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COMMISSION ON JUDICIAL PERFORMANCE
--000--
-- -- -- ------- -- -
INQUIRY CONCERNING
JUDGE PETER J. McBRIEN
CJP NO. 185
-- -- -
oRI-GINAL
---- -- - ----- -- --I
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TRANSCRIPT OF THE
;.~.
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HEARING BEFORE SPECIAL MASTERS
14
SACRAMENTO, CALIFORNIA
15
APRIL 2,
16
VOLUME 2,
PAGES 251
525
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2009
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REPORTED BY:
SANDRA LEHANE
REGISTERED PROFESSIONAL REPORTER
CERTIFIED SHORTHAND REPORTER NO. 7372
155 Orr Road
Alameda, California 94502
(510) 864-9645
25
L - - - - - - - - - - - I N RE CJF NC.
185
4/2/09--------~-----l
251
---000--
JUDGE JAMES MIZE

hav~ng
been
f~rst
duly sworn,
test~f~ed
---000--
SPECIAL MASTER CORNELL:
name.
THE WITNESS:
Please state your full name and spell your last
sir.
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name
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1S
Mr. Murphy,
DIRECT EXAMINATION
13
BY MR. MURPHY:
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15
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Last
M-i z-e.
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Thank you.
you may examine.
Q.
Good afternoon,
Your Honor.
A.
Good afternoon.
Q.
You are the presiding judge of the Sacramento
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County Superior Court?
18
My name is James Mize.
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Please have a seat,
as follows:
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Yes,
I am.
Q.
And could you briefly describe for us your
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educational background?
A.
I graduated from the University of
22
San Francisco
23
with an A.B.
24
University of
25
Graduated from the University of San Francisco with a
excuse me,
in 1968.
University of California
I have an M.S.W.
Califor~ia
at Berkeley,
L - - - - - - - - - - - - - I N RE CJF NO.
from the
also in 1971.
185 - 4 / 2 / 0 9 - - - - - - - - - - - - - l
432
in 1974.
2
3
And did you begin practicing law after
Q.
or
k
J.D.
graduating from the University of San Francisco?
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Well,
I had to pass the Bar first.
But after
A.
I graduated,
started practicing in December-something 1974.
Q.
In what geographical area did you practice?
A.
I've practiced all my career in Sacramento.
Q.
And could you describe for the Special
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I did pass the Bar fortunately and
10
Masters the nature of your law practice while you were
11
in private practice?
12
When I was in private practice,
A.
13
doing everything.
14
And I practiced a little bit of everything from
15
collections work to family law,
16
law,
to a little criminal
constitutional cases.
a couple of
And
Pretty much everything.
then as my 26 year career evolved,
started doing
18
you could do that.
some civil litigation,
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some -
And in 1974,
I started out
more and more family law so that by the end of my
20
practice,
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I was pretty much exclusively in family law.
Q.
And when did you begin to emphasize in family
23
A.
I was always doing some family law.
24
probably did
25
third of my practice was family law.
22
law?
even at the very beginning maybe a
- - - - - - I N RE CJF NO.
185 -
And then pretty
4/2/09-----~---_---J
433
probably 60,
20 years,
occasional odds and ends things.
it was clearly 100 percent family law with
Did you ever become certified as a family law
specialist by the Board of Legal Specialization in the
State of California?
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A.
Yes,
Q.
And when did you become so certified?
A.
Roughly 10 years before I
was a certified specialist.
Q.
Now,
were you a member
- while you were an
13
active member of the Bar,
14
Sacramento County Bar Association?
15
16
Yes,
Q.
Were you a member of the family law section
of the family -
was.
of the Sacramento County Bar
Association?
18
were you a member of the
A.
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went on the bench.
But it could be a couple years in either direction.
12
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A.
Yes,
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Q.
And were you ever on the executive committee
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And maybe after
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Q.
70 percent family law.
or
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maybe midway through those
much
21
was.
of the family law section?
22
A.
No.
23
Q.
During the period of time that you were an
24
active practitioner in family law,
25
before Judge Peter McBrien?

L-------------------------IN RE CJF NO. 185
did you ever appear
4/2/09--------------------~
434
Yes,
I did.
Q.
On what degree of frequency?
A.
I don't know exactly when I
appearingi but since I was doing family law for
basically 26 years before I went on the bench,
have been appearing
went on the family law bench until the time I went on
the bench.
I don't remember exactly when he went on because I
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fore him from the time that he
And so whatever number of years that was.
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first there,
12
and there would have been three family law judges at
13
that time.
14
a third of the cases that I had.
15
probably two times a week on the average.
16
have said that I would have probably been in front of
17
him maybe once every two weeks,
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don't keep track of that.
But at the time when he was
it would have been in the old courthouse,
So I would have appeared before him about

I was in court
So I would
roughly.
In your experience as a lawyer appearing
Q.
before Judge McBrien,
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first started
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did you find him to be fair?
yes.
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A.
Oh,
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Q.
Impartial?
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A.
Yes.
23
Q.
Did he have
24
A.
Yes.
25
Q.
Was he patient?
- was he courteous?
IN RE CJF NO.
.185
4/2/09
435
A.
Yes.
Q.
Was he dignified?
A.
Yes.
Q.
Did you consider Judge McBrien to be an asset
perspective,
California?
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to the family law bench,
at least from your
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while a lawyer practicing in Sacramento,
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A.
Yes,
absolutely.
Q.
During that period of time, while you were a
10
lawyer practicing before Judge McBrien,
11
what benefits,
12
departments?
13
A.
Well,
if any,
15
with that as a PJ
16
go into family law.
17
go there,
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fact that,
as one may know

-
was the
i t ' s difficult to get people to

It's difficult to get judges to
so that there's a tradition in a lot of
counties to have the newest judge, who is excited

about just being a judge period,
and you send him to
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of course,
you have more experience
18
he brought to the family law
the first benefit,
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do you know
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family law because they are willing to do anything.

I think that's a travesty because family law
22
is one of the most difficult areas of the law,
23
most contentious folks in it,
24
most difficult issues.
25
about Judge McBrien,
has the
and it has some of the
So one of the best things
as well as Judge Kobayashi and
L-------------------------IN RE: CJF NO. 185 -
4/2/09----------------------~
436
also exterds to Judge Allman,
go into family law.
stint,
provided not just an incredible continuity but the
ability of predictability from the standpoint of law.
We knew what they were going to be like; we knew how
they were going to respond to things; we knew how much
explanation they needed.
asset,
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And that
as a lawyer,
And it was a tremendous
to know who the judge was going to
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you've got somebody who was just appointed three weeks
12
ago and didn't know anything about being a judge, much
13
less being a family law
or
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When did you become
judge in the year
In May of 2000.
2000.

THE WITNESS:
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I became a
THE WITNESS:
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family law judge.
a judge?
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they actually agreed to stay there.
be as opposed to coming in there and finding out
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And after a one or two-year
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is they were willing to
Thank you.
You're welcome.
BY MR. MURPHY:
Q.
Judge Mize,
while you were a practicing
22
member of the Bar,
23
Judge McBrien in connection with family law related
24
matters?
25
A.
did you ever work with
Like on committees or something?

- - - - - I N RE CJF NO .185
I don't
4/2/09
437
I'm not sure that there were any committees that I
would have been on.
County Bar Association,
have been on those committees.
have been something in the last
years.
judge.
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Justice Cornell asked you when you became a
And you became a judge in 2000?
A.
Yes,
Q.
And after becoming a
I did.
judge, were you
A.
Yes,
Q.
Have you held any offices in that
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in those 10 or 15
am.
association?
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20
Association?
16
18
There very well may
Are you a member of the California Judges
15
17
and I'm not sure that he would
yourself -- withdraw that.
13
14
I was active in the Sacramento
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Q.
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or
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recall because I
I don't recall
A.
Yes.
Q.
After becoming a
I was the president in 2004,

judge,
think.
did you have any
experience in the family law departments?
21
A.
Yes,
did.
Having had the considerable
22
experience in family law as an attorney,
23
first assignment was criminal law.
24
25
court that ln the first year -
spent a year there.
And I
of course my
spent -
so
We do have a policy in our
L - - - - - - - - - - - - - - I N RE CJF NO.
185
now I have a policy

4/2/09 _ _ _ _ _ _ _ _ _ _- l
438
I've instituted too.
few PJs.
not being the calendar court,
assignment being a trial court.
spent my first year as a criminal law trial judge; my
second two years as a family law judge; my next year
as a criminal law trial judge; my next two years as a
family law
Assistant Presiding Judge,
departments,
14
A.
And the two years when I was

doing just criminal law
year and a third now,
as PJ.
do you recall what years those were?
It would have been -
16
then 2004 and 2005.
I was appointed in
So it would have been 2001 through 2002.
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2000.
Q.
Justice
think.
During that period of time,
Okay.
-
And
I almost elevated you,
was
Your Honor.
Was Judge McBrien assigned to a family law
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department?
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A.
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And then the
when you were assigned to the family law
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Now,
Q.
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udge.
last year and a half,
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But the first
And in this case,
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18
if
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period.
cases as well as some assorted civil.
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al
The first assignment not being family law or
10
12
We've carried it on for the last
He was a family law judge in each of
Yes.
those two assignments that I had.
Q.
During that period of time,
did he ever act
as supervising judge in the family law departments?

A.
No.
think he was the supervising judge
' - - - - - - - - - --~--- IN RE CJF NO .
.1 85 - 4 / 2 / 0 9 - - - - - - - - - - - - - - '
439
second time.
Q.
Did Judge McBrien assist you at all ln family
law matters after you were assigned to the family law
department?
A.
next to him.
that
has as a relatively new judge,
My -- I had the good fortune of being right
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I was in 123; he was in 124.
if one knows the kinds of questions that one

you always go to the
nearest one,
11
next door to me,
12
know,
and he was the nearest one.
13
and said,
14
assistance on family law because I
15
being a
judge is obviously very different from being a
16
lawyer,
and there are many things I didn't know about,
17
the procedure,
Ju
"What do I
literally 100 times,
20
assistance,
21
days on the bench.

Q.
23
to you,
24
A.
25
but maybe a thousand times
do on this?"
didn't need any
knew that.
So that there were literally -
19
22
you
But
about what was -- what's the way to do
things.
He was right
so I stuck my head in the door,
I ' l l hyperbolize it,
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And so
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I don't
or
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in my first stint.
when
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if not 200,
that I
would say
asked him for
and he gave me the assistance in my early
Did you consider Judge McBrien to be a mentor

at least with respect to family law?
Well,
considered him to be the expert.
He
was the one that you would go to because he had been

L-------------------------IN RE CJF NO. 185
4/2/09----------------------~
440
there the longest.
know,
the one who had been there the longest and would know
the answer to this.
"Have you ever had a case like this?
handle it?"
that,
this is the way that we've done that,
suggestions that I would have," et cetera,
et
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"Oh,
yeah,
I've had
And he would say,
And how do you
six years ago," whatever,
"and
and here are the

et cetera.
Did you consider him to be an asset for you
11
as a family law judge while you were on the family law
12
bench?
14
Invaluable.
A.
Absolutely.
Q.
And when you were sitting in family law,
the family law departments adhere to the time
16
estimates given for trials?

A.
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20
21
I'm not sure of the question.
Q.
trial,
A.
Okay.
there is a Memorandum to Set;

Yes.
Now,
23
keep it a long cause?

Q.
right?
if i t ' s a short cause,
keep it a short cause?
25
Can you say
When a family law matter is set for
22
24
did
that again?
18
Ju
15
17
if
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Because the questions would be,
two years ago,
Q.
13
al
you
why bother going anywhere else because he was
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And if you needed anything,
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do they
If i t ' s a long cause,
do they
What's the difference between short cause and
long cause
L-------------------------IN RE CJF NO. 185 - 4/2/09--------------
441
Short cause
wai t . . .
THE REPORTER:
(Discussion off the record.)
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BY MR. MURPHY:
Q.
A.
believe that at the time short cause meant
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cause would mean it would be at least two days or
Q.
Okay.
department,
13
Judge?
14
A.
Q.
after the second time I
left
I became the APJ.
And did your duties as the Assistant
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The second
courts?
19
20
you said you became Assistant Presiding
Presiding Judge include supervising the family law
18
After you left the family law
the family law department,
16
17
and a
more.
12
15
ess,
long
that it was going to be one day or
11
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What is the
difference between short cause and long cause?
'7
think the question was:
or
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A.
A.
No,
it did not.
Q.
Did it include overseeing complaints
registered by judges?
22
A.
No,
23
Q.
When did you become the presiding judge?
24
A.
January of 2008.
25
Q.
And what are your duties as
it did not.
~-----------------------IN
RE CJF NO. 185
4/2/09--------------------~
442
in the Sacramento County Superior Court,
Rules of Court?
MR.
THE WITNESS:
Okay.
They are administrative mostly,
but there's a ton of things and no two days are the
same really.
BY MR.
11
MURPHY:
Q.
And as the Presiding Judge of the Sacramento
12
County Superior Court,
13
who serve under you;
14
15
you're familiar with the judges
right?
A.
Yes.
Q.
And at the present time as Presiding Judge,
how would you rate Judge McBrien?
16
A.
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He's one of the judges that you are delighted
to have as a Presiding Judge because you don't hear
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anything.
or
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if
MURPHY:
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we know what those are.
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Why don't you assume
How long do you have?
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A.
besides the
or
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You don't get any complaints.
20
the job done,
21
you're not constantly cleaning up messes.
22
23
Q.
You just get
and you don't -- you don't have to
And do you consider him,
at the present time,
to be an asset to the family law departments?
24
A.
Absolutely.
25
Q.
Do you consider him to be an asset
~----------------------IN
RE CJF NO. 185 -
4/2/09----------------------~
443
A.
Absolutely.
Q.
One last question,
Judge,
It might be two questions,
or
k
Superior Court of Sacramento County
and I ' l l let you
et
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During the
but:
go.
period of time you were a family law practitioner,
what was Judge McBrien's reputation with the
least the family law section of the Sacramento County
Superior Court?
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A.
think
Q.
Excuse me,
A.
Sacramento Bar Association.
think i t ' s pretty consistent with what I
just said.
13
time; everybody knew that he knew family law.
14
Everybody knew that
15
expect from him.
16
predictable.
17
weren't going to expect something outrageous or
Ju
12
unusual.
He was the judge who had been there a long
pretty much what you could
He was consistent.
you
You would get an appropriate ruling.
Whether it was in your favor or not,
was not
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He was
And you knew that if you had him,
18
at
20
necessarily always the case; but at least you would
21
have gotten a ruling that was within the bounds of
22
what you would have expected.
23
24
25
MR.
you,
MURPHY:
I have nothing further.
Thank
Your Honor.
~------------------------IN
RE CJF NO. 185
Mr.
4/2/09--------------------~
444
,-----------------~-----------------
MR.
BLUM:
SPECIAL MASTER ANDLER:
May this
et
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I have a question.
Excuse me.
In your time on the
bench,
have you also participated in training other
judges on how to be family law judges?
things like that?
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THE WITNESS:
10
I'm
sorry.
or
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No questions.
Education and
speak to judges a lot ln
11
family law about the suggestions on how to handle
12
cases in -
13
them some personal experience that assists them.
14
recently,
15
things like that.
if they are family law,
can give
Most
like in doing Statements of Decisions and
Have you been
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so that I
17
involved in education programs where you're talking to

judges and answering their questions about what is and
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is not appropriate behavior on the bench?
or
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THE WITNESS:
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Well,
I've been teaching CJER
21
courses in family law almost since I've been on the
22
bench,
23
2002,
24
I've been the chair of the overview course for the
25
last three or four years.
so since 2001.
I believe.
I've taught every year since
I've taught the overview course,
~------------------IN
and
So there was a period of
RE elF NC. 185 -
412109------~-----------~
445
time where there was not a new jud
didn't -- that I didn't have the privilege of being in
front of.
course,
or
k
so I don't get to see them all.

yeah,
particular,
to them about judicial demeanor and family law
demeanor,
cause difficulties and ways in which one settles down
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the kinds of things that can -- that can
so that that doesn't happen to you.

11
Could you describe for us the kind of system
that Sacramento uses for family law?
16
calendar system?
17
those?
Ju
15
18
like.
if
o
Is it a master
A direct calendaring?
A hybrid of
Something you've come up with that's unique?

THE WITNESS:
It's a hybrid that we really
Basically you are assigned cases based upon the
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I have a
tag along.
14
al
Thank you.
SPECIAL MASTER DE BELLEFEUILLE:
12
13
in addition to the substance, we also talk
10
in those overview courses in
But,
et
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Now they have more than one overview
20
number of the case.
21
might get cases ending in a one and a zero.
22
do all of that for your law-and-motion work.
23
comes to trial,
24
the supervising judge of the family law court,
25
that person assigns the cases to the
So if there were five judges,
however,
L--------~----------------IN
you
And you
When it
it goes to the presiding
RE CJF NO. 185 -
and
4/2/09----------------------~
446
available on those two days,
judge will generally try to give the case to
supervising judge will try to give the case to the
judge whose case it is,
if they have a trial that's going.
it can be assigned to someone else.
basically a hybrid system.
calendar totally -
motion;
et
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So at that point,
So it is
it's
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It's neither master
it's direct calendar for law and
i t ' s master calendar for trials.

And there
are only two trial days for family law trials in your
12
entire court?
THE WITNESS:
Correct.
14
THE WITNESS:
15
Each week?
Thursdays and Fridays.
They
may have changed something since I've been there,
17
at least when I was there it was Thursday and Friday
Ju
16
that,
and everybody knew it was a longer case than
20
that,
it would often be sent downtown and assigned to
21
a judge there.
22
family law cases assigned to me when I was downtown
23
for seven,
or
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19
but
And if it was a longer case than
for. the trials.
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18
if
the
11
13
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The
but that isn't always the case
10
Thursday and Friday_
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24
25
And I
eight,
know I had at least one or two
nine day cases.
And the
difference is a downtown judge would have fiv
IN RE CJF NO. 185 - 4/2/09 - - - -.. - - - - - - - - - - '
447
week for trial?
into two-day segments.

But the
downtown judge would not necessarily be a family law
judge?
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THE WITNESS:
you know,
Correct.
And that's why we
we didn't really do it too often; but there
10
were times when we would have
11
always a time that there has been somebody with family
12
law experience who is now downtown.
13
setting,
14
knew they had some experience in it.
15
happen from time to time.
16
Mr.
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they could be assigned that case because we
MR.
BLUM:
No,
21
MR. MURPHY:
25
Thank you.
Anything else,
No,
Mr. Murphy?
Your Honor.
Thank you,
Your Honor.
23
24
So that would
Your Honor.
20
22
And in that
Blum?
18
there's probably
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if
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could do it continuously as opposed to breaking it up
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The downtown judge
Correct.
THE WITNESS:
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May this witness be
excused?
MR.
MURPHY:
Yes,
Your Honor.
L------------------------IN RE CJF NO. 185
4/2/09--------------------~
448
]ViR.
Call your next witness.
MR.
THE DEPUTY:
(Discussion off the record.)
MR.
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Thank you.
call Judge Thomas Cecil.
Would you like me to get him?
While we're waiting,
into evidence?
MURPHY:
thought it was stipulated,
Your Honor.
10
11
All right.
I'm just
12
making sure the record reflects that it was received.
13
Are you're moving J

MR.
14
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21
Yes,
Your Honor.
Do you have any
objections?
16
20
MURPHY:
in?
15
if
MURPHY:
are you moving J
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Yes.
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BLUM:
MR.
BLUM:
No.
J will be received.
(Respondent's Exhibit J received into
evidence. )
Please raise your right hand.
22
---000--
23
JUDGE THOMAS CECIL
24
25
having been first duly sworn,
testified as follows:
---000--
' - - - - - - - - - - - - - - - I N RE C'JF NO.
185
~.
4/2/09-----
449
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RECEIVED
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JUN 2 3 2009
STATE OF CALIFORNIA
COMMISSJON ON
JUDICIAL PERFORMANCE
BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE
INQUIRY CONCERNING
JUDGE PETER J. McBRIEN,
F IL E D
JU N 2 3 2
009
Commission
on
Judicial Perfor
mance
v.
FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE SPECIAL

MASTERS
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No. 1 85
" [T]his is a very serious proceeding. There' s no question about it. And the
problem is, when people 's livelihood is on the line, I think that you should
be able to show as much positive aspects of somebody, especially Judge
McBrien here, who has gone out-he' s not been prodded. He got into the
soup kitchen right after the search warrant was filed [in the tree case] . And
these are things he said he wants to do. He wants to make amends, and I
think that' s quite good." (Exhibit 46, pp. 1 29- 1 30)
Judge McBrien's post-hearing statement
In response to his hearing testimony about the prior disciplinary matter, and the
Commission' s introduction of his prior sworn statement, Judge McBrien submitted the
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"Judge McBrien's [hearing] testimony regarding the arborist' s trimming of

oak trees related to his own personal observation and not to the extent of
the tree trimming activity that was the subject ofthe misde1neanor charge.
Judge McBrien observed only one large limb cutfrom the oak tree in
question and apologizes if there was any COJ?fitsion regarding this
testimony. Judge McBrien acknowledges that the limb he observed being
removed was not the only cutting done by the arborist. The point Judge
McBrien was attempting to make by way of his testimony was that it did
not make any difference whether the oak tree was on private or public land;
the prohibitory ordinance made any cutting without a permit a
misdemeanor. While view enhancement was an intended effect of the
trimming, the testimony ofJudge McBrien on April 3, 2009 was true and
correct to his best recollection." (Exhibit P, italics added)
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following statement to the Special Masters after the hearing:
PART VIII
CHARACTER EVIDENCE
At the hearing, Judge McBrien called numerous witnesses to testify to his good
character and judicial demeanor.
Judge James Mize, the presiding judge of the Sacramento Superior Court, often
appeared before Judge McBrien in the family law division before his own appointment to
the bench in 2000. Judge Mize testified that when he appeared as an attorney in family
law cases, Judge McBrien was fair, impartial, courteous, dignified, and patient, and Judge
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Mize considered him an asset to the family law bench. As a family law practitioner,
1 14
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Judge Mize felt Judge McBrien brought great benefits to the family law division because
dealing with family law cases . (HT 432-437)
he was willing to stay in the division, and he provided continuity and experience in
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After Judge Mize' s appointment, he served in the family law division with Judge
McBrien, who willingly answered his questions and provided assistance in his early days
on the bench. Judge Mize considered Judge McBrien to be a mentor and the bench' s
family law expe1i, because he had been there the longest and handled all types of cases .
(HT 43 9-44 1 ) As the presiding judge, Judge Mize described Judge McBrien as "one of
the judges that you are delighted to have . . . because you don't hear anything. You don't
get any complaints . You just get the j ob done, and . . . you're not constantly cleaning up
messes." (HT 443 )
Judge Mize testified Judge McBrien was a great asset and invaluable to the family
law bench and the superior court. (HT 44 1 , 443-444) Judge Mize testified Judge
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McBrien' s reputation among the local bar was consistent with his own beliefs: "He was
consistent. He was predictable. And you knew that if you had him, you weren't going to
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expect something outrageous or unusual. You would get an appropriate ruling. Whether
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it was in your favor or not, was not necessarily always the case; but at least you would
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have gotten a ruling that was within the bounds of what you would have expected." (HT
444)
Judge Thomas Cecil was retired but he was sitting by assignment in the family law
division, and he was the division' s supervising judge in 200 8 . Judge Cecil lacked prior
family law experience, and testified that Judge McBrien helped him with his duties when
he joined the family law division. Judge Cecil spent some time in Judge McBrien' s
courtroom before he started to hear his own cases . Judge McBrien was "always there
before anybody else" because of the hours he kept, and had an open-door policy to
discuss general or complicated issues. (HT 450-45 1 )
1 15
reflect any bias or prejudice against either Mr. Carlsson or Ms. Huddle. Aside from the
incident on the last afternoon of trial, Judge McBrien never prevented a witness from
testifying and never cut off a witness ' s testimony. While Judge McBrien improperly and
inappropriately terminated the trial, Ms. Huddle failed to pursue other opportunities to
introduce evidence through a settled statement or stipulation, and her failure to do so was
based upon her own decisions and not on Judge McBrien' s conduct.
FA CTORS IN A GGRA VA T/ON
1 . Judge McBrien lacked insight as to the impropriety of continuing to preside

over the Carlsson matter after sending the transcript of Mr. Carlsson' s testimony to his
employer and not notifying the parties.
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2. Judge McBrien continues to lack insight into how his actions in the Carlsson
matter would be perceived by the public .
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3 . Judge McBrien has a prior public admonishment.
4. At the Special Masters ' hearing, Judge McBrien gave testimony inconsistent
with his prior sworn statement regarding the underlying matter of his prior public
admonishment.
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5 . Judge McBrien improperly tried to use the Special Masters ' hearing as a public
forum to address a grievance with the media on a prior disciplinary matter.
FA CTORS IN MITIGA TION
1 . Judge McBrien is extremely hard working, keeps long hours, willingly works
through lunch hours, and takes short breaks to make sure parties get their trial time.
2 . Judge McBrien voluntarily stayed in the family law division for nearly 20
years .
3 . Judge McBrien played an active role in revising the family law system to allow
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trials to be heard expeditiously by experienced family law j udges.
141
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4. Judge McBrien had a good faith belief in his duty to repmi a possible criminal
violation.
5 . Judge McBrien consulted with judicial colleagues as to the appropriate steps to
take to report a possible criminal violation.
6. The disciplinary action taken against Mr. Carlsson by his employer was based
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upon his own misconduct, and not influenced by Judge McBrien.
7. Judge McBrien admitted in a personal letter to the Commission: "I admit I

acted badly and for which actions I deserve to be rebuked." (Exhibit 3 , p. 72)
8. Judge McBrien apologized to his judicial colleagues for his prior public
admonishment.
9. Judge McBrien voluntarily performed public service, unrelated to any

condition of a criminal plea, upon the filing of criminal charges in the underlying matter
that resulted in the prior public admonishment.
1 0 . Judge McBrien has served as a mentor to new judges in the family law
division.
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1 1 . Judge McBrien has continued to work with the family law bar to improve the
trial system in family law division.
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1 2 . In over 40,000 contested hearings, this is the only instance of Judge
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McBrien ' s misconduct on the bench.

1 3 . Judge McBrien is widely respected by attorneys who frequently appear in
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front of him, and judges who serve with him.

1 4 . Judge McBrien has a very low reversal rate on appeal considering the nature
of his lengthy assignment in the family law division.
1 42
s
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1 5 . Numerous character witnesses testified favorably about Judge McBrien's

j udicial demeanor.
Respectfully submitted,
kd
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Hon. Dennis A. Cornell
Presiding Special Master
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Special Master
1 43
Certified Shorthand Reporter

Page
COMMISSION
1
2
ON
JUDICIAL
- - -
000 -
Page
PERFORMANCE
1 DECEMBER 2, 2009
2
- -
4 be seated. Good afternoon, ladies and gentlemen.
NO.
185
COMMISSIONER McCONNELL: All right. Please
5 These are public proceedings in the inquiry concerning

6 Judge Peter J. McBrien. I'm Justice Judith D.
7 McConnell, the Chairperson of the commission. All
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6 -----------------------------------
8 commission members are present except commission
9 members Marshall Grossman and Samuel Hardage. Any

10 member of the commission may ask questions or
11 otherwise participate during this proceeding.
SAN
FRANCISCO,
DECEMBER
15
PERFORMANCE
14 counsel, Mr. James A. Murphy. The examiner for the
CALIFORNIA
2, 2008
15 commission is Mr. Andrew Blum.

This is the time and place duly noticed for
17 oral argument. Once the argument is concluded and the
17
18 matter is submitted, the Commission will meet in
18
19 closed session to deliberate. The Commission's
19
20 decision will be in writing and will be served on the
20
21 parties and will be made public. Pursuant to Rule 136
21
22 of our rules, our decision will become final 30 days
REPORTED BY,
SANDRA LEHANE
REGISTERED PROFESSIONAL REPORTER
CERTIFIED
SHORTIJAND REPORTER NO.

155 Orr Road
Alameda, California 94502
24
23 after it is issued. The Respondent has the right to
7372
24 petition the California Supreme Court for review of
(510) 864-9645
25
25 the Commission's determination.
Page
Page
Commission Members:
2 for Judge McBrien, the members of the commission have

3 received and reviewed the transcript of the
Justice Judith McConnell, Chairperson
Judge Katherine Feinstein, Vice-Chairperson
4 evidentiary hearing and oral argument before the
Mr. Peter E. Flores, Jr., Esq.
5 Special Masters, as well as the report of the Special
Judge Frederick P. Hom
6 Masters and the parties' briefs. In making your
Ms. Barbara Schraeger
7 argument, please assume that each commissioner is
Mr. Lawrence Simi
8 familiar with the record and the issues presented by
Ms. Maya Dillard Smith
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9 the briefs. We have scheduled one hour for oral
Ms. Sandra Talcott
10 argument. Each side is allotted 30 minutes. The
11
Mr. Nathaniel Trives
11 Respondent is welcome to address the Commission as
Respondent:
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10
12
12 part of his 30- minute presentation. The Examiner will

13 be heard first.
14
Honorable Peter J. McBrien
14
15
Superior Court of Sacramento County
15
MR. BLUM: Thank you, Your Honor.
16
Good afternoon. Before I begin, perhaps I
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16
11
Respondent's Counsel:
18
James A. Murphy, Esq.
19
Murphy, Pearson, Bradley & Feeney
20
21
Mr. Blurn, you may proceed.
17 should explain that I don't know how apparent it is

18 from up there, but I have poison oak all over my face.
19 So if I look a bit worse than usual, you'll assume
20 that's why.
Examiner:
21
There is very little to dispute about the
22
Andrew Blum, Esq.
23
Office of Trial Counsel
23 on the record. To say that Judge McBrien pushed the
24
Commission on Judicial Performance

---oOo ---
24 Carlsson trial along would be quite an understatement.
25
For the benefit of counsel for both sides and
1 PARTICIPANTS:
2
Respondent Judge Peter J. McBrien, of the
13 Sacramento County Superior Court, is present with his
16
16
23
JUDICIAL
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BEFORE TilE COMMISSION ON
14
22
12
ORAL ARGUMENT
12
11
13
1:30 p.m.
--- oOo---
4IN TilE MATTER CONCERNING

JUDGE PETER J. McBRIEN
10
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3 -----------------------------------
5 CJP
(510)
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SANDRA LEHANE/
22 facts in this case. Most of the misconduct occurred
25 He repeatedly threatened attorney Sharon Huddle with
Page 1
(Pages 1-4)
SANDRA LEHANE/

Page
Page
1 determining the level of discipline to impose, in my
2 opinion, all six of them point towards removal. First
3 case wasn't finished in one and a half days. And his
3 of all, the number of acts of misconduct.
4 threats were all one-sided. He never threatened the
5 opposing attorney with mistrials even when she
5 involved only one case. But it involved many acts of
6 recalled witnesses to the stand at the very end of the
6 misconduct during the trial and over the weeks and
7 trial. He never said a word to her.
7 months after the trial. Judge McBrien had plenty of
8 time to reconsider his actions. He could have allowed
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As Judge McBrien states, this misconduct
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1 mistrials even before she began putting on her case.

2 He initially threatened her with a mistrial if the
The Masters found that Judge McBrien was
9 the attorneys to finish their presentations. But
10 instead of doing that, he compounded the problem by
11 threatened her with contempt, though he knew there was
11 committing additional misconduct.
10 she had done nothing to provoke that treatment. He

12 no valid court order. And he did it in an effort to
12
13 obtain Statements of Economic Interest, which the
13 a prior public admonishment along with a criminal
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Prior discipline. As you know, the judge has
14 Masters found was part of his lengthy and improper
14 conviction. The impact of his actions on the judicial
15 investigation into a possible criminal violation.
15 system has been severe. The conduct generated
16 They found that he became embroiled in the Carlsson
16 considerable negative publicity, resulted in a
17 case, that he joined the fray.
17 reversal on appeal costing the parties substantial
18
18 time and expenses. And as this Commission and Courts
When he got to the end of two full days of
19 trial, he took a phone call, declared the trial was
19 have said, this is particularly troublesome in family
20 over, left and never returned, leaving a witness on
20 law matters due to their importance to the parties and
21 the stand and a courtroom full of people wondering
21 to the community. But the two factors that I believe
22 what had just happened. Weeks later, he issued a
22 are most critical in this case are the judge's
23 decision in the case knowing there was relevant
23 appreciation of his misconduct and his integrity o r
24 evidence he had not heard.
24 honesty.
25
25
Over the next few months, he made repeated
Page
In terms of his appreciation of the

Page
1 efforts to obtain transcripts as more evidence of a
1 misconduct, he has none. According to him, he did
2 possible crime. He then sent those transcripts to
2 nothing significantly wrong. He didn't violate
3 Mr. Carlsson's employer, not to the proper enforcement
3 anybody's due process rights; the Appellate Court got
4 agency but to his boss. And he continued to preside
4 that wrong. It was okay for him to walk out on a
5 over the case without disclosing what he had done. In
5 trial with a witness still on the stand and to
6 a nutshell, those are the facts of this case.
6 disregard the attorney's pleas that she hadn't
7 finished her client's case. He doesn't believe he
So what is the appropriate level of
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8 discipline here? They argue for a public
9 admonishment, which is interesting since Judge McBrien
9 became embroiled i n the case. H e doesn't believe h e

10 conducted a n improper criminal investigation. It was
11 okay for him to send evidence of a crime to one of the
12 parties' employers and to continue to preside over the
13 removal is appropriate here.
13 case without disclosing what he had done.
14
14
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11 was publicly admonished before, and now he's committed

12 additional serious misconduct. Either a censure or a
The Masters did not find willful misconduct
Nor does he believe that he displayed poor
15 demeanor. In short, he sees nothing wrong with any of

16 that even though the Masters found that all of that
17 it clear that judges can be removed for prejudicial
17 was misconduct. The only thing he believes he did
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16 Now, the Constitution and the Supreme Court have made

18 misconduct, but it's not often done. Of course, the
18 wrong was to leave an incomplete record that made it
19 Commission is free to reject the Master's report,
19 look like he did something wrong.
20 including the Findings of Fact, and make their own
20
21 findings if they feel that's what is supported by the
21 well, throughout this process his explanations for his
In terms of the judge's integrity or honesty,
22 evidence. And you may conclude that the judge did
22 conduct have changed. And I guess you're just
23 commit willful misconduct. But even if you don't find
23 supposed to disregard the fact that he's given one
24 willful misconduct here, removal may be appropriate.
24 inconsistent explanation after another. Put that
25
25 aside and just focus on his latest set of excuses.
The factors that the Commission considers in
8 improperly threatened the attorney with contempt o r
10 believes he did nothing significantly wrong. But he
15 or bad faith. They found prejudicial misconduct.
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864-9645
9 discourteous and disparaging to Ms. Huddle and that
(510)
Page 2
(Pages 5-8)

Page
The only thing consistent in his explanations
Page
1
11
Now his argument is that it's the attorneys'
2 fault. Forget the claim about the EPO phone call or
3 other people or events for what happened. For
3 "I did offer them more time," it's the attorneys'
4 example, why did he end the trial the way he did?
4 fault. "They didn't tell me they needed more time."

5 Even though Ms. Huddle tried to tell him that there
6 phone call must have been lengthy and complex, must
6 was more evidence as he's walking out of the
7 have prevented me from returning or I would have
7 courtroom, even though she repeated that in her
8 returned. That's what I do." We found out that
8 closing brief, in writing, and even though he
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5 Well, first, it was "The Emergency Protective Order
9 wasn't true. We got the phone records. The phone
9 instructed the attorneys, through his clerk the next
10 call lasted less than two minutes, and he didn't
10 day, that this trial is deemed over and no more
11 return. He just walked away and went home.
11 evidence will be allowed. It's still the attorneys'
12
12 fault. Apparently they are supposed to disregard the
In his answers -- in his Answer, rather, he
13 Court's instructions and ask to put on more evidence
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13 argues that it was okay to end the trial the way he

14 did because the record shows that Mr. Carlsson had
14 anyway. Even the other attorney, Ms. Keeley, thought
15 rested his case-in-chief. Not true. The record
15 they were, quote, "skating on thin ice" to ask to put
16 shows, and the Masters found, he never rested his
16 in more evidence.
17 case. In fact, he never even got to complete his own
17
18 testimony.
18 literally walked out of a trial with a witness on the
19
You know, you would think that a judge who
19 stand in mid question, something the Court of Appeals
He also claimed in his Answer that when the
20 trial ended, Mr. Carlsson's expert had already
20 said is perhaps unprecedented in California history,
21 completed his testimony and was just rehashing matters
21 you would think that he would admit that is
22 he already testified about. Again, not true. He was
22 misconduct. But he doesn't. You can ask anybody on
23 testifying about a new topic that had just come up,
23 the street, "Should a judge behave like this?" They
24 that he had made a $100,000 error on his appraisal.
24 will tell you no. But he thinks it wasn't misconduct.
25 When Judge McBrien made these allegation -- excuse me,
25 Instead, he makes one excuse after another, many of
Page
Page
10
12
1 these claims in his Answer, his verified Answer, he
1 them demonstrably untrue.
2 already had access to the trial transcripts. He could
3 have made sure he was going to be truthful before he
3 explanations about is why he wanted those Statements
Another issue he has given various
4 made these claims to this commission, but he made
4 of Economic Interest. Explanations which the Masters
5 those claims anyway.
5 rejected. They rejected his claim that he wanted the
Then at his deposition, he made a different
7 claim. He claimed that he did offer them more time.
6 statements because they would help with the valuation
7 of the four- plex. Judge McBrien later conceded he was
8 familiar with those forms and they wouldn't have
9 could have more time." He explained when he declared
9 useful information. The Masters also rejected his
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8 "I didn't deny defendant's rights; I told them they
1 o claim that he wanted the documents because he thought
11 that day because he already told them they could have
11 the Fair Political Practices Commission might be able
10 "This trial has ended," he just meant it was over for
12 to confiscate or put a lien on the four- plex. We
13 he had never offered them more time. In fact, he
13 heard that explanation for the first time at the
14 reversed the claim and says, "I never offer more time;
14 deposition. He had never said that before. He later
15 I don't do that. They have to ask me first." But he
15 admitted that he had never heard if the FPPC has such
16 had said under oath at his deposition that he offered
16 power, and the Masters rejected that claim.
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12 more time. But then at our hearing, he admitted that
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864-9645
2 is that it is never his fault. He repeatedly blames
(510)
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SANDRA LEHANE/
17 them more time. Again, not true.
17
18
18 he wanted the Statements of Economic Interest because
He also claimed at his deposition that he did
In a letter to the Commission, he stated that
19 not return to the courtroom because, quote, "There was
19 of, quote, "the disclosure of possible criminal
20 nobody there." As though he had returned and found an
20 activity," unquote. That's the real reason the
21 empty courtroom. The Masters rejected this claim.
21 Masters found that this is why he wanted the
22 They found that he left the courthouse while all the
22 documents. But by the time of our hearing, he
23 parties were still sitting there in the courtroom
23 evidently didn't like that answer. After all, it
24 waiting for his return, and he never bothered to
24 makes it look like he's doing a criminal
25 determine if they were still there.
25 investigation, if you're seeking evidence of a crime.
Page 3
(Pages 9-12)
SANDRA LEHANE/

Page
Page
1 about his current misconduct, he has given untrue
2 testimony about his prior discipline. And of course,
3 didn't have access to the trial transcripts to refresh
3 honesty is a minimum qualification for a judge. He
4 my memory. That's why you should disregard what I
4 has demonstrated that he lacks that minimum
5 said in that letter." But if you take a look at the
5 qualification.
6 letter itself, which was Examiner's No. 3, it contains
7 citations to the trial transcript. So when he
7 is the likelihood of future violations. The Supreme
8 testifies that he didn't have access to that
8 Court and this Commission have held that a judge's
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The final fact that the Commission considers
9 failure to appreciate of the impropriety of his
10 actions indicates a lack of capacity to reform. In
11
15
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1 So at the hearing he says, "Oh, no; that letter was

2 wrong. Disregard that. At the time I wrote it, I
10 you the truth.

If all this wasn't bad enough, look at his
11 other words, if he doesn't get it, if he doesn't

12 understand what's wrong in what he did, then he's more
13 admonished for having several oak trees cut in a
13 likely to do it again, or something similar again.
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12 testimony about his prior discipline. He was publicly

14 nature preserve to improve the view from his house.
14
15 He wanted a better view of the American River. That
15 almost the opposite of Judge Friedman's case, which
16 was criminal conduct and very selfish conduct.
16 this Commission decided a couple years ago. That case
17
17 involved about 20 delayed decisions and numerous
At our hearing, he repeatedly testified under
So where does this leave us? This case is
18 oath that the incident involved only one limb from one
18 untrue salary affidavits. So we had lots of
19 tree. He said that several times. Now, it was his
19 misconduct. Some of it willful. But Judge Friedman
20 decision to testify about that prior. He said he
20 acknowledged his wrongdoing; he accepted
21 wanted to set the record straight, to let people know
21 responsibility for his actions, and he didn't have a
22 what actually happened, not what his perceptions were,
22 prior public admonishment either. The Commission felt
23 but what actually happened. He said the media got it
23 that he was, because of those factors, unlikely to
24 wrong. They blew it all out of proportion. "I'm not
24 re-offend. So rather than remove him, he was severely
25 Paul Bunyan." Those are his words. "It involved one
25 censured.
Page
Page
14
1 tree. It involved one limb from one tree." There are
2 a number of quotes where he says that.
2 misconduct. But unlike Judge Friedman, we have a
I knew he had been fined $20,000 in
3 judge who has not been candid about his conduct, who
4 takes no responsibility for his actions, who has prior
5 trees. So when I asked him, "You mean to tell you us
5 public discipline, and who even gave untruthful
6 you were charged $20,000 in restitution damages
6 testimony about that prior. You know, a criminal
7 because of one limb?" He said, "Correct. But it was
7 defendant who gives untruthful testimony at his trial
8 a big limb." There was no question he was saying only
8 can be given a greater sentence. And greater
Ju
16
Here we don't have dozens of acts of
4 restitution charges for the damages caused to those
9 one limb had been cut. But that is untrue, and he
9 discipline is appropriate when a judge testifies

10 untruthfully. The Commission's decision in Ross is
11 oath that several trees had been cut. The arborist he
11 one example of that. He was found to have been
12 hired told him he cut multiple trees -- multiple
12 untruthful at the hearing, and he was removed in part
13 branches.
13 because of that.
14
14
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10 knew it was untrue. He had previously testified under
So now what does he say? "Well, whati meant
The purpose of judicial discipline is about
15 at the hearing was that I only saw one limb fall to
15 the public. It's not about what happens to a judge.
16 the ground, not that only one was cut." Well, first
16 It's about protecting the public, to enforce rigorous
17 of all, that would have been completely irrelevant
17 standards of judicial conduct and to maintain public
18 testimony. Who cares how many he stood there and
18 confidence in the integrity of the judicial system.
19 watched fall? He's responsible for all that were cut.
19 So the question you have to ask is: Is a censure
20 But more importantly, that's not what he testified to
20 going to adequately protect the public and maintain
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13
9 transcript when he wrote that letter, he's not telling
(510)
21 under oath. He never qualified his testimony like
21 their confidence in the judicial system? Is a censure
22 that. He was clear it was only one limb. The Masters
22 going to get through to him? Unlike Judge Friedman,
23 found that his testimony at the hearing about this
23 the record here indicates that Judge McBrien is not
24 issue was inconsistent with his prior sworn testimony.
24 likely to reform. He has demonstrated a lack of
25
25 integrity and no insight into his misconduct. I
So not only has he been less than honest
Page 4
(Pages 1 3 -16)
SANDRA LEHANE/

Page
Page
3 And, therefore, I believe he should be removed from
3 have been doing. I got the EPO call. And at that
4 office.
4 point, I-- after I realized it was a legitimate call
5 and not a wrong number, I went back out and I
or
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I request to reserve my remaining time for
So that's, frankly, what I thought we would
6 possible rebuttal.
6 dismissed people because, quite frankly, I don't want
7 people sitting around in a courtroom for 20 minutes
COMMISSIONER McCONNELL: All right. Thank
10
8 when we aren't going to do further work that day. And

9 then come back out in 20 minutes, and they would be--
Mr. Murphy.
MR. MURPHY: Thank you, Your Honor. I will
10 I really expected they would schedule another day, if
11 they wanted to be heard. I was gone the next week at

12 a domestic violence course. And when I returned on
11 defer to Judge McBrien and reserve whatever time I

12 have left.
13 Thursday or Friday, I did not hear from them; I did
COMMISSIONER McCONNELL: All right.

Judge McBrien.
14 not see anything from them, but I did receive their
15
JUDGE McBRIEN: Good afternoon. I am
15 closing briefs.
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14
16 embarrassed to be here. There are some cases about
16
17 which we can be proud, others about which we are not
17 my responsibility, not their responsibility. I'm the
And, frankly, you know, I recognize that it's
18 so proud. This is a case about which I am not at all
18 one that controls the trial. And in that, I failed to
19 proud. There are a lot of reasons for that.
19 do. I failed to confront them with the issue of, "Do
20
20 you want more time?" Not-- now, you have to
Mr. Blum would have you believe that my
21 understand, in family law there are very few timid
21 answers were my current beliefs. At the time of the

22 testimony or the deposition, I was attempting to
22 lawyers. And so I actually expected that they would
23 create my mind set at the time of the 2006 trial. I
23 come forward if, in fact, they really believed that
24 have been doing family law for about 20 years.
24 they needed more time. I did not hear from them.
25 Actually 20 years this month. And while I have no
25
Page
I was actually expecting to send out a Minute

Page
18
1 idea about the number of cases I have seen, a number
1 Order making that offer. I didn't do it when I got
2 of years ago when there were three of us doing it, my
2 the briefs simply because they didn't ask for more
3 clerk often told us we did 12- to 1400 Minute Orders a
3 time. But it isn't their responsibility; it's mine.
4 month.
4 I should have done it regardless, but I didn't.
COMMISSIONER McCONNELL: Can we go back to a
6 statement you just made, that at the time of your
COMMISSIONER McCONNELL: Didn't you say to
8 ended." And my head was in the EPO call. I should
Ju
7 deposition you thought you were candid and you were

9 what you mean by that?
JUDGE McBRIEN: Yes. I don't believe that
11 the question to me was, "Today, where do you believe

12 you've done something wrong?" I admit that I have
illDGE McBRIEN: I did say, "This trial has
9 have been more explanatory, said they could come back

10 the next day; they could do this; they should meet and
11 confer and reach some agreements. But I didn't do
12 that. And I-- when I finished the call -- and it
13 could have been three minutes; it could have been some
14
14 greater period of time; I honestly do not know -- I
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13 done something wrong.

COMMISSIONER McCONNELL: What do you believe
15 did not go back into the courtroom. I did not look.
16
16 I was quite surprised when -- and it wasn't until
if
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15 you did wrong?

JUDGE McBRIEN: First of all, I should have
17 gone back out on the record at the conclusion of the
20
6 them, "This trial has ended"?
8 trying to recreate your mind set. Can you explain

10
19
1 time.
2 what discipline to impose all point towards removal.
8 you very much.
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864-9645
17
1 believe the factors you normally look to to decide
(510)
17 these proceedings that I even heard that they were
18 trial. As we were approaching 4:30, I envisioned that
18 still awaiting me in the courtroom. But I should have
19 we were going to be at a place at 4:30 where I would
19 done that. It's my responsibility, and I failed at
20 call the hour; I would ask them if they had any
20 it.
21 further evidence; I would field various objections, if
21
22 there were any objections, and we would either
22 Commission, one of the others, was the issue of
23 reschedule it or deny the request to continue with
23 pursuing the Statement of Economic Interest. At the
On the other concern expressed by the
24 more time. Frankly, in my 22-plus years, I have never
24 time Mr. Carlsson offered this testimony regarding his
25 denied the opportunity of anyone to schedule more
25 involvement with a contractor with the state, my
Page 5
(Pages 17-20)

Page
Page
21
1 than the amount declared." Here, the activity might

2 have directly impacted this particular piece of
3 property. The other judges that I conferred with,
4 Because I, quite frankly, am a member of the public
4 frankly, were the ones that thought that this should
5 who doesn't fully understand the Commission rules. I
5 be referred. And I recognize in Rothman --
6 did not then and I did not do the research to find
7 out, because I felt it would -- my game plan then, had
7 because it was a crime that you had to report it?
8 he brought it in, had it not shown that four-plex on
9 it, then I was going to ask them what impact, if
9 that point, we thought there was a possibility of a
COMMISSIONER McCONNELL: Did you think
JUDGE McBRIEN: At that point, I did. At
10 crime.
11 supplemental aspect because I did not want to be
11
12 awarding a piece of property that had
12 a prosecutor at some point in your life, as I
13 some should-have- b een-known issue lingering in terms
13 understand it. Did you not think it would be
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COMMISSIONER McCONNELL: All right. You were
14 of its disposition. But I didn't do it right.
14 appropriate to refer it, then, to the prosecutorial
15
I did--
15 office?
16
COMMISSIONER McCONNELL: Excuse me.
16
JUDGE McBRIEN: Well, I was in the Attorney
17 Commissioner Schraeger has a question.
17 General's Office, but --
18
JUDGE McBRIEN: Yes.
18
19
COMMISSIONER SCHRAEGER: When you finally got
19 prosecution office?
COMMISSIONER McCONNELL: Well, is that not a
20 this document, did you pay any attention to the
20
JUDGE McBRIEN: It is, it is.
21 consequences that may occur to this man from faxing it
21
You know, I did not think of it. You know, I
22 to his employer?
22 didn't know what to do with it, and that's why I was
JUDGE McBRIEN: I didn't know where to send
24 it.
25
23 conferring with these other judges, quite frankly.

24 And they are the ones that made the suggestion of
COMMISSIONER SCHRAEGER: You didn't think
Page
25 Department of General Services, and they were the

Page
22
1 about the D.A.'s office?

2
JUDGE McBRIEN: During this time, I conferred
2 Miss Cabatic, to refer it to, who was their legal
3 counsel.
4 They, frankly, made the suggestion of the Department
5 of General Services.
5 acknowledge that there was anything wrong in your
COMMISSIONER SCHRAEGER: What did you think
24
1 ones -- one of them knew the name of somebody --
3 with the other two judges that were in the courthouse.
23
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2 helpful for us but also, it also might impact what

3 disposition one could make for that four-plex.
23
COMMISSIONER McCONNELL: Do you now
6 conduct in this regard?
JUDGE McBRIEN: I'm sorry?
COMMISSIONER McCONNELL: What was wrong?
COMMISSIONER SCHRAEGER: What did you think
JUDGE McBRIEN: Well, the -- I believe the
Ju
7 would happen if you sent it there?
10 might have happened if you sent it to his employer?

JUDGE McBRIEN: I believe they would have or
11
JUDGE McBRIEN: Absolutely. Absolutely.
10 testimony supports -- I asked for it right around the

11 time of the trial, the transcript. And in May, the
12 clerk gave me a Minute Order that I was to sign
13 And if, in fact, they then thought some activity ought
13 because it was for authorizing the payment of that.
14 to be pursued, that they would send it to the
14 And I don't believe I asked again. I didn't ask at
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12 have access to the Statement of Economic Interest.
15 appropriate entity. I never, ever contemplated that
15 that point for that Minute Order. And I didn't ask
16 they would be the ones taking the action against
16 until sometime -- probably in September, when I never
17 Mr. Carlsson.
17 heard from anyone regarding it. And I was, just as
18
18 much as anything, curious. So what I should have
if
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864-9645
1 concern was that, in part, this information would be
10 any -- the attorneys -- and have them add it as a
(510)
or
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SANDRA LEHANE/
COMMISSIONER SCHRAEGER: So what made you
19 take this action and investigate a possible criminal
19 done -- I already heard a motion dealing with the
20 case when you told the Masters you had never done that
20 entry of judgment and listing for sale one of the
21 before?
21 properties. Then in later September, another motion
22
22 came up, and it was a listing of the other property.
JUDGE McBRIEN: I had not ever done that
23 before, even though in family law cases periodically
23 I should have, at that point, disclosed to them that I
24 you have people who claim that "we cheated on our
24 had sent the transcript, to see whether or not
25 taxes, and I believe this income is somewhat different
25 somebody wanted to disqualifY me. I did not have
Page 6
(Pages 21-24)
SANDRA LEHANE/

Page
Page
1 these two pieces of real property.
2 I felt. And-- but I should have disclosed that.
COMMISSIONER SCHRAEGER: Why didn't you?
3 the property?
or
k
JUDGE McBRIEN: Why did I not?
COMMISSIONER SCHRAEGER: Right.
5 know. I don't know. I don't know anything about the
JUDGE McBRIEN: I didn't think of it. For
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JUDGE McBRIEN: Was there? No. I don't
6 case after I heard the trial. Other than--
7 one thing, I didn't have -- I could have had the file
8 and probably didn't have the file. Apparently at that
8 important to make sure I understand it. I thought you
COMMISSIONER HORN: Well, this is very
10 you thought there was a lien.
9 said the reason you went down this path was because
10 different courthouse even. And so it isn't like I had

11 a lot -- and, I mean-- I don't know. I don't know
11
12 why I didn't do it. I just never thought of it.
12 could be. I thought that FPPC could impose a lien
13
13 that would then block the title so that whoever was
JUDGE McBRIEN: No, no. I thought there
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COMMISSIONER McCONNELL: All right.
14 Commissioner Hom has a question.
14 awarded this property would have a cloudy title. And
15
COMMISSIONER HORN: Thank you.
15 I gather that maybe I shouldn't have been concerned
16
As I understand your testimony, this entire
16 about that at this point; that, rather, they should
17 approach was precipitated by the fact that you thought
17 have made a subsequent motion and asked for a
18 there might be a cloud or a lien on the title to this
18 redistribution of the property if, in fact, that
19 property. Is that it?
19 occurred. But I didn't think of that.
20
20
JUDGE McBRIEN: Originally, when I still had
But, you know, part of what Mr. Blum says is
21 the case before me.
21 that I've been very dishonest in this process, and I
22
22 recognize that I have been inconsistent. I hear a lot
COMMISSIONER HORN: Right. That is what
23 of cases. I hear a lot of information. I do my best
24
JUDGE McBRIEN: Right.
24 to dispose of that information. I really don't have
25
COMMISSIONER HORN: And you found that to be
25 the greatest of memory in the world. And while I can
Page
Page
26
1 unusual enough to take this approach? Unusual in a
2 guilty. I mean, I wish I could have remembered
3 properties in a dispute, that there is a lien on a
3 everything about the trial as ifi was right there. I
4 title?
4 made the best effort I could, but I didn't do a very
JUDGE McBRIEN: Well, no. No. To answer
5 good job, obviously.
6 your question, no, we don't get it in every case.
7 my language and my threat of contempt against
COMMISSIONER HORN: Well, it's not that
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8 unusual, is it, for there to be a cloud on a title in

9 a family law case?
11
12
JUDGE McBRIEN: You usually hear about it.

COMMISSIONER HORN: Pardon me?
10
JUDGE McBRIEN: You usually hear about it in
The concerns that have been expressed about
8 Ms. Huddle, I'm responsible for. I didn't-- I didn't

9 mention contempt. I've never held an attorney in
10 contempt. I didn't mention it other than to

11 distract -- to refocus her on the real issue there,
12 which was to-- that she had a client who had offered
13 to bring this -- this Statement of Economic Interest
14
COMMISSIONER HORN: Right.
14 to court. I'd asked that he brought it. Then she
15
JUDGE McBRIEN: And I was concerned about
15 says, "I
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13 terms of the information that you're given.
am
interjecting the Fifth Amendment," and
16 that wasn't really the issue before me. At that
17
17 point, we were getting to the point where -- I did
if
o
16 awarding an unequal distribution of the property.

COMMISSIONER McCONNELL: Was the other party
28
1 recognize his point, I really think that I'm -- I'm
2 family law case? Doesn't that happen on most
27
COMMISSIONER HORN: So was a lien filed on
23 started it.
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864-9645
25
1 enough information to where I could disqualify myself,
9 point, the fl.le was in appeals, which is in a
(510)
18 concerned about that? Did they raise any issue in
18 order, actually, somebody to go see if it was
19 this regard?
19 available. But if I-- if my statements to Ms. Huddle
20
20 were discourteous, I sincerely apologize.
JUDGE McBRIEN: They didn't initially, but
21 they asked for more than the most recent Statement of
21
22 Economic Interest be provided because they were
22 question. Because in your brief, you basically
23 hopeful that it would be useful in terms of evaluating
23 indicate that you have committed no misconduct; but
24 the worth of the property. And that was really what
24 today you're saying that you have committed
25 they were arguing about, was the relative value of
25 misconduct?
COMMISSIONER McCONNELL: So, I have a
Page 7
(Pages 25-2 8)
SANDRA LEHANE/

Page
Page
31
1 testified that Judge McBrien i s a n asset to the family

2 law court. He is someone who they can trust and rely
3 some point, to the Commission indicated that I had,
3 on. He is someone who is working diligent and someone
or
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2 I have. I've -- in fact, my letter -- my letter, at

4 that I was wrong.
4 who has the family law system in his best interest.
But regardless of the testimony from Judge
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COMMISSIONER McCONNELL: The statement
6 McBrien's fellow judges at the family law courthouse,
7 better record.
7 we also heard from two of the presiding judges of the
8 Sacramento County Superior Court who have known
JUDGE McBRIEN: No. I also wrote a letter,
9 handwritten letter, at some point that base -- that
9 Judge McBrien over the years and who have testified as
10 said, "I recognize that I was wrong." And -- I'm
10 to the resource that Judge McBrien performs for that
11 court. Judge James Mize and Judge Michael Garcia.
12 because--
12 Both judges testified that Judge McBrien adds to that

13 court, and his removal would detrimentally affect the
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COMMISSIONER McCONNELL: Would you like to
11 getting light-headed, and I'm afraid that I will faint

13
14 sit down and speak to your attorney?
14 family law court system in Sacramento County.
15
JUDGE McBRIEN: I believe that would help.
15
16
COMMISSIONER McCONNELL: Would you like a
16 the Respondent criticizing lawyers. Well, that was my
Mr. Blum's argument made a statement about
17 criticism and that was a criticism that I leveled in
17 recess?
18
JUDGE McBRIEN: Well...
18 our papers. And the reason I leveled that criticism
19
COMMISSIONER McCONNELL: We can take that
19 is because of the circumstances of Carlsson vs.
20 recess, if you would like.
20 Carlsson, which has been ignored by Mr. Blum in his
21
JUDGE McBRIEN: Yeah, ifl...
21 argument.
22
COMMISSIONER McCONNELL: I think we should
22
We can't ignore the fact that it was the
23 lawyers who estimated that this case would take two
23 take a recess. Let's take a 1 0- minute recess.

24
(Recess taken.)
24 days to try. We can't ignore the fact that
25
COMMISSIONER McCONNELL: For the record,
25 Judge McBrien provided the lawyers and the parties
Page
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30
1 we've been informed b y Mr. Murphy that you are ready
2 a look at the record, Judge McBrien went out of his
3 way to move that case to conclusion within two days
MR. MURPHY: Your Honor, Judge McBrien has
4 requested that I utilize the last approximately 10
4 and exceeded the two-day estimate. He provided them
5 minutes of argument to present his position, unless
5 with more than enough time to complete the case.
6 there are other questions that the Commissioners
7 wanted to pose before we proceed?
7 don't think we would be here if at 4:29 or 4:30 on the
8 last day of trial, Judge McBrien said, "You're not
Ju
COMMISSIONER McCONNELL: If they think of a
32
1 more than two days t o put o n their case. I f you take
2 to continue; is that correct?
9 question, I will certainly let you know. Why don't
Admittedly, the case ended on a bad note. I
9 done; I'm declaring a mistrial." No one would say,

10 well, you couldn't do that. They didn't meet their
11
MR. MURPHY: Thank you, Your Honor.
11 estimate. And I have about five minutes left, and I
Mr. Blum gave argument; he did not give
12 know that when I'm done, I'm done because my time will
10 you proceed then.

12
13 be up. Their time was up.
14 is going to protect the public with respect to
14
15 Judge McBrien?" I believe the real question is, "Will
15 argument; you're not presenting substantive evidence.
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13 testimony. In his argument, he asked, "Is a censure
COMMISSIONER McCONNELL: But you're in
16 removal effect the public detrimentally?" And I think
16 There's a little difference in the two.
17 the answer to that question is yes. Why? Well,
17
18 Mr. Blum has ignored the testimony of a number of
18 you to comment on is during the proceeding, there was
19 judges who testified at the hearing while
19 a certain amount of time spent on this form that he
20 Judge McBrien was in front of the Special Masters
20 filed or failed to file, and getting -- setting the
if
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29
JUDGE McBRIEN: I believe I have. I believe
6 basically says that you were wrong in not making a
(510)
And one question that I have that I'll remind
21 relative to the services that Judge McBrien has
21 matter -- or the lawyer with contempt. All of that
22 performed over the years and what he brings to the
22 must have surely taken up some valuable court time.
23 Sacramento County family law. We heard testimony from
23 And I wonder if you can comment on that?
24 judges that Judge McBrien has mentored, judges who
24
25 work with Judge McBrien on a day-to-day basis who all
25 time. But the threat of contempt was not really a
MR. MURPHY: Well, Your Honor, it did take up
Page 8
(Pages 29-32)

Page
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33
1 4 0 ,0 0 0 family law matters. And during 1he period of
2 Mr. Carlsson, in response to inquiry by Judge McBrien,
2 time we were preparing for 1he hearing and for 1he
3 promised to produce 1he Statement of Economic
3 hearing, he maintained A full caseload, going to 1he
35
4 cour1house every day. So he had a lot of family law
5 for trial a week later, he was asked, "Did you bring
5 matters on his mind, even during 1he period of time we
6 along 1he statements for 1he FPPC?" And 1he response
6 were presenting evidence before 1he Special Masters.
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4 Interest. He promised to do 1hat. When he showed up
7 by Ms. Huddle was, "Well, he didn't return to work."
7 I don't know if 1hat answers your question.
8 And 1hen a dialogue ensued where at one point in time,
9 Judge McBrien did state, "Am I to understand you are
9 say in conclusion --
Just -- I know my time is up. I just want to
10 saying no, which places you into 1he possibility of
10
11 contempt?" And obviously 1he response was, "No. I'll
11 minutes.
12 produce that." If you take a look at 1he record, 1hat
12
MR. MURPHY: I'm sorry?
13 probably took tlrree or four minutes. So was 1here an
13
COMMISSIONER McCONNELL: You have two more
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COMMISSIONER McCONNELL: You have two more
14 inordinate amount of time spent on 1hat issue? I
14 minutes.
15 submit 1here was not.
15
16
16 I'll use 1hem.
COMMISSIONER McCONNELL: All right Mr. Simi
17
MR. MURPHY: Two more minutes. In 1hat case,
COMMISSIONER McCONNELL: Excuse me.
18
MR. MURPHY: Yes, sir.
18 Commissioner Schraeger has a question.
19
COMMISSIONER SIMI: Mr. Murphy, I was
19
COMMISSIONER SCHRAEGER: I don't know if we
20 impressed to hear 1he testimony and testimonials of
20 can get back to 1he form, 1hat -- 1he statement of
21 Judge McBrien's colleagues, and 1hat weighs very
21 economics form. I'm still having trouble
22 heavily wi1h me. But I have to balance 1hat wi1h
22 understanding all 1he 1hings 1hat surrounded 1he
23 1he -- as I read tlrrough 1he Special Masters' report,
23 decision to fax 1hat to his employer, Mr. Carlsson's
24 as I read tlrrough 1he testimony, 1here do appear to be
24 employer. Because 1he judge has testified to 1he
25 a whole lot of contradictions. And it really raises a
25 Special Masters 1hat, in fact, 1hat form did not help
Page
Page
34
1 question o f credibility. And they g o beyond, you
1 contribute t o the evaluation o f the property because
2 know, Judge McBrien's statement that "I don't have
2 of the nature of the form, that it's got categories of
3 such -- that good a memory." And so I would like you
3 value rather than a specific valuation. So if he said
4 to help me balance that because it's a very, very real
4 that he knew the form wasn't very relevant to helping
36
5 him make the evaluation on this four-plex, why did he
6 read through this.
6 continue to need that form? Why would he keep asking
MR. MURPHY: Yes, Mr. Simi.
7 post trial?
The Special Masters -- and I should point out
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5 concern for me, just the whole credibility issue as I
9 that the Special Masters' report was not unanimous.
MR. MURPHY: Well, I think you have to look
9 at the circumstance because that's what we're

10 concerned about, the circumstances giving rise to the
11 was appropriate. They heard the testimony. They were
11 request for the statement. And my recollection is
12 the triers of fact. They did not make a determination
12 that the evidence in the statement first came out in
13 that Judge McBrien was being untruthful. They admit
13 direct examination. It related to the interest in the
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10 One Special Master wasn't feeling that any sanction
14 that there was discrepancy in the testimony. But
14 property. Because remember, there was an effort to
15 having tried a number of cases to juries and you hear
15 torpedo this trial on the basis that there was another
16 the typical jury instruction, at least under the old
16 person who claimed an economic interest in the
17 BAJI instructions -- I'm not sure if you're familiar
17 property.
18 with how that reads -- but a failure of recollection
18
19 is not uncommon. It's not uncommon for a witness not
19 sure exactly what this statement may have contained,
20 to remember something or to contradict himself or
20 but it could have led to the discovery of admissible
21 herself.
21 evidence. He wasn't sure. So when the issue was
22
22 raised under direct examination, follow-up on the
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864-9645
1 tlrreat o f contempt If you read 1he record,
17 has a question.
(510)
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SANDRA LEHANE/
The critical question is whether the
So Judge McBrien testified that he wasn't
23 testimony is intentionally false. And there was never
23 cross-examination, at the conclusion of the second
24 a finding in that regard. And as Judge McBrien
24 day -- just call it the second day, day and a half of
25 testified at the hearing, he has tried in excess of
25 the trial, Judge McBrien requested Mr. Carlsson to
Page 9
(Pages 3 3- 3 6)

Page
Page
2 would. He agreed to it. So there wasn't an order
2 counsel. And judges make decisions, based upon the
3 because Mr. Carlsson said h e was going t o produce it.
3 evidence, that it's properly admitted at a hearing.

4 If the proper evidence or sufficient evidence isn't
5 produced by one side, that side does not prevail. And
6 that he had promised to produce it, and he didn't. So
6 I'm concerned about an element of embroilment when a
7 that's how it developed.
7 judge begins conducting discovery in the course of a
8 trial.
The question is what did that form show?
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4 When he showed up the next time, a week later, he

5 didn't produce it. And Judge McBrien had remembered
MR. MURPHY: Well, Your Honor, I would
10 suggest that it would be within the sound discretion
11 evidence that may have been relevant to the question
11 of the Court to compel a party to produce the best
12 of value of the property, the ownership of the
12 evidence of whatever may be shown in the document.
10 But it could have led to the discovery of admissible
13 property --
13 When you testifY orally relative to a statement or a
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14
COMMISSIONER McCONNELL: I'm not sure how it
14 contract or anything else, if that statement or
15 could have reflected the value since it's just a range
15 contract is available to the party who is testifYing
16 of value.
16 regarding the contents, the best evidence should be
17
17 produced. And I think a Court -- any judge would have
MR. MURPHY: Well, as I said, nobody knew
18 what the statement said. But the question is could it
18 the discretionary power to compel the party who has
19 have led to the discovery of admissible evidence --
19 testified on thatissue to produce the best evidence.
20 admissible relevant evidence? No one knew.
20
21
21 we've taken up your time. Thank you very much.
COMMISSIONER McCONNELL: All right. Judge
22 Feinstein.
39
1 discovery. That role and that responsibility falls to
9 Judge McBrien did not know what it did, in fact, show.
COMMISSIONER McCONNELL: All right. I think
22
MR. MURPHY: Thank you, Your Honor.
23
MR. MURPHY: Yes, Your Honor.
23
COMMISSIONER McCONNELL: Mr. Blum, you have
24
COMMISSIONER FEINSTEIN: Mr. Murphy, the one
24 ten minutes.
25 issue I have with what you're saying is, whether or
25
Page
MR. BLUM: Just briefly.
Page
38
1 not something could lead t o the discovery o f relevant
2 or admissible evidence is a task that normally falls
2 have returned to the courtroom after walking out, but
3 to the attorneys. And in this matter, unlike the
3 he doesn't admit that he violated any due process
4 number of other family law matters -- it happens in
4 rights by not returning. He again asserts that he
5 the majority now -- both sides were represented. Why
5 thought the FPPC could impose a lien or seize this
6 do you assert that it was an appropriate inquiry for a
6 property or four-plex. That's a claim the Masters
7 judge to make?
7 have already r ected. He now claims that his letter,
MR. MURPHY: Well, because the issue had been
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9 joined by Mr. Carlsson in his testimony in the direct
8 the original letter that he sent to the Commission,

9 which was Examiner's No.3, he admits wrongdoing. But
1 o when he was questioned about that at the hearing,

11 under oath, he said, "All I did wrong was to not make
12 a complete record." He's not admitting he did
13 statement. So Judge McBrien requested that one-year
13 anything substantively wrong.
14 statement be produced; Mr. Carlsson agreed. And then
14
15 Mrs. Carlsson's lawyer requested an additional
15 Economic Interest. The attorneys didn't have a
16 statement be produced, and he agreed to produce that
16 particular interest in them. They asked a few
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11 by his -- Mr. Carlsson's wife's counsel. And so this

12 issue is now floating out there with respect to the
He's the one who sought these Statements of
17 as well. So the issue had been raised by counsel in
1 7 questions about i1:, but he's the one who wanted to get
18 direct examination. It had also been raised on the
18 those documents, not the lawyers.
19 cross-examination. So now we have this statement out
19
20 there, testimony with respect to this statement. The
20 some questions.
21 statement is the best evidence. It possibly had
21
22 relevant, admissible evidence contained within the
22 none. Thank you very much.
23 statement.
23
This matter is submitted.
24
24
(Time noted: 2:42 p.m.)
25
---oOo---
COMMISSIONER FEINSTEIN: All right. I want
25 to follow-up. However, judges normally don't conduct
40
Judge McBrien has now admitted that he should
10 examination. He was questioned on cross-examination
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864-9645
37
1 produce the statement. Mr. Carlsson said that he
(510)
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SANDRA LEHANE/
I have nothing else to add, unless there are

COMMISSIONER McCONNELL: Apparently there are
Page 10
(Pages 37-40)
SANDRA LEHANE/

Page
1 STATE OF CALIFORNIA
(510)
864-9645
41
) ss.
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3
4
I hereby certify that the foregoing
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5 proceedings in the within-entitled cause occurred at

6 the time and place herein named; that the
7 transcription is a true record of the proceedings as
8 reported by me, a duly certified shorthand reporter
I further certify that I am not interested in
12 the outcome of the said action, nor connected with,
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13 nor related to any of the parties in said action, nor
11
9 and a disinterested person, and was thereafter

10 transcribed into typewriting by computer.
14 to their respective counsel.

15
IN WITNESS WHEREOF, I have hereunto set my
16 hand
, 20 0 9.
17
18
---------------------------------
19
SANDRA LEHANE, C.S.R. 7372
20
STATE OF CALIFORNIA
21
22
23
24
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(Pages 41-41)
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Caution
As of: Jun 24, 2015
1 of 13 DOCUMENTS
In re the Marriage of MONA LEA and ULF JOHAN CARLSSON. MONA LEA
CARLSSON, Respondent, v. ULF JOHAN CARLSSON, Appellant.
C053515
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

163 Cal. App. 4th 281; 77 Cal. Rptr. 3d 305; 2008 Cal. App. LEXIS 777
May 8, 2008, Filed
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SUBSEQUENT HISTORY:
The Publication Status of this Document has been
Changed by the Court from Unpublished to Published
May 23, 2008.
Review denied by Carlsson (Mona Lea & Ulf Johan),
Marriage of, 2008 Cal. LEXIS 9798 (Cal., Aug. 13, 2008)
Related proceeding at Inquiry Concerning Judge Peter J.
McBrien, 2010 Cal. Comm. Jud. Perform. LEXIS 1
(2010)
[Cal. Forms of Pleading and Practice (2007) ch.

126A, Constitutional Law, 126A.54; 3 Witkin, Cal.
Evidence (4th ed. 2000) Presentation at Trial, 3; 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, 449,
456.]
COUNSEL: Ishikawa Law Office and Brendon Ishikawa
for Appellant.
HEADNOTES-1
Law Office of Stephanie J. Finelli and Stephanie J.

Finelli for Respondent.
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PRIOR-HISTORY:
Superior Court of Sacramento
County, No. 04FL02489, Peter J. McBrien, Judge.
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expert witness for the husband was on the witness stand

and the husband's counsel was in the midst of asking the
expert a question.
CALIFORNIA OFFICIAL REPORTS HEADNOTES
(1) Trial 9--Conduct--Due Process--Right to Fair

Hearing--Dissolution
of
Marriage--Abrupt
Ending--Case-in-chief.--In a marital dissolution case,
the trial court deprived a husband of his due process right
to a fair hearing, where the trial court abruptly ended the
trial before the husband had finished putting on his
case-in-chief. The trial judge ended the trial while an
JUDGES: Opinion by Butz, J., with Blease, Acting P. J.,

and Sims, J., concurring.
OPINION BY: Butz
OPINION
BUTZ, J.--"It is a cardinal principle of our
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Spousal support
Family residence
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Ulf was a full-time state employee. Mona, on the

other hand, worked part time at a dental office. Ulf
asserted that Mona was underemployed and should be
imputed with a full-time income for purposes of
computing his support obligation. He also claimed the
imputation would result in an award of zero spousal
support.
The parties owned a family home in Gold River. Ulf

requested that he be awarded the house and that Mona
receive half of the community equity. Mona was initially
agreeable to this proposal, but during the trial changed
her mind and asked that the home be sold. There was
substantial disagreement between the parties' experts on
the value of the home.
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jurisprudence that a party should not be bound or

concluded by a judgment unless he has had his day in
court. This means that a party must be duly cited to
appear and afforded an opportunity to be heard and to
offer evidence at such hearing in support of his
contentions. [] His right to a hearing does not depend
upon the will, caprice or discretion of the trial judge who
is to make a decision upon the issues. [] An order or
judgment without such an opportunity is lacking in all the
attributes of a judicial determination. [Citations.] []
Refusal to permit counsel ... to present evidence and
make a reasonable argument in support of his client's
position [i]s not a mere error in procedure. It amount[s] to
a deprival of a substantial statutory right ... ." (Spector v.
Superior Court (1961) 55 Cal.2d 839, 843-844 [13 Cal.
Rptr. 189, 361 P.2d 909] (Spector).)
"Only judge when you have heard all."--Greek
proverb.
This case invites application of the above principles

to an unusual and perhaps unprecedented fact situation:
In a routine dissolution case, the family law judge
suddenly declared an end to the trial before the husband
had finished putting on his case-in-chief. After displaying
impatience and reluctance in allowing the parties
adequate time to complete their presentations, the judge
ended the trial while an expert witness for the husband
was on the witness stand and counsel was in the midst of
asking him a question.
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We shall conclude that the trial court's actions

deprived the husband of his due process right to a fair
hearing. We shall reverse the judgment and direct the
matter be retried.
FACTUAL AND PROCEDURAL BACKGROUND
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After 16 years of marriage, respondent Mona Lea

Carlsson (Mona) filed the instant petition for dissolution
of marriage from her husband Ulf Johan Carlsson (Ulf) in
April 2004. 1 The issue of custody of their minor child
was referred to a special master, and was not included in
the proceedings below.
1 As both parties have the same surname, we
refer to them by their first names. No disrespect is
intended.
A brief synopsis of the main disputed issues follows.
Rental property
During the marriage, the Carlssons acquired an

interest in rental property in Sacramento. Ownership
interest in the rental property was the subject of intense
dispute. The couple initially had a silent partner, Scott
Moore, who was to contribute his labor in renovating the
property. 2 However, Moore was called up to Army duty
in Guantanamo Bay and Iraq, and ended up transferring
his interest to the Carlssons.
2 Moore's wife, Denise Moore, was also on title
as an owner.
Ulf claimed that he subsequently entered into a

partnership agreement with Joseph Mayo, Jr., on the
rental property, with Mona's consent. He maintained that
Mona secretly filed divorce papers just before Mayo's
name was to be placed on title, in an attempt to deprive
Mayo of his interest in the property. 3
3 By the time of trial, Mayo had filed a lawsuit
against the Carlssons for breach of the partnership
agreement and had recorded a lis pendens against
the rental property.
Ulf's retirement plan
Ulf asked for an equal division of the community
interest in his CalPERS (California Public Employees'
Retirement System) retirement pension and requested that
it be divided into two separate accounts to prevent Mona
Page 3
"THE COURT: I don't intend to argue with you

either. I'm telling you exactly what my availability is and
if you want a mistrial at this point, you're welcome to it.
Attorney fees
"MS. HUDDLE: Your Honor, we set the matter for

two days." (Italics added.)
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During the half-day of trial on March 3, Judge

McBrien issued a sua sponte order that Ulf produce
certain annual conflict of interest documents required by
the Fair Political Practices Commission and filed with the
Secretary of State. He also advised Ulf to consult an
attorney regarding his exposure to "potential penalties
far beyond what we're talking about today."
The trial
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Trial took place before Judge Peter J. McBrien for a

full day on March 2 and on two half-days, March 3 and 9,
2006.
Ulf requested that each party bear his or her own

attorney fees. Mona asked that Ulf pay $ 40,000 of her $
47,000 bill for expert and attorney fees.
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from receiving a windfall from Ulf's postdissolution

contributions to his pension. Mona opposed segregation
of the retirement account.
From the beginning, Judge McBrien manifested his

impatience with Ulf's counsel, Sharon Huddle, and the
pace of the proceedings. At one point during the first day
of trial, Attorney Huddle questioned why trial was
continuing through the lunch hour:
"MS. HUDDLE: Your Honor, I am going to have to
eat.
"THE COURT: The reason I am going forward is

because tomorrow afternoon I have a continuing trial. It
has statutory preference. So, I'm insuring that we're going
to complete it by noon tomorrow. Otherwise, we may as
well call a mistrial right now. Statutory preference.
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"MS. HUDDLE: Well, I have one witness driving up

from Orange County and another is driving from Tulare
County today.
The next half-day's proceedings began on March 9

with Judge McBrien expressing frustration and anger at
the fact that the documents had not been produced.
"THE COURT: On the record, did your client
consult some legal advice regarding that issue?
"MS. HUDDLE: I found him a lawyer.
"THE COURT: Did he bring the documents with

him?
"MS. HUDDLE: He never went to work. He is on
disability; he doesn't have them.
"THE COURT: So, he has violated my request to
bring those documents?
"MS. HUDDLE: The way I heard you say it, it was a
suggestion that he bring them.
"THE COURT: That's fine.
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"MS. HUDDLE: I don't know that--I didn't have any

breakfast. I assumed I was going to get some lunch.
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"THE COURT: I'm not intending to go with no break

for anyone. I'm suggesting that maybe we can finish with
this witness and take a short break?
"MS. HUDDLE: Okay. I also have the two experts
coming tomorrow.
"THE COURT: All I'm telling you is if it's not
completed by noon, it's a mistrial.
"MS. HUDDLE: Well, I'm--the value on the family
residence has to be decided. There has to be an expert on
that.
"THE COURT: Do you want me to have the record

read?
"MS. HUDDLE: He would have to go to work to see
if he even has a copy.
"THE COURT: Ma'am, I would suggest that he send
somebody to his workplace to get those documents before
we conclude this trial."
Attorney Huddle then objected that the documents
were irrelevant to the division of community property.
The judge overruled the objection, remarking that, while
the documents were not relevant to the present case,
"they may be relevant to other proceedings." Huddle
pointed out that since the court had suggested possible
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"MS. HUDDLE: If you redid your capitalization and

your sales market approach-"THE COURT: Pardon me. I have an EPO. Court is
in recess.
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Attorney Huddle told the judge, "I don't know what

to do in a situation like this when you're actually asking
him to produce evidence which might incriminate him
and it's not even the opposing side presenting it." Judge
McBrien responded, "Ms. Huddle, am I to take that as a
'no' placing you in the possibility of contempt?" to which
she replied, "No. I will tell him to go get the records." At
that point, the next witness was called and the court
abandoned all further interest in the subject.
Prior to the conclusion of Ulf's case, Mona's expert

witness was recalled for rebuttal on the fair market value
of the real properties in dispute. Once Attorney Huddle
completed her cross-examination of Mona's expert, she
then recalled her own expert witness, Pakhtun Shah, to
testify in rebuttal on fair market value. Shah had just
taken the witness stand when the trial ended with this
exchange:
criminal penalties, Ulf might want to assert his Fifth

Amendment privilege, but the judge rejected that assertion
out of hand.
As the trial extended into the late afternoon of March

9 without a break, the following exchange occurred:
"MS. KEELEY [Mona's attorney]: I have no further

questions at this time, but I would ask that the witness not
be released.
"THE COURT: Okay. Ms. Huddle?
"MS. HUDDLE: Your Honor, is there any way I

could get a break to use the ladies' room?
"THE COURT: You know, you're approaching a
mistrial.
"MS. HUDDLE: I haven't even been able to talk to

the gentleman who went to work to get the records you
requested. He has returned. I don't know what he has to
say.
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"THE COURT: Okay. Is that why you're asking for a

break?
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"MS. HUDDLE: No. I do need to use the ladies'

room. We have been here--
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"THE COURT: Why don't we take a five-minute

recess, but I guarantee you, if this is not completed by
4:30, there will be a mistrial." (Italics added.)
Following the five-minute recess and to expedite

proceedings, both counsel notified the court they were
waiving their respective claims with respect to minor
monetary issues. In a further effort to save time, Attorney
Huddle conducted a very brief redirect examination of
Ulf's expert witness without his returning to the witness
stand.
"MS. HUDDLE: I think he's just taking an

Emergency Protective Order request. Is that it, like a
domestic violence, it's his week, right?
"THE CLERK: He's always assigned EPO's.
"THE COURT: We're going to have to adjourn this.

The County operator is on the phone. This trial has
ended.
"MS. HUDDLE: Your Honor, I don't even have my
client's attorney fees costs put on.
"THE COURT: Then I'll reserve over that issue or
you can get a mistrial, one or the other.
"MS. KEELEY: We don't want a mistrial. We'll
reserve over that issue.
"MS. HUDDLE: But, Your Honor, the house that
we're evaluating-"(Judge exits room.)
"MS. KEELEY: We'll arrange another date. Don't
panic.
"MS. HUDDLE: Is that what he said?
"MS. KEELEY: I'm going to ask for ... him to
reserve.
"THE WITNESS: May I go?
"MS. HUDDLE: Is he coming back? I'm in the
middle of my examination.
"MS. KEELEY: Ms. Huddle, I'm not prepared for a
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Judgment
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Judge McBrien issued a written decision, ruling

against Ulf on almost every issue. He rejected Ulf's
contention that Mona was underemployed; ruled that Ulf
and Mona were sole owners of the rental property;
ordered both the family residence and the rental property
sold; failed to segregate Ulf's retirement account for
purposes of awarding Mona her community share; and
ordered Ulf to pay Mona $ 35,000 in attorney and expert
witness fees. 4 Despite the court's prior handwritten
order that child support would not be determined until
custody was resolved, the judgment ordered Ulf to pay $
736 per month in child support.
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4 Although the parties were allowed to submit

billings for attorney and witness fees, the court
only heard Mona's testimony on the issue. Ulf
never got a chance to testify as to his fees and
costs.
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In his closing brief, Ulf objected to the peremptory

termination of the trial, pointing out that his redirect
testimony was not concluded and that rebuttal testimony
was not allowed. Ulf also complained that he was not
permitted to put on any testimony regarding attorney fees
and asserted that if he had had the opportunity, he would
have introduced testimony that selling the family home
would traumatize the Carlssons' minor daughter.
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The judge never returned. The clerk verbally

informed counsel that the trial was concluded, but that the
court would permit the parties to submit declarations on
attorney fees as well as closing briefs not longer than
three pages in length within one week, which both parties
did.
"(At the hour of 4:29 p.m., the proceedings ended.)"
"The term 'due process of law' asserts a fundamental

principle of justice which is not subject to any precise
definition but deals essentially with the denial of
fundamental fairness, shocking to the universal sense of
justice." (Gray v. Whitmore (1971) 17 Cal. App. 3d 1, 20
[94 Cal. Rptr. 904].) " 'The trial of a case should not only
be fair in fact, but it should also appear to be fair.'
[Citations.] A prime corollary of the foregoing rule is that
'A trial judge should not prejudge the issues but should
keep an open mind until all the evidence is presented to
him.' " (Hansen v. Hansen (1965) 233 Cal. App. 2d 575,
584 [43 Cal. Rptr. 729].)
mistrial.
I. Ulf's Contentions
Ulf contends that by abandoning the trial in the
middle of his case-in-chief without giving him an
opportunity to complete the presentation of evidence or
offer rebuttal evidence, the trial court denied him his
constitutional right to due process and a fair trial. On this
record, we are compelled to agree.
The trial court openly violated these precepts. After

displaying ill-disguised impatience with Ulf and his
counsel and repeatedly threatening a mistrial if the
proceedings were not concluded quickly enough, Judge
McBrien abruptly ended the trial before Ulf had finished
his presentation, cutting off any opportunity for rebuttal
evidence (other than six questions posed to Ulf's expert)
or argument of counsel. This method of conducting a trial
cannot be condoned in a California courtroom.
Unquestionably, the trial court has the power to rule
on the admissibility of evidence, exclude proffered
evidence that is deemed to be irrelevant, prejudicial or
cumulative and expedite proceedings which, in the court's
view, are dragging on too long without significantly
aiding the trier of fact. If the court errs in any of these
respects, its rulings may be reviewed by a higher court
and, if prejudicial, the judgment will be reversed. That
kind of review is unavailable here, however, because the
court's summary termination of the trial infringed on Ulf's
fundamental right to a full and fair hearing.
"Denying a party the right to testify or to offer

evidence is reversible per se." (Kelly v. New West Federal
Savings (1996) 49 Cal.App.4th 659, 677 [56 Cal. Rptr.
2d 803] (Kelly); accord, Fewel v. Fewel (1943) 23 Cal.2d
431, 433 [144 P.2d 592]; Guardianship of Waite (1939)
14 Cal.2d 727, 729 [97 P.2d 238]; Caldwell v. Caldwell
(1962) 204 Cal. App. 2d 819, 821 [22 Cal. Rptr. 854]
(Caldwell).) As the state Supreme Court has recently
stated: "'We are fully cognizant of the press of business
presented to the judge who presides over the [Family
Law] Department of the Superior Court ... , and highly
commend his efforts to expedite the handling of matters
which come before him. However, such efforts should
never be directed in such manner as to prevent a full and
fair opportunity to the parties to present all competent,
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and rebuttal evidence ... , and to exclude unduly

prejudicial matter [citation], denial of this fundamental
right is almost always considered reversible error'" (ibid.,
quoting 3 Witkin, Cal. Evidence (4th ed. 2000)
Presentation at Trial, 3, pp. 28-29).
II. Mona's Defense of the Judgment
Mona raises a number of arguments in defense of the

judgment, none of which we find persuasive.
Mona first contends there is no such thing as

"structural error" in a civil case. However, where the trial
court denies a party his right to a fair hearing, it exceeds
its jurisdiction, and the error is reversible per se. (9
Witkin, Cal. Procedure (4th ed. 1997) Appeal, 449, p.
497.)
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relevant, and material evidence bearing upon any issue

properly presented for determination. [] Matters of
domestic relations are of the utmost importance to the
parties involved and also to the people of the State of
California. ... To this end a trial judge should not
determine any issue that is presented for his
consideration until he has heard all competent, material,
and relevant evidence the parties desire to introduce.' "
(Elkins v. Superior Court (2007) 41 Cal.4th 1337,
1357-1358 [63 Cal. Rptr. 3d 483, 163 P.3d 160] (Elkins),
quoting Shippey v. Shippey (1943) 58 Cal. App. 2d 174,
177 [136 P.2d 86].)
The trial court essentially ran the trial on a
stopwatch, curtailing the parties' right to present evidence
on all material disputed issues. Using the constant threat
of a mistrial, Judge McBrien pressured Attorney Huddle
into rushing through her presentation and continuing
without a break. Despite his avowed compelling need for
brevity, the judge himself frustrated the trial's progression
with a sua sponte order that Ulf produce documents
which, as the judge conceded, were not relevant to the
issues before him. Most damning, the judge abruptly
ended the trial in the middle of a witness's testimony,
prior to the completion of one side's case and without
giving the parties the opportunity to introduce or even
propose additional evidence. This was reversible error.
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The Elkins case fully supports our conclusion.

Although Elkins involved a different issue than that posed
here--whether a local rule that required parties to present
their case in contested dissolution trials by means of
written declarations was inconsistent with certain
statutory provisions (Elkins, supra, 41 Cal.4th at p.
1345)--the court's pronouncements have a direct bearing
on this case. The high court noted that "[a]lthough some
informality and flexibility have been accepted in marital
dissolution proceedings, such proceedings are governed
by the same statutory rules of evidence and procedure
that apply in other civil actions ... ." (Id. at p. 1354.)
"Ordinarily, parties have the right to testify in their own
behalf [citation], and a party's opportunity to call
witnesses to testify and to proffer admissible evidence is
central to having his or her day in court." (Id. at p. 1357,
italics added.) Emphasizing a party's "fundamental right
to present evidence at trial in a civil case" (ibid.), the
Elkins court went on to declare, "'One of the elements of
a fair trial is the right to offer relevant and competent
evidence on a material issue. Subject to such obvious
qualifications as the court's power to restrict cumulative
Although we have found no case like this one, in

which the trial judge literally walked out of the
courtroom in midtrial, our courts have consistently
applied the rule of automatic reversal where a party is
prevented from having his or her full day in court.
(Spector, supra, 55 Cal.2d at pp. 843-844 [refusal to
permit evidence or argument on motion to modify
preliminary injunction]; Southern Pacific Transportation
Co. v. Santa Fe Pacific Pipelines, Inc. (1999) 74
Cal.App.4th 1232, 1248 [88 Cal. Rptr. 2d 777]
[exclusion of proper method of valuation abridged
party's right to present relevant evidence on material
issue]; Kelly, supra, 49 Cal.App.4th at p. 677 [granting of
motions in limine prevented jury from hearing crucial
evidence]; Caldwell, supra, 204 Cal. App. 2d at pp.
820-821 [refusal to allow testimony on needs of child
where child support was contested issue]; Moore v.
California Minerals etc. Corp. (1953) 115 Cal. App. 2d
834, 836-837 [252 P.2d 1005] [trial court granted
judgment on the pleadings sua sponte, without hearing
evidence or argument].)
Whether we call this error "structural" or not is
inconsequential. The failure to accord a party litigant his
constitutional right to due process is reversible per se, and
not subject to the harmless error doctrine. (Kelly, supra,
49 Cal.App.4th at p. 677.) 5
5
Contrary to Mona's suggestion at oral
argument, In re James F. (2008) 42 Cal.4th 901
[70 Cal. Rptr. 3d 358, 174 P.3d 180] (James F.)
does not support the proposition that structural
error can never occur in a civil case. In James F.,
Page 7
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to a full and fair trial. Because the court did not afford
him one, the integrity of the process was fatally
compromised.
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Mona's brief also suggests that Ulf is precluded from

complaining because he did not make a sufficient
objection in the trial court or an offer of proof as to what
additional evidence he would have put on had the trial
not been aborted summarily. Because this argument is not
presented under a separate heading, it is forfeited.
(Heavenly Valley v. El Dorado County Bd. of
Equalization (2000) 84 Cal.App.4th 1323, 1345-1346 &
fn. 17 [101 Cal. Rptr. 2d 591]; Cal. Rules of Court, rule
8.204(a)(1)(B).)
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the trial court, in a dependency proceeding,

appointed a guardian ad litem for a mentally
incompetent father without the proper procedural
safeguards for ensuring that he had an opportunity
to contest the appointment. The state Supreme
Court ruled that this procedural due process
violation did not create an error that "'def[ied]
analysis by "harmless-error" standards'" (id. at p.
917, quoting Arizona v. Fulminante (1991) 499
U.S. 279, 309 [113 L. Ed. 2d 302, 331, 111 S. Ct.
1246] (maj. opn. of Rehnquist, C. J., as to pt. II)),
since it could be determined from the record that
the error had no material effect on the outcome
(James F., supra, at pp. 917-918). Nothing in
James F. implies that per se error cannot be found
in a civil appeal. Moreover, James F. did not
involve a party's substantive due process right to a
fair trial, the deprivation of which the state high
court has held defies harmless error analysis. (See
Webber v. Webber (1948) 33 Cal.2d 153, 161-162
[199 P.2d 934]; Fewel v. Fewel, supra, 23 Cal.2d
at p. 433.)
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Mona also asserts that Ulf "expressly waived" his

due process claim by failing to request a mistrial on the
two or three occasions that it was offered by the court.
We do not agree. Ulf's attorney did everything possible to
avoid a mistrial, yet the judge still left the courtroom in
the middle of her client's case. It is unfair and
unreasonable to compel a party to suffer the
inconvenience and expense of a mistrial in order to
preserve a due process claim on appeal. Ulf was not
required to choose between a mistrial and a fair trial.
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Mona next avers that Judge McBrien's actions

constituted harmless error because Ulf got a chance to put
on "plenty of evidence" to support his contentions and
was warned on several occasions that his time was
limited. But harmless error analysis has no place here.
The trial court's termination of the trial rendered an
assessment of prejudice impossible. We cannot speculate
on what evidence would have been submitted had Ulf
been permitted to complete his presentation, much less
determine whether it would have made a difference in the
judgment. (See Del Ruth v. Del Ruth (1946) 75 Cal. App.
2d 638, 648-649 [171 P.2d 34].) Mona's request is akin
to asking that a football team be declared the winner
where the referee stopped the game in the fourth quarter,
on the ground that the team had a sizeable lead and a
comeback by the opponent was unlikely. Ulf was entitled
In any event, the claim is both legally and factually

incorrect. The judge exited the courtroom as Attorney
Huddle was speaking. She was not required to lodge
formal objections or make offers of proof to a vacant
bench. Furthermore, Ulf protested the summary
termination of trial in his closing brief. He pointed out
that he had not finished putting on his case-in-chief and
that rebuttal testimony was not allowed. He also asserted
that, had he been permitted to do so, he would have
introduced rebuttal testimony that would have supported
his contentions in the case, including evidence that
selling the family home would traumatize the couple's
daughter. Ulf did what he could to raise judicial error
under extraordinary circumstances. He preserved the
issue on appeal.
By arbitrarily cutting off the presentation of
evidence, Judge McBrien rendered the trial
fundamentally unfair and violated Ulf's right to due
process. (U.S. Const., 14th Amend., 1; Cal. Const., art.
I, 7, subd. (a).) Because these errors infected the
integrity of the trial, they require reversal without regard
to an assessment of actual prejudice. (See People v. Mello
(2002) 97 Cal.App.4th 511, 519 [118 Cal. Rptr. 2d 523].)
DISPOSITION
The judgment is vacated and remanded for retrial.
The Presiding Judge of the Sacramento County Superior
Court is directed to assign the matter to a different judge.
(Code Civ. Proc., 170.1, subd. (c), 187.) Ulf shall
recover costs on appeal. (Cal. Rules of Court, rule
8.278(a)(1).)
Blease, Acting P. J., and Sims, J., concurred.
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This article was printed from the Local Stories

section of the Sacramento News & Review, originally published August 16,
2001.
This article may be read online at:
http://www.newsreview.com/sacramento/content?oid=8108
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A view to kill for
By Stephen James
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When Superior Court Judge Peter McBrien noticed a bunch of oaks

blocking his view of the American River, he had the trees chainsawed.
Is that upholding the law?
When he arrived at the scene of the crime and surveyed the

massive pile of dismembered limbs, he knew immediately that a
chainsaw had been used to butcher the victims. There was no
blood at the scene, only the telltale shredded bark and wood
chips that littered the site. And despite the fact that it was also
obvious that the vandals had carried out the tree slaughter
Return on investment: Because he got caught, this
quickly, veteran Sacramento County park ranger Steve Flannery view cost the judge $20,000 and change, but local real
estate agent Lillian Fulton estimates that it increased
berated himself.
the value of the judges residence by $100,000.
PHOTO BYLARRY DALTON
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Flannery took pride in the fact that he had a keen awareness of

the goings-on along his patrol route on the American River
Parkway, and was disappointed that he had not discovered the desecration near the Effie Yeaw Nature Center in
Ancil Hoffman Park sooner. When I first saw it, I was really dismayed, he explained. You think youve got a
pretty good eye on things but its a big area to cover.
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It was small consolation when it was revealed that the crime appeared to have been timed to avoid detection. The
tree-cutting incident took place in the evening when the nature center was closed, the park rangers were spread
thin, and one of the two next-door neighbors who lived nearby were on vacation. Whoever did the tree butchery
apparently had a plan. I believe he timed it just right, said Flannery.
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The unusual chain of events regarding the timing lead to more investigation into the crime, and culminated with
the felony criminal indictment of a Sacramento County Superior Court judge.
It all began November 11, 1999, when Flannery received a report of felled trees near the nature center, and went
to investigate. Flannery was intimately familiar with the area, having begun his career as a park ranger 22 years
earlier by leading educational tours along the nature trails that wind into the woods from the center. Flannery
had guided hundreds of visitors through the area, but had never seen the natural landscape the way it appeared
that day. What he saw were several large oak treeslater determined to be up to 50 feet tall and 80 years old
that had been dismembered, their trunks and limbs still resting haphazardly where they had landed after falling
50 feet to the ground. He was shocked by the extent of the damage to the parks trees. This was a pretty
egregious act, said Flannery, a callous disregard for protected public property. Like in all parks and other
public property, damaging or removing trees, plants or wildlife at the recreation area is prohibited by state and
local law.
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The large, disheveled pile of splintered oak looks essentially the same today as when first discovered. Flannery
points out that the destruction resulted in a significant loss of the shade canopy provided by the trees, which
enabled birds to nest, wildlife to thrive, and discouraged the growth of non-native plants on the ground. Youre
constantly battling non-native plants and the oaks will choke them out by denying them the sunlight. This is
totally open to the sun now, he explained, pointing to the streaming sunlight bathing the forest floor.
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On the fall morning he discovered the hardwood corpses, Flannery immediately put his investigative training to
workalthough this mystery wasnt much of a challenge. It doesnt take a rocket scientist to figure out who
would benefit from these trees being cut, he said. The houses bordering the nature area are located on a bluff 30
to 60 feet above the area and, as he climbed up, Flannery noted that one home directly above the destroyed trees
now had a virtually unobstructed view of the river.
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It is undisputed that the crimethe destruction of protected valley oak trees in a public parkhas permanently
altered the sensitive environment at the Effie Yeaw Nature Center, where schoolchildren and other visitors
quietly observe families of deer, wild turkey and other wildlife living, as they have for hundreds of years, among
native trees and foliage. It may be hard to comprehend the selfishness of the actapparently committed for the
sole purpose of carving out a view for a home sitting on a bluff bordering the park. And harder still to
understand why a Sacramento County Superior Court judge and former deputy attorney general with the state
Department of Justicesworn to uphold and enforce the lawwould commit such a crime.
The prosecution, conviction and epilogue from the Sacramento
County criminal case formally titled The People of the State of
California vs. Peter James McBrien and Mark Patrick
Chamberlin provides a rare and unsettling glimpse into a
veiled niche of the criminal justice and judicial discipline
systems, where law-breaking judicial officers are provided
preferential treatment. An examination of the case shows that
the judge will likely face no public punishment from the
Commission on Judicial Performance, the state agency
responsible for judge oversight.
Orienting himself in line with the pile of cut wood that used to
be stoic, healthy oak trees, Flannery began his hike to the home
at the top of the bluff. From the crest, it was impossible to miss
the stunning view over the nature center and park, across a
glistening bend in the American River, and out over the valley
beyond. Stepping over the park boundary and into an unfenced backyard, Flannery proceeded to the back door
of the house and knocked. A woman answered and, in a short conversation with the ranger, denied any
knowledge of the cuttings outside the back of her property. The woman identified herself as Barbara McBrien
and, Flannery recalls, volunteered that she was the wife of a superior court judge. The conversation and
demeanor of the woman gave Flannery the impression that he had been given a veiled warning. Flannery felt
that it implied you guys better be careful, you dont know who youre dealing with, he said, as if she felt the
reference to contacts in high places would immediately end the inquiry. (Barbara McBrien did not respond to an
interview request.) But the judges wife may have underestimated whom she was dealing with, and the ranger
found the none-too-subtle attempt at intimidation offensive, and remained unfazed. I had no intention of just
blowing it off, Flannery said.
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No, its not a logging camp: Ranger Steve Flannery at

the pile of lumber that used to be healthy oak trees at
the Effie Yeaw Nature Center at Ancil Hoffman
Park.
After enlisting help from a supervisor, Flannery returned to the top of the bluff later that same day, where they
were contacted by Susan Arthur, the next-door neighbor of the McBriens, who said she had witnessed the
cuttings. Arthur also had additional information about the chain of events leading up to the crime, which were
recorded in the court records. Ms. McBrien told Ms. Arthur that they were going to be cutting oaks from the
nature area so that they would have a better view of the river from their property, reads the district attorney
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investigators affidavit, in the court file. Ms. Arthur told the park ranger that she tried to change Ms. McBriens
mind about topping the trees before the first cutting occurred. Ms. Arthur told Ms. McBrien that she had read an
article in the newspaper about another incident in which someone had been heavily fined for cutting down trees
in the nature area. Ms. McBrien allegedly told Ms. Arthur that, We just cant live here and not have a view of
the river. The document also revealed that Flannery had been told by Arthur that on several occasions prior
to the tree cutting in 1999, she and Ms. McBrien went on guided bird watching walks hosted by the Effie Yeaw
Nature Center. The walks had taken them to the area below the Arthur and McBrien residences. It was clear
to her and should have been clear to Ms. McBrien that the area behind their homes, located in the nature area,
was county property. (Contacted at her home, Arthur declined to discuss any aspect of the case.)
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Since the investigators had an eyewitness who had claimed to have watched the McBriens in the act of
supervising and assisting Titan Tree Company owner Mark Chamberlin in taking a chain saw to the majestic
oaks, that aspect of the investigation came together quickly. The court records note: Ms. Arthur observed that
Barbara and Peter McBrien and their two sons were in the backyard while Mr. Chamberlin was topping the
trees. Mr. McBrien was using a rope to help Mr. Chamberlin get down the slope of the bluff. While standing in
the backyard watching Mr. Chamberlin, different members of the family would call out that another tree or limb
needed to be cut. And with the motive established and the suspects identified, all that remained was to officially
appraise the damage and file the criminal case. (Chamberlin also declined comment when contacted by phone.)
As a result of Mrs. McBriens references to her husbands occupation, and general lack of cooperation, Flannery
did, however, feel it would be prudent to enlist the assistance of the special investigations division of the district
attorneys office, instead of pursuing the matter through the usual chain of command. Akin to an
Untouchables team of prosecutors and investigators within the office, the special investigations division
specializes in complex and politically sensitive investigations involving police officers, public officials, and
major white-collar crime.
At the district attorneys office, the oak tree desecration file landed on the desk of veteran investigator Craig
Tourte, shortly after the ranger team had met with Arthur. At this point, Tourte served a search warrant at the
Titan Tree Company office to retrieve receipts and records related to the work. According to Flannery, there was
some concern that if the case went to trial, McBrien, with his background as a deputy attorney general and
judge, would retain experienced counsel and mount an aggressive defense. So the prosecution team wanted to
make sure that the case was airtight, which meant, among other things, that they needed a professional
assessment of the value of the trees.
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Certified arborist Joseph Benassini was enlisted to inspect and quantify the damage to the trees that were cut.
Benassini identified the trees as being five mature valley oak trees and three smaller live oak trees, and
determined that, as a result of the cuttings, the majority of the trees had been damaged about 90 percent.
Benassini reported that the trees had been topped, and explained to Tourte that, topping of trees is well
documented as being extremely injurious and can be associated with tree death and hazardous conditions.
During his inspection, Benassini also noticed that there appeared to have been additional trees that were
previously cut in the same area. But due to the estimated time when these other trees were whacked, which
Arthur confirmed occurred in spring 1997, criminal prosecution was impossible because the statute of
limitations had expired. Benassini conservatively estimated the value of the trees from the most recent cuts to be
$20,324.70.
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On October 28, 2000, Deputy District Attorney Albert Locher filed criminal case FO8821, charging McBrien and
Chamberlin with a violation of Penal Code Section 594felony vandalismfor unlawfully and maliciously
damaging oak trees belonging to the county of Sacramento Parks and Recreation Department. But instead of
issuing an arrest warrant, Locher issued a summons in lieu of a warrant, which enabled the judge to avoid the
humbling and demeaning arrest and booking process. Locher concedes that the rarely used summons procedure
was an accommodation for McBrien, but cited concerns about the judges safety had he undergone the
customary arrest and county jail booking procedure. There are always security issues when we bring a judge or
law enforcement officer into jail, he explained.
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In less than 48 hours after the case was filed, the matter was resolved when the
district attorneys office agreed to a misdemeanor plea bargain. Under the
terms of the agreement, McBrien and Chamberlin pleaded no contest to a
violation of Penal Code Section 384a, which prohibits the destruction or
removal of public or private trees and other plants. McBrien and Chamberlin
were fined $500, and agreed to pay a total of $20,000 in restitution to the
nature center. The day of the court hearing, McBriens attorney paid the full
$20,000 (which included Chamberlins share), and fine on behalf of his client,
which immediately concluded the case. After his courtroom appearance,
McBrien was allowed to leave through a non-public rear entrance, leaving
questions from the media for his attorney to answer.
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But the Sacramento County Sheriffs Department, which manages the jail facility, takes exception to the
accusation that they would be unable to safely process any arrestee, including a local judge. Sheriffs
Department spokeswoman Sharon Chow explains that the jail has an elaborate classification process designed to
ensure the safe processing of all jail customers. We have high-profile inmates on a regular basis, she said.
But conspicuously absent from the court file and settlement paperwork are any
references to the increase in property value due to the new river view that
McBrien obtained as a result of the crime. Asked about this aspect of the case
and whether it was a factor considered in settlement negotiations, Locher
acknowledged that it was but it wasnt. We considered that in trying to
Sitting pretty: The McBrien
evaluate the case, but its difficult to get a measure of what that might be. But residence now has one of the few
it wasnt difficult for Lyon & Associates real estate agent Lillian Fulton, who virtually unobstructed views among
is recognized as a local authority on high-dollar Carmichael real estate. Fulton the expensive homes that rim the
is familiar with the McBrien home and all the properties on the bluff rimming bluff above the park.
Ancil Hoffman Park. Inspecting a picture of the McBriens new view, she
estimates that in the current market, the property could have increased in value
$100,000 or more there are only a handful of properties that have that view. And in his investigation report,
Tourte confirms that such views in the immediate area are scarce, noting that the neighbors on the other side of
both the McBrien and Arthur residences have a completely obstructed backyard view because of tree and
vegetation growth
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Judge McBrien declines to comment on any aspect of the matter, and refers all questions to his criminal attorney,
Brad Wishek. Wishek feels that the judge was singled out and claims that illegal tree cutting occurs all the time
all over the county that is not criminally prosecuted in this manner. [McBrien] got prosecuted when others
did not. Wishek also takes exception to the statements made to the investigators by Susan Arthur. The
allegations made by the neighbor are in many respects not true, he said. Regarding the increase in value of the
McBrien residence, Wishek concedes that that was suggested but the judge has no specific information on
that issue. Wishek also defends McBriens abrupt exit through the courtroom back door after the case was
settled as necessary to ensure the judges safety. You have a person who by virtue of his position as a family
court judge is a target of threats, and whose life is in dangerand I say that in all sincerity.
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Wishek also defends the plea bargain as an appropriate resolution of the case: It was always my position that the
vandalism charge was not appropriate, the only charge that was accurate was a misdemeanor. He says McBrien
accepted the plea agreement because he felt it was in everyones interest that he quickly resolve the matter and
move on.
Whether the matter had been quickly resolved or not, McBrien would continue his employment as a judge
without interruption, drawing his annual salary of $133,050 with full benefits and a generous retirement
package, because, short of physically incarcerating a judge, the criminal justice system is not empowered to
remove a judge from the bench. Unlike other public and private sector employees, judges in California face
almost no consequences related to their employment for most conduct, criminal or otherwise, that they engage in
on or off the job. A judge can commit a serious crime and remain on the bench, unless he is imprisoned,
voluntarily steps down or is removed from the bench by the state Commission on Judicial Performance (CJP). In
addition, since at least 1871, the justices of the United States Supreme Court have decreed that all judges are
immune from the civil liability that nearly all other occupations are bound by, for any actions they take on the
job.
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In essence, outside of the criminal law, judges are held accountable in only three ways: impeachment, recall, or
by discipline from the CJP. Only two judges in California have ever been impeached, the last in 1929. A judge
can also be recalled by a petition bearing signatures equal in number to 20 percent of the last vote for office, but
the recall procedure is about as practical and as frequently utilized as impeachment. The only realistic oversight
of judges is provided by the CJP, which, history reveals, has been something less than a strict disciplinarian.
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The Commission is the independent state agency responsible for investigating complaints of judicial misconduct
resulting from violations of the California Code of Judicial Ethicsthe state regulations that judges are required
to comply withand for disciplining judges. The CJP accepts written complaints from anyone and will also
consider matters it learns of in other ways, such as news articles, according to its annual report. The CJP also
requires any judge who is charged with, or convicted of, most crimes to report himself. However, misdemeanors
not involving moral turpitude and infractions are excluded from the self-reporting requirement.
In the rare event that the Commission determines that a complaint merits further inquiry, it will initiate an
investigation which may include interviewing witnesses, reviewing court records and other documents, and
observing the judge while court is in session. All complaints to the CJP are confidential, as are any
investigations. The Commission cannot ordinarily confirm or deny that a complaint has been received or that an
investigation is under way, reads the annual report. And the powers of the CJP are severely limited in that it
does not impose financial penalties of any kind.
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Peter Keane, dean of the Golden Gate University School of Law in San Francisco, is recognized as an authority
on judicial discipline in California, and the author of a successful 1994 state ballot measure that forced
significant reforms on the CJP. Keane points out that in its early years, the Commission was a complete farce
in its role as judicial watchdog. They were an old boys club, they would whitewash everything. They were as
secretive as the old Soviet Kremlin, only worse. Keane says that the CJP has improved in certain respects but
has not improved in others, including that it continues to bitterly resist allowing the public full access to
information about complaints against judges and how it handles those complaints. For example, nine months
after McBriens criminal conviction, the CJP refuses to acknowledge if it will issue, or is even considering, any
disciplinary action against the judge for his violation of Canon 2 of the California Code of Judicial Ethics, which
requires all judges to respect and comply with the law.
But in 1995, the voters in California reshuffled the stacked deck of the
Commission when, by a vote of 64 percent to 36 percent, they passed the
Keane-authored Proposition 190. The state constitutional amendment
made several changes in the Commission, including theoretically altering
the balance of powerso that judges would no longer control a majority
of votesand allowing the public access to judge complaints received
by the CJP. The proposition increased the number of commissioners to
11, designating six public members, three judges and two lawyers. But
the change may not be as significant as it appears on the surface, and the
Golden Gate University School of Law
Dean Peter Keane says that judges should reforms have had virtually no effect on the amount of discipline
be held accountable for criminal and other dispensed by the Commission. An analysis of the Commissions own
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When the Commission was established in 1960, it had nine

commissioners who voted on the imposition of discipline against judges.
Of the nine, a majority of five members were judgeswith two lawyers
and two public members filling out the remaining minority. Keane says
this enabled the judge majority to control the final outcome of all
disciplinary actions.
misconduct, and that all judge complaints

and discipline should be open to public
scrutiny.
statistics reveals virtually no significant change in the amount of

discipline issued by the CJP in the four years after the shake-up, when
compared with the four years before.
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The Commission remains stacked with officials who either make a living off the judicial branch of government,
such as judges and attorneys, or are related to those that do. The CJP currently has nine commissionersthree
judges, two attorneys and four public members, with two chairs vacant. But of the four public members, two are
married to judges, leaving a solid majority of votes in the hands of judges, their spouses and attorneys. These are
the state officials who may or may not sanction judge McBrien.
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Keane says that Proposition 190 was intended to make all judge complaints received by the Commission
available to the public. But the CJP has taken the position that it is only required to disclose the records of judge
complaints after it institutes formal proceedings against a judge. Which means that, since it didnt initiate
formal proceedings in, for example, 948 out of the 951 complaints it received in 2000, it is only required to
disclose the complaints and other records from those three investigations. Keane says this self-serving
interpretation by the Commission is another example of its persistent arrogance and refusal to open up to public
scrutiny. They saw a loophole, and it is a dishonest use of that hole. In order to make public policy, the
public has to know it all, right from the outset.
Since 1991, the CJP has received 10,388 complaints against judges in California. As a result of those complaints,
the Commission has removed three judges from the bench. And a review of the actions, or more accurately, nonactions, by the Commission against wayward judges, along with an awareness of the complete lack of civil
liability enjoyed by all judges, may provide an insight into why McBrien and his wife were shocked that their
transgressions would be questioned by a lowly park ranger.
According to the Commissions most recent annual report, in 2000 the CJP resolved 934 complaints against
judges. Of those, 835 were dismissed without investigation, and another 64 were investigated but then closed
without the imposition of any discipline. Twenty-five complaints resulted in private discipline consisting of an
advisory letter in which the Commission will advise caution or express disapproval of the judges conduct, or
a private admonishment, which consists of a notice sent to the judge containing a description of the improper
conduct and the conclusions reached by the Commission.
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All advisory letters and private admonishments issued by the Commission are strictly confidential, keeping the
public in the dark. They are still playing this game of giving secrecy to claims of judge improprieties that no
other profession or group of people gets anywhere else in society, notes Keane. The Commission will not even
notify the person who submitted the complaint what discipline was issued.
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Six of the remaining complaints resulted in a public admonishment, and a single complaint resulted in the most
severe punishment, short of removal from office, that of public censure. While three judges resigned or retired
with CJP proceedings pending, no judges were removed from office by the Commission in 2000.
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The public censure was issued to Placer County Superior Court Judge Jackson Willoughby, and the punishment
he received reveals why the threat of a CJPs issued sanction may not have much of a deterrent effect on other
judges, including McBrien. In its report, the Commission described the misconduct by Willoughby as including
the fact that his honor had rubbed his bailiffs breasts without consent, and repeatedly stared at her breasts and
asked to see them, after she had breast implant surgery. The Commission also noted that Willoughby said to
another bailiff who was changing her uniform shirt in the courthouse hallway, I could stand here and watch you
undress all day, and referred to a female deputy district attorney as Old Iron Tits. According to the CJP, the
severe punishment of public censure results in only one thing: the issuance of a notice that describes a judges
improper conduct and state(s) the findings made by the Commission. Each notice is sent to the judge and made
available to the press and public.
The Commission said that it felt that public censure, instead of removal from the bench, was appropriate because,
among other things, Willoughby issued a public apology, was publicly humiliated, and had made contributions
to the judicial system. And Willoughby continues to make contributions to the judicial system as an active
judge in Roseville.
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And in another matter, which might foretell the fate of Judge McBrien, Orange County Superior Court Judge
Gary Ryan was also publicly admonished for rear-ending another vehicle while driving with a blood-alcohol
level of .17 percent, more than double the legal limit. Like McBrien, Ryan cut a deal, and the charge was
reduced to a misdemeanor in exchange for his plea of guilty. In a split decision vote, Judge Ryan received a
public admonishment from the Commission. Three of the commissionerscomposed of two judges and a public
member who is the wife of a former judgevoted against public admonishment and stated they would have
imposed a less severe sanction. [The full text of this and all public CJP decisions can be seen at
www.cjp.ca.gov.]
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Citing unfamiliarity with the facts of the case, Keane declines to speculate on the possible outcome of the
McBrien disciplinary matter, if it indeed exists. But, as a man partial to understatement, he does note that
looking back at what the Commission has done, there is a tendency at the CJP to not sanction judges as much
as they should. He adds that, while the public may hold elected officials to somewhat lower standards, it
expects more from judges. [With politicians], unfortunately, theres a cynical understanding of the fact that
these are characters that are probably going to be involved in a certain amount of hanky-panky. But in terms of
the integrity of our system of justice, there is a justifiable expectation that judges are going to be like Caesars
wife, sort of above repute. So if someone wants to be a judge, then by God, youre going to be held to a very
high standard of proper conduct. If you dont like that, dont become a judge.
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According to a 1992 judge profile that appeared in a legal newspaper, McBrien does in fact like being a judge in
the family law department of the Sacramento County superior court. "I enjoy the subject matteras difficult as
it is. You get a sense that maybe youre helping," he told the reporter. In the profile, the judge was commended
by lawyers who appear before him with their clients for being intelligent and balanced, but occasionally less so
by labeling one parent "good" and one parent "bad" in what is supposed to be a no-fault situation. And one
attorney noted that, "occasionally, youll just sort of see him fall off the fence really coming to some sort of
judgment that he doesnt like this person, that theyve been naughty." Judge not lest ye be judged.
This article was printed from the Local Stories

section of the Sacramento News & Review, originally published August 16,
2001.
This article may be read online at:
http://www.newsreview.com/sacramento/content?oid=8108
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A view to kill for
By Stephen James
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When Superior Court Judge Peter McBrien noticed a bunch of oaks

blocking his view of the American River, he had the trees chainsawed.
Is that upholding the law?
When he arrived at the scene of the crime and surveyed the

massive pile of dismembered limbs, he knew immediately that a
chainsaw had been used to butcher the victims. There was no
blood at the scene, only the telltale shredded bark and wood
chips that littered the site. And despite the fact that it was also
obvious that the vandals had carried out the tree slaughter
Return on investment: Because he got caught, this
quickly, veteran Sacramento County park ranger Steve Flannery view cost the judge $20,000 and change, but local real
estate agent Lillian Fulton estimates that it increased
berated himself.
the value of the judges residence by $100,000.
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Flannery took pride in the fact that he had a keen awareness of

the goings-on along his patrol route on the American River
Parkway, and was disappointed that he had not discovered the desecration near the Effie Yeaw Nature Center in
Ancil Hoffman Park sooner. When I first saw it, I was really dismayed, he explained. You think youve got a
pretty good eye on things but its a big area to cover.
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It was small consolation when it was revealed that the crime appeared to have been timed to avoid detection. The
tree-cutting incident took place in the evening when the nature center was closed, the park rangers were spread
thin, and one of the two next-door neighbors who lived nearby were on vacation. Whoever did the tree butchery
apparently had a plan. I believe he timed it just right, said Flannery.
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The unusual chain of events regarding the timing lead to more investigation into the crime, and culminated with
the felony criminal indictment of a Sacramento County Superior Court judge.
It all began November 11, 1999, when Flannery received a report of felled trees near the nature center, and went
to investigate. Flannery was intimately familiar with the area, having begun his career as a park ranger 22 years
earlier by leading educational tours along the nature trails that wind into the woods from the center. Flannery
had guided hundreds of visitors through the area, but had never seen the natural landscape the way it appeared
that day. What he saw were several large oak treeslater determined to be up to 50 feet tall and 80 years old
that had been dismembered, their trunks and limbs still resting haphazardly where they had landed after falling
50 feet to the ground. He was shocked by the extent of the damage to the parks trees. This was a pretty
egregious act, said Flannery, a callous disregard for protected public property. Like in all parks and other
public property, damaging or removing trees, plants or wildlife at the recreation area is prohibited by state and
local law.
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The large, disheveled pile of splintered oak looks essentially the same today as when first discovered. Flannery
points out that the destruction resulted in a significant loss of the shade canopy provided by the trees, which
enabled birds to nest, wildlife to thrive, and discouraged the growth of non-native plants on the ground. Youre
constantly battling non-native plants and the oaks will choke them out by denying them the sunlight. This is
totally open to the sun now, he explained, pointing to the streaming sunlight bathing the forest floor.
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On the fall morning he discovered the hardwood corpses, Flannery immediately put his investigative training to
workalthough this mystery wasnt much of a challenge. It doesnt take a rocket scientist to figure out who
would benefit from these trees being cut, he said. The houses bordering the nature area are located on a bluff 30
to 60 feet above the area and, as he climbed up, Flannery noted that one home directly above the destroyed trees
now had a virtually unobstructed view of the river.
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It is undisputed that the crimethe destruction of protected valley oak trees in a public parkhas permanently
altered the sensitive environment at the Effie Yeaw Nature Center, where schoolchildren and other visitors
quietly observe families of deer, wild turkey and other wildlife living, as they have for hundreds of years, among
native trees and foliage. It may be hard to comprehend the selfishness of the actapparently committed for the
sole purpose of carving out a view for a home sitting on a bluff bordering the park. And harder still to
understand why a Sacramento County Superior Court judge and former deputy attorney general with the state
Department of Justicesworn to uphold and enforce the lawwould commit such a crime.
The prosecution, conviction and epilogue from the Sacramento
County criminal case formally titled The People of the State of
California vs. Peter James McBrien and Mark Patrick
Chamberlin provides a rare and unsettling glimpse into a
veiled niche of the criminal justice and judicial discipline
systems, where law-breaking judicial officers are provided
preferential treatment. An examination of the case shows that
the judge will likely face no public punishment from the
Commission on Judicial Performance, the state agency
responsible for judge oversight.
Orienting himself in line with the pile of cut wood that used to
be stoic, healthy oak trees, Flannery began his hike to the home
at the top of the bluff. From the crest, it was impossible to miss
the stunning view over the nature center and park, across a
glistening bend in the American River, and out over the valley
beyond. Stepping over the park boundary and into an unfenced backyard, Flannery proceeded to the back door
of the house and knocked. A woman answered and, in a short conversation with the ranger, denied any
knowledge of the cuttings outside the back of her property. The woman identified herself as Barbara McBrien
and, Flannery recalls, volunteered that she was the wife of a superior court judge. The conversation and
demeanor of the woman gave Flannery the impression that he had been given a veiled warning. Flannery felt
that it implied you guys better be careful, you dont know who youre dealing with, he said, as if she felt the
reference to contacts in high places would immediately end the inquiry. (Barbara McBrien did not respond to an
interview request.) But the judges wife may have underestimated whom she was dealing with, and the ranger
found the none-too-subtle attempt at intimidation offensive, and remained unfazed. I had no intention of just
blowing it off, Flannery said.
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No, its not a logging camp: Ranger Steve Flannery at

the pile of lumber that used to be healthy oak trees at
the Effie Yeaw Nature Center at Ancil Hoffman
Park.
After enlisting help from a supervisor, Flannery returned to the top of the bluff later that same day, where they
were contacted by Susan Arthur, the next-door neighbor of the McBriens, who said she had witnessed the
cuttings. Arthur also had additional information about the chain of events leading up to the crime, which were
recorded in the court records. Ms. McBrien told Ms. Arthur that they were going to be cutting oaks from the
nature area so that they would have a better view of the river from their property, reads the district attorney
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investigators affidavit, in the court file. Ms. Arthur told the park ranger that she tried to change Ms. McBriens
mind about topping the trees before the first cutting occurred. Ms. Arthur told Ms. McBrien that she had read an
article in the newspaper about another incident in which someone had been heavily fined for cutting down trees
in the nature area. Ms. McBrien allegedly told Ms. Arthur that, We just cant live here and not have a view of
the river. The document also revealed that Flannery had been told by Arthur that on several occasions prior
to the tree cutting in 1999, she and Ms. McBrien went on guided bird watching walks hosted by the Effie Yeaw
Nature Center. The walks had taken them to the area below the Arthur and McBrien residences. It was clear
to her and should have been clear to Ms. McBrien that the area behind their homes, located in the nature area,
was county property. (Contacted at her home, Arthur declined to discuss any aspect of the case.)
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Since the investigators had an eyewitness who had claimed to have watched the McBriens in the act of
supervising and assisting Titan Tree Company owner Mark Chamberlin in taking a chain saw to the majestic
oaks, that aspect of the investigation came together quickly. The court records note: Ms. Arthur observed that
Barbara and Peter McBrien and their two sons were in the backyard while Mr. Chamberlin was topping the
trees. Mr. McBrien was using a rope to help Mr. Chamberlin get down the slope of the bluff. While standing in
the backyard watching Mr. Chamberlin, different members of the family would call out that another tree or limb
needed to be cut. And with the motive established and the suspects identified, all that remained was to officially
appraise the damage and file the criminal case. (Chamberlin also declined comment when contacted by phone.)
As a result of Mrs. McBriens references to her husbands occupation, and general lack of cooperation, Flannery
did, however, feel it would be prudent to enlist the assistance of the special investigations division of the district
attorneys office, instead of pursuing the matter through the usual chain of command. Akin to an
Untouchables team of prosecutors and investigators within the office, the special investigations division
specializes in complex and politically sensitive investigations involving police officers, public officials, and
major white-collar crime.
At the district attorneys office, the oak tree desecration file landed on the desk of veteran investigator Craig
Tourte, shortly after the ranger team had met with Arthur. At this point, Tourte served a search warrant at the
Titan Tree Company office to retrieve receipts and records related to the work. According to Flannery, there was
some concern that if the case went to trial, McBrien, with his background as a deputy attorney general and
judge, would retain experienced counsel and mount an aggressive defense. So the prosecution team wanted to
make sure that the case was airtight, which meant, among other things, that they needed a professional
assessment of the value of the trees.
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Certified arborist Joseph Benassini was enlisted to inspect and quantify the damage to the trees that were cut.
Benassini identified the trees as being five mature valley oak trees and three smaller live oak trees, and
determined that, as a result of the cuttings, the majority of the trees had been damaged about 90 percent.
Benassini reported that the trees had been topped, and explained to Tourte that, topping of trees is well
documented as being extremely injurious and can be associated with tree death and hazardous conditions.
During his inspection, Benassini also noticed that there appeared to have been additional trees that were
previously cut in the same area. But due to the estimated time when these other trees were whacked, which
Arthur confirmed occurred in spring 1997, criminal prosecution was impossible because the statute of
limitations had expired. Benassini conservatively estimated the value of the trees from the most recent cuts to be
$20,324.70.
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On October 28, 2000, Deputy District Attorney Albert Locher filed criminal case FO8821, charging McBrien and
Chamberlin with a violation of Penal Code Section 594felony vandalismfor unlawfully and maliciously
damaging oak trees belonging to the county of Sacramento Parks and Recreation Department. But instead of
issuing an arrest warrant, Locher issued a summons in lieu of a warrant, which enabled the judge to avoid the
humbling and demeaning arrest and booking process. Locher concedes that the rarely used summons procedure
was an accommodation for McBrien, but cited concerns about the judges safety had he undergone the
customary arrest and county jail booking procedure. There are always security issues when we bring a judge or
law enforcement officer into jail, he explained.
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In less than 48 hours after the case was filed, the matter was resolved when the
district attorneys office agreed to a misdemeanor plea bargain. Under the
terms of the agreement, McBrien and Chamberlin pleaded no contest to a
violation of Penal Code Section 384a, which prohibits the destruction or
removal of public or private trees and other plants. McBrien and Chamberlin
were fined $500, and agreed to pay a total of $20,000 in restitution to the
nature center. The day of the court hearing, McBriens attorney paid the full
$20,000 (which included Chamberlins share), and fine on behalf of his client,
which immediately concluded the case. After his courtroom appearance,
McBrien was allowed to leave through a non-public rear entrance, leaving
questions from the media for his attorney to answer.
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But the Sacramento County Sheriffs Department, which manages the jail facility, takes exception to the
accusation that they would be unable to safely process any arrestee, including a local judge. Sheriffs
Department spokeswoman Sharon Chow explains that the jail has an elaborate classification process designed to
ensure the safe processing of all jail customers. We have high-profile inmates on a regular basis, she said.
But conspicuously absent from the court file and settlement paperwork are any
references to the increase in property value due to the new river view that
McBrien obtained as a result of the crime. Asked about this aspect of the case
and whether it was a factor considered in settlement negotiations, Locher
acknowledged that it was but it wasnt. We considered that in trying to
Sitting pretty: The McBrien
evaluate the case, but its difficult to get a measure of what that might be. But residence now has one of the few
it wasnt difficult for Lyon & Associates real estate agent Lillian Fulton, who virtually unobstructed views among
is recognized as a local authority on high-dollar Carmichael real estate. Fulton the expensive homes that rim the
is familiar with the McBrien home and all the properties on the bluff rimming bluff above the park.
Ancil Hoffman Park. Inspecting a picture of the McBriens new view, she
estimates that in the current market, the property could have increased in value
$100,000 or more there are only a handful of properties that have that view. And in his investigation report,
Tourte confirms that such views in the immediate area are scarce, noting that the neighbors on the other side of
both the McBrien and Arthur residences have a completely obstructed backyard view because of tree and
vegetation growth
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Judge McBrien declines to comment on any aspect of the matter, and refers all questions to his criminal attorney,
Brad Wishek. Wishek feels that the judge was singled out and claims that illegal tree cutting occurs all the time
all over the county that is not criminally prosecuted in this manner. [McBrien] got prosecuted when others
did not. Wishek also takes exception to the statements made to the investigators by Susan Arthur. The
allegations made by the neighbor are in many respects not true, he said. Regarding the increase in value of the
McBrien residence, Wishek concedes that that was suggested but the judge has no specific information on
that issue. Wishek also defends McBriens abrupt exit through the courtroom back door after the case was
settled as necessary to ensure the judges safety. You have a person who by virtue of his position as a family
court judge is a target of threats, and whose life is in dangerand I say that in all sincerity.
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Wishek also defends the plea bargain as an appropriate resolution of the case: It was always my position that the
vandalism charge was not appropriate, the only charge that was accurate was a misdemeanor. He says McBrien
accepted the plea agreement because he felt it was in everyones interest that he quickly resolve the matter and
move on.
Whether the matter had been quickly resolved or not, McBrien would continue his employment as a judge
without interruption, drawing his annual salary of $133,050 with full benefits and a generous retirement
package, because, short of physically incarcerating a judge, the criminal justice system is not empowered to
remove a judge from the bench. Unlike other public and private sector employees, judges in California face
almost no consequences related to their employment for most conduct, criminal or otherwise, that they engage in
on or off the job. A judge can commit a serious crime and remain on the bench, unless he is imprisoned,
voluntarily steps down or is removed from the bench by the state Commission on Judicial Performance (CJP). In
addition, since at least 1871, the justices of the United States Supreme Court have decreed that all judges are
immune from the civil liability that nearly all other occupations are bound by, for any actions they take on the
job.
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In essence, outside of the criminal law, judges are held accountable in only three ways: impeachment, recall, or
by discipline from the CJP. Only two judges in California have ever been impeached, the last in 1929. A judge
can also be recalled by a petition bearing signatures equal in number to 20 percent of the last vote for office, but
the recall procedure is about as practical and as frequently utilized as impeachment. The only realistic oversight
of judges is provided by the CJP, which, history reveals, has been something less than a strict disciplinarian.
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The Commission is the independent state agency responsible for investigating complaints of judicial misconduct
resulting from violations of the California Code of Judicial Ethicsthe state regulations that judges are required
to comply withand for disciplining judges. The CJP accepts written complaints from anyone and will also
consider matters it learns of in other ways, such as news articles, according to its annual report. The CJP also
requires any judge who is charged with, or convicted of, most crimes to report himself. However, misdemeanors
not involving moral turpitude and infractions are excluded from the self-reporting requirement.
In the rare event that the Commission determines that a complaint merits further inquiry, it will initiate an
investigation which may include interviewing witnesses, reviewing court records and other documents, and
observing the judge while court is in session. All complaints to the CJP are confidential, as are any
investigations. The Commission cannot ordinarily confirm or deny that a complaint has been received or that an
investigation is under way, reads the annual report. And the powers of the CJP are severely limited in that it
does not impose financial penalties of any kind.
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Peter Keane, dean of the Golden Gate University School of Law in San Francisco, is recognized as an authority
on judicial discipline in California, and the author of a successful 1994 state ballot measure that forced
significant reforms on the CJP. Keane points out that in its early years, the Commission was a complete farce
in its role as judicial watchdog. They were an old boys club, they would whitewash everything. They were as
secretive as the old Soviet Kremlin, only worse. Keane says that the CJP has improved in certain respects but
has not improved in others, including that it continues to bitterly resist allowing the public full access to
information about complaints against judges and how it handles those complaints. For example, nine months
after McBriens criminal conviction, the CJP refuses to acknowledge if it will issue, or is even considering, any
disciplinary action against the judge for his violation of Canon 2 of the California Code of Judicial Ethics, which
requires all judges to respect and comply with the law.
But in 1995, the voters in California reshuffled the stacked deck of the
Commission when, by a vote of 64 percent to 36 percent, they passed the
Keane-authored Proposition 190. The state constitutional amendment
made several changes in the Commission, including theoretically altering
the balance of powerso that judges would no longer control a majority
of votesand allowing the public access to judge complaints received
by the CJP. The proposition increased the number of commissioners to
11, designating six public members, three judges and two lawyers. But
the change may not be as significant as it appears on the surface, and the
Golden Gate University School of Law
Dean Peter Keane says that judges should reforms have had virtually no effect on the amount of discipline
be held accountable for criminal and other dispensed by the Commission. An analysis of the Commissions own
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When the Commission was established in 1960, it had nine

commissioners who voted on the imposition of discipline against judges.
Of the nine, a majority of five members were judgeswith two lawyers
and two public members filling out the remaining minority. Keane says
this enabled the judge majority to control the final outcome of all
disciplinary actions.
misconduct, and that all judge complaints

and discipline should be open to public
scrutiny.
statistics reveals virtually no significant change in the amount of

discipline issued by the CJP in the four years after the shake-up, when
compared with the four years before.
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The Commission remains stacked with officials who either make a living off the judicial branch of government,
such as judges and attorneys, or are related to those that do. The CJP currently has nine commissionersthree
judges, two attorneys and four public members, with two chairs vacant. But of the four public members, two are
married to judges, leaving a solid majority of votes in the hands of judges, their spouses and attorneys. These are
the state officials who may or may not sanction judge McBrien.
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Keane says that Proposition 190 was intended to make all judge complaints received by the Commission
available to the public. But the CJP has taken the position that it is only required to disclose the records of judge
complaints after it institutes formal proceedings against a judge. Which means that, since it didnt initiate
formal proceedings in, for example, 948 out of the 951 complaints it received in 2000, it is only required to
disclose the complaints and other records from those three investigations. Keane says this self-serving
interpretation by the Commission is another example of its persistent arrogance and refusal to open up to public
scrutiny. They saw a loophole, and it is a dishonest use of that hole. In order to make public policy, the
public has to know it all, right from the outset.
Since 1991, the CJP has received 10,388 complaints against judges in California. As a result of those complaints,
the Commission has removed three judges from the bench. And a review of the actions, or more accurately, nonactions, by the Commission against wayward judges, along with an awareness of the complete lack of civil
liability enjoyed by all judges, may provide an insight into why McBrien and his wife were shocked that their
transgressions would be questioned by a lowly park ranger.
According to the Commissions most recent annual report, in 2000 the CJP resolved 934 complaints against
judges. Of those, 835 were dismissed without investigation, and another 64 were investigated but then closed
without the imposition of any discipline. Twenty-five complaints resulted in private discipline consisting of an
advisory letter in which the Commission will advise caution or express disapproval of the judges conduct, or
a private admonishment, which consists of a notice sent to the judge containing a description of the improper
conduct and the conclusions reached by the Commission.
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All advisory letters and private admonishments issued by the Commission are strictly confidential, keeping the
public in the dark. They are still playing this game of giving secrecy to claims of judge improprieties that no
other profession or group of people gets anywhere else in society, notes Keane. The Commission will not even
notify the person who submitted the complaint what discipline was issued.
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Six of the remaining complaints resulted in a public admonishment, and a single complaint resulted in the most
severe punishment, short of removal from office, that of public censure. While three judges resigned or retired
with CJP proceedings pending, no judges were removed from office by the Commission in 2000.
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The public censure was issued to Placer County Superior Court Judge Jackson Willoughby, and the punishment
he received reveals why the threat of a CJPs issued sanction may not have much of a deterrent effect on other
judges, including McBrien. In its report, the Commission described the misconduct by Willoughby as including
the fact that his honor had rubbed his bailiffs breasts without consent, and repeatedly stared at her breasts and
asked to see them, after she had breast implant surgery. The Commission also noted that Willoughby said to
another bailiff who was changing her uniform shirt in the courthouse hallway, I could stand here and watch you
undress all day, and referred to a female deputy district attorney as Old Iron Tits. According to the CJP, the
severe punishment of public censure results in only one thing: the issuance of a notice that describes a judges
improper conduct and state(s) the findings made by the Commission. Each notice is sent to the judge and made
available to the press and public.
The Commission said that it felt that public censure, instead of removal from the bench, was appropriate because,
among other things, Willoughby issued a public apology, was publicly humiliated, and had made contributions
to the judicial system. And Willoughby continues to make contributions to the judicial system as an active
judge in Roseville.
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And in another matter, which might foretell the fate of Judge McBrien, Orange County Superior Court Judge
Gary Ryan was also publicly admonished for rear-ending another vehicle while driving with a blood-alcohol
level of .17 percent, more than double the legal limit. Like McBrien, Ryan cut a deal, and the charge was
reduced to a misdemeanor in exchange for his plea of guilty. In a split decision vote, Judge Ryan received a
public admonishment from the Commission. Three of the commissionerscomposed of two judges and a public
member who is the wife of a former judgevoted against public admonishment and stated they would have
imposed a less severe sanction. [The full text of this and all public CJP decisions can be seen at
www.cjp.ca.gov.]
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Citing unfamiliarity with the facts of the case, Keane declines to speculate on the possible outcome of the
McBrien disciplinary matter, if it indeed exists. But, as a man partial to understatement, he does note that
looking back at what the Commission has done, there is a tendency at the CJP to not sanction judges as much
as they should. He adds that, while the public may hold elected officials to somewhat lower standards, it
expects more from judges. [With politicians], unfortunately, theres a cynical understanding of the fact that
these are characters that are probably going to be involved in a certain amount of hanky-panky. But in terms of
the integrity of our system of justice, there is a justifiable expectation that judges are going to be like Caesars
wife, sort of above repute. So if someone wants to be a judge, then by God, youre going to be held to a very
high standard of proper conduct. If you dont like that, dont become a judge.
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According to a 1992 judge profile that appeared in a legal newspaper, McBrien does in fact like being a judge in
the family law department of the Sacramento County superior court. "I enjoy the subject matteras difficult as
it is. You get a sense that maybe youre helping," he told the reporter. In the profile, the judge was commended
by lawyers who appear before him with their clients for being intelligent and balanced, but occasionally less so
by labeling one parent "good" and one parent "bad" in what is supposed to be a no-fault situation. And one
attorney noted that, "occasionally, youll just sort of see him fall off the fence really coming to some sort of
judgment that he doesnt like this person, that theyve been naughty." Judge not lest ye be judged.

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COMMISSION ON JUDICIAL PERFORMANCE

JUDGE PETER J. McBRIEN

CJP NO. 185

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HEARING BEFORE SPECIAL MASTERS

REGISTERED PROFESSIONAL REPORTER

CERTIFIED SHORTHAND REPORTER NO. 7372

155 Orr Road

Alameda, California 94502

JUDGE JAMES MIZE

SPECIAL MASTER CORNELL:

Please state your full name and spell your last

you may examine.

You are the presiding judge of the Sacramento

County Superior Court?

My name is James Mize.

SPECIAL MASTER CORNELL:

Please have a seat,

And could you briefly describe for us your

I graduated from the University of

Graduated from the University of San Francisco with a

And did you begin practicing law after

graduating from the University of San Francisco?

I had to pass the Bar first.

started practicing in December-something 1974.

In what geographical area did you practice?

I've practiced all my career in Sacramento.

And could you describe for the Special

I did pass the Bar fortunately and

Masters the nature of your law practice while you were

When I was in private practice,

And I practiced a little bit of everything from

collections work to family law,

Pretty much everything.

then as my 26 year career evolved,

you could do that.

some civil litigation,

more and more family law so that by the end of my

I was pretty much exclusively in family law.

And when did you begin to emphasize in family

I was always doing some family law.

third of my practice was family law.

even at the very beginning maybe a

And then pretty

occasional odds and ends things.

it was clearly 100 percent family law with

Did you ever become certified as a family law

specialist by the Board of Legal Specialization in the

And when did you become so certified?

Roughly 10 years before I

was a certified specialist.

were you a member

- while you were an

active member of the Bar,

Sacramento County Bar Association?

Were you a member of the family law section

of the Sacramento County Bar

were you a member of the

went on the bench.

But it could be a couple years in either direction.

And were you ever on the executive committee

And maybe after