judge peter mcbrien prosecution: response brief to the commission on judicial performance by cjp...

Andrew Blum, Esq., State Bar No. 116644 Valerie Marchant, Esq., State Bar No. 124765 Commission on Judicial Performance Office of Trial Counsel 455 Golden Gate A venue, Suite 14424 San Francisco, CA 941 02 Telephone: (415) 557-1200

STATE OF CALIFORNIA

FILED JUL 2 0 2009

Commission on Judicial Performance

BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE

INQUIRY CONCERNING JUDGE PETER J. McBRIEN,

NO. 185.

EXAMINER'S RESPONSE BRIEF (Rule l30(b))

Pursuant to Rules of the Commission on Judicial Performance, rule 130(b ),

the examiner submits the following response to respondent's opening brief.

I. COUNT ONE A(l) (Abandoning the Carlsso11 trial)

. Objections to Conclusions of Law

Judge McBrien objects to the masters' conclusion that he committed

prejudicial misconduct in abandoning the Carlsson trial as he did. As he has

throughout this process, Judge McBrien denies that he did anything significantly

wrong in his. handling of the Carlsson case and denies that he violated Mr.

Carlsson's rights to due process and to a fair trial. He attempts to blame the

attorneys for the trial ending as it did, arguing that he gave them more than two

court days and if they needed more time, it was incumbent on them to request it.

2009-07-20-Examiner-Response Brief

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Judge McBrien's argument ignores his conduct in this matter including:

walking out of the trial while a witness was testifying; declaring the trial had

ended and never returning; handling a brief phone call and going home while

leaving the parties, attorneys and court staff sitting in the courtroom wondering

what had happened; giving instructions the next day to the attorneys through his

clerk that the trial was deemed concluded and no further evidence would be taken;

failing to correct his actions over the following days and weeks; and despite

objections from attorney Sharon Huddle, issuing his ruling knowing there was

material, relevant evidence that he had not heard.

The masters' found that Judge McBrien's conduct "was intemperate and

precipitous when he terminated and abandoned the trial as he did." (Masters' rpt.,

p. 125.) The judge's unprecedented actions arbitrarily cut off the presentation of

evidence, rendered the trial fundamentally unfair and violated Carlsson's right to

due process .. (See In reMarriage of Carlsson (2008) 163 Cal.App.4th 281.) Any

objective observer would view this conduct as prejudicial to public esteem for the

judiciary.

Moreover, at the oral argument before the masters, respondent's counsel

conceded that the conduct probably constituted prejudicial misconduct:

SPECIAL MASTER ANDLER: So are you conceding that it was conduct prejudicial for the trial to end in the way it did?

MR. MURPHY: Under the circumstances, given the appellate decision, I think that it would probably amount to that.

(Oral argument before masters, R.T. 53:20-25.)

Judge McBrien requests that the charge be "reduced to improper conduct"

(apparently referring to improper action), citing his length of service. But, while a

judge's length of service may appropriately be considered in the level of discipline

imposed, it does not alter the level of the misconduct committed.

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D. COUNT ONE A(2) (Improper threat of contempt)

A. Objections to Findings of Fact

Judge McBrien objects to the masters' finding that Huddle subjectively

perceived the judge's comments as a threat "that I could potentially be put in jail if

I didn't comply with what he wanted." (Masters' rpt., p. 58.) The judge argues

that "Ms. Huddle's subjective feelings are irrelevant because the appropriate

standard for evaluating judicial conduct is to view that conduct objectively."

This objection is based on a misapplication of the law. The views of actual

observers are not only relevant, they may be sufficient to prove that an objective

observer would view the conduct as prejudicial to public esteem for the judiciary.

(Doan v. Commission on Judicial Perfomzance (1995) 11 Cal.4th 294, 324-325,

citing McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512,

534; Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079,

1104.) The masters' finding that Huddle perceived the judge's comments as a

threat was a relevant and appropriate finding, supported by substantial evidence.

B. Objections to Conclusions of Law

Judge McBrien objects to the masters' conclusion that threatening Huddle

with contempt constituted improper action, arguing that an objective observer

would not perceive the comment as a threat. However, improper action is not

measured by the objective observer standard; rather, improper action occurs when

the judge's conduct violates the canons, but the circumstances of the violation do

not rise to the level of willful misconduct and do not bring the judiciary into

disrepute under the "objective observer" standard applicable to prejudicial

misconduct. (See, e.g., Adams v. Commission on Judicial Performance ( 1995) 1 0

Cal.4th 866, 899.) Judge McBrien cites Doan v. Commission on Judicial

Perfomzance to support his application of the objective observer standard to the

analysis of improper action, but the court applied that standard only to a

determination of prejudicial misconduct. (Doan v. Commission, supra, 11 Cal. 4th

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at pp. 324-325.) Judge McBrien also attempts to apply an "objective lawyer" standard. (Respondent's opening brf., p. 11.) There is no such standard.

Contrary to Judge McBrien's contention that improper action has not been

proven, the masters' factual findings support a finding of prejudicial misconduct.

The masters found that Judge McBrien made a sua sponte request for documents

that were not relevant to the case before him and that he wanted the documents as

part of an improper criminal investigation. They further found that the judge

violated canons 2 and 3B(4) during a lengthy exchange with Huddle and that an

attorney would perceive the judge's language and tone as threatening. (Masters'

rpt., pp. 125-130.) An objective observer would view this conduct as prejudicial

to public esteem for the judiciary, which is why we argue in our opening brief that

the conduct constitutes prejudicial misconduct.

il. COUNT 1 A(3) (Carlsson transcript)


Judge McBrien objects to the inclusion in the masters' report of language

from the appellate decision of In reMarriage of Carlsson (2008) 163 Cal.App.4th

281. The appellate court decision was not received into evidence to prove the

facts of the allegations against Judge McBrien, but the legal principles expressed

in that decision and the fact that Judge McBrien's conduct led to a reversal are

pertinent to this proceeding. The masters' reference to the decision simply

acknowledges the fact that the appellate court reversed Judge McBrien in the

Carlsson case and explains the legal principles supporting that reversal. There is

no indication that the masters used the facts set forth in the appellate decision in

making their own findings of fact.


Judge McBrien objects to the masters' conclusion that he committed

prejudicial misconduct when he obtained the partial transcripts of Carlsson's

testimony, forwarded it to Carlsson's employer, and failed to disclose his actions

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to the parties. He argues that he did not try to influence the employer on how to

handle the matter, and claims that other judges advised him to send the transcript

to the employer.

Judge McBrien's claim that other judges advised him to send the transcript

to the employer was factored into the masters' finding that the judge acted in good

faith and did not commit willful misconduct. (Masters' rpt., p. 137.)

The masters' conclusion that Judge McBrien committed prejudicial

misconduct is amply supported by the evidence. The masters concluded that:

Judge McBrien violated canons 2 and 3E(2) by becoming embroiled in the action. Judge McBrien (1) ordered his courtroom clerk to ask the court reporter to prepare a partial transcript of Mr. Carlsson's testimony, (2) made two additional requests for that transcript when it was not transmitted to him, (3) subsequently sent the transcript to Mr. Carlsson's

. employer and stated that the transcript involved a reporting matter, (4) failed to notify the parties about his actions, and (5) continued to preside over post-trial motions in the Carlsson case. All of these actions constituted conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

(Masters' rpt., p. 128.)

The masters further found that, over his years on the bench, Judge McBrien

never reported a party for the possible commission of a crime even when

presented with contradictory testimony that raised the possibility that a party had

committed a felony. (Carlsson's actions at most constituted a misdemeanor.) The

masters concluded that the judge's conduct "went far beyond" consideration of

whether he had a duty to report a crime and that he "engaged in an investigation

during the course of the trial and post-trial period, as to whether Mr. Carlsson's

conduct violated the FPPA" (the Fair Political Practices Act). (Masters' rpt., pp.

128-129.) "Judge McBrien did not simply learn of a possible violation of law by

presiding over the Carlsson trial, he 'joined the fray' through his investigation and

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lengthy pursuit of the issue. Also, Judge McBrien did not report Mr. Carlsson's

testimony to the appropriate agency, which would have been the Attorney General

or the District Attorney, but instead sent the transcript to the general counsel for

Mr. Carlsson's employer." The masters concluded that Judge McBrien had

become "personally embroiled" in the case and violated canon 3E(2) by failing to

inform the parties and the attorneys of his actions. (Masters' rpt., pp. 135-136.)

Judge McBrien again asks that, based on his years on the bench, this count

be deemed, at worst, an improper action. As noted above, length of judicial

service is not determinative of the level of misconduct.

IV. COUNT 1A(4) (Demeanor)


Judge McBrien objects to the masters' finding that Huddle found the

judge's law school comment hurtful and found his voice to be like "a parent

scolding a child," which "felt like he was making me look like, you know, I should

go back to school or something." (Respondent's opening brf., p. 18.) The

objection is again based on the judge's incorrect assertion that subjective views are

irrelevant in evaluating judicial conduct.


Judge McBrien objects to the masters' conclusion that his conduct toward

Huddle constituted improper action. He again erroneously applies the "objective

observer" standard, and attempts to apply an "objective attorney" standard,

arguing that "an objective attorney with similar experience" to Huddle's would not

view the judge's behavior and comments as discourteous. (Respondent's opening

brf., p. 22.) As noted above, there is no such standard.

The masters' conclusion that Judge McBrien committed improper action is

appropriate. The masters found that: the judge made "derogatory and

discourteous remarks" toward Huddle which began "almost immediately upon the

commencement of the Carlsson trial"; Huddle "did not engage in any conduct to

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trigger or provoke Judge McBrien's comments"; the judge threatened only Huddle

with mistrial; the judge "made additional derogatory and discourteous remarks 'to

Ms. Huddle," including admonishing her not to think out loud when she hesitated

to conduct redirect of a witness and saying "[t]his is not a law school class"; and

all of Judge McBrien's discourteous comments were made in open court in the

presence of her client and the public. (Masters' rpt., pp. 138-140.)

V. DISCIPLINE

Judge McBrien states that the commission has identified five considerations

that are relevant to its determination of appropriate discipline. (Citing Decision

and Order Removing Judge Bruce Van Voorhis from Office, Inq.165 (2003), p.

31.) In several more recent cases, the commission has identified a sixth factor it

considers - the integrity and honesty of the judge. (Decision and Order Removing

Judge Kelly MacEachern from Office, Inq.184 (2008); Decision and Order

Removing Judge Robert Spitzer from Office, Inq. 182 (2007); Decision and Order

Imposing Public Censure on Judge Robert B. Freedman, Inq.179 (2007); Decision

and Order Removing Judge Kevin A. Ross from Office, lnq.174 (2005).) This is a

significant factor in this case, given Judge McBrien's changing and contradictory

explanations for his conduct and his misleading testimony regarding his prior

discipline.

As to the factor of a judge's appreciation of misconduct, Judge McBrien

states that there was "no evidence" during the hearing that he does not appreciate

the seriousness of the charges, and points to his statement in his letter to the

commission that he had acted badly and deserved to be rebuked. (Exh. 3.) Judge

McBrien may appreciate the seriousness of the charges, but he denies that any of

them are true. He does not believe that he violated Carlsson's rights to due

process and to a fair hearing. He denies that he improperly threatened Huddle

with contempt. He denies that he became embroiled in the case and that he

improperly conducted a criminal investigation. He denies that he displayed

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impatience and poor demeanor to Huddle. When asked about his letter saying that

he acted badly and deserved to be rebuked, Judge McBrien testified that he did

nothing wrong in the Carlsson case other than to leave an incomplete record

which led the public to mistakenly believe that he had done something wrong.

(R.T. 182:22-184:13.)

Not only does Judge McBrien fail to appreciate his misconduct in the

current matter, he attempted to disavow much of the facts underlying his prior

discipline. (R.T. 580:2-582:22, 606:20-613: 1.)

VI. CONCLUSION

Judge McBrien argues that public admonishment is appropriate because

this was an isolated incident. However, the proven misconduct involved multiple

acts of misconduct committed over a period of several months. Given Judge

McBrien's prior public admonishment and the seriousness of his current

misconduct, another public admonishment would be inappropriate. In light of his

failure to acknowledge any significant wrongdoing, his contradictory explanations

for his conduct, and his false and misleading testimony while under oath, the issue

is whether or not Judge McBrien should be removed from office.

Dated: July 15, 2009. Respectfully submitted,

drew Blum, Examiner for Commission on Judicial Perfonnance

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PROOF OF SERVICE

I, the undersigned, am a citizen of the United Sates, over the age of 18 years, and not a party to or interested in the within action. My business address is 455 Golden Gate Avenue, Suite 14400, San Francisco, California 94102.

On July 17, 2009, I served the attached:

Examiner's Response Brief to the Commission

on all interested parties in said cause, by delivering the original or a true copy thereof as follows:

1Zl (BY MAIL) I placed the original or a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid. I am readily familiar with our office's practice for collection and processing of correspondence for mailing with the United States Postal Service, that this mailing will be deposited with the United States Postal Service on this date in the ordinary course ofbusiness and that I sealed and placed each envelope for collection and mailing on this date following ordinary business practices.

James A. Murphy, Esq. Murphy, Pearso Bradley & Feeney 88 Kearny Street, 1Oth Floor San Francisco, CA 94108

BY HAND DELIVERY (July 20, 2009) Janice Brickley, Esq. Legal Advisor to Commissioners Commission on Judicial Perfonnance 455 Golden Gate Avenue, Suite 14400 San Francisco, CA 94102

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 17,2009, at San Francisco, California.


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Investigative Reporting, News, Analysis, Opinion & Satire

Sacramento Family Court NewsHOME JUDGE PRO TEMS 3rd DISTRICT COURT of APPEAL RoadDog SATIRE

ABOUT FAMILY COURT NEWS CONTACT FAMILY COURT NEWS Terms & Conditions Privacy Policy

ATTORNEY MISCONDUCT DOCUMENT LIBRARY

18 July 2013

Vance W. Raye Third District Justice and Judge Peter McBrien Turn Over Court Operations to SCBA Family Law Section Lawyers

In 1991, as a superior court judge, current 3rd District Court of Appeal Presiding Justice Vance Raye partnered with controversial family court Judge Peter J. McBrien and attorneys from the Sacramento County Bar Association Family Law Section in establishing the current, dysfunctional Sacramento Family Court system, according to the sworn testimony of McBrien at his 2009 judicial misconduct trial before the Commission on Judicial Performance. Behind closed doors and under oath, the judge provided explicit details about the 1991 origins of the present-day family court structure.

In essence, McBrien and Raye agreed to effectively privatize public court operations to the specifications of private-sector attorneys in exchange for not having to run the court's settlement conference program. The SCBA Family Law Section agreed to run the settlement program provided they were given effective control over most court policies and procedures, including local court rules.

As a result, the public court system was restructured to the specifications of local, private-sector attorneys, according to McBrien's testimony. To view McBrien's detailed description of the collusive public-private collaboration, posted online exclusively by SFCN, click here. To view an example of the same, current day collusion, click here.

The 1991 restructuring plan began with a road trip suggested by the family law bar:

"[T]he family law bar, and it was a fairly strong bar here in Sacramento, initiated the concept of a trip to Orange County and San Diego County to pick up some ideas about how their courts were structured. And myself and Judge Ridgeway and two family law attorneys made that trip and came back with various ideas of how to restructure the system," McBrien told the CJP. Click here to view.

But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who restructured the family

Leaked Transcript Indicates Vance Raye & Judge Peter McBrien Enabled Family Law Bar Control of Court in 1991

Vance Raye and Peter J. McBrien were thearchitects of the current family court system.

JUDICIAL MISCONDUCT (63)

JUDGE PRO TEM (49)

ATTORNEY MISCONDUCT (35)

MATTHEW J. GARY (33)

FLEC (28)

SCBA (22)

ARTS & CULTURE (21)

CHILD CUSTODY (21)

PETER J. McBRIEN (20)

ROBERT SAUNDERS (20)

WATCHDOGS (19)

CHARLOTTE KEELEY (18)

CJP (18)

EMPLOYEE MISCONDUCT (18)

PRO PERS (18)

DOCUMENTS (16)

DIVORCE CORP (13)

JAMES M. MIZE (12)

COLOR OF LAW SERIES (11)

CONFLICT OF INTEREST (11)

SATIRE (11)

WOODRUFF O'HAIR POSNER and SALINGER (11)

JAIME R. ROMAN (10)

SHORTCUTS TO POPULAR SUBJECTS AND POSTS

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Sacramento Family Court News via Google+ 1 year ago - Shared publiclyVance W. Raye Third District Justice and Judge Peter McBrien Turn Over Court Operations to SCBA Family Law Section Lawyers. Leaked Transcript Indicates Vance Raye & Judge Peter McBrien Enabled Family Law Bar Control of Court in 1991:In 1991, as a superior court judge, current 3rd District Court of Appeal Presiding Justice

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Posted by PelicanBriefed at 11:20 AM

Labels: 3rd DISTRICT COA, ANALYSIS, APPEALS, ATTORNEY MISCONDUCT, CJP, FLEC, JUDGE PRO TEM, JUDICIAL MISCONDUCT,

NEWS EXCLUSIVE, PETER J. McBRIEN, SCBA, VANCE W. RAYE

Location: Sacramento County Superior Court Family Relations Courthouse - 3341 Power Inn Road, Sacramento, CA 95826, USA

- William R. Ridgeway

court system in 1991. As reported by the Daily Journal legal newspaper, McBrien dishonestly implied that the new system was conceived and implemented by judges alone after they made a county-paid "statewide tour" of family law courts.

The judge omitted from the story the fact that the trip was initiated by the family law bar, and included two private-sector family law attorneys who took the county-paid tour with McBrien and the late Judge William Ridgeway. As the Daily Journal reported:

"Around 1990, McBrien and a few other Sacramento judges went on a statewide tour of family law courts. At the time there were continual postponements of trials.

'This is how we came up with the system today,' McBrien said. 'It was probably the best trip Sacramento County ever paid for.'

The judges changed the local system so that family law judges presided over both law and motion matters and trials, which used to be sent to a master calendar department and competed with criminal trials for scheduling.

'Now, if you're ready and unable to settle, chances are 99.9 percent that you are going out [to trial] the first time,' McBrien said. 'A lot of that is attributable to the willingness of the Sacramento bar to work as settlement counselors.'" Click here to view the Daily Journal report.

To continue reading the rest of this article, visit our special, updated 3rd District Court of Appeal page. Click here. For more on the alleged collusion between judges and attorneys who also serve as Sacramento Superior Court temporary judges and work as settlement counselors, visit our special judge pro tems page. For additional posts about the people and issues in this report, click on the corresponding labels below.

Sacramento Family Court judges and local, Sacramento Bar Association attorneys openly acknowledge their close relationship.

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COMMISSION ON JUDICIAL PERFORMANCE

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4 INQUIRY CONCERNING JUDGE PETER J. McBRIEN

5 CJP NO. 185 ORIGINAL 6 -- ---- ------ -- - -- - -- ---- --1

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TRANSCRIPT OF THE

HEARING BEFORE SPECIAL MASTERS

SACRAMENTO, CALIFORNIA

APRIL 1, 2009

VOLUME 1, PAGES 1 - 250

REPORTED BY: SANDRA LEHANE REGISTERED PROFESSIONAL REPORTE:R

CERTIFIED SHORTHAND REPORTER NO. 7372 155 Orr Road

Alameda, California 94502 (510) 864-9645

----------- IN RE CJF NO. 185 - 4/1/09 ------- ----1 1

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A. It's actually 920 - no. 720 9th Street.

Q. That's the main Sacramento County courthouse?

A. It is.

Q. And how long were the family law departments

in that particular courthouse?

A. Until 1999, when we moved out to the Ridgeway

building.

Q. Going back to when you were first appointed

to the family law department or assigned to the family

law department, what were the problems with this

master calendar system?

A. The trials never got to trial. So the Bar

the family law bar, and it was a fairly strong bar

here in Sacramento, initiated the concept of a trip to

Orange County and San Diego County to pick up some

ideas about how their courts were structured. And

myself and Judge Ridgeway and two family law attorneys

made that trip and came back with various i as of how

to restructure the system.

Q. Now, is there a family law section of the

Sacramento County Bar Association?

A. There is.

Q. And was there a family law section of the

Sacramento County Bar Association back in 1991?

A. There was.

b-------------------------IN RE CJF NO. 185 - 4/1/09----------------------~ 188

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Q. Is there an organization called the Family

Law Executive Committee?

A. There is.

Q. What is the Family Law Executive Committee?

A. It is a group of leaders that the family law

bar e ects to take care of the administrative needs

for the section.

Q. And did you work with the Family Law

Executive Committee in developing the current system

in the fami y law practice in Sacramento County?

A. We did.

Q. Could you describe what that wor ng

relationship was?

A. Okay. We - we I, first of all, it's a very

good relationship. We meet -- we still meet monthly.

We keep making adjustments to the system when there are problems. But basically, we moved to a system

where we have law and motion in the family aw

departments on Monday, Tuesday, Wednesday, and we hear

the trials on Thursday and Friday if, in fact, those

trials are two days or less. And if they are more

than two days, they go down through the master

calendar.

Q. Backing up, the Family Law Executive

Committee is appointed in what fashion?

~------------------------IN RE CJF NO. 185 - /09----------------------~ 189

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A. They are elected by the membership of the

family law bar.

Q. The family law bar section of the Sacramento

County Bar Association?

A. Correct.

Q. And you and other judges worked together with

this Family Law Executive Committee in developing the

current system?

A. Correct.

Q. Who are the other judges?

A. Well, at the time, there was Justice Raye

now Justice Raye.

Q. Justice Vance Raye of the Third District

Court of Appeal?

A. Yes.

And another individual whose name always

escapes me, but he left the bench after about two

years.

Q. Dave Sterling?

A. Dave Sterling.

Q. Now, after you went to Orange County, you met

with the Family Law Executive Committee and

developed - or started to develop a plan. Was that

presented to the Superior Court for its approval?

A. It was. And what happened is the Bar culled

4/1/09 --________--1L------------------------IN RE CJF NO. 185 190

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through the various ideas and options, came up with a

plan, presented it to the family law bench. We made

what adjustments we felt were appropriate and then

presented the whole of it to the full bench.

Q. And was that plan approved?

A. It was.

Q. When?

IA. In 19 I want to say late 91 .

Q. And since 1991, is that the current plan that

is employed in the family law departments?

A. It is.

Q. You testified that on Mondays, Tuesdays and

Wednesdays f ly law courts hear law and motion

matters and trials of two days or less on Thursday and

Friday; right?

A. Correct.

Q. Who hears the settlement conferences?

A. The family law bar indicated that they would

be willing to volunteer, and they serve as the

settlement pro terns. There are two for each day of

the week except for Monday. So they have four days a

week where they have two volunteers. And they try to

make it gender neutral, have one male and one female,

and they hear the settlement conferences.

Q. And are settlement conferences assigned

~----------------------IN RE CJF NO. 185 - 4/1/09----~------------------191

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dependent upon the length of the trial?

A. They are.

Q. How does that work?

A. If, in fact, it's going to be a one-day or

less trial, the settlement conference would be one

week before the trial date. And if it's going to be

two days or less, it would be two weeks before.

Q. And in connection with the estimation of the

length of the trial, is that something that you as a

judge would do?

A. No.

Q. Who makes the estimation?

A. The attorneys.

Q. Are the attorneys encouraged to work together

in developing the estimated time?

A. They are.

Q. And is there any significance to the

estimated length of the case, at least from the

judicial perspective of the Sacramento County Superior

Court judge?

A. I believe that -- you know, having seen many,

many of them, that they generally are accurate. They

aren't always accurate, but I think they are trying to

be accurate, stay within the guidance that we have.

Because quite frankly, if, in fact, they don't

L-------------------------IN RE Cc7F NO. 185 - 411109----------------------~ 192

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complete it, they can be mistried.

Q. And when you say "mistried," meaning that the

parties will then be given a new trial date?

A. They would.

Q. You were involved, obviously, with the

Carlsson vs. Carlsson case?

A. Correct.

Q. I would like you to take a look at Exhibit C

in the respondent's

A. I think mine is over there.

MR. MURPHY: May I approach the witness?

SPECIAL MASTER CORNELL: Yes. You don't need

to seek permission.

THE WITNESS: you said C?

MR. MURPHY: Exhibit C, yes.

THE WITNESS: Okay. I have it before me.

BY MR. MURPHY:

Q. For the record, could you describe what

Exhibit Cis?

A. This is an Order to Show Cause filed by

Ms. Huddle on behalf of Mr. Carlsson asking to

continue the trial, fi ed on March 1st of 2006.

Q. What was the basis of the request for a

continuance?

A. That she was just served with a joinder '-------------IN RE CJ.F NO. 185 411109------------~

193

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Sacramento Family Court NewsHOME JUDGE PRO TEM RACKETEERING 3rd DISTRICT COURT of APPEAL SACRAMENTO

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Sacramento Family Court News Exclusive Investigative ReportThis investigative report is ongoing and was last updated in April, 2015.

As many of the articles on our main page reflect, Sacramento Family Law Court whistleblowers and watchdogs contend that a "cartel" of local family law attorneys receive kickbacks and other forms of preferential treatment from family court judges, administrators and employees because the lawyers are members of the Sacramento County Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program on behalf of the court.

The kickbacks usually consist of "rubber-stamped" court orders which are contrary to established law, and cannot be attributed to the exercise of judicial discretion. For a detailed overview of the alleged collusion between judge pro tem attorneys and family court employees and judges, we recommend our special Color of Law series of investigative reports.

The Color of Law series reports catalog some of the preferential treatment provided by family court employees and judges to SCBA Family Law Section judge pro tem lawyers. Click here to view the Color of Law series. For a list of our reports about family court temporary judges and controversies, click here.

The current day Sacramento County Family Court system and attorney operated settlement conference program was set up in 1991 by and for the lawyers of the Sacramento County Bar Association Family Law Section,

Sacramento Superior Court Temporary Judge Program Controversy

Judge Pro Tem Attorney "Cartel" Controls Court Operations, Charge Whistleblowers

Sacramento Family Court reform advocates assert that collusion between judges and local attorneys deprives financially disadvantaged, unrepresented pro per court users of their parental rights, community assets, and due process and access to the court constitutional rights.


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according to the sworn testimony of controversial family court Judge Peter J. McBrien at his 2009 Commission on Judicial Performance disciplinary proceedings. Click here to read Judge McBrien's testimony.

In his own testimony during the same proceedings, local veteran family law attorney and judge pro tem Robert J. O'Hair corroborated McBrien's testimony and attested to McBrien's character and value to Sacramento County Bar Association Family Law Section members. Click here to view this excerpt of O'Hair's testimony. To view O'Hair's complete testimony, click here.

Court watchdogs assert that the settlement conference kickback arrangement between the public court and private sector attorneys constitutes a racketeering enterprise which deprives the public of the federally protected right to honest government services.

Court reform and accountability advocates assert that the local family law bar - through the Family Law Executive Committee or FLEC - continues to control for the financial gain of members virtually all aspects of court operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and bias against unrepresented litigants and "outsider" attorneys, including:

Divorce Corp, a documentary film that "exposes the corrupt and collusive industry of family law in the United States" was released in major U.S. cities on January 10, 2014. After a nationwide search for the most egregious examples of family court corruption, the movie's production team ultimately included four cases from Sacramento County in the film, more than any other jurisdiction. Judge pro tem attorneys Charlotte Keeley, Richard Sokol, Elaine Van Beveren and Dianne Fetzer are each accused of unethical conduct in the problem cases included in the movie. The infamous Carlsson case, featuring judge pro tem attorney Charlotte Keeley and Judge Peter McBrien is the central case profiled in the documentary, with Sacramento County portrayed as the Ground Zero of family court corruption and collusion in the U.S. Click here for our complete coverage of Divorce Corp.

Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was dumbfounded by the order. Click here for our exclusive report, which includes the complete court reporter transcript from the hearing. Click here for our earlier report on the unethical practice of "hometowning" and the prejudicial treatment of outsider attorneys.

Whistleblower leaked court records indicate that Sacramento Bar Association Family Law Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For our complete investigative report, click here.

Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a California Rule of Court prohibiting temporary judges from serving in family law cases where one party is self-represented and the other party is represented by an attorney or is an attorney. The orders were renewed by Presiding Judge Laurie M. Earl in February, 2013. Click here for details.

Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to opposing parties when a judge pro tem working as a private attorney represents a client in family court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest posts.

Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law Executive Committee for the financial benefit of private sector attorneys, and often disadvantage the 70 percent of court users without lawyers, according to family court watchdogs and whistleblowers. For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial Performance, McBrien described seeking and obtaining permission from FLEC to change a local rule. Click here and here.

In November, 2012 Sacramento Family Court Judge Jaime R. Roman issued a rubber-stamped, kickback order declaring a family court party a vexatious litigant and ordering him to pay $2,500 to the opposing attorney, both without holding the court hearing required by law. The opposing attorney who requested the orders is Judge Pro Tem Charlotte Keeley. The blatantly illegal orders resulted in both an unnecessary state court appeal and federal litigation, wasting scarce judicial resources and costing taxpayers significant sums. Click here for our exclusive coverage of the case.

Judge Matthew Gary used an unlawful fee waiver hearing to both obstruct an appeal of his own orders and help a client of judge pro tem attorney Paula Salinger avoid paying spousal support. Click here for our investigative report.

An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of

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temporary judge Scott Buchanan. The rubber-stamped, kickback child support order, and other proceedings in the case were so outrageous that the pro per is now represented on appeal by a team of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster. For our exclusive, ongoing reports on the case, click here.

Judge pro tem attorneys Richard Sokol and Elaine Van Beveren helped conceal judge misconduct and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van Beveren failed to report the misconduct of Judge Matthew Gary as required by state law. Van Beveren is an officer of the SCBA Family Law Executive Committee. Click here for our exclusive report...

...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and misleading information about the unlawful contempt of court and resisting arrest incident. The apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct, trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government whistleblower. Click here for details.

In 2008 controversial family court Judge Peter J. McBrien deprived a family court litigant of a fair trial in a case where the winning party was represented by judge pro tem attorney Charlotte Keeley. In a scathing, published opinion, the 3rd District Court of Appeal reversed in full and ordered a new trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's conduct in the case as a "judicial reign of terror." McBrien subsequently was disciplined by the Commission on Judicial Performance for multiple acts of misconduct in 2009. Click here to read the court of appeal decision. Click here to read the disciplinary decision issued by the CJP.

Judge pro tem attorneys Camille Hemmer, Robert O'Hair, Jerry Guthrie and Russell Carlson each testified in support of Judge Peter J. McBrien when the controversial judge was facing removal from the bench by the Commission on Judicial Performance in 2009. As a sworn temporary judges aware of McBrien's misconduct, each was required by Canon 3D(1) of the Code of Judicial Ethics to take or initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a character witness in support of the judge. In the CJP's final disciplinary decision allowing McBrien to remain on the bench, the CJP referred specifically to the testimony as a mitigating factor that reduced McBrien's punishment. Click here. Court records indicate that Judge McBrien has not disclosed the potential conflict of interest to opposing attorneys and litigants in subsequent appearances by the attorneys in cases before the judge. Click here for SFCN coverage of conflict issues.

Judge pro tem attorneys Terri Newman, Camille Hemmer, Diane Wasznicky and Donna

Reed were involved in a proposed scheme to rig a recall election of controversial Judge Peter J. McBrien in 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the Year" before the November election. Click here for the Sacramento News and Review report.

Judge pro tem attorney Robert J. O'Hair testified as a character witness for controversial Judge Peter J. McBrien at the judge's second CJP disciplinary proceeding in 2009. Paula Salinger, an attorney at O'Hair's firm, Woodruff, O'Hair Posner & Salinger was later granted a waiver of the requirements to become a judge pro tem. A family court watchdog asserts the waiver was payback for O'Hair's testimony for McBrien. Click here to read our exclusive investigative report.

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In cases where one party is unrepresented, family court clerks and judges permit judge pro tem attorneys to file declarations which violate mandatory state court rule formatting requirements. The declarations - on blank paper and without line numbers - make it impossible for the pro per to make lawful written evidentiary objections to false and inadmissible evidence. Click here for our report documenting multiple state court rule violations in a motion filed by SCBA Family Law Section officer and temporary judge Paula Salinger. To view the pro per responsive declaration objecting to the illegal filing click here, and click here for the pro per points & authorities.

Family court clerks and judges allow judge pro tem attorneys to file a fabricated "Notice of Entry of Findings and Order After Hearing" in place of a mandatory Judicial Council Notice of Entry of Judgment FL-190 form. The fake form omits critical appeal rights notifications and other information included in the mandatory form. Click here for our exclusive report.

Sacramento Family Court temporary judge and family law lawyer Gary Appelblatt was charged with 13-criminal counts including sexual battery and penetration with a foreign object. The victims were clients and potential clients of the attorney. The judge pro tem ultimately pleaded no contest to four of the original 13-counts, including sexual battery, and was sentenced to 18-months in prison. Court administrators concealed from the public that Appelblatt held the Office of Temporary Judge.Click here to read our report.

Judge pro tem and SCBA Family Law Section attorney Scott Kendall was disbarred from the practice of law on Nov. 24, 2011. Kendall was disbarred for acts of moral turpitude, advising a client to violate the law, failing to perform legal services competently, and failing to keep clients informed, including not telling a client about a wage garnishment order and then withdrawing from the same case without notifying the client or obtaining court permission. Court administrators concealed from the public that Kendall held the Office of Temporary Judge. Click here to view our report.

Judge pro tem attorneys Nancy Perkovich and Jacqueline Eston in 2008 helped Donna Gary - the wife of Judge Matthew J. Gary - promote and market ClientTickler, a client management software program for attorneys. The judge reportedly has never disclosed the conflict of interest as required by the Code of Judicial Ethics. Click here for our exclusive report on the controversy.

In February, 2013 the website of family law firm Bartholomew & Wasznicky cut off the public from the only online access to The Family Law Counselor, a monthly newsletter published by the Sacramento Bar Association Family Law Section. Lawyers at the firm include judge pro tem attorneys Hal Bartholomew, Diane Wasznicky and Mary Molinaro. As SFCN has reported, articles in the newsletter often reflect an unusual, collusive relationship between SCBA attorneys and court administrators and judges. Click here for our report.

Family court reform advocates assert that judge pro tem attorneys obtain favorable court rulings on disputed issues at a statistically improbable rate. The collusion between full-time judges and judge pro tem attorneys constitutes unfair, fraudulent, and unlawful business practices, all of which are prohibited under California unfair competition laws, including Business and Professions Code 17200, reform advocates claim.

Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in unnecessary appeals burdening the appellate court system, and other, related litigation that wastes public funds, exposes taxpayers to civil liability, and squanders scarce court resources.

Watchdogs point out that the court operates what amounts to a two-track system of justice. One for judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and "outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold standard reference on judge misconduct. Click here for articles about the preferential treatment given judge pro tem attorneys. Click here for examples of how pro pers are treated.

After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete, scathing account.

The Sacramento County Bar Association Family Law Section is led by an "Executive Committee" ("FLEC") of judge pro tem attorneys composed of Chair Russell Carlson, Vice Chair Elaine Van Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members. Click here for other articles about FLEC.

Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any provision of the California Rules of Professional Conduct. Family court watchdogs assert that temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of

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office. To view the applicable Code of Judicial Ethics Canons, Click here. For a Judicial Council directive about the obligation to address judicial misconduct, a critical self-policing component of the Code of Judicial Ethics, click here.

For information about the role of temporary judges in family court, click here. For official Sacramento County Superior Court information about the Temporary Judge Program click here. Using public records law, Sacramento Family Court News obtained the list of private practice attorneys who also act as judge pro tems in Sacramento Family Law Court. Each lawyer on the list below is currently a temporary judge, or was a temporary judge in 2009, 2010, 2011, 2012 or 2013. SFCN cross-checked each name on the Sacramento County judge pro tem list with California State Bar Data. The first name in each listing is the name that appears on the Sacramento County judge pro tem list, the second name, the State Bar Number (SBN), and business address are derived from the official State Bar data for each attorney. The State Bar data was obtained using the search function at the State Bar website.

For-profit, private sector lawyers who also hold the Office of Temporary Judge:

Sandy Amara, Sandra Rose Amara, SBN 166933, Law Office of Sandra Amara,1 California Street, Auburn, CA 95603.

Mark Ambrose, Mark Anthony Ambrose, SBN 141222, Law Offices of Mark A. Ambrose, 8801 Folsom Blvd. Ste. 170, Sacramento, CA 95826. Ambrose unethically advertises himself as a temporary judge.

Kathleen Amos, Kathleen Swalla Amos, SBN 112395, Attorney at Law & Mediator, 206 5th Street, Ste. 2B Galt, CA 95632.

Gary Appelblatt, Gary Michael Appelblatt, SBN 144158, 3610 American River Drive #112, Sacramento, CA 95864. Appelblatt was disbarred by the State Bar on Sept. 24, 2010 after being convicted of sexual battery against clients. Click here for our exclusive report. Appelblatt is a graduate of McGeorge School of Law.

Beth Appelsmith, Beth Marie Appelsmith, SBN 124135, 1430 Alhambra Blvd. Sacramento CA 95816.

Bunmi Awoniyi, Olubunmi Olaide Awoniyi, SBN 154183, Law Office of Bunmi Awoniyi a PC, 1610 Executive Ct. Sacramento, CA 95864. Awoniyi unethically advertises herself as a temporary judge. Awoniyi was appointed a Superior Court Judge in December 2012 and holds court in Department 120 of Sacramento Family Court.

Alexandre C. Barbera, C. Alexandre Barbera, SBN 70071,915 Highland Point Drive, Ste. 250 Roseville, CA 95678.

A number of family court whistleblowers have leaked court records indicating that judge pro tem attorneys receive from

judges kickbacks and other preferential treatment in exchange for operating the family court settlement conference program.

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Sacramento Family Court NewsHOME JUDGE PRO TEM RACKETEERING 3rd DISTRICT COURT of APPEAL SACRAMENTO

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This ongoing investigative project was updated in April, 2015.

Sacramento Family Court News is conducting an ongoing investigation of published and unpublished 3rd District Court of Appeal decisions in trial court cases originating from family courts. This page is regularly updated with our latest news, analysis, and opinion. Our preliminary findings reveal an unsettling link between how an appeal is decided and the political ideology, work history, and family law bar ties of the court of appeal judges assigned to the appeal.

Our investigation indicates that the outcome of an appeal is in large part dependent on the luck of the justice draw and the undisclosed connections between the trial court judge whose order is appealed, the trial and appellate court attorneys, and the judges assigned to resolve the appeal.

The collusive atmosphere falls hardest on unrepresented or "pro per" appeal parties who can't afford to hire a local appellate attorney. 3rd District appeal outcome statistical data reveals a virtually perfect record of success for attorneys in cases where the opposing party is a pro per. Appeals taken by pro per litigants rarely, if ever, succeed.

In addition, a separate SFCN investigation has uncovered evidence that both trial and appellate court judges, part-time judges, and court employees deliberately obstruct appeals by indigent, unrepresented parties. Appeal data from the Third District reveals that most pro per appeals are never decided on the merits and are instead

Third District Court of Appeal:

Justice, Ideology & Conflicts of Interest

A Sacramento Family Court News investigation indicates that ideology and undisclosed conflicts of interest play a significant role in the outcome of appeals in the Third District Court of Appeal.

An Exclusive Sacramento Family Court News Investigation


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dismissed on legal technicalities, which are often caused by the deliberate acts of government employees.

Court whistleblowers assert and have documented that the family law division of Sacramento Superior Court and the 3rd District Court of Appeal effectively operate as a RICO racketeering enterprise that deprives the public of the federally protected right to honest government services, and includes predicate acts of mail and wire fraud. Click here to read our full report on the allegations.

The 2014 documentary film Divorce Corp, designated Sacramento County as the most corrupt family court in the United States. Court watchdogs contend that the scale and scope of the corruption rivals the Kids for Cash scandal in Luzerne County, Pennsylvania, which also became a documentary film.

Third District Court of Appeal cases are assigned to three of ten judges. The background of each appears to be a critical factor in how an appeal is decided.

For example, 3rd District unpublished opinions show that Court of Appeal justices who were elevated to the appellate court from Sacramento County Superior Court will often effectively cover for judicial errors in appeals from the same court.

Third District Justices George Nicholson, Harry E. Hull, Jr., Ronald B. Robie, and Presiding Justice Vance W. Raye previously were trial court judges in Sacramento County Superior Court.

Each have personal, social, or professional ties to family court judges and attorney members of the Sacramento County Bar Association Family Law Section. After his retirement in 2011, 3rd District Presiding Justice Arthur Scotland described the professional and personal relationships he had with attorneys during his career on the bench.

"[I] enjoy friendships...I go to all the county bar events. I do that for two reasons. One, I think it's a responsibility of a judge to be active in the community, and the attorneys appreciate it. But I really like the people. I really like going to these events. I enjoy friendships and that sort of thing." Click here to view Scotland's statement.

Sacramento Lawyer, the monthly magazine of the Sacramento County Bar Association each month publishes accounts of recent social, educational and charitable events sponsored by the association, its 17 specialty law sections - including the family law section - and its eight local affiliates, including the Asian/Pacific Bar Association, and Women Lawyers of Sacramento. Most are well attended by a mix of state and federal judges, court administrators, supervisors and employees, and lawyers.

To get a sense of the collusive atmosphere in Sacramento Family Law Court, we recommend reading our special Color of Law series of investigative reports, which document the preferential treatment provided by family court employees and judges to SCBA Family Law Section lawyers at the trial court level. Click here to view the Color of Law series. Financially disadvantaged, unrepresented litigants who face opposing parties represented by SCBA attorneys assert that the collusive collegiality taints appeal proceedings in the appellate court.

Pro per advocates contend that under Canon 3E(4)(a) and (c) of the Code of Judicial Ethics, Raye, Robie, Hull and Nicholson should disqualify themselves from participating in any appeal originating from Sacramento Family Law Court. Advocates argue that the same conflict of interest principles apply to family court appeals that resulted in the self-recusal, or removal, of Vance Raye from participating in the 2002 Commission on Judicial Performance prosecution of family court Judge Peter McBrien. To view the 2002 Raye recusal and CJP decision against McBrien, click here. The CJP has disciplined judges for violating the Code of Judicial Ethics rules requiring judges to disclose conflicts. Click here for examples of CJP conflict of interest disciplinary decisions.

It is a basic principle of law that state appellate justices and federal judges with personal or professional relationships with trial court judges connected to an appeal or federal court action should disqualify themselves to avoid the appearance of partiality. Click here to view a recent order issued by a federal judge disqualifying the entire bench of the Fresno Division of the US District Court for the Eastern District of California due to personal and professional relationships with local state court judges.

The conflict disclosure problem infects the Superior Court as well. To the benefit of local family law attorneys who also hold the office of temporary judge in the same court, Sacramento Family Law Court judges effectively have

3rd District Court of Appeal watchdogs assert that appeal outcomes are inconsistent, and in large part determined by

the work history, and social or professional connections of the three judges assigned to decide an appeal.

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institutionalized noncompliance with state conflict of interest disclosure laws. Click here. For an example of a Sacramento County civil court trial judge who fully complied with conflict laws, click here. Without oversight or accountability, family court judges routinely - and in violation of state law - ignore the same disclosure requirements.

In 1991, as a superior court judge, current 3rd District Justice Vance Raye partnered with controversial family court Judge Peter J. McBrien and attorneys from the Sacramento County Bar Association Family Law Section in establishing the current, dysfunctional Sacramento Family Court system, according to the sworn testimony of McBrien at his 2009 judicial misconduct trial before the Commission on Judicial Performance.

Behind closed doors and under oath, the judge provided explicit details about the 1991 origins of the present-day family court structure. The public court system was built to the specifications of private-sector attorneys from the SCBA Family Law Section Family Law Executive Committee, according to McBrien's testimony. To view McBrien's detailed description of the collusive public-private collaboration, posted online exclusively by SFCN, click here. To view the same, current day collusion, click here.

The 1991 restructuring plan began with a road trip suggested by the family law bar:

"[T]he family law bar, and it was a fairly strong bar here in Sacramento, initiated the concept of a trip to Orange County and San Diego County to pick up some ideas about how their courts were structured. And myself and Judge Ridgeway and two family law attorneys made that trip and came back with various ideas of how to restructure the system," McBrien told the CJP. Click here to view.

But before his sworn 2009 CJP testimony, McBrien gave the public a different account of the road trip and who restructured the family court system in 1991. As reported by the Daily Journal legal newspaper McBrien dishonestly implied that the system was conceived and implemented by judges alone after they made a county-paid "statewide tour" of family law courts. The judge omitted from the story the fact that the trip was initiated by the family law bar, and included two private-sector family law attorneys who took the county-paid trip with McBrien and the late Judge William Ridgeway.

"[M]cBrien and a few other Sacramento judges went on a statewide tour of family law courts. At the time, there were continual postponements of trials. 'This is how we came up with the system today,' McBrien said. 'It was the best trip Sacramento County ever paid for.' The judges changed the local system so that family law judges presided over both law and motion matters and trials..." the Daily Journal reported. Click here to view.

Under oath, McBrien admitted that the private-sector, for-profit family law bar dictated the public court facility restructuring plan - conceived to serve the needs and objectives of SCBA Family Law Section member attorneys - which then essentially was rubber-stamped by the bench.

"[T]he Bar culled through the various ideas and options, came up with a plan, presented it to the family law bench. We made what adjustments we felt were appropriate and then presented the whole of it to the full bench," and the plan was approved. Click here to view.

In essence, McBrien disclosed that the current public court system was set up by and for local attorneys with little, if any, consideration of the needs of the 70 percent of court users unable to afford counsel. The system also has shown it is designed to repel carpetbagger, outsider attorneys, like Stephen R. Gianelli of San Francisco, and Sharon Huddle of Roseville. Click here and here.

"[T]his is a 'juice court' in which counsel outside Sacramento have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to out-of-town counsel," Gianelli said.

According to the Commission on Judicial Performance - the state agency responsible for oversight and

History & Origins of the Current Sacramento County Family Court System

Tani Cantil Sakauye worked with Peter J. McBrien in Sacramento County Superior Court from 1997-2005.

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accountability of California judges - the structure is known as a "two-track system of justice."

"In this case, we again confront the vice inherent in a two-track system of justice, where favored treatment is afforded friends and other favored few, and which is easily recognized as 'corruption at the core of our system of impartial equal justice, and...intolerable," the CJP said in a 2005 judicial discipline decision involving a Santa Clara County judge. To view a list of similar CJP decisions, click here.

According to the gold standard reference on judicial ethics, the California Judicial Conduct Handbook [pdf], published by the California Judges Association, providing preferential treatment to local, connected attorneys also is known as "hometowning," and is prohibited by the Code of Judicial Ethics. To view this section of the Handbook, click here.

One objective of the revamped system was to keep all family court proceedings in-house: within the isolated family relations courthouse. Prior to the change, trials were conducted at the downtown, main courthouse and before judges more likely to have a neutral perspective on a given case, and less likely to have ties to the family law bar.

"The judges changed the local system so that family law judges presided over both law and motion matters and trials, which used to be sent to a master calendar department and competed with criminal trials for scheduling," the Daily Journal reported.

Family court watchdogs and whistleblowers allege that under the system set up by Raye and McBrien, the local family law bar - through the Family Law Executive Committee or FLEC - now controls for the financial gain of members virtually all aspects of court operations, including local court rules. A cartel of local family law attorneys receive preferential treatment from family court judges and appellate court justices because the lawyers are members of the Sacramento Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program, court reform advocates charge.

Court watchdogs have catalogued and documented examples of judge pro tem attorney favoritism, and flagrant bias against unrepresented litigants and "outsider" attorneys. Click here for a list of watchdog claims. Published and unpublished 3rd District opinions indicate that Court of Appeal justices without direct ties to the same superior court are more likely to follow the law, and less likely to whitewash trial court mistakes.

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One of the few Third District opinions to critically, and scathingly scrutinize the problematic Sacramento Family Court system was the 2008 decision In re Marriage of Carlsson, authored by Associate Justices M. Kathleen Butz, Cole Blease and Rick Sims. The opinion criticized explicitly the conduct of controversial Sacramento County Family Court Judge Peter J. McBrien. None of the three 3rd District justices who decided the appeal had ever worked as a judge in Sacramento County.

A fourth outsider jurist, Sixth District Court of Appeal Presiding Justice Conrad L. Rushing subsequently characterized McBrien's conduct in the Carlsson case as a "judicial reign of terror." In addition to ordering a full reversal and new trial, the 3rd District decision subjected McBrien to a second disciplinary action by the state Commission on Judicial Performance.

The judge's first go-round with the CJP stemmed from McBrien's 2000 arrest for felony vandalism under Penal Code 594 in connection with the destruction of public-owned trees - valued at more than $20,000 - at the Effie Yeaw Nature Center in Ancil Hoffman Park, Carmichael, California. McBrien had the trees cut to improve the view from his home on a bluff above the park. Click here for the 2001 Sacramento News and Review coverage of the case. Click here to view the original summons charging McBrien with felony vandalism. Click here to view the report of Sacramento County District Attorney's Office Criminal Investigator Craig W. Tourte detailing the complete investigation of McBrien's crime, posted online for the first time exclusively by SFCN.

Less than 48 hours after the judge was charged with the felony, McBrien negotiated a plea bargain, pleading no contest to a misdemeanor violation of Penal Code 384a, paying restitution of $20,000, and a fine of $500. The improved view increased the value of the judge's home by at least $100,000, according to a local real estate agent, and the sweetheart deal outraged the Ancil Hoffman Park personnel who originally discovered the butchered trees and conducted the initial investigation. McBrien's subsequent 2009 sworn testimony before the CJP recounting his criminal case starkly contradicted Tourte's report and the truth about his criminal conviction.

One of these things is not like the others, One of these things just doesn't belong, Can you tell which thing is not like the others, By the time I finish my song?

Third District Court of Appeal Justices Ronald B. Robie, Harry E. Hull Jr., George Nicholson and Cole Blease. Only Blease (R) has no past connection to Sacramento County Superior Court.

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In the documentary film Divorce Corp, Ulf Carlsson describes egregious misconduct by Sacramento Family Law Court Judge Peter McBrien. Using

misleading sworn testimony about McBrien's reversal rate in the appellate court, 3rd District Court of Appeal Presiding Justice Arthur G. Scotland

effectively saved McBrien from being removed from the bench by the Commission on Judicial Performance.

On his second trip to the CJP woodshed, Judge Peter McBrien needed all the help he could get to save his job, and then-Third District Court of Appeal Presiding Justice Arthur Scotland delivered in a big way.

Among other slight-of-hand tricks, Scotland devised a clever artifice to make it appear to the CJP judges assigned to decide McBrien's fate that the trial court judge had a much lower than average rate of reversal in the court of appeal.

Scotland's 2009 testimony on McBrien's behalf also was controversial and may itself have violated the Code of Judicial Ethics. A critical self-policing component of the Code, Canon 3D(1) requires judges who have reliable information that another judge has violated any provision of the Code take "appropriate corrective action, which may include reporting the violation to the appropriate authority." Click here to view Canon 3D(1). Click here to view a Judicial Council directive about the duty to take corrective action, and the types of corrective action required.

While under oath before the CJP, Scotland verified that he was aware of McBrien's misconduct in the Carlsson case. Scotland essentially defied the self-policing Canon and, in effect, the published Carlsson opinion authored by his co-workers Butz, Blease and Sims, and instead testified in support of McBrien at the CJP. In it's final decision allowing McBrien to remain on the bench, the CJP specifically cited Scotland's testimony as a mitigating factor that reduced McBrien's punishment. Click here. An examination of Scotland's career in government - funded by the taxpayers of California - provides insight into the tactics, motives, and questionable ethics behind his unusual involvement in the McBrien matter.

By his own admission, Scotland's career in the Judicial Branch of government was the result of connections and preferential treatment. The former justice candidly recited his life history in a nearly three-hour interview for the California Appellate Court Legacy Project in 2011. Like other gratuitous "tough-on-crime" conservative ideologues from a law enforcement background who rose to power in the 1980's, Scotland apparently lived the cliche of being born on third base and going through life thinking he hit a triple. His interest in law developed when he worked as an undercover narcotics agent for the state Department of Justice.

"[I] bluffed my way through the interview, and I got hired as a narcotics agent in 1969...I was an undercover narcotics agent. I've bought a lot of dope in my life...all lawfully, but I've bought a lot of dope," Scotland said. "And I testified in court. And that's what got me fascinated in the legal process...and it got me involved in the law." Click here to view.

Having worked with prosecutors as an undercover cop, Scotland decided he wanted to be one. But due to his lackluster performance as a college student, law school presented a problem, albeit a problem easily solved through a family connection.

"[I] thought, I want to be a prosecutor. I'm going to go to law school; I want to be a prosecutor. So I applied in 1971. I applied to only one school: University of the Pacific, McGeorge School of Law...[M]y grades weren't

Presiding Justice Arthur G. Scotland Intervenes in McBrien CJP Prosecution

Tani Cantil-Sakauye, Arthur Scotland, George Nicholson and Peter McBrien all worked for former California Attorney General

and Governor George Deukmejian. All were appointed to the Sacramento County bench by Deukmejian.

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judge peter mcbrien prosecution: response brief to the commission on judicial performance by cjp...

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