Tuesday, September 30, 2008
CJP Launches Proceedings Against Sacramento Judge
By SHERRI M. OKAMOTO, Staff Writer
The Commission on Judicial Performance instituted formal proceedings against Sacramento Superior Court Judge Peter J. McBrien the organization announced yesterday.
The notice of formal proceedings, authored by commission chair Orange Superior Court Frederick P. Horn, was filed Thursday, and charged McBrien with improperly threatening counsel with contempt, becoming embroiled in the proceedings before him, and ultimately abandoning a trial in the middle of a party’s case in chief. The jurist’s answer is due October 14, 2008.
While presiding over a routine marital dissolution between Mona Carlsson and Ulf Carlsson, the commission alleged that McBrien had “displayed impatience” with Ulf Carlsson’s counsel, and “repeatedly threatened a mistrial if the proceedings were not concluded quickly enough.”
McBrien also issued a sua sponte order that Carlsson produce certain financial documents that Carlsson was required to file as a public employee, even though the judge acknowledged that the documents were not relevant to the divorce proceedings. After Carlsson’s attorney suggested that her client may want to assert his Fifth Amendment right against self incrimination if Carlsson had made any mistake in filling out the forms, McBrien asked her whether he should hold her in contempt for refusing to produce the forms.
The judge later abruptly ended the proceedings by excusing himself to take a phone call right after Carlsson’s trial attorney, Sharon Huddle, called a witness to the stand and was in the midst of asking the witness a question. McBrien never returned to the bench, and eventually issued a ruling against Carlsson on virtually every issue.
Shortly after the end of the Carlsson trial, the notice alleged, McBrien instructed the courtroom clerk to ask the court reporter to prepare a partial transcript of Carlsson’s testimony regarding the financial documents, and sent the transcript to Carlsson’s employer, causing Carlsson to lose his job. McBrien never disclosed his actions to the parties.
In May, the Third District Court of Appeal held that McBrien’s behavior “openly violated” the precepts of due process and so infected the integrity of the process that reversal was required without an assessment of actual prejudice.
McBrien was also charged with engaging in improper ex parte communications in two separate trials, and the notice alleged that McBrien’s conduct as a whole constituted willful misconduct, persistent failure or inability to perform the duties of a judge, and conduct prejudicial to the administration of justice.
San Francisco attorney James A. Murphy, Esq., of Murphy, Pearson, Bradley and Feeney is representing McBrien before the council.
Murphy opined “when all of the facts comes out there will be a complete understanding of what [McBrien] did, why he did it, and that he should not be found guilty of any type of misconduct”
The attorney called the charges “a ticky tacky foul they wouldn’t call in the NBA,” and argued they should not form the basis of misconduct, and “go to the heart of how the Sacramento Superior Court handles its family law department.”
The court is “overburdened with work,” Murphy explained, and has a limit on the amount of time that can be used to try cases. He said that the Carlsson matter had already exceeded its allotted time, and it was 4:29 in the afternoon when McBrien left the bench to take an emergency protective order call.
The court was required to shut down at 4:30 because it did not have the funding to pay for overtime, Murphy said, and that the testimony being presented by Carlsson’s attorney “was going to be redundant,” Murphy said.
Murphy also denied that McBrien had ever threatened Carlsson’s attorney with contempt. He argued that the judge’s query about whether Huddle’s response should place her “‘in the possibility of contempt’” was merely an accurate statement of fact.
“If you defy a judge’s order, I think that most people would think that you could be held in contempt of court,” he said.
Carlsson said yesterday that he had not yet been notified about the proceedings, but vowed “I’m going to nail [him].”
He led an unsuccessful effort to recall McBrien this year, but swore he was going to try again. “I’ll get my way because I won’t give up,” he said. “I won’t stop until I have him.”
The CJP, which is composed of three judges, two lawyers, and six public members, publicly admonished McBrien after he plead guilty to misdemeanor vandalism for chopping down oak trees on public land because they obscured the view of the American River from his home in April 2002.
McBrien, 63, was appointed to the Sacramento Municipal Court in 1987 by then-Gov. George Deukmejian, and elevated by Deukmejian to the superior court in 1989.
Copyright 2008, Metropolitan News Company