Andrew Blum, Esq., State Bar No. 116644Valerie Marchant, Esq., State Bar No. 124765 FILEDCommission on Judicial PerformanceOffice of Trial Counsel JUL 0 8 2009455 Golden Gate Avenue, Suite 14424

San Francisco, CA 94102 Commission onTelephone: (415) 557-1200 Judicial Performance

STATE OF CALIFORNIA

BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE

INQUIRY CONCERNINGJUDGE PETER J. MCBRIEN,

(Rule 130(a))NO. 185.

EXAMINER'S OPENING BRIEFTO THE COMMISSION

Pursuant to Rules of the Commission on Judicial Performance, rule 130(a),the examiner submits the following opening brief.

I. PROCEDURAL STATUSOn June 23,2009, the special masters filed their findings of fact andconclusions oflaw with the commission. (Rule 129.)

II. SUMMARY OF MASTERS' CONCLUSIONSThe masters concluded that Judge McBrien engaged in two instances ofprejudicial misconduct (counts 1A(1) and 1A(3)), and two instances of improper

action (counts 1A(2) and 1A(4)).

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A. I don't believe that I did.(R.T. 184:8-13.)

D. Judge McBrien's Integrity"Honesty is a minimum qualification for every judge. {Kloepfer v.Commission on Judicial Performance (1989) 49 Cal.3d 826, 865 {Kloepfer).) Ifthe essential quality of veracity is lacking, other positive qualities of the personcannot redeem or compensate for the missing fundamental. (Ibid.)" (Decision andOrder Removing Judge Diana Hall from Office, Inq. 175 (2006), at p. 26). JudgeMcBrien's shifting and often contradictory explanations for his actions and hismisleading testimony demonstrate a lack of integrity.

In his response to the commission, in his answer, and again at hisdeposition, Judge McBrien claimed that the Emergency Protective Order (EPO)must have been lengthy and complex or he would have returned to the courtroom.This was disproven by the phone records which show that the call lasted for lessthan two minutes. (Exh. 2, p. 2; answer, p. 3; exh. 5, p. 62:5-17; exh. 15.) Thetruth is that he handled the brief call and left the courthouse.

Under oath at his deposition, Judge McBrien testified that he offered theattorneys additional time beyond the two-day estimate, but at the hearing heconceded that he had never offered more time. (Exh. 5, p. 17; R.T. p. 32.)

In his answer (p. 4), Judge McBrien claimed that Carlsson's expert witnesshad completely testified and was only providing surrebuttal testimony on mattersto which he had already testified. The transcript shows that the expert wastestifying about a large mathematical error he had made in his appraisal - a newlyraised issue.

Judge McBrien testified at his deposition that he did not return to thecourtroom after the EPO call because "there was nobody there." The mastersinstead found that, after the EPO call, the judge "left the courthouse while all theinterested parties were still waiting for him to return to the courtroom" without

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determining whether the parties were still present. (Exh. 5, p. 22; masters' rpt., p.122.)

Thejudge claimed in his response that he wanted the Statements ofEconomic Interests in part because they would set forth an opinion from Carlssonregarding the value ofthe fourplex and the amount of rental income from it. But,during the hearing, "Judge McBrien conceded he was familiar with Statements ofEconomic Interests ... and that the documents he requested Mr. Carlsson toproduce would not have contained any valuation or income information." (Exh. 1,p. 3; masters' rpt, p. 130.)

Judge McBrien testified under oath at his deposition and at the hearing thathe wanted the Statements of Economic Interests because he thought the FairPolitical Practices Commission (FPPC) might be able to place a lien on theproperty if Carlsson had not disclosed the fourplex. The masters rejected thistestimony, pointing out that thejudge later admitted that he had never heard thatthe FPPC had the power to place a lien on or confiscate property. Moreover,Judge McBrien ruled in the Carlsson case without the documents which, as themasters found, "refutes his assertion that he needed the documents, or that hebelieved that nondisclosure might have interfered with the disposition of the

fourplex, which he ordered sold." (Masters' rpt., pp. 130-131.)In his letter to the commission (exh. 3), Judge McBrien admitted that hewanted the Statements ofEconomic Interests because Carlsson's testimonyindicated "possible criminal activity." At the hearing, however, Judge McBrienclaimed that this statement in his letter was wrong "because at the time he wrotethe letter he did not have the benefit of the trial transcript to refresh hisrecollection as to his reasons." (Masters' rpt., p. 57.) However, the letter itselfcontains citations to the trial transcript, so he clearly had access to it when hewrote the letter. (Exh. 3.)

In addition, Judge McBrien gave untrue and misleading testimony at thehearing about the facts underlying his prior discipline. He repeatedly claimed that

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the incident involved only "one limb" from one tree and that the "real" reason itwas cut was for fire safety, not view enhancement. He explained that he justwanted to let the public and the media know what actually happened. (R.T.580:2-582:22,606:20-613:1.) But his testimony was proven false by his priorsworn testimony and court documents from the tree cutting case. (Exhs. 45,46.)In respondent's exhibit P, Judge McBrien tried to explain this away by claimingthat he meant that he only "saw" one limb fall to the ground. But that is not whathe had testified to at the hearing.

Attempts to mislead the commission are especially egregious. "There arefew judicial actions in our view that provide greater justification for removal fromoffice than the action of ajudge in deliberately providing false information to theCommission in the course of its investigation into charges of wilful misconduct onthe part ofthe judge." (Adams v. Commission, supra, 10 Cal.4th at p. 914.)'"[Deception is antithetical to the role ofa Judge who is sworn to uphold the lawand seek the truth." (In the Matter ofCollazo (1998) 91 N.Y.2d 251 [668N.Y.S.2d 997,691 N.E.2d 1021,1023] [removingjudge for deceitful conductduring investigation of initial wrongdoing].)

E. Likelihood ofFuture ViolationsIn 2002, Judge McBrien was publicly admonished for serious misconduct,but has now attempted to disavow much ofthe conduct on which that disciplinewas based. In the current case, after walking out on the trial, he had ample time toreconsider and correct his actions, but he did not. Moreover, he acknowledges nowrongdoing, but instead attempts to blame the attorneys. (R.T. 97:22-98:17,

111:6-113:8,125:6-126:4,128:4-15.) These factors make it likely that he wouldcommit further misconduct if allowed to remain on the bench.

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Andrew Blum, Esq., State Bar No. 116644Valerie Marchant, Esq., State Bar No. 124765 pp.

Commission on Judicial Performance I ILt\JOffice of Trial Counsel455 Golden Gate Avenue, Suite 14424 JUL l 7 Z009

San Francisco, CA 94102 Commission onTelephone: (415)557-1200 Judicial Performance

STATE OF CALIFORNIA

BEFORE THE COMMISSION ON JUDICIAL PERFORMANCE

INQUIRY CONCERNINGJUDGE PETER J. McBRIEN,

NO. 185.

EXAMINER'S REPLY BRIEF(Rule 130(c))

Pursuant to Rules of the Commission on Judicial Performance, rule 130(c),the examiner submits the following reply to respondent's response brief.

I. OBJECTIONS TO FINDINGS OF FACTWe have objected to the masters' inclusion as a factor in mitigation JudgeMcBrien's statement in a letter to the commission that he "admits he acted badly"

for which he deserves to be "rebuked," as he later explained that he did nothingwrong other than leaving an "incomplete" record. (Exh. 3; R.T. 184:8-13.) Thejudge responds that his admission of "failure to make a complete record is

noteworthy." (Respondent's response brief [RRB], p. 2.) However, it is not amitigating factor for a judge who has committed serious and obvious misconduct

to admit such a minor mistake while denying the gist ofthe misconduct.

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Nor was Judge McBrien's false claim that Carlsson's expert witness wasonly testifying as to previous matters the result of a faulty memory. (Answer, p.4.) It was clearly disproven by the trial transcripts that the judge had already seen.

(See exh. 3; exh. 37 pp. 457:4-462:20.)At his deposition, Judge McBrien testified that he had not precludedCarlsson from completing his case because he had offered the parties more courttime. At the hearing, however, he admitted that he had never offered them moretime and claimed that it was his "policy" or the "culture" not to make such an offer

(rather, the attorneys had to initiate a request for more time). (Exh. 5 p.16:15-18:15; R.T. 74:4-8; 125:6-126:4; 346:14-17; 622:22-623:22.) This discrepancy isnot explainable by a faulty memory; he would have been aware ofany such longstanding "policy" at the time of the deposition.

Nor was his blatantly untrue and misleading testimony regarding his priordiscipline the result of a faulty memory. When Judge McBrien testified at thehearing, he knew full well that numerous trees had been cut, yet he repeatedly

stated under oath that only one tree had been cut.E. Likelihood ofFuture ViolationsJudge McBrien argues (KRB, p. 8) that the evidence does not suggest thathe is likely to commit future misconduct because in over 20 years on the bench

there has only been "the appearance of one claim forjudicial misconduct."However, apart from the fact that this seems to overlook the prior discipline (as to

which he displayed a significant lack ofcandor), failure to appreciate or admit tothe impropriety of his acts indicates a lack ofcapacity to reform.

F. Impact ofMisconduct on the Judicial SystemJudge McBrien argues (RRB, p. 8) that his alleged conduct "all arises froma single matter" and has not "affected the handling of other actions within the

Sacramento County Superior Court Family Law Division, or in the greaterCalifornia judicial system." In fact, Judge McBrien's misconduct has had asignificant adverse impact on the judiciary. His conduct generated considerable

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Return on investment: Because he got caught, this view cost the judge $20,000 and change, but local real estate agent Lillian Fulton estimates that it increased the value of the judges residence by $100,000.PHOTO BY LARRY DALTON

This article was printed from the Local Storiessection 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

A view to kill forWhen 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?

By Stephen James

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 quickly, veteran Sacramento County park ranger Steve Flannery berated himself.

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.

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.

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 oldthat 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

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.PHOTO BY LARRY DALTON

local law.

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.

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.

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.

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

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.)

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.

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.

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.

Sitting pretty: The McBrien residence now has one of the few virtually unobstructed views among the expensive homes that rim the bluff above the park.PHOTO BY LARRY DALTON

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.

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.

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 evaluate the case, but its difficult to get a measure of what that might be. But it wasnt difficult for Lyon & Associates real estate agent Lillian Fulton, who is recognized as a local authority on high-dollar Carmichael real estate. Fulton is familiar with the McBrien home and all the properties on the bluff rimming 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

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.

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,

Golden Gate University School of Law Dean Peter Keane says that judges should be held accountable for criminal and other

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.

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.

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.

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.

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.

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 reforms have had virtually no effect on the amount of discipline dispensed by the Commission. An analysis of the Commissions own

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.

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.

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, non-actions, 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.

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.

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.

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.

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.]

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.

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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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.

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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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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

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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 News Exclusive Investigative ReportThis investigative report is ongoing and was last updated in June, 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.

The 2014 documentary film Divorce Corp exposed courtcorruption throughout the United States and designated

Sacramento County as the worst-of-the-worst.

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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 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. Watch the exclusive Sacramento Family Court News video below:

Divorce attorney Charlotte Keeley (R) and her client Katina Rapton ofMel Rapton Honda leave a court hearing. Keeley reportedly has billed

Rapton more than $1 million in connection with a child custody dispute.

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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.

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

Court records show that Judge Jaime Roman (L) and Judge Matthew Garyroutinely issued demonstrably illegal court orders for the benefit of local attorneys who also work as part-time judges in family court. Both judges

have been reassigned out of the family courthouse.

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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 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

Sacramento Superior Court Judge James Mize testified as a character witness insupport of controversial Judge Peter McBrien when McBrien was facing removal

from the bench by the state Commission on Judicial Performance.

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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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3rd DISTRICT COURT of APPEAL SACRAMENTO

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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