Metropolitan News-Enterprise


Tuesday, May 27, 2008


Page 3


C.A. Publishes Opinion Holding Judge Violated Due Process


By SHERRI M. OKAMOTO, Staff Writer


The Third District Court of Appeal on Friday ordered published its opinion that a Sacramento Superior Court judge’s behavior during a routine marital dissolution deprived a litigant of his due process right to a fair hearing.

The court had previously ruled in an unpublished opinion released May 8 that Judge Peter James McBrien’s conduct had so infected the integrity of the process that reversal was required without an assessment of actual prejudice.

Justice M. Kathleen Butz wrote that McBrien, manifested impatience during the two-and-half day marital dissolution proceedings of Ulf Johan Carlsson and his wife, Mona Lea Carlsson, by repeatedly indicating that he would declare a mistrial if the matter did not conclude quickly.

She opined that McBrien “pressured” Ulf Carlsson’s attorney into “rushing through her presentation and continuing without a break,” while at the same time frustrating the trial’s progression by issuing a sua sponte order that the husband produce certain financial documents he was required to file as a public employee, even though McBrien acknowledged the documents were irrelevant.

McBrien had also asked Ulf Carlsson’s attorney whether he should hold her in contempt for refusing to produce the forms after she suggested her client might want to assert his Fifth Amendment right against self-incrimination in the event he had made any mistakes in filling them out.

 The jurist abruptly ended the proceedings by excusing himself to take a phone call right after Ulf Carlsson’s trial attorney called a witness to the stand and was in the midst of asking the witness a question. McBrien did not return, later issuing a written ruling against Carlsson on almost every issue.  

In the Court of Appeal’s opinion, Butz concluded that McBrien’s behavior “openly violated” the precepts of due process.

“The trial court essentially ran the trial on a stopwatch, curtailing the parties’ right to present evidence on all material disputed issues…,” she wrote. “This method of conducting a trial cannot be condoned in a California courtroom.”

Justices Cole Blease and Rick Sims joined Butz in her opinion.  

Upon learning that the opinion had been published, Ulf Carlsson said, “it’s wonderful. It’s a good day.”

Carlsson’s appellate attorney, Brendon Ishikawa, said that he had requested publication, not “to play blame the judge,” but to have the opinion “have more of a positive impact than my client just having a win in the court of appeal.”

He explained, “I’m not saying what [McBrien] did was okay…, but the best that can come out of [this decision] is that it prevents other judges from doing it and raises some consciousness about how we really need more trial court funding.”

Ishikawa said that McBrien’s actions were “part and parcel of our family law courts bring overstrained.”

“There’s just not enough judges to handle the work load,” he said. “So something has got to give, but this opinion makes clear the thing that doesn’t give is the right to your day in court.”

The Commission on Judicial Performance could not confirm whether a complaint had been filed or investigation had ensued based on McBrein’s conduct in the case, although Carlsson said that he believed his appeal constituted the filing of a complaint.

In April 2002, the CJP publicly admonished McBrien after he pleaded guilty to misdemeanor vandalism for chopping down oak trees on public land because they obscured the view of the American River from his home.

Carlsson is also currently involved in an effort to recall the judge.

He previously told the MetNews that he is between $200,000 to $300,000 in debt as a result of attorney fees, expert witness fees, losing his job, and other costs associated with the divorce.

Despite what he claimed was an “unblemished” employment record, Carlsson said he lost his job after he appealed McBrien’s decision.

He had previously publicly accused McBrien of drawing his employer’s attention to the financial reporting documents that the judge had demanded, and of being responsible for his termination.

The case is In re Marriage of Carlsson, C053515.


Copyright 2008, Metropolitan News Company