Wednesday, January 6, 2010
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CJP Severely Censures Sacramento Superior Court Judge McBrien
By SHERRI M. OKAMOTO, Staff Writer
Sacramento Superior Court Judge Peter J. McBrien yesterday received a severe public censure—the harshest form of discipline that can be imposed upon a judge short of removal from the bench—from the Commission on Judicial Performance.
The vote of the Commission was 7-2, with the dissenting members voting in favor of ousting McBrien, based on “a course of serious misconduct” by the judge during a family law proceeding “which rendered the trial fundamentally unfair, denied a litigant his due process right to complete his presentation of evidence, and culminated in the judge’s lengthy investigation of a litigant’s possible violation of the law without disclosing his actions to the parties.”
Marriage Dissolution
McBrien’s actions while overseeing the dissolution of Mona Carlsson and Ulf Carlsson’s marriage constituted one instance of willful misconduct, two instances of prejudicial misconduct, and one instance of improper action, the CJP said.
The attorneys for the Carlssons had provided McBrien with an estimate that the trial would last less than two days and McBrien testified that he believed he had discretion to declare a mistrial if the case were not completed within this time frame.
After the first full day of trial, the CJP found, McBrien began to express frustration with the pace of the trial and threatened to declare a mistrial if proceedings could not be completed by noon the next day.
McBrien claimed that he had made this threat to encourage counsel for Ulf Carlsson, Roseville attorney Sharon M. Huddle, to move the case along because she “never completes her case within the time estimate.”
Phone Call
Shortly before 4:30 p.m. on the second day of trial, McBrien interrupted the re-examination of one of Ulf Calrsson’s witnesses to take a phone call from a law enforcement officer requesting an emergency protective order and never returned to the bench. He eventually issued a written opinion ruling against Ulf Carlsson on virtually every issue.
The Third District Court of Appeal reversed McBrien’s judgment and remanded the matter for a new trial, holding that the judge’s behavior “openly violated” the precepts of due process. The CJP said it concurred with the appellate court’s decision.
“Abruptly terminating a trial in the middle of a witness’s testimony is contrary to commonly held precepts of due process and the expectations of litigants, witnesses, and attorneys,” the CJP said, finding that the manner in which McBrien “suddenly and precipitously abandoned the Carlsson trial is manifestly unjudicial conduct prejudicial to public esteem for the judicial office.”
The commission also stated that it “adamantly disagree[d]” with McBrien’s assertion that he was entitled to terminate the trial once the parties had reached their time estimate, explaining that the local rules in effect at the time of the trial in 2006 did not authorize a judge to declare a mistrial under such circumstances.
In a second act of misconduct prejudicial to public esteem for the judiciary, the CJP found McBrien had improperly threatened Huddle with contempt for failing to produce certain financial disclosure documents that were not relevant to the proceedings.
‘Willful Misconduct’
The CJP found that McBrien had also engaged in willful misconduct by embarking on a personal investigation of Ulf Carlsson’s possible violation of the Fair Political Practices Act—which had come to light during trial—and sending a copy of the trial transcript to Carlsson’s employer, without disclosing his actions to the parties and while continuing to preside over post-trial matters.
“Through his embroilment, Judge McBrien abandoned his role as a neutral arbitrator and acted for a purpose other than the faithful discharge of his duties,” the CJP said.
McBrien further engaged in improper action by making derogatory and discourteous comments to Carlsson’s attorney in open court, which violated his duty under the Code of Judicial Ethics to be patient, dignified and courteous to those who appear before him, the CJP added.
The commission found McBrien’s “inability to understand and accept the impropriety of his conduct as exemplified by the shifting and disingenuous explanations he has offered during the course of these proceedings” to be “particularly troubling,” and that these factors could warrant removal from office, but it concluded that a severe public censure was appropriate in light of McBrien’s reputation in the legal community, lengthy judicial tenure and the fact that the misconduct had occurred within the context of one case.
Commission Trial Counsel Andrew Blum and Assistant Trial Counsel Valerie Marchant presented the case against McBrien, who was represented by San Francisco attorney James A. Murphy, of Murphy, Pearson, Bradley and Feeney.
Murphy said yesterday that his client “respects the hard work that the commission has done in this case and respects their decision,” but added “my personal view is that the decision is somewhat chilling for judges who impose time limitations on people to complete their cases.”
He opined that “lawyers need to be efficient and lawyers need to be able to know their case and be able to present their case within a reasonable amount a time,” and if they provide a time estimate, they should be compelled to stay within it.
As the parties had provided a two-day estimate and did not provide McBrien with any modification to that estimate, Murphy said, “I think the judge had an absolute right to declare a mistrial.”
The attorney commented that he has been involved in cases in which time limitations had been imposed, but that in light of the CJP’s decision, judges probably will not be able to impose those limits, or will have to be “very cautious” in trying to enforce them, or they may face similar discipline.
McBrien was previously disciplined by the CJP—which is composed of three judges, two lawyers, and six public members, and chaired by Fourth District Court of Appeal Presiding Justice Judith D. McConnell—in April 2002 after he pled guilty to misdemeanor vandalism for chopping down oak trees on public land because they obscured the view of the American River from his home.
The 64-year old jurist was appointed to the Sacramento Municipal Court in 1987 by then-Gov. George Deukmejian, and elevated by Deukmejian to the Superior Court in 1989.
He survived a recall campaign last year and defeated write-in candidate Matthew Jay Smith, a lead appellate court attorney with the Third District Court of Appeal, in the November election.
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