Brief extensions

Court of Appeal, Fifth District

7 of time are typically given. In fact, they have a

8 system that specially set them on a

Honorable Gail A. Andler

Ju

9 Monday/Tuesday/Wednesday if they didn't finish on a

Superior Court of Orange County

10 Thursday/Friday. Estimates are, after all, just

12

Honorable Denise de Bellefeuille

12 trial will take. And unexpected issues can arise, as

13

Superior Court of Santa Barbara County

13 happened in the Carlsson case.

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Respondent's Counsel:

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James A. Murphy, Esq.

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19

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5 heard, that's not all that unusual, for a case to take

Associate Justice

3 bigger question is: Why did he do that? Now, the

4 case was coming up on its two-day estimate. But as we

20

21

22
23

Examiner:
Andrew Blum, Esq.

I I estimates. It's hard to predict exactly how long a

14

But from the beginning, Judge McBrien seemed

15 to be impatient with this trial. At first he wanted

16 it over not in two days but in a day and a half. And
17 he actually threatened a mistrial if it wasn't
18 finished by then. Both attorneys took his threats, or
19 warnings, very seriously. Neither wanted a mistrial.
20 So why did he end the trial the way he did?

21

Well, he has given varied and sometimes

22 contradictory explanations for his actions. ln his

23 response, he said it was very likely that the EPO, the

24

24 Emergency Protective Order, phone call was lengthy and

25

25 complicated and apparently prevented him from

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CJP 185 Oral Argument

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1 more time beyond the hvo days.

2 But as we know, it turned out the EPO phone call was a

3 little bit less than hvo minutes; so it didn't prevent

3 He said that he had t\vo responsibil ities; one was to

Again at the deposition, he mentions the EPO.

4 hear the trial, the other was to respond to the EPO,

5 and they were not compatible responsibilities. He

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4 him from going back to court. In his answer, he gave

5 several explanations for what happened. He c l aimed
6 that the record reflects that Mr. Carlsson had already

6 couldn't do both. But again, a hvo-minute EPO

7 completed his case-in-chief. But when you look at it,

7 wouldn't have prevented him from doing both.

8 it really doesn't reflect that at all. He never

By the t ime he submitted his pre-hearing

9 brief, the focus is sort of shifted more squarely on

9 rested. And the witness who was on the stand when the
10 judge walked out, that witness was on surrebuttal but

10 blaming the attorney. In his brief, he claimed that

I I during the trial Ms. Huddle didn't bring to his

12 shows that Mr. Carlsson's re-direct was interrupted

12 attention that she had more testimony and exhibits to

13 offer. He didn't know. But that's what she was

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14 it.

I I the case wasn't on surrebuttal. In fact, the record

13 and he never got back to it. He never got to finish

14 trying to do as he walked away, and she again said it

15 in her closing argument.

15
In his answer, he repeated the claim that the
16 EPO must have been extensive and time-consuming. It

16

17 must have lasted beyond the time counsel remained in

17 really was on blaming Ms. Huddle. They claim she

18 the courtroom or he would have gone back. As I just

18 wasted time, though she really didn't take much longer

By the time we got to the hearing, the focus

19 said, we know that that wasn't really the case. I t

19 than the other attorney did, and she did face some new

2 0 wasn't very lengthy.

20 issues along the way. And she tried to shorten the

21

He claimed that M r. Carlsson's expert had

2 1 trial by stip'ing to the sale of the four-plex. And,

22 already completely testified -- excuse me -- and was

22 of course, if the judge had really felt that

23 just re-testifying about things that he already

23 Ms. Huddle was wasting time, he has ways to cut down

24 testified about.
25
SPECIAL M ASTER ANDLER: Take a moment.

25

24 on that. He can exclude evidence.

They argue that she sort of secretly wanted a

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1
2

MR. BLU M : I'm losing my voice here.

M R . MURPHY: Do you want me to talk for you,

3 Andy?

(Laughter.)

MR. BLU M : Go ahead.

But actually, the witness was not

2 to continue the trial on March 2 but that was denied.

4 throughout the trial. She was repeatedly offered a

5 mistrial; she repeatedly refused it. She took steps

6 to avoid it, including waiving issues at the end of

7 the trial. Even afterwards, Exhibit 43 shows she was

8 still worried, even afterwards, about a mistrial. She

9 clearly didn't want one.

Ju

8 He was dealing with this new revelation that he had

9 made a very larger error in his appraisal. The judge

10 also claimed that Ms. Huddle never identified any

10

I I other witness she intended to call , but she did that

I I began, she was planning to appeal it. The only

12 in her closing argument. She didn't have much chance

12 evidence of that is that the eventual appellate

They even suggest that before the trial

13 attorney briefed a trial matter for them. There is n o

14
Finally in his answer, he stated that all the
15 testimony had to be completed by 4:30; but he really

14 w a y that s h e w o u l d have known ahead o f t i m e that she

15 was going to lose the trial and yet win at the appeal.

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13 to do that as he was leaving the courtroom.

16 gives no explanation for why that would be true. Why

16 It would be a very odd, very risky strategy, and I

17 couldn't he have gone a little bit l onger that day or

17 don't think there is any evidence of it.

18 scheduled another date? At his deposition, he made a

18

19 new claim. He claimed that he had offered to let the

19 Ms. Keeley offered to allow more trial time but

20 parties schedule another trial day. He claimed that

20 Ms. Huddle didn't respond. And M s . Keeley testified

2 1 when he declared this trial has ended, he j ust meant

21 to that, but it's not really true. Ms. Keeley did - 2 2 a s the judge was leaving or just had left, s h e said

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1 mistrial, and the evidence of that is that she moved

3 But that really flies in the face of all her conduct

7 re-testifying about things he already talked about.

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1 returning to court because, otherwise, he would have.

22 it was over for that day because he had already told

They also claim that after the trial ,

23 them they could have additional court time. But the

23 something about more time. But if you look at

24 transcript showed that's not really true. And at our

24 Exhibit 42, Ms. Keeley must have very shortly

25 hearing, he admitted that he had never offered them

25 thereafter changed her opinion because instead of

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CJP 185 Oral Argument

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2 with a mistrial and imposition of attorney's fees by

2 back, took the bench and said, "The time for evidence

3 way of sanctions if she tried to put her client back

3 is now concluded, but I will allow the parties to

4 on the stand. So all of that were efforts to

4 submit written declarations on attorney's fees and

5 oral argument in writing" and any other request they
6 deem appropriate? Would you consider that to be

So why go to all that effort? Basically it's

7 because these other claims.-- "the lengthy EPO; I did

7 misconduct?

8 offer them more time" -- they are not panning out, and

9 this is what they are left with. The focus is now

9 been a lot better. I think he-- I'm speculating here

MR. BLUM: I think it certainly would have

10 that Huddle didn't ask for more time.

II

10 now, because we don't know what really would have

I I happened. But had he returned after the phone call

We're told that Judge McBrien has a policy

12 and inquired, "Okay, where are we? How much more do

13 more time. He apparently can't say it first. If they

13 we have?"-- maybe he could rule some of it is not

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12 that the attorneys have to initiate the request for

14 admissible or is cumulative and ask them to tell him

14 don't ask, there's not much he can do.

15

Now, Huddle did everything she could to

15 the remaining issues that they could submit in writing

16 as you just suggested, I think that would have been

16 inform the Court that she wasn't finished. She tried

17 to explain the need for more evidence as the judge

17 fine. I don't think that this--

18 walked away. And though she was told that no further

18

19 testimony would be taken, in her closing argument she

19 arguing about is the way he did it, not result that

20 explained that there was additional relevant evidence

20 occurred.

2 1 introduced.

21

22

SPECIAL MASTER CORNELL: So what you're

MR. BLUM: Well, no. Because !think there

22 is still some relevant evidence he didn't hear because

SPECIAL MASTER ANDLER: Let me ask a

23 question, ifl may.

23 of the way he handled it.

24

MR. MURPHY: Sure.

24

25

SPECIAL MASTER ANDLER: Are you saying that

25 anyone from submitting additional evidence? Do you

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SPECIAL MASTER CORNELL: Well, did he prevent

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10

I the judge was wrong in not stopping before he

1 have anything in the record where he prevented--

2 continued with and concluded the call to find out what

MR. BLUM: Yes.

3 additional evidence she wanted to present? You said

SPECIAL MASTER CORNELL: Other than getting

4 that--

4 up and walking off the bench? In other words, in

MR. BLUM: Before the call?

SPECIAL MASTER ANDLER: As the judge had the

5 writing, did he prevent them from submitting any

6 additional evidence?

MR. BLUM: He gave them a limit of they could

7 phone in his hand and he was apparently walking away,

8 I think your position is and the evidence supports

8 write about attorney's fees and make their closing

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9 that he had the phone; he was walking away, and she

9 argument. That doesn't allow them to introduce more

10 was trying to explain that she wanted to present more

10 evidence, in which she described, for example--

1 I evidence. Would you have had him say, "Hold on,"

II

12 listen to what she had to say, and then give direction

12 went beyond that, didn't she? That he didn't exclude?

SPECIAL MASTER CORNELL: What she submitted

MR. BLUM: She didn't introduce more evidence

13

14 really that he didn't come back out? I'm not sure if

1 5 you're faulting him for not interrupting his call to

14 in her writing. She objected to the process and said,

15 "I have this other stuff to introduce," but it was

16 hear her out.

16 never introduced.

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13 as to how they should proceed? Or is your concern

17

MR. BLUM: No, I'm not faulting him for

1 8 interrupting the trial to take the emergency call. He

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5 discredit or to attack Sharon Huddle.

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SPECIAL MASTER CORNELL: What i fh e did come

I offering more time, she actually threatened Ms. Huddle

17

SPECIAL MASTER DE BELLEFEUILLE: You

1 8 highlighted the fact that Mr. Carlsson's testimony was

19 has no idea what that call is about; it could be a

19 interrupted and never taken up again. He was on

20 dire emergency. But two minutes later, he should go

20 redirect examination. Do we have any idea of what

2 1 back. There's no reason he couldn't go back. He

2 1 remained to be discussed with him in evidence?

MR. BLUM: Well, she laid that out in her

22 said-- and I'm going to get to it, but he said that

22

23 "typically I would go back and we would settle this."

23 closing-- in her written closing argument where she

24 But he didn't. So walking away and declaring the

24 objected to the process. She said her client had to

25 trial has ended, I think is a mistake, is wrong.

25 talk about there was a tax return, there was some

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CJP 185 Oral Argument

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2 o n the child. So those are some concrete examples.

3

Anyway, even though Ms. Huddle explained as

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I that something more is needed?

Hypothetically speaking: You're in a

3 criminal case. l assume that you would agree that if

4 somebody is representing a criminal defendant and it
5 occurs to the judge that there is something happening

6 "Well, that's not good enough. She didn't ask for

6 that might impact due process, the judge has an

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4 he was leaving that there was more evidence and

5 restated it in her closing argument, h e argues that,
7 more time." Now, first of all, that claim contradicts

7 obligation to take affirmative steps to prevent that

8 what he said at his deposition, where he said that he

8 from happening. Agreed?

I I moment they reach the estimate?" And h e said no.

9
10

MR. BLUM: Agreed.

9 had offered them more time. But more specifically, I

10 ask d him, "Do you always cut off trials right at the

SPECIAL MASTER ANDLER: Is there a difference

II in a family law case where you've got an advocate on

12 each side?

I 3 what more evidence and what more time was needed. But

13

14 now the line of argument is that, "No, I don't do

I 4 judge is obligated to protect due process rights. And

I 5 that. They have to initiate it."

I 5 to say that "there's nothing I can do because she

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Secondly --

17

SPECIAL MASTER CORNELL: So this was a

I 9 that," and yet he still is putting on her that"she

MR. BLUM: I don't think he's ever ended a

20 didn't say 'time,' so there's nothing I can do; so I

2I

SPECIAL MASTER CORNELL: Is that significant?

22

MR. BLUM: Certainly. If this was a pattern,

23 if he'd done this multiple times, that would be more

24 aggravated.

1 7 of what had happened, l think is very improper. She

18 had been told, "There's no more evidence; you can't do

18 one-time event, as far as you know?

25

MR. BLUM: I think that in all cases the

16 didn't say 'I need time,"' especially in the context

I6

20 trial like this.

12 "No." Typically, he would have tried to determine

19

2 1 have to basically sit here and watch due process

22 rights be violated" No, I think that's

23 inappropriate.

24

Also, this line of argument is -- to put it

SPECIAL MASTER ANDLER: Would your answer be

25 the same if it were a civil case--

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I on Huddle. After the judge has declared the trial has

MR BLUM: Yes.

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2 ended and walks away, and then the next morning

SPECIAL MASTER ANDLER: -or a probate case?

MR BLUM: Yes, it would.

4 over and no further testimony will be allowed, it's

5 pretty hard to expect her to think that she could

SPECIAL MASTER ANDLER: Okay. So you draw no

4
5 distinction because of the nature of this proceeding?

6 still ask for more time.

Now, this policy that we're told about isn't

8 a rule of court or a local rule. It's a practice or a

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9 culture. as they described it. But it doesn't

MR. BLUM: I don't know that the courts have.

7 As I stand here, I can't honestly tell you if the

8 Appellate Courts have done that. I don't believe so.
9 In civil cases -- anyone appearing before the Court

I 0 has due process rights. I don't know that the

I I rights. I asked Judge McBrien if it concerned him

I I Appellate Court in this decision made that

12 that he was making a decision in a situation where the

12 distinction.

.13 attorney had said there was additional evidence to

13

1 4 introduce, evidence which he admitted would have been

14 walking out with a witness on the stand, declaring the

15 trial has ended or failing to go back to the courtroom
1 6 afterwards, as we just discussed. His explanation for

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I 0 override the judge's obligation to protect due process

15 relevant. His answer was, "Yes, but she offered no

16 remedy; she didn't ask for more time, so there really

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I checks, and there was the impact of selling the house

Jot l could do." That's the current line of

I 8 defense here. Forget about the other arguments, the

1 9 EPO and, "yes, I offered them more time, but I was

20 basically kind of helpless."

21

SPECIAL MASTER ANDLER: Does the judge have a

Anyway, none of these claims justifY him

1 7 not going back is fairly weak. He says, "Well, the

18 attorneys needed some time to meet and confer." He is
1 9 speclating about that. He didn't attempt to go back
20 and see what was going on. And this was a fairly
2 1 routine dissolution case. There's no reason he

22 different obligation in a criminal case as opposed to

22 couldn't have gone back and, with the attorneys,

23 a family law case to interject in a way to make sure

23 figured out how much more time was needed or if any

24 the due process rights of a party are being protected

24 time was needed.

25 even in the absence of an assertion by the attorney

25

He should have- obviously what he should

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CJP 18 5 Oral Argument

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I percent.

2 retumed a few minutes later. He told us that these

3 calls typically take only three to five minutes. He

3 determine whether the circumstances reflect that

4 had no reason to believe this one was going to be

4 animus?

5 lengthy. But like I said, he was impatient about this

M R. BLUM: I think so, yes.

6 case from the beginning. And I don't know if it's

Anyway, he wanted this case over, and the

7 because he doesn't like the lawyer, didn't like

7 phone call coming when it did was just an excuse. His

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SPECIAL MASTER CORNELL: So it's our job to

8 attitude seems to have been "I've heard enough; I've

9 dragging it out. I don't know what it was. But for

9 got a call; I'm out ofhere. Trial is over." And

1 0 within a few minutes, he's out the door, calling home,

SPECIAL MASTER CORNELL Well, to get to

11

8 Mr. Carisson, thought the attomeys were kind of

I0 some reason, he wanted this case over.

II leaving the parties sitting there wondering what's

12 going on. The court staff and everybody else.

13

14 just described?

14 part of the evidence here. It's not just the walking

12 willful misconduct, don't you have to prove by clear

13 and convincing evidence some of the very animus you

Then he compounds the problem. And this is

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MR. MURPHY: I have to prove that this was

15

15 out and not going back two minutes later. He

16 done for other than faithful execution of his duties,

1 6 compounds the problem by making his decision despite

17 and I think that's clear.

1 7 Ms. Huddle's pleas, despite knowing there was relevant

SPECIAL MASTER CORNELL But for a bad faith

18

1 8 evidence he hadn't heard and despite the obvious

1 9 problems with the way he ended the triaL

19 component, that's the animus I was talking about.

SPECIAL MASTER ANDLER: You said one of his

20

MR. BLUM: Right.

20

21

SPECIAL MASTER CORNELL You just described

2 1 options would have been to exclude evidence; that that

22 could have been permissible. So let's say,

22 you don't know if these were the reasons.

23

MR. BLUM: Well--

23 hypothetically, he carne back in after two minutes and

24

SPE CIAL MASTER CORNELL: Does that kind of

24 said, "Ms. Huddle, what else do you have," and she

25 cut across the burden that you have to get to willful

25 said, "Well, I want to fmish the testimony of my

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1 misconduct?

MR. BLUM : I don't believe so. I don't think

2 want to put in these records," and he said,

3 "Excluded." Would that have been better than the way

4 lawyer or he didn't like the Defendant/Respondent. I

4 the facts show he terminated the proceeding?

5 don't think I have to prove that. I think I have t o

MR. BLUM: Certainly.

6 prove that what he did, ending t h e trial t h e w a y he

SPECIAL MASTER ANDLER: Would that have been

7 did and not coming back, was done for other than

7 something that rises to the level of a disciplinary

8 proceeding, assuming an appellate decision saying that

9 because he was just tired o f the case. He'd heard

9 was wrong?

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8 faithful execution of his duties. I think it was done

MR. BLUM: Well, I guess it would depend on

10 enough, and he didn't care anymore. He didn't care

10

1 1 about the due process rights.

1 1 the reason why it was wrong. We're doing such a

SPECIAL MASTER CORNELL: So what you're

1 2 hypothetical here, I don't know why he's making the

13 rulings you're describing.

14 if somebody walks off the bench in that manner, then

14

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13 saying, then, it's a strict liability standard? That

1 5 it's bad faith per se?

16

MR. BLU M : I wouldn't call it strict

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I client on these issues," and he said, "Excluded"; "I

3 I have to prove that it was that he didn't like the

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I have done is called a recess, taken the phone call and

1 8 here.
19

SPECIAL MASTER CORNELL: So that's where

SPECIAL MASTER ANDLER: Well, you said he had

1 5 options. One of his options was to have excluded the

1 6 evidence. So I'm just asking you to take it the next
1 7 step. He comes back out and he excludes the evidence.
1 8 What then, if he had the same net result?
19

MR. BLUM: Well, if he's told-- he hears

20 you're going back to you don't know if he disliked the

20 what the offer of proof is and rules that it's

2 1 lawyer or Mr. Carlsson or was frustrated with the time

2 1 irrelevant or cumulative, that's within his discretion

22 it was taking?
23

MR. BLUM : I think it's probably a

22 to make that decision. Now, an appellate court may

23 rule that you abused your discretion. Is that kind of

24 combination of all of them. But I can't sit here and

24 the hypothetical? But abuse of discretion, making a

25 tell you it's this one 80 percent and that one 20

25 bad decision, isn't necessarily misconduct. We don't

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CJP 185 Oral Argument

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Page 23
So then why did he threaten her with

2 under-the-Jaw decision. I mean, judges are entitled

2 contempt? In his response, he says that he regrets

3 to make wrong decisions. They can't have us b reathing

3 mentioning the possibility of contempt and that he

4 down their necks like that.

4 became momentarily inappropriately frustrated w ith

5 Ms. Huddle's misapplication of the Fifth Amendment.

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Obviously that's not what happened here, but

6 I think that would be certainly a closer call. And

6 But then in his answer, we got a completely different

7 you would have to look at the individual facts. At a

7 explanation. He said it wasn't about misapplying the

8 hypothetical level, it's a little difficult to pin

8 Fifth Amendment; it was about whether or not the

9 down but-- yeah.

9 Court's order to produce the statement

10

SPEGAL MASTER ANDLER: Thank you.

II

MR. BLUM: Anyway, between the time he walked

was

going to be

10 obeyed. But then at the deposition I asked him, "Was

II this a court order?" He said, "No." And he repeated

12 that at the hearing. And he admitted he couldn't find

13 of time

13 her in contempt since there never was a valid court

reflect on the situati on and to correct it.

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to

12 out and the time he issued his ruling, he had plenty

14 B ut he didn't do that. As the Court of Appeal found,

14 order here. So apparently the explanation in the

15 Judge McBrien did not allow the parties their full

15 verified answer is simply untrue. This was not about

1 6 opportunity to be heard. That's what the Commission

16 enforcing a court order.

17 has alleged, and it's pretty clearly true. He ended

17

18 the

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the way he did not for the faithful

19 discharge

of his duties but because he felt he heard

21 That's bad faith, and that's willful misconduct.

19 because she was resisting doing what he wanted.

20 That's pretty close to what he admitted in his

2 1 response, where he says "inappropriately frustrated."

The second allegation has to do with

22

So why did he threaten her? Well, I think

18 the truth is pretty simple. He got angry at her

20 enough and he wasn't concerned about their rights.

22 Ms. H uddle was not trying to be an obstructionist; she

23 Judge McBrien's threatening Ms. Huddle with contempt.

23 just didn't know this Jaw. She didn't know what to

24 I think there are two questions to ask in this

24 do, and she was trying to keep her client out of

25 allegation. Why did e want the documents? And then,

25 trouble. But he used the threat of contempt to

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I why did he threaten her? In his response he said,

I intimidate her into agreeing to get what he wanted,

2 among other things, those documents would be relevant

2 and it worked. She was intimidated.

3 to the fai market value and gross rental income of

4 your position that a judge who threatens contempt is

5 Nothing in the documents would clarifY whether the

5 guilty of misconduct, is it? Because that's what they

SPECIAL MASTER CORNELL: Mr. Blum, it's not

6 f ou r p l ex was worth 610,000 versus 650,000. And there

are instructed to do in all the various courses, is to

7 was no dispute about the rental. And he even admitted

elevate the warnings before they do anything

8 at the deposition that he really had no recollection

8 seriously.

10

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9 if that was something that was on his mind.

J\t the deposition and then later at our

MR. BLUM: The allegation in the notice is

I0 that the threat of contempt was improper under the

II circumstances.

12 able to, quote, "put a lien on or otherwise take the

12

13 property," unquote. Now, that was the first time we

13 circumstances that you think make it improper include

14 heard that rather novel theory. He admits he's never

14 what?

15 heard of that happening, and he now knows they can't

15

16 do it. Well, 1 mean, of course not. If you violate

16

SPECIAL MASTER CORNELL: Specifically?

17 disclosure rules, you don't lose the property. The

17

MR. BLUM:

18

SPECIAL MASTER CORNELL: One, you said that

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II hearing, he claimed that he thought that FPPC might be

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Page 24

4 the II ur-plcx. But we saw that really wasn't true.

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I generally allege misconduct because you made a wrong

18 FPPC doesn't acquire interest in real estate.

19

But in his letter, he gave a third

20 explanation for why he wanted the documents. He was

19

SPECIAL MASTER CORNELL: Now, the

MR. BLUM: Well--

--as--

they didn't produce the documents. Two, that she was

20 attempting to assert the Fifth Amendment. What else?

21 faced with the disclosure of possible criminal

21

22 activity. This is the plausible one of his

22 attempting to enforce a nonexistent court order in

MR. BLUM: The circumstances are that he is

23 explanations. He wanted the documents because he was

23 order to obtain evidence of a crime.

24 looking for evidence of a crime, and that's why he

24

25 warned them about the possible "other consequences."

25 reflects that, when you look at the discussion from

SPECIAL MASTER CORNELL: What if the evidence

Page 6

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CJP 185 Oral Argument

Page 25

SPECIAL MASTER ANDLER: Repeat for me the

2 because Ms. Huddle did not seem to understand the

2 timeline from the Judge's request for a partial

3 Fifth Amendment doesn't apply to protect your client

3 transcript and the completion of the matter after the

4 from producing records that are public documents, and

4 submission of briefs.

5 she was continuing to make that argument even after he

6 explained to her that that was not the issue? So

6 transcript on March 9, the third day of trial. They

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MR. BLUM: He apparently first asked for the

7 counsel, in essence, was continuing to argue a point

7 were transcribed the next day.

8 that the judge ruled on. Now, isn't that rising to

9 the level where the judge has the right to reign

9 asking for a transcript or for what he did with it

M R. BLUM: I don't believe so in these

SPECIAL MASTER ANDLER: Do you fault him for

10 once he got it?

10 counsel in?

MR. BLUM: The latter.

12 circumstances. She hadn't re-argued the Fifth

12

SPECIAL MASTER ANDLER: Okay.

13 Amendment. She had said it at lease once or twice,

13

MR. BLUM: You can also say that seeking out

14 but mostly she first argued the irrelevancy of it.

14 the transcript goes beyond reporting a crime. I t goes

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II

11

15 But she's in a situation where she's about to agree to

15 actually into investigating a crime. He's seeking out

16 get documents that might incriminate her client.

16 evidence of a crime. He doesn't really need the

17 She's in a very, very tough spot. And she's-- the

17 transcript to report a crime. If that's what he

18 comment that got the threat of contempt was "I don't

18 thinks he's obligated to do, he doesn't need the

19 know what to do. I don't know what to do when you're

19 transcript to do that. So it's both.

SPECIAL MASTER C O RNELL: What should a judge

20 asking me for documents that they don't want and to

20

21 gel my client in trouble." He threatens her with

21 do in Judge McBrien's position?

MR. BLUM: Well, it depends a lot -- first of

22 contempt. I think it's inappropriate. And contempt

22

23 of what? There's no order.

23 all, the rules about judges reporting crimes, which is

24

I think it's an improper purpose to threaten

25 someone with contempt to enforce a nonexistent court

24 kind of the gist of the question, first of all, it

25 depends a lot on who the violator is. They cite a

Page 26

I 1991 CJP case where an advisory was issued. But that

2 was dealing with an attorney who committed misconduct

The third all egation concerns a partial

3 or may have broken the law. Now, the canons of

4 testimony. Now, Judge McBrien wanted the transcript

4 judicial ethics place special reporting requirements

5 not to help him make a decision in the case but

5 on judges regarding attorney misconduct. It's a

6 because he, quote, "thought he heard the admission of

6 different animal. There's debate in the legal

7 the violation ofFPPC rules, a potential misdemeanor"

7 community about what obligation a judge has when it's

8 unquote. In other words, he's looking for evidence of

8 a party before them who may have conunitted a crime.

Ju

9 that crime again. Just like with the Statement of

And Rothman goes into this at Section 5 . 68,

10 Economic Interest, now he's looking for evidence of

10 and they cite CJA opinion-- California Judges

II that crime with the transcript.

II Association --which holds that judges have no more

12

At the deposition, he testified that after

12 obligation to report crimes of individuals than

13 anybody else. None. In fact, it could arguably be

14 there was some violation that Mr. Carlsson was

14 said to be a violation of Canon 3 because you need to

15 admitting. As simple as that. But then in our

15 be impartial and appear to be impartial with parties

16 hearing, he claimed that after he read the transcript,

16 before you. And if a judge is instigating or

17 he had no idea whether Mr. Carlsson had done anything

17 initiating a prosecution of a party before him,

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13 reading the transcript, he determined that it appeared

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Page 28

I order for the purposes of gaining evidence of a crime.

3 transcript of Mr. Carlsson's cross-examination

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I the beginning to the end, frustration that occurred

Page 27
I

18 improper. In fact, there was virtually no doubt that

18 arguably it could violate Canon 3. That's the

19 there had been a violation, a failure to disclose. It

19 discussion in Rothman.

20 was undisputed that the Carlssons owned the property

20

21 with Mr. Minkoff; that Mr. Minkoff was a State

21 judge is in a situation where he or she is the only

There seems to be some consensus that if a

22 contractor, and Mr. Carlsson freely admitted in his

22 person who knows this information, they should

23 testimony that he hadn't disclosed. He hadn't

23 probably disclose it to the correct authority. And

24 disclosed the property or his relationship because he

24 that was the situation in that older CJP case. That

25 didn't think he had to.

25 was something the judge learned in confidence in

Page 7

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CJP 185 Oral Argument

Page 2 9

Page 31

2 out in a public courtroom, a courtroom full of people.

2 motion, the attorneys, they can.

3 The bailiff is there; these are law enforcement

4 officers. There are parties, litigants. A lot of

4 a problem for him, after hearing that testimony, to

5 other people could have reported this.

5 say, "I'm not sure I heard what I thought I heard;

SPECIAL M ASTER CORNELL: Okay. So you've

7 educated me.

SPECIAL MASTER ANDLER: So would it have been

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6 give me a partial transcript," and then upon reviewing

7 it, reporting it to the FPPC? Would that have been

M R . BLUM: Sorry.

8 misconduct?

SPECIAL MASTER CORNELL: Now let me take you

M R . BLUM: Well, I have a l ittle issue with

1 0 back to the point where he learns that there may be a

I 0 getting a transcript because I don't think that was

I I necessary. l f he thinks he heard a crime, he can just

12 relay that to the FPPC without getting the document.

I I potential conflict, and that point appears to have

12 occurred in the cross-examination of Mr. Carlsson by
13 Ms. Keeley. I'm taking you back to that point.

13

14

MR. BLUM: Right.

14 transcript the best evidence of the words spoken that

15

SPECIAL M A STER CORNELL: At that point, what

15 formulate the potential crime? Getting a transcript

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SPECIAL MASTER DE BELLEFEUILLE: I sn't the

16 could Judge McBrien have done without violating the

16 isn't investigating, is it? It's just getting the

17 canons?

17 verbatim record.

18

M R. BLUM: Well, he wouldn't have to do

19 anything.

18

MR. BLUM: Like 1 said, this is a gray area.

19 I think it's debatable. I think it may cross the

20

SPECIAL MASTER CORNELL: I didn't ask that.

21

M R. BLUM: I know. I'm prefacing my answer.

21

22

I think he could have reported that to the

22 suggesting that obtaining the transcript was

20 line.

SPECIAL MASTER DE BELLEFEUILLE: But are you

23 FPPC, not to the guy's employer, should not have

23 conducting an investigation? Is that what I heard you

24 obtained evidence, not crossed over into

24 say?

25 investigating. He could report it to FPPC if he

25

MR. BLUM: Under these circumstances, I think

Page 30

1 thinks no one else is going to report it. But then he

2 has to disclose what he's done and why.
3

SPECIAL MASTER CORNELL: Well, even if he

4 and there was extensive testimony about what the

5 relationship was and ownership in the property. I

6 have committed misconduct by reporting it. Isn't that

6 think it was crystal clear that this wasn't reported.

7 All he has to do is relay that to the FPPC.

MR. BLUM: I don't think we would have

Ju

9 considered it misconduct if he had done what I

I 0 described.
11

SPECIAL MASTER CORNELL: Right at the

12 beginning as opposed to what happened after that,

13 which then gets into the investigation part?

MR. BLUM: Right. And the timing is an

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14

SPECIAL MASTER D E BELLEFEUILLE: In the

9 judge's own words? In other words, don't get the

10 transcript, which reveals what Mr. Carlsson did on the

I I forrn, but write a letter or put it in the judge's own

I 2 words? Or summarize it to the right agency, the FPPC,

13 instead of the employer? Isn't the transcript the
14 best evidence of the crime, if one was committed?

15 issue. I mean, it's going to be case by case. I f

15

16 he's learning there's about t o be a n assassination, he

16 but it's not for the judge to provide evidence of the

17 better step on it right away. Now, this one he

I 7 crime. It's for the judge to report that there may

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2 about what had happened. Mr. Carlsson wasn't beating

3 around the bush. H e said, "I didn't disclose this,"

4 thinks somebody else could report it, there is case

Page 32

I it probably was, because I think there was no doubt

5 law indicating a judge should not be considered to

7 correct?

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I did. Make it above board so if they want to make a

I chambers. That's not the situation here. This was

18 doesn't report to anybody for six months. But there

M R . BLUM: It is good evidence of the crime,

I 8 have been a violation.

19 was no compelling need to do it right then, as you're

19

20 describing. I don't think he would have to do it

20 words, you're arguing he should have summarized it in

2 1 right then in the middle of trial. I think that it

21 a letter rather than providing a transcript?

SPECIAL MASTER DE BELLEFEUILLE: So, in other

22 would behoove him to wait at least until he's made his

22

23 decision. But I think he could report it to the FPPC,

23 the phone. All he had to do was say, "There may be a

MR. BLUM: Well, he still summarized it on

24 very simply, matter of factly, not taking sides, not

24 violation here. a failure to report; you may want to

25 providing evidence, and then put on the record what he

25 look at these transcripts."

Page 8

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CJP 1 85 Oral Argument

Page 33

Page 35
I question the attorneys might reasonably entertain a

2 called the right person, not general counsel for

2 doubt that he could be fair. So at a minimum, this is

3 Mr. Carlsson's employer -- i f he called the right

3 prejudicial misconduct.

4 person and said, "You need to look into this," that

5 would have been okay?

5 got three prongs to this particular allegation of

M R. BLUM: 1 think that would have been okay,

SPECIAL MA STER ANDLER: So you've basically

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7 and then come back and put that on the record, what he

6 misconduct. You've got obtaining the transcript,

7 making the phone call, and failing to disclose. Does

8 it stand or fall based on whether you've established
9 all three acts were violations of the canon

10

M R. BLUM : I believe the way he handled this

8 had done.
9

SPECJAL MASTER DE BELLEFEUILLE : Okay.

10 independently, or is any one of those sufficient for

II would appear, to an objective observer, to lower

I I us to find a violation?

12 public esteem for the judiciary, the whole process of

12

13 sending it to the employer and all that. Sending it

13 least, just getting the transcript. As we discussed,

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MR. BLUM: The first one i s probably the

14 to the employer, which we briefly mentioned here, it

14 maybe that's borderline. The other two, I think, are

15 looks vindictive. I t looks like it's -- first of all,

15 adequate by themselves. And I would add a fourth

16 it's the wrong person to send it-- the wrong agency

16 prong: Sending it to the employer.

17 to send it to. But it looks like he's trying to get

17

18 Mr. Carlsson fired or in trouble at work.

18 transcript here, we've been talking about in the first

19

19 instance, before the pursuit of the Form 700 and

If you're going to report a crime, you don't

SPECIAL MASTER CORNELL: Well, getting the

20 just send evidence of the crime to the employer

20 continued pursuit of the transcript after the filing

21 because you happen to know somebody who works there.

21 of new motions, doesn't all o f that come into play?

22 That's why they chose that. You send it to the

22

M R . BLUM: Certainly.

23 enforcement agency.

23

The fourth allegation is that Judge M c B rien

24

24 was impatient and di scourteous with Sharon Huddle. In

Part of the third allegation is about failure

25 to disclose. And you're familiar with the rules of

25 making that detennination, the views of the actual

Page 34

I disclosure, I'm sure. But under these standards, once

2 misconduct under the objective observer standard. So

3 determines that it has evidence of a crime and then

3 what did the actual observers say? Sharon Huddle said

4 sends it to the employer, he needs to disclose this.

4 that the judge was very impatient with her.

5 He needs to disclose what he's done. Put it on the

6 record, explain why. You can state, " I haven't formed

6 apologize. I want to go back to the last one for a

SPECIAL MASTER CORNELL: Excuse me. I

7 an opinion; I think I can be fair," whatever, and let

7 minute. If I heard you correctly, you said you

8 the attorneys decide if they need to make a motion.

8 thought the actions that we have been describing for

SPECIAL MASTER CORNELL: You don't believe

Ju

9
I I

MR . BLUM: I think it is.

12 made a decision.

I think he had

I think --

SPECIAL MASTER CORNELL: Let's back up. In

13

9 the last few minutes rise to a level of conduct

10 prejudicial as opposed to intentional m isconduct or

II willful misconduct. I s that your position?
12

MR. BLUM: We've argued that it is, at a

13 minimum, prejudicial misconduct. l think it depends

14 on some of your factual findings. For example, if you
15 found that he did send them to the employer for a

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14 the abstract, it's not a disqualifying event in and of

15 itself?
16

MR. BLUM : Well, it's not alleged that way in

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17 the Notice, so I've only argued fai lure to disclose

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Page 36

I observers are sufficient to establish prejudicial

2 he starts obtaining the transcript, reads it,

I 0 it's a disqualifying event in and of itself?

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SPECJAL MASTER DE BELLEFEU1LLE: So if he

16 vindictive purpose, that's obviously bad faith and

17 willful misconduct.

18 rather than failure to recuse. The notice only says

18

19 fai lure to disclose.

19 two other judges plays into that determination,

20

20 wouldn't you agree?

SPECIAL MASTER CORNELL: So, in other words,

SPECIAL MASTER CORNELL: His conferring with

21 we should deal with what's in front of us?

21

MR. BLUM: l don't-

22

22

SPECIAL MASTER CORNELL: I'm not saying it's

M R . BLUM : Well, I think we have to stick to

23 what's charged.
24

Anyway, certainly once he's done all those

25 steps -- he's taken all those steps, there's no

23 determinative necessarily, but it certainly plays into

24 it, doesn't it?
25

MR. BLUM: Well, it has an affect. The judge

Page 9

(Pages 33-36)

CJP 1 8 5 Oral Argument

Page 3 7
1 is doing something here that I think is very unusual

2 with contempt, and he would barely let her take breaks

SPECIAL MASTER CORNELL: You're very fami l iar

3 to go to the bathroom.

4 with Oberholzer who said that seeking an opinion from

5 the CJA i s essentially insulating you from a bad faith

5 Referring to law school as he did could reasonably be

6 allegation.

6 interpreted as demeaning. It certainly was

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The law school comment was discourteous.

MR. BLUM : That's what I was going to say.

7 interpreted that way by Ms. Huddle. She described the

SPECIAL MASTER CORNELL: Would that be akin

8 judge's tone as like a parent scolding a child. She

9 to what occurred here?

9 said she fel t belittled in front of her c l i ent.

BLUM: Well, talking with a couple of

10

MR.

10

The judge's response i s that he didn't mean

11 or didn't intend to be discourteous. I think the

12 transcript, I don't think is the same level.

12 evidence shows that he probably did intend to be

13 discourteous. But either way, his intention is not a

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SPECIAL MASTER CORNELL: I f your two friends

1 I your friends down the hallway about where to send the

13

14 down the hal lway are justices, isn't that a little bit

14 significant factor in assessing whether prejudicial

15 different than talking to two staff people?

15 misconduct occurred. It's how i t appears to an

MR . BLUM : Sure, sure. I don't mean it's

16

16 objective observer, not what he meant. And remember

17 like talking to the people on the street or something.

17 in context, this incident occurred shortly after he

18 But he should have consulted with CJA. There's no

18 threatened her with contempt, just a few pages later

1 9 question he should have done that. This was a rare

1 9 in the transcript. And I think his attitude towards

20 and unusual and touchy thing he was doing, reporting a

20 her is stil l showing.

21 crime against a party in front of him. He needs to be

21

22 very careful about what he says and who he said it to.

22 discuss because i t goes to the judge's credibility.

SPECIAL MASTER ANDLER: Does the failure to

23

There's one other matter I would l ike to

23 Judge McBrien testified about his prior admonishment.

24 consult CJA make i t prejudicial misconduct or willful

24 He testified that it involved one limb from one tree.

25 misconduct?

25 He said that a number of times. He said that he was

Page 38

MR. BLUM: I wouldn't argue that point, no.

SPECIAL MASTER ANDLER: But you think he

3 should have disclosed?

4
5 it's

2 what actually happened.

You can see from Exhibit 45, the court

factor in looking at how the objective observer

5 Exhibit 46, his sworn statement, he admitted that he

7 it prejudicial misconduct or w i ll fu l .

Actual observers, on the fourth allegation.

Ju

9 Sharon Huddle says the judge was ve1y impatient with

6 was aware that other trees had been cut. He describes

7 seeing at least two branches fal l . He said he knew

8 that the search warrant refle cted that five mature oak
9 trees and three smaller ones were cut, and he said he

10 her. Ms. Keeley said that the judge was somewhat

10 could see other branches lying on the ground. So why

11 impatient with Huddle. She didn't see it as negative,

11 did he testify at our hearing that it involved one

12 limb on one tree? Exhibit P is his attempt to explain

13 neutral third party. She's not friends with any of

13 that. He says that what he meant was he only saw one

ia

12 but she admitted he showed impatience. Robbi Joy is a

14 thcs

people. She's been a court reporter for a long

14 limb fal l to the ground. So instead of telling us

15 what actually happened, now we're hearing that what he

16 courtrooms. She testified that the judge was

16 was trying to tell us is what he saw with his own

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15 time, and she has seen a lot of what takes place in

17 demeaning to Ms. Huddle, treated her with disdain and

17 eyes.

18 displayed i rritation towards her throughout the tri al,

18

1 9 and she never saw Ms. Huddle do anything to justify

19 running, but he was inside most of the time and only

if

al

1 just telling u s what actuall y happened. But i t wasn't

4 documents, that that's not what happened. And in

Page 4 0

MR. BLUM: I think he should have. I think

6 m ght view it. But I don't think it by itself makes

39

or
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2 for a judge. Reporting a crime. You guys know -3

Page
1 curtailed her presentation o f evidence, threatened her

Sure, he was at home; he heard the chain saw

20 that conduct. Even Judge McBrien admitted that some

20 saw one branch fal l . Wel l , first of all, what

21 of his comments could make it appear that he was

21 difference would that make? If you hire someone to

22 badgering Ms. Huddle in an inappropriate manner.

22 cut trees that should not be cut, you're responsible

Now, in addition to what these actual

23 for all that are cut, not just the one you watched

24 observers said, the record shows that he repeatedly

24 fal l to the ground. But more i mportantly, is that

25 threatened a mistrial from early on in the trial,

25 what he testified to at our hearing? Was he saying,

23

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( Page s 3 7 -4 0 )

CJP 1 85 Oral Argument

Page 4 1

Page 4 3
SPECIAL MASTER ANDLER: Thank you.

2 saw one fall"? Is that what he said? Or did he

SPECIAL MASTER DE BELLEFEUILLE: So, what is

4 limb? Did he qualify his testimony like that? No, he

M R. BLU M : Whoa.

5 didn't.

SPECIAL MASTER DE BELLEFEUILLE: Well, it's

What he said was, "It's all been blown out of

6 an issue here. What is it?

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3 testify that somehow he only feels responsible for one

3 due process?

M R . BLUM: It's a combination of things.

7 proportion by the media. I'm not Paul Bunyan. I t

8 involved only one limb from one tree . " He w a s very,

8 It's a whole bundle of things. In terms of putting on

9 your case, it's a right to have a full and fair

9 very clear about that fact. But it's simply not true,
1 0 and he knew it. When I asked h i m if he had been

I 0 hearing, a right to have all relevant, material

1 1 charged $20,000 for one branch, he said "correct."

I I evidence introduced and considered by the judge.

12 There's a lot of other things that due process are as

1 3 branches. At our hearing, he also claimed that the

1 3 well, but it may go beyond what we need here.

14 limb was cut for fire safety and that improving the

14

SPECIAL MASTER D E BELLEFEUILLE: Thank you.

15 view was just a side benefit. But in his sworn

15

SPECIAL MASTER CORNELL: Okay. Thank you.

16 statement at Page 66, he said it was cut to improve

1 6 We'll be in recess for 1 0 minutes.

1 7 the view. H i s testimony at our hearing about his

17

(Recess taken.)

1 8 prior incident was misleading, and he knew it. He

18

SPECIAL MASTER CORNELL: Mr. Murphy, you may

19 knew that a lot more than one limb had been removed.

19 begin.

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12 But it's not correct. The charge was for many

To conclude, obviously we're not bound by

20

21 what the Court o f Appeal did in this case. But if

21

22 anything, the facts before us are worse than what are

22

23 in that opinion. The Appellate Court's decision, for

23

24 example, did not include the fact that the E P O took

24 after I conclude a trial or after I've concluded an

25 less .than two minutes, that he just walked away

25 argument, but I think I came up with a pretty good one

20

MR. MURPHY: Thank you, Your Honor.

---oOo---

ORAL ARGUMENT ON BEHALF OF RESPONDENT

MR. MURPHY: I usually have my best thoughts

Page 4 2

I this morni ng.

2 that he just left the parties sitting there not

3 knowing what was going on. No reasonable judge would

3 question, I think, for the Special Masters to resolve

4 have behaved this way. And now he wants to blame the

4 is: Is it a denial of due process to limit by time

5 attorney, but the m isconduct is his.

5 the parties' abil ity to present evidence? And I

What is this case really all about? The

6 submit that under the circumstances of this case, the

Thank you.

SPECIAL MASTER CORNELL: Any questions?

7 answer is it is not a denial of due process.

SPEC I AL M A STER DE BELLEFEUILLE: (Shakes

Ju

10

S PECIA L MASTER ANDLER: With regard to the

SPECIAL MASTER ANDLER: So the Appellate

9 Court was wrong?

10

MR. MURPHY : I think the Appellate Court was

II wrong. And let me explain why factually.

12 bit about the extent we should consider the content of

12

1 3 that decision as opposed to just the outcome. Counsel

13 lawyers by a number of tribunals with respect to what

I I appellate decision, I would like you to talk a little

There are limitations that are imposed on

14 evidence or what arguments may be advanced. For

1 5 example, the Commission on Judicial Performance in

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14 for the judge has argued that it's hearsay and we

15 should not consider -- in essence, we should not

16 consider the content of i t .

M R. BLU M : Well, the findings of fact in the

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17

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Page 4 4

I without even checking back into the courtroom, and

9 head . )

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1 "Yes, I know there were many branches cut, but I only

16 Policy Declaration 2 . 1 states: Arguments -- this is

1 7 in connection with a Notice o f l ntended Public

1 8 Court o f Appeal decision are not what you have here.

1 8 Admonishment when a judge and/or counsel request an

19 You make your own findings of fact based on what the

19 opportunity to be heard. Quote: Argument shall be

20 evidence is before you, of course. The law in there,

20 limited to oral presentation not the exceed 20

2 1 the principles of law, are controlling law in the

2 1 minutes. Rule of Court 8.256(c)2 limits oral argument

22 ar ea . What is due process violation? What are

22 in the Court of Appeals to 30 m inutes pe r side. Rule

23 parties entitled to? What obligations does the judge

23 8.524(e) limits oral argument in the Supreme Court to

24 have to protect those rights? Those are very

24 30 minutes per side.

25 i mportant.

25

I know it's not part of the record in this

Page 1 1

(Pages 4 1- 4 4 )

CJP 1 8 5 Ora l Argument

Page 4 5

Page 4 7

I matter, but I have personally been involved in at

2 question that I asked earlier: Does it matter whether

3 it's a criminal case, a civil case, a family law case
4 or another type of case in terms of whether the j udge

5 Chalfant, where our time was limited. It was limited

5 has an obligation to step in and actively do something

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3 Judge Olson, one i n San Di ego before Judge Vincent

4 DiFiglia, and one i n Los Angeles in front of James
6 t o the presentation of evidence, and the Court made

6 to ensure a full and fair hearing?

7 sure that we complied with its order relative to the

8 amount of time you had to present your case.

8 to make sure that a full and fair hearing is held

SPE C I A L MASTER COR NELL: Mr. Murphy, I don't

MR . MURPHY: I think it's up to the lawyers

9 within the time limitations imposed by the C ourt. And

I 0 think anybody is disputing the authority to do what

10 if the C ourt has imposed a time limi tation of two

I I days, based on the representations made by counsel,

12 it's counsel's responsibility to do that. And

I I you're describing. If you want to go one step h i gher,

12 the State Supreme C ourt limits it to 30 minutes. But

13 Judge McBrien pointed that out: " I t's not my

14 the argument, I presume, is there could be a due

14 responsibility as a j udge to estimate the length of

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1 3 I think the method is what's in question here, in that

15 process violation i f the method is abusive.

15 the trial; that's the responsibility of counsel . "

16

16

M R . MURPHY: Well, it appeared to me as

SPEC I A L MASTER ANDLER : Would the C ourt have

17 though Mr. Blum was criticizing the fact that

17 the obligation to do that in a criminal case?

1 8 Judge McBrien did not go out of h i s way to extend more

18

19 time to the parties to complete the evidence.

19 know more facts to be able to address the

20

20 hypothetical. But it would depend on the

Well, the parties themselves, through

MR . MURPHY: Well, I guess

I would have to

21 counsel, were the ones who estimated the time of two

2 1 circumstances. Here, as Mr. Blum says, it's kind of a

22 days. And if you take a look at the record, they were

22 garden-variety dissolution case without too much

23 given 12 hours and 27 m i nutes of trial time. Now, i f

23 complexity. Why it could not h ave been completed

24 you start at 9:00 and g o to noon, start a t I : 3 0 and g o

24 within two days is beyond me. Mr. Blum said that they

2 5 to 4:30 and break for 15 minutes i n t h e morning and I S

25 needed more than two days. There wasn't any evidence

Page 4 6

I they needed more than two days other than Sharon

2 hours of testimony. Two days of five and a half hours

2 Huddle saying that she hadn't completed h er case. Why

3 of testimony would be I I hours. They were given an

3 hadn't she completed her case? They were given a week

4 hour and a half over what I would characterize as a

4 between the second day of trial and the third day of

5 normal court day for a hard-working j udge. So it

5 trial to refine what they needed to do. And they -6 Ms. Huddle never requested any additional time. Even

6 was --

SPEC I A L MA STER CORNELL: What do you think is

8 use the bathroom, knowing at 4 :00 -- and I kept asking

9 her this question during the hearing, "You knew at

Ju

8 the significance of Judge McBrien having handled -- by

I0 and that this is the only one that ended in this

I 0 that point i n time you were not going to complete i t

I I fashion?

I I b y 4:30" -- she didn't come back in and ask for

M R . MU RPH Y : Well, the significance is that

I 2 additional time.

13

14 told them repeatedly that they needed to conclude on

1 4 let's see if I can articulate this. Judge McBrien's

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13 he adhered to the time estimate by the parties and had

SPEC I A L MASTER CORNELL: Well, Mr. Murphy --

15 time. H e told them not only on the first day, and not

15 actions should be governed by the canons, shouldn't

16 only on the second day, but on the third day. And the

16 they, and not by the conduct of the lawyers?

17 parties knew all along that they were given two full

17

MR . MU RPHY: Yes.

18 court days and, in fact, were given more than two full

18

SPEC I A L MASTER CORNELL: Okay. So

19 court days. So can he be disciplined -- or should he

1 9 hypothetically, you're in the middle of a j ury trial .

20 be disciplined for adhering to a time limi tation? I

20 You've exceeded your time, and the judge says, "Trial

21 say no. And it's up to -- I'm not criticizing Sharon

2 1 over" and walks off with a j ury in the box and you

22 Huddle; I'm not criticizing C h arlotte Keeley. But

22 sitting and waiting to ask a question of a witness.

23 it's up to the lawyers to be able to fashion their

23 Do you think that's a proper thing for a judge to do?

24 case to make the presentation to the C ourt within the

24

25 time allowed.

25 know more i nformation. We're talking about a j ury

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7 knowing at 4:00, when she asked to take a recess to

9 his estimate, and I don't dispute it -- 40,000 trials,

12

Page 4 8

I minutes i n the afternoon, that's only fi v e and a half

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SPEC IAL MASTER ANDLER : I'll ask you the same

2 least three trials. One here in federal court before

MR . MU RPHY: Well, again, I would have to

P age 1 2

( Pages 4 5 - 4 8 )

CJP 1 8 5 Oral Argument

Page 4 9

Page 5 1
I that occurs. Some o f those situations are governed at

2 I've tried cases where my time was limited.

2 least by a local rule, if not something stronger than

SPECIAL MASTER CORNELL: I would agree that

4 you can have them limited. I'm saying that's not the

3 a local rule. In this particular instance, there was

4 not, at that point, a local rule that said the

5 consequence of exceeding your time limit could be a

6 mistrial. So what was the -- was it an inherent

So my hypothetical to you is: Is it

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5 issue. It's not the authority to limit it; it's the

6 method.
7

7 authority, or was there something else?

8 appropriate for a judge, in your case -- you're in a

9 jury trial, you're examining your witness in front of

9 the Court to control the orderly administration of

-- to get up and walk

off, "time is up" and

I 0 justice in matters coming before it. And if the time

I I limitation is

MR. MURPHY: I think it would be within the

trial

13 didn't present i t -- was two days adequate to present

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1 3 sound discretion of the Court to declare the

- I guess we have to step back and

1 2 say -- this wasn't presented, and the Commission

12

MR. MURPHY: It's the i nherent authority of

I 0 the jury

I I walk off the bench?

14 over, that "You have now exceeded your time

14 this case for hearing? I don't know whether it was or

1 5 limitation; I'm retiring for the day; evidence i s

15 not, but that's what the parties said it would take to

1 6 over; we're going t o have oral argument tomorrow

16 present the case. It appears to me that this case

1 7 morning."

1 7 could have and should have been compl eted in less than

18

SPECIAL MASTER DE BELLEFEUILLE: But the case

I 8 two days, but it wasn't.

Now, if there is a denial of due process

1 9 wouldn't be over then, because oral argument would

19

20 still take place in front of a jury. Here we had no

20 because the judge did not allow the parties to go on

21 oral argument; there was no argument.

2 1 indefinitely, because we don't know how long

22

22 M s . Huddle needed to take to complete her case, the

MR. MURPHY: Well, that's true. That's why I

23 question is if you terminate the trial at the

23 have to know more facts to be able to respond to that.

24 But oral argument is not a right in a family law case,

24 expiration of two days, regardless of whether there's

25 and I provided that authority to the Court.

25 additional evidence to present or not, is that a

Page 50

So if the judge does not have to take

2 argument and is only taking evidence to make a

I denial of due process? A n d under the c ircumstances

2 here, it cannot be. It was the parties' estimate of

3 d ecision , there would be no prohibition under the

3 two days. They didn't complete the trial. So at the

4 end of the second day, does the judge have the right

5 minute and the case is over. I don't care what

5 to say, "Enough. I'm not going to take any more

6 additional evidence you have. You estimated two days;

6 evidence; I'm going to make the decision based on what

7 I gave you two days. I gave you more than two days.

7 has been presented during your estimated time length,"

8 I don't think there was any prohibition under the law

9 your ca se within that time period, too bad." I think

9 for the judge to do that.

Ju

8 If you weren't able to complete the presentation of

II

And i n this particular instance, court

10

So it really comes down to, all right, if he

I I had just said those magic words at 4:30 as opposed to

1 2 taking the EPO call at 4:29, would that have made a

1 3 why I come back to this issue of due process. I f

1 3 difference in the Commission's mind? Apparently i t

1 4 Judge McBrien h a d waited a n additional mi nute a n d then

1 4 would have. So we're talking about one minute. And

15 said, "Okay, it's 4:30. I've told you it was going to

15 how was due process denied i n that one minute of time?

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1 2 adjourned at 4:29. Evidence was over at 4:29. That's

1 6 be over at 4:30; it's now over at 4:30. I'm off the

16

17 bench," how would that have been any d ifferent? And I

I 7 misstating it. Mr. Blum's position was that if he had

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Page 5 2

4 canons to say, "All right , at 4:29, you have one more

I 0 a judge would b e within his or her right to do that.

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I trial; we're talking about a jury being impaneled.

1 8 think the judge, under that circumstance, would have

1 9 the absolute right to terminate the trial at 4:30.

20

SPECIAL M A STER ANDLER: What gives the judge

SPECIAL MASTER CORNELL: Well, that's

1 8 come back out on the bench and made inquiry, made a

1 9 decision and took it under submission, that would be a
20 different thing. That's far different than coming out

2 I that right? You've given us examples of other

2 1 and saying "Trial is over" at 4:29.

22 situations where timed trials or the equivalent of

22

23 timed trials are considered to be appropriate under

23 of due process. That's what the Commission has been

MR. MURPHY: But we're talking about a denial

24 the law. In the federal system, you've indicated that

24 arguing. And how i s due process denied if the judge

25 that occurs; under other situations, you've indicated

25 had the right to terminate at 4:30 and terminated

Page 1 3

( Page s 4 9 - 5 2 )

CJP 1 8 5 Ora l Argument

Page 5 3

Page 5 5
I that i s because o f the l i s pendens. I f the property

2 were ordered sold, which Judge McBrien actually did

3 what Mr. Blum was talking about. I submit that, if

3 order, that lis pendens would then prevent the

4 anything, that perhaps it was not prudent for the

4 disbursement of funds pending resolution of the l i s

5 Court to do that, and perhaps it didn't appear to the

5 pendens. That's w h y Ms. Keeley did not want o r would

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2 conduct -- that's what he was talking about. That's

6 public to be the correct way of doing it, but it

6 not stipulate just to have that property sold, because

7 wasn't bad faith. I t wasn't a denial of due process.

7 this lis pendens, this Mayo issue, was still out

SPECIAL MA STER CORNELL: Would you agree that

10

8 there.
9

MR. MURPHY: I think it would be closer to

SPECIAL MASTER DE BELLEFEUI LLE: Is her

9 i t was conduct prejudicial then?

I 0 strategy decision one of the reasons that the trial

I I took longer than she had estimated? That was an

12 start with the premise that the --

1 2 unexpected position that Ms. Huddle found herself i n .

14 to find due process violation to get to willful

1 5 misconduct?
16

1 3 Ms. Huddle - - let's face it, she wasn't a n i n sider.

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SPECIAL MASTER CORNELL: Do you think we have

I I that than -- certainly it is not bad faith. If we

13

14 She wasn't a pro tern. She didn't belong to the local

1 5 Bar. She didn't have her certi fication. You spent a

M R . MURPHY: U nder the bad faith standard, I

1 6 great deal of time in your closing brief addressing

1 7 believe you do, willful misconduct. And that's what

1 7 her lack of qualifications. She was a little less

1 8 they're alleging, that this was willful misconduct; he

1 8 prepared and Jess organized than her opponent but,

1 9 denied the parties their due process rights.

1 9 nonetheless, doing the best that she could to

20

20 represent her client and counter the strategies that

SPECIAL MASTER ANDLER: So are you conceding

2 1 that it was conduct prejudicial for the trial to end

21 were set forth by Ms. Keeley, which was to do

22 in the way it did?

22 something that the judge had never seen before,

23

MR. MURPHY: Under the circumstances, given

25 amount to that.

23 forcing one of the parties to retain a piece of

24 property. A lot of the evidence had to concentrate on

24 the appellate decision, I think that it would probably

25 that unique issue.

Page 5 4

One other issue that I wanted to address, and

2 it related to Mr. B lum's comment that the trial

2 time the at-issue memorandum was filed in December of

3 2005. And at that point in time, valuation of the

4 properties was an issue, and the parties had expert

5 wanted her husband, Mr. Carlsson, to have that

5 witnesses. So at the time they estimated the length

6 property and give an equalizing payment and that

6 of trial at two days, they knew valuation was an

7 caused the case to last more than two days. That's

7 issue. It wasn't a surprise. It wasn't like they

Ju

Remember, the reason why that 24th Street

Page 56

MR. M U RP H Y : Well, it wasn't unique at the

4 not want to have the 24th Street property and she

8 brought in these expert witnesses a day before trial

9 to come in and testify, "Oh, l took a look at the

I 0 property became an issue with respect to valuation was

1 0 property yesterday, and this is my opinion of value."

I I because Mr. M ayo had filed a lis pendens against the

1 1 That was always an issue. That was present and joined

12 at the time the at-issue memorandum was filed in

13 Carlssons. And if that property were sold, like

1 3 December 2005. When they estimated a two-day trial,

14 Mr. Carlsson wanted, that lis pendens would hold up

1 4 that was included, the valuation of those properties.

15 the disbursement of any funds. So the reason why

15

16 Ms. Keeley was proceeding with a valuation for that

1 6 as I'm fond of saying as a trial judge, Murphy's Law

17 property for an equalizing payment was because it

1 7 often comes into play in trial proceedings. It always

18 would avoid the whole lis pendens issue.

1 8 seems to come into play in courtroom proceedings. The

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12 property when he filed his complaint agai nst the

19

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3 changed because M s . Keeley decided that h e r client did

8 not quite accurate.

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1 instead at 4:29? I f we're talking about bad faith

SPECIAL M A STER CORNELL: H owever, all of that

20 was contrary to the position taken even in the trial

SPECIAL MASTER DE BELLEFEUILLE: Mr. Murphy,

1 9 time that was needed to be spent on the evaluation of

20 this four-plex, it exceeded what was estimated

21 memo, wasn't it?

2 1 partially because one of the experts made a mistake

22

22 mathematically which had to be addressed. Was it not

MR. MURPHY: No, it wasn't. Ms. Keeley, at

23 trial, took the position that 24th Street should be

23 important from all perspectives to conclude Mr. Shah's

24 retained b y Mr. Carlsson; there should be an

24 testimony to find out why he made the mistake? 1

25 equalizing payment made to her. And the reason for

25 mean, that came up. That was Murphy's Law in

Page 14

(Pages 53- 56)

CJP 1 8 5 Oral Argument

Page 5 7

Page 5 9

I operation . Should a judge not be flexible i n terms of

2 accommodating surprises in trial? Should Ms. Huddle

2 interchangeable.

3 and her client be penalized because their witness made

4 a mistake that needed to be addressed?

4 For some reason, I was thinking Keeley.

5

MR. MURPHY: I see Ms. Huddle's name here.

Was Judge McBrien frustrated? lt looks to me

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MR. M URPHY: Well, I think that would

6 probably be true i n any situation where you find out,

6 as though he was frustrated. Was he threatening her

7 during the course of trial, that your evidence wasn't

7 with contempt? No. He was expressing h i s frustration

8 with her and what appears to be a responsive argument

9 old adage that plaintiffs' l awyers use, and that is

9 on her part that was not addressing the issue that he

10 "your case never gets any better than the first day

I 0 had raised.

1 1 the client walks into your office." Things change.

11

12 Tri a l s are dynamic. But because an expert made a

1 2 laughable.

or had to concede an error is not a

13

C< lculation

The comment about law school is almost

SPECIAL MASTER DE BELLEFEUILLE: Mr. Murphy,

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1 3 wrong

8 what it was when you started trial. And there's an

1 4 it's not laughable if you're the lawyer in front of

1 4 reason to extend the trial. That in and of itself

15 That's something that the client and the lawyer have

1 5 the Court who's being addressed down with a law school

16 to take up with the expert witness.

1 6 comment.

But getting back to the point and

17

17

18 Y o ur Honor's question about unexpected results, well,

...

MR. MURPHY: But, Your Honor, I would

1 8 disagree that that is a pejorative comment.

19 that testimony was unexpected; but what was expected

19

20 going into the trial and when the at-issue memorandum

20 isolation, but don't we have to take all of this in

2 1 was fiied was that there would be expert testimony

2 1 context?

SPECIAL MASTER CORN ELL: Well, maybe in

22 with respect to the values of these two properties.

22

23 So that wasn't a surprise.

23 the Court to do here, take that into context. What

Now, Mr. Blum was talking about the second

24

25 claim by the Commission with respect to the threat of

MR. MURPHY: And that's what I'm requesting

24 prompted that statement? It wasn't as though it came

25 out of the blue in response to a question. She was

Page 5 8

1 getting ready to question -- she actually was

2 interpretation of what Judge McBrien said during the

2 questioning Mr. Minkoff and wanted to go back and ask

cou rs e

of the trial. I think what Judge McB rien said

3 him questions about his physical condition, and turned

4 to the Court -- I wasn't there, but it certainly

5 pr sentcd. He made the statement that "Am I to take

5 appears from the transcript that she turned to the

6 that as

6 Court to explain to the Court why she was going to go

no, placing you in the possibility of

7 contempt?" I believe those ':"ere his exact words. He

7 back and ask Mr. Minkoff questions about his medical

8 condition, which related to her statement regarding

9 con "mpt." That statement was made four pages after

9 his medical condition made on March 3 . And

Ju

8 didn't threaten but "placing you in the possibility of

1 0 Judge McBrien said, "Ms. Huddle, you don't have to

1 1 explain your motives; this isn't a law school class.

12 request that the FPPC filing be presented. The second

1 2 Just ask your questions." And you saw his demeanor

13 day of trial was concluded on March 3. That is when

1 3 during the course of his testimony. He's pretty even

10 the discussion began on the morning of M arch -- excuse

I I me, the afternoon of M arch 9, 2006 with respect to the

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14 Judge McBrien requested the document.

I5

A week later, when trial resumed, he made the

14 keeled. He doesn't raise his voice, doesn't lower his

15 voice. He's actually kind of a monotone. I'm not

1 6 request of the document. The parties had a week_

1 6 suggesting that you need to be dynamic, but his

17 Ms. l luddle and Mr. Carlsson had a week to get that

1 7 demeanor was pretty even keeled. It would surprise

18 document. What was the response? "Mr. Carlsson's on

18 me, based on his testimony and the manner of his

1 9 disability and was unable to go down to his place of

1 9 testimony in questions he was asked by Mr. Blum during

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Page 60

I contempt. And I take it that that is his

4 has to h;: considered in the context of what was

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SPECIAL MASTER CORNELL: They aren't

20 employment to get that document," and then there are

20 the course of the hearing, that he would be someone

2 I four pages of discussions with Ms. Keeley.

2 1 who would be yelling or screaming or demeaning. He's

22

SPECIAL MASTER CORNELL: Ms. Huddle.

22 just not that way, and you saw it when he testified.

23

M R . MURPHY: I can read this --

23

24

SPECIAL MASTER CORN ELL: You said Ms. Keeley.

24 transcript matter. I think Your Honor, Justice

25

MR. MURPHY : Excuse me, Ms. Huddle.

25 Cornell, when you asked Mr. Blum the questions about

Finally, I want to address this partial

Page 15

(Pages 5 7 - 6 0 )

CJP 1 8 5 Oral Argument

Page 6 1

Page 6 3
I not advise General Services that, in his opinion, a

2 the consultation with other judges -- what really

2 crime had been committed. He left it up to General

3 happened here? We don't know when that partial

3 Services to conduct their investigation. He wasn't

4 transcript was first requested other than it was

4 conducting an investigation.

5 requested after the trial. It wasn't received by

6 Judge McBrien until September of2006, right around

6 issue of whether it was criminal activity. Let's just

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SPECIAL MASTER ANDLER: Let's leave out the

1 1 . And at that point in time,

7 say he was contacting the employer about something

8 Judge McBrien reviewed the transcript, consulted with

8 that needed to be investigated regarding an employee

9 two other Superior Court judges as to what he should

9 of theirs who was a party in front of him.

7 September

10

MR. MURPHY: Right.

i referred to General Services. And that is exactly

II

SPECIAL MASTER ANDLER: Is that what he was

1 2 what Judge McBrien did. But he didn't report a crime

Mr. l:!lum argued. All he did was contact Linda

13

M R . BLUM: Yes.

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13 like

14 Cabatic, tell

1 2 doing?

I 0 do, an I the r commendation was that it should be

I

her that he had this transcript that she

1 5 should take a look at and sent it off to her. H e

14

SPECIAL MASTER ANDLER: I s that okay?

15

MR. MURPHY: Well, I think merely what he did

1 6 didn't report a crime. A n d h i s testimony was he

1 6 was okay. Once the action was taken by General

1 7 didn't know whether there was an obligation to report

1 7 Services, Judge McBrien then disqualified himself from

1 8 this or not. He wasn't taking a position on that. H e

1 8 any further proceedings in the matter. General

1 9 was leaving that u p t o General Services.

19 Services took action in, I believe it was October.

20

20

SPECIAL MASTER DE BELLEFEUILLE: If he wasn't

22 fired from his position with the government, be then

22 characterize the action as?

MR. MURPHY: He was reporting circumstances

23 recused himself. What you're describing sounds to me

24 like an ex parte communication, which hasn't been

24 that could have been criminal.

25

SPECIAL MASTER DE BELLEFEUILLE: In November,

2 1 when Judge McBrien learned that Mr. Carlsson had been

2 1 reporting a crime, what was he doing? What do you

23

SPECIAL MASTER DE BELLEFEUILLE: What's the

25 anything that we've talked about before.

Page 6 2

MR. MURPHY: He wasn't --

SPECIAL MASTER DE BELLEFEUILLE: If he's not

SPECIAL MASTER DE BELLEFEUILLE: Why, in your

3 reporting a crime, he's talking to someone out o f

4 mind, is there a difference that matters?

5

MR. MURPHY: Because Mr. Blum was arguing to

5 case that he's handling, a pending case. Doesn't that

6 add more difficulty to our scenario? It's an ex parte

7 position on this particular matter. He wasn't taking

7 communication not authorized by the code.

MR MURPHY: Well, given the fac t that that

9 factual circumstances surrounding the testimony that

9 wasn't charged --

Ju

8 a position. All he was doing was reporting the

I 0 was presented. He was not editorializing. He was

10

SPECIAL MASTER D E BELLEFEUILLE: But --

I I merely providing the testimony.

II

MR MURPHY: -- I haven't given it much

12

12 thought.

SPECIAL MASTER ANDLER: He was contacting the

13

14 you're describing sounds like that to me.

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1 3 employer of a party who was, I think, still in a

1 4 proceeding that had not finally concluded before him.

SPECIAL MASTER DE BELLEFEUILLE: But what

15

MR. MURPHY: Right.

15

16

SPECIAL MASTER ANDLER: H e was contacting the

1 6 question?

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1 7 employer to advise of possible criminal activity by

19

MR. MURPHY: I don't have the transcript i n

20 front of me, but l don't believe --

al

4 school about a party, providing evidence in an ongoing

6 the Masters that he was report -- he was taking a

1 8 their employee who was still a party in front of him.

Page 6 4

M R . MURPHY: Well --

l difference?

"---

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I that partial transcript, especially with respect to

21

SPECIAL MASTER ANDLER: I'm saying, isn't

17

SPECIAL MASTER CORNELL: Can you answer the

MR MURPHY: Is it ex parte with respect to

.

1 8 the matters then pending before the Court? I don't

19 think so because it's not really an i ssue. The judge
20 has already decided the case.
21

SPECIAL MASTER DE BELLEFEUILLE: Family law

22 that a fair assessment of what be did?

22 cases are never decided until the chi ldren grow up and

23

23 move away.

MR. MURPHY: Well, whether Judge McBrien

M R. MURPH Y : Unfortunately I know that. But

24 considered it to be criminal or not, I don't think is

24

2 5 in the record. What is in the record is that he did

25 he had ruled on the matter that had been presented to

Page 1 6

( Pages 6 1 - 6 4 )

CJP 1 8 5 Oral Argument

Page 67

Page 6 5
2

March of2006.

1 he frequently -- and my estimation would be m aybe once

SPECIAL MASTER DE BELLEFEUILLE: The case was

3 st i l l

pending.

2 a week -- sees people lying either on the witness

3 stand or under oath in a tax return, which is a

MR . MURPHY: The case is still pending. The

4 felony, and he did not once pursue it and did not once

case is s tiil pending in the Sacramento Coun ty Family

Law Depnrtment . He is still presiding, for the most

6 felonies on one side that he did nothing on, and maybe

part, on that matter. So I guess the question really

7 some conflict of interest on this side in which he

has to be : Is this an ex parte communication wi th

8 pursued i t zealously without disclosure.

5 report it. So we're looking at literally hundreds of

matters that arc then pendi ng before the

SPEC!i\l. MASTER CORNELL: Let's pull back.

15
16

SPECIAL MASTER CORNELL: Let's pull back.

15 and Judge McBrien requested that the document b e

:vents .

of ev ents , which are described in Count

I9 3

whnt that constitutes in terms of misconduct.

c:ncs

20 Bec;.us

23 askcc

t 1ar was

I9

24 the second

M R . MURPHY : And then his testimony was -- he

20 wasn't interrogating Mr. Carlsson on the document or

21 under the disclosures. That was questioning by

without request by lawyers, on a

22 counsel, not b y the Court. The Court merely requested

not pursued by lawyers, and then he

or n t ra ns cri pt ,

SPECIAL M ASTER CORNELL : She started it and

18 then he followed up on it.

we start with him talcing a line of questioning

2 I and fol lo v i ng it,

subjc, :

16 produced.

17

And I want your opinion as to what

I 8 thi.;

25 they

The inquiry was made by, I believe,

14 Ms. Keeley after the door was opened by Ms. Huddle,

You're treating in isolation a final event after a

12 that.
13

SPECiAL MASTER ANDLER: No. Go ahead.

I 7 seric, of

22

II Court's characterization that he zealously pursued

Excuse me:. you had a question.

14

pending before the Court.

12
13

M R . MURPHY: Well, I would disagree with the

10

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I1

Now, you're telling me that conduct is okay?

I 0 Court': And 1 don' t believe that matter was then

to

et
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9 resp ect

23 a document b e produced.

not once but three times, with

and third times coming a month later, and

24

happened to coincide when new motions were filed

And Judge M cBrien testified that the reason

25 he requested the partial transcript was to make sure

Page 68

Page 6 6

I and pendin g i n front of him. S o obviously h e had some

1 he accurately heard what was said by Mr. Carl sson.

2 t i ck le

2 And when he requested that partial transcript,

in h i s brain and said, "Oh, yes, I still

3 h;.w cn't g ttcn that transcript." And then he notifies

3 subsequently there was an order that i ssued in the

4 the ernpl0y.:r with a personal phone call and provides

4 case, so it was matter of public record that the

5 thL transcript. All done without any disclosure. Now

5 partial transcript had been requested. When it was

6 we hav.: an entire course of conduct.

Do you think that that rises to the level

don't believe --

8 my brain -- I don't believe that there was anything

9 pending before the Court at that point in time. So

Ju

M R . M U RPHY: No. And I'll tell you why.

10 the question is --

11 information. They have concerns, and they don't

11

12 disclose that on the record. The disclosure has to be

12 the time he reported it, there was.

SPECIAL MASTER CORNELL: But there

I 3 they had just concluded one.

14

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I 3 made under the canons if an objective person, knowing

14 a ll of the facts, would question whether the judge can

15 of the order?

16

16

SPECIAL MASTER CORNELL: That's why I started

if
o

I 8 continued to cross-examine the witness on an issue

was. At

In September,

MR. MURPH Y : The hearing on the

15 be fair and impartial.

17 with the description that it all started when he

al

6 requested in September of 2 00 1 , I

7 excuse me, September of2006 -- I had September I I on

8 of -- any level of misconduct under the canons?

I 0 Because l think judges every day make requests for

or
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1 him in

enforcement

SPECIAL MASTER CORNELL: Yes.

17

MR. MURPHY: Okay.

18

The question, I think, is whether

I 9 that asked for records that nobody else had ever

1 9 Judge McBrien became embroiled by undertaking the

20 pursued. That was the beginning of this. And he

20 efforts to secure the partial transcript. I think, in

21 fo llowed through on it and then ultimately did the

22 final
23

a ct

th at you're describing. So what you

described to me is the right of a judge to do

2 I and of itself, the answer is he was not embroiled.

22
23

SPECIAL MASTER

ANDLER: Breaking it down into

the steps we talked about earlier, the issue of asking

24 something, and I compare what happened here to

24 for the transcript, you've just addressed; making the

25 Judge McBrien's own testimony that in 40,000 trials,

25 phone call, I think you've given us your perspective

Page 1 7

(Page s 6 5 - 6 8 )

CJP 1 8 5 Oral Argument

Page 6 9
2

MR . MURPHY: I have, Your Honor.

3 after he knew what the net effect of his transmission

SPECIAL MASTER CORNELL: (Gesturing)?

4 of that information was. I s your position that he was

SPECIAL MASTER DE BELLEFEUILLE: No. Thank

5 excused from disclosing because ultimately he

5 you.

6 disqualified?

8 record i n this particular case and try to draw any

9 conclusions one way or the other as to what the judge
10 was thinking. What we do know i s that his testimony

SPECIAL MASTER ANDLER: I think I understand

7 from your briefs that you believe we should not pay

8 any attention to the testimony that was elicited,

9 including the testimony from your client, about the

MR. MURPHY: Well , it's hard to look into the

et
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2 position on why he did not have to disclose until

I 0 prior incident because it's unrelated?

MR. MURPHY: It is unrelated. And the reason

II

1 2 action taken by General Services or the Fair Political

12 Judge McBrien wanted to address that is for the very

I I was h d i dn't know whether there was going to be any

1 3 testimony he gave. He's been vilified in the press.

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13 Practi ce Commission or not.

S P ECIAL MASTER ANDLER: Why i s that

14

15 significant though? We're talking about -- are you

1 4 If you take a look at any comments about this case in

1 5 any of the -- well, The Recorder, for example, has a

1 6 saying the duty to disclose would only be triggered i f

16 picture of Judge McBrien. They call him "Chain Saw

17 h e knew what the results o f this action were going t o

1 7 McBrien." And he wanted to just clear the record as

18 be

as

18 to what really happened. He wasn't out there cutting

opposed to the disclosure that h e had

1 9 down trees. He saw one large branch cut down. And

1 9 transmitted the evidence?

M R . MURPH Y : Well, I think i f his actions

20

20 all of the other branches that were cut may -- some of

2 1 resulted in some process by General Services that was

2 1 them were very old, were cut before he moved to the

22 adverse to Mr. Carlsson, then at that point in time,

22 property. So does he accept what he did? Yes. He's

23 it wmi l d be clear to me that he would have to recuse

23 not challenging the previous admonishment, but he

24 himsel r I don't think just disclosing that would be

24 wants to get rid of this moniker of "Chain Saw

25 suffi c ient. I think under those circumstances, the

25 McBrien" because he's not Paul Bunyan, like he said.

Page 7 0

I judge would probably have to recuse himself, which

2 his testimony regarding the trees that he's been less

3 than forthright in light of the evidence that was

4 position adverse to Mr. Carlsson, based merely on

4 produced to the contrary, what impact do you think

5 providing th is information to General Services, should

5 that should have on our decision?

6 that be di,closed?

SPECIAL M A STER ANDLER: Shouldn't he say, "By

Page 72

SPECIAL MASTER CORNELL: I f we conclude from

3 that poiul in time, before General Services takes a

MR. MURPHY: Well, I don't think that it goes

7 to his credibility at alL It was his perception,

8 the way, this is still pending, and this is what I

8 what he saw, and that's what he was testifYing to. H e

9 did. I

9 was directing activity. The activity that he directed

Ju

don't know what they are going to do, but this

10 is what ] did"?

I 0 with that arborist was that one particular branch.

You've heard a plethora of evidence from

II

NI R MURPHY: Should that have been di sclosed?

11

12

SPECIAL MASTER ANDLER: W a s i t improper for

1 2 various judges, lawyers, Justice Scotland of the Third

MR . BLUM: It certainly is arguable that it

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14

1 3 him not to have done that?

1 5 should have been.
16

SPECIAL MASTER CORNELL: Where does that

if
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17 leave us?

al

2 Judge McBrien did do. So the question is, prior to

or
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I o n that. I'm sti l l not sure that I understand your

Page 7 1
I further questions -- have you concluded your --

1 3 District Court of Appeal, all attesting to Judge

14 McBrien's credibility.
15

SPECIAL MASTER CORNELL: I expect that none

16 of them witnessed his testimony the way we did. Would

1 7 you agree with that?
MR. MURPHY: They did not witness his

18

M R . MURPHY : Pardon me?

18

19

SPECIAL MASTER CORNELL: Where does that

1 9 testimony, no. But they certainly are a witness to

20 leave us?
21

MR. MURPHY: That leaves us with

20 his character.
21

SPECIAL MASTER CORNELL: So besides the

22 Judge McBrien probably being involved in improper

22 credibility issue, what about his entire demeanor and

23 action.

23 purpose for even giving that information? Should that

24

SPECIAL M A STER ANDLER: Thank you.

24 have any impact on the decision?

25

SPECIAL MA STER CORNELL: If there are no

25

MR. MURPHY: To clarify what exactly he had

Page 1 8

(Page s 6 9 - 7 2 )

CJP 1 8 5 Oral Argument

Page 7 3
1 STATE OF CALIFORNIA

2 incident?

SPECIAL MA STER CORNELL: This perception

) SS.

4 about -- the way he presented himself to us during

5 that testimony as defensive and angry and frustrated

5 proceedings in the within-entitled cause occurred at

6 about an issue that was not even before us. Do you

6 the time and place herein named; that the

7 think that should have any bearing on this issue?

7 transcription is a true record of the proceedings as

9 j ustification -- I shouldn't say a justification, but

et
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M R . MURPHY: No. It was an explanation and a

8 reported by me, a duly certified shorthand reporter

9 and a disinterested person, and was thereafter

I hereby certify that the foregoing

l 0 an effort to place on the record what he had

10 transcribed into typewriting by computer.

l l perceived.

II

SPECIAL M ASTER CORNELL: Anything else?

I further certify that I am not interested i n

1 2 the outcome o f the said action, nor connected with,

12

SPECIAL M A STER ANDLER: No. Thank you.

13 nor related to any of the parties in said action, nor

14

SPECIAL M A STER DE BELLEFEUILLE: (Shakes

14 t o their respective counsel.

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13

1 5 head.)

15

16

SPECIAL MASTER CORNELL: Thank you.

1 6 hand

17

M R . MURPHY: Thank you.

17

18

SPECIAL MASTER CORNELL: Do you wish to have

18

IN WITNESS WHEREOF, I have hereunto set my

2009.

---------------------------------

1 9 any rebuttal, Mr. Blum?

19

SANDRA LEHANE, C . S .R . 7372

20

MR. BLUM: No, Your Honor.

20

STATE OF CALIFORNIA

21

SPECIAL MA STER CORNELL: I want t o thank both

21

22

2 2 counsel for excellent presentations, and w e found it

23 very helpful. And this concludes the oral part of

23

24 this matter, and we will be submitting our report.

24

25

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Page 75

I perceived in connection with the tree-cutting

25

Thank you very much for your conduct

Page 74

1 throughout this matter. And you as well,

2 Judge McBrien. And we are now adjourned.

3
4

{Time noted: 1 0 :42 a.m.)

---o Oo---

5
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Page 19

(Pages 7 3- 7 5 )

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Sacramento Family Court News

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3rd DISTRICT COURT of APPEAL

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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)

Ju

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.

al

Privacy Policy

ATTORNEY MISCONDUCT

et
w

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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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

or
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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

Ju

VOLUME

OF

SPECIAL

1,

APRIL

16

18

BEFORE

SACRAMENTO,

15

17

JUDGE

et
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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.

or
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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

et
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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.

Ju

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,

15

18

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relationship was?

14

or
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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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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

Ju

18

ia

years.

19

Q.

Dave Sterling?

20

A.

Dave Sterling.

21

Q.

Now,

or
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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

or
k

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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13

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is employed in the family law departments?

11

or
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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?

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A.

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I believe that -- you know,

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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

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Exhibit Cis?

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if

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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


More

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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

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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

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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

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Kathleen Amos, Kathleen Swalla Amos, SBN 112395, Attorney at Law & Mediator,206 5th

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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
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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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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.

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and WASZNICKY
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EMILY

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(3)

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EMPLOYEE
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(19)

EQUAL PROTECTION
(2)

EUGENE L. BALONON
(1)

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(2)
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(1)
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(4)

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(9)
FAMILY
COURT

Roseville, CA 95678.

COURT

AUDITS
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(2)

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MEDIA COVERAGE

(1)
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(1)

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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
Homepage
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Sacramento County Family
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3rd District Court of Appeal
State Bar of California
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Local & National Family CourtFamily Law Sites & Blogs (may
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ABA Family Law Blawg
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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
RoadDog

Total Pageviews

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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)
CALIFORNIA

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
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CAMILLE HEMMER
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CARLSSON CASE
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(2)
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(4)

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(22)
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SUPPORT
(4)
CHRISTINA

ARCURI
(5)
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VOLKERS
(8)
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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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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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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
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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
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SACRAMENTO
SUPERIOR COURT
(12)

SANCTIONS
(2)
SANTA

CLARA

LAW SCHOOL
(1)
SARAH ANN

STEPHENS
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SATIRE
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SCBA

(22)

SCHWARZENEGGER
(1)
SCOTT
BUCHANAN
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SCOTT
KENDALL
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SCSD
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SEATON
CASE

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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
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SUPERIOR COURT
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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

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THOMAS M. CECIL
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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
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WHISTLEBLOWER
PROTECTION
ACT
(2)

WHISTLEBLOWERS
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WHITE HOUSE
(1)
WOODRUFF
O'HAIR POSNER and
SALINGER
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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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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:

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Court of Appeal
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of Appeal
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Appeal
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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
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divorce attorneys, state auditor California,
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Sacramento family law, judge, James Mize, civil
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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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