3. Judge Peter McBrien Prosecution Whistleblower Leaked Transcript - Commission on Judicial Performance Victoria B. Henley - Arthur G. Scotland 3rd District Court Vance Raye - Tani Cantil-Sakauye Supreme Court - Ulf Carlsson Case Sacramento Superior Court - US District Court Eastern District of California - Racketeering - Honest Services Fraud - Judge Misconduct - Vol. 3 of 3

1
COMMISSION ON JUDICIAL PERFORMANCE
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INQUIRY CONCERNING
JUDGE PETER J. McBRIEN
CJP NO. 185
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10
11
TRANSCRIPT OF THE
12
13
HEARING BEFORE SPECIAL MASTERS
14
SACRAMENTO, CALIFORNIA
APRIL 3,
15
16
VOLUME 3,
2009
PAGES 526 -
630
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REPORTED BY:
SANDRA LEHANE
REGISTERED PROFESSIONAL REPORTER
CERTIFIED SHORTHAND REPORTER NO. 7372
155 Orr Road
Alameda, California 94502
(510) 864-9645
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' - - - - - - - - - - - - I N RE CJF NO.
185 - 4 / 3 / 0 9 - - - - - - - - - - - '
526
PARTICIPANTS:
SPECIAL MASTERS:
4
5
Honorable Dennis A.
Associate Justice
Court of
eal,
Cornell
fth District
Honorable Gail A.
Andler
Superior Court of Orange County
10
11
12
Honorable Denise de Bellefeuille
13
Superior Court of Santa Barbara County
14
15
Respondent's Counsel:
James A.
16
Murphy,
Esq.
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18
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Ex
ner:
Andrew Blum,
Esq.
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L - - - - - - - - - - - - I N RE CJF NO.
185 -
4/3/09--------------'
527
APRIL 3,
2009
9:00 A.M.
000
SPECIAL MASTER CORNELL:
Good morning.
are on record in the matter of Judge McBrien,
presence of Judge McBrien and counsel.
in the
There are some administrative duties we need
6
7
to take care of from yeste
me,
Exhibits 42,
10
MR.
11
12
We
ay.
I presume -- these would

43,
44.
BLUM:
ear to be marked
Is that correct,
Yes,
Mr.
Mr.
And you have no
Murphy?
13
MR.
14
15
have been provided to the court reporter?

BLUM:
Blum.
Your Honor.
objection to their receipt,

MURPHY:
have in front of
That's correct.
16
MR.
Yes,
17
And the originals
they have.
Mr.
Murphy,
18
sake of the record,
19
whatever you provided to the court reporter?

MR. MURPHY:
20
for the
have you provided the original of
I have the binders that I will
21
review at the conclusion of testimony to make sure
22
that they are accurate and provide them to the court
23
reporter.
24
25
And yesterday,
Thank you very much.
at the close of business,
L------------------------IN RE CJF NC. 185
413109--------------------~
asked both coun
exhibit to us,
referred to by Witness Keeley.
would do so.
And you indicated you
Is that available?
MR. MURPHY:
a copy of the Rule of Court that was
It is,
Your Honor.
had it
d as Exhibit N.
premar
MR.
10
And I
MURPHY:
N,
as in negative.
N,
as in Nancy,
Pardon me?
I
believe.
11
MR.
MURPHY:
provided a copy to Mr.
12
It's only one page from the local rules.
13
will need to be some explanation,
14
will testify about this.
15
the local rule effective 2008.
16
rule effective 2006.
17
19
MR. MURPHY:
this is
It was not the local

testimony to go through that,
But there
and Judge McBrien
The difference -
18
Blum.
We can wait for his
then.
I do have copies of that.
20
only have one copy of the local rules and the complete
21
chapter involving family law,
which is multiple pages.
22
And I
Blum beforehand.
23
intending to have additional copies made after today,
24
when I
25
Mr.
discussed this with Mr.
get back to my office,
then provide a copy to
Blum and a copy to the Court.
~-----------------------IN
I was
RE CJF NO. 185
This copy was taken

4/3/09--------------------~
from the website of the Sacramento County Superior
Court.
Exhibit 0,
So this is the 2006 local rules,

premarked.
SPECIAL MASTER DE BELLEFEUILLE:
what was the number?
MR.
MR.
11
MURPHY:
MURPHY:
0,
0,
as in Oscar.
as in os scar;
BLUM:
13
MR.
MURPHY:
14
No,
Anything else from
Your Honor.
No,
Your Honor.
may call your next witness,

MR.
16
MURPHY:
Mr.
All right.
I ' l l call Judge Michael Garcia.

---000--
18
JUDGE MICHAEL GARCIA
having been first duly sworn,
20
Please have a seat.
State your full name and spell your last name.

THE WITNESS:
23
25
testified as follows:
---000--
21
24
Then you
Murphy.
17
22
right.
either one of you before we start?

MR.
19
1'm sorry,
O.
12
15
Okay.
10
which is
Garcia,
My name is Michael Theodore
G-a-r-c-i-a.
~-----------------------IN
RE CJF NO. 185 -
Thank you.
413109--------------------~
530
DIRECT EXAMINATION
BY MR. MURPHY:
Q.
Good morning,
A.
Good morning.
Q.
You are a
Judge Garcia.
judge of the Sacramento County
erior Court?
A.
Yes,
Q.
And could you set forth for the Special
I am.
Masters your educational background?

A.
10
I went to undergrad at Cal State Fullerton.
11
Went to law school at the University of California at
12
Davis.
13
but I
14
have.
15
16
17
Lots of other little things here and there,

think those are the two major -- major degrees I
Q.
Followi
A.
I did.
California Bar,
19
Washington,
20
there,
22
23
did you
become a member of the Bar?
18
21
graduation from law school,
Q.
D.C.
I became a member of the Bar,

the Federal Bar,
Bar.
and the -- the
I have appearances in the Court
Supreme Court.
What were the inclusive dates of your active
membership in the California State Bar?

A.
From 1974,
when I graduated from law school,
24
and I became -- I forget the specific title of the
25
reserve status,
but an inactive member when I took the
~-----------------------IN
RE CJF NO. 185 -
4/3/09----------------------~
531
bench in 1987.
2
3
Q.
Between 1974 and 1987,
can you briefly
summarize your professional experience?
I was -- I briefly served as a Deputy County
A.
Counsel and Deputy District Attorney in the County of
Tehama,
County District Attorney's Office in 197 -
1974.
Attorney General's Office.
and then I got full
loyment at the Ventura

again,
in
I worked there until I became a member of the

When I was in the District
10
Attorney's Office in Ventura County,
11
small.
12
from commercial law violations through homicides,
13
whatever,
14
Attorney's Office did,
15
child support,
16
time,
17
the Law.
18
Excuse me.
I was Deputy No.
22.
it was very
And so we did everything
anything in between.
Whatever the District
including family law matters or
paternity.
l\nd then
and during that
taught law school at the Ventura College of

I then -- I also taught
19
that was later.
Then I got a job at the Attorney General's
20
Office,
and there -- that was as a legislative liaison
21
for Attorney General Dukemajian.
22
he -- I
23
of California at Davis,
24
that.
25
governor,
I did that until
also was teaching law school at the University

had four classes there.
I did
And then when Governor Dukemajian became the

I went into the criminal di
~------------------------IN
RE CJF NO. 185 -
4/3/09----------------------~
532
did death penalty matters and also did trials where
the District Attorney would be recused.
And so I
several -- multiple trials of a sheriff,
a district
attorney,
one judge.
Things along those lines.
And then I
in Municipal Court.
that I was appointed to the Superior Court.
8
9
10
Q.
did
took the bench in January of 1987

And it was,
again,
March of 1989
Since your appointment to the Superior Court,
what assignments have you held?

A.
think it's easier to state it this way:
11
I've held every assignment except juvenile dependency.
12
But I've done everything else that the court has.

When were you assigned to the family law
13
Q.
14
departments?
15
A.
I want to believe it was somewhere in either
16
1987 or 1988.
17
had a policy at that time that -- excuse me.
18
that back.
19
year when I was in Superior Court because Superior
20
Court had a policy that that was the new judge
21
assignment.
22
Q.
23
department?
24
A.
25
Q.
Have you held the position of Assistant
I believe it was in 1987.
It would have been 1989,
The Court
I take
would be my first
You went to family law at that time.
How long did you sit in the family law
served one year in family law.
L--------------------------IN RE CJF NO. 185 -
4/3/09----------------------~
533
Presiding Judge of the Sacramento County Superior

2
3
Court?
A.
I have not.
That came in place after I
position.
Presiding Judge.
6
7
8
9
Q.
That is a relatively new

had become
And when were you the Presiding Judge of the
Sacramento County Superior Court?

A.
In 2002 and 2003.
that in the early '90s,
should also indicate
the regular trial
udges also
10
would try family law cases.
11
family law couldn't handle at the time.
12
multiple family law trials that I've had even though
13
was not in a f
14
15
Q.
We did the overflow that

So I had
I
ly law assignment.
You've also sat as a Special Master in
Commission proceedings,
have,
have you not?
multiple times.
16
A.
17
Q.
On how many occasions?
18
A.
I believe three.
19
Q.
Do you recall the matters in which you sat as
20
21
a Special Master?
A.
You know,
I should.
just
one was in
22
Orange County.
23
the names or where the judges were from,
24
know -- I
You know,
the names -- I
just destroyed those files,
can tell you

but,
you
and I didn't
he names of the judges any longer.

RE CJF NO. 185
4/3/09--------------------~
534
One still is a s
Q.
Joseph 0' Flaherty?
A.
Joseph O'Flaherty was the most recent matter.
believe you were counsel on that matter.
Q.
A.
But,
was.
I'm sorry,
just don't recall the names
of the judges any longer.
Q.
You obviously know Judge Peter McBrien?
A.
I do.
10
Q.
When did you first meet Judge McBrien?
11
A.
I met him sometime in 1981.
12
Q.
While you were with the Attorney General's
13
Office?
14
A.
Yes.
15
Q.
Did you have a professional relationship with
16
him at that time?
17
A.
I did.
18
Q.
What was the nature of the professional
19
20
relationship?
A.
Well,
I was,
again -- legislative liaison is
21
the government term for lobbyist.
22
the executive division -
23
was in the executive division of the Attorney
24
General's Office,
25
members of the executive division in order to
and I
And Peter was in
excuse me.
Judge McBrien
had to interact with many
L-------------------------IN RE CJF NO. 185
4/3/09--------------------~
535
determine the position of the Attorney General's
Office on a myriad of bills,
him in that fashion.

Q.
5
6
A.
Yes,
Q.
Was he helpful to you?
A.
Yes.
Q.
When you joined the bench,
I would.
did you join the
10
bench at or about the same time that Judge McBrien
11
joined the bench?
A.
believe -
I believe I
joined the bench
I took the bench before Judge McBrien did,
13
before
14
if memory serves me correctly.
15
was in the Governor's Office when I took the bench.
16
Q.
I think at the time he
When you became the Presiding Judge of the
17
Sacramento County Superior Court,
18
McBrien's assignment?
A.
19
You know,
what was Judge
I do not recall whether he still
20
had a trial assignment downtown or a family law
21
assignment.
22
to be truthful with you,
23
fact,
24
25
Would you say you enjoyed a good professional
relationship?
12
and I would interact with
I believe he had a family law assignment,

at the time.
As a matter of
I'm positive he was in family law.

Q.
At least in connection with your experience
as Presiding Judge,
how would you rate Judge McBrien?
L-------------------------IN RE CJF NO. 185
4/3/09--------------------~
536
Well,
A.
1 1 d have to do that ln two ways.
think that he has a
first,
very good temperament as a judicial officer.
he's inquisitive, which means that he makes rulings
based upon the law,
do.
on as a Special Master would make rulings based
upon
same type of rulings without the reason behind it.
as a judge, he has
So,
you know,
not based upon what he may want to

again,
one of the judges that
sat
because he would hear other judges make the
10
Judge McBrien is not that type of judge.
11
law well.
12
He's
He knows the
He researches the law.

And looking at it from the viewpoint of -- I
13
made him supervisor of family law when I took PJ
14
because he had great people skills,
15
organizational skills,
16
from the family law bar at that time because he had
17
worked in family law.
18
person that I
19
the skills and he had that intellectual curiosity.
20
And he would continue doing that,
21
very important for our court as well as the family law
22
bar.
23
assignment that you gave to new judges.
24
it was
25
Cases would resolve because they were
and he had a lot of respect
So both as a judge and as a
wanted to supervise,
And that is,
and he has
thought he had
which I thought was
when I was in family law,
it was an
And there -
cases would resolve for the wrong reasons.
L--------------------------IN RE CJF NO. 185 -
gosh
both
413109----------------------~
537
attorneys would say,
"Gosh knows what's going to
happen when it gets sent to a regular trial judge who
mayor may not know family law well."
Judge-
Scotland,
in the forefront of judges who helped change that.
They changed the format to have the judges that were
ruling on the short
would be the same -- they would keep those and also do
Presiding Judge -
You know,
or Presiding Justice
Justice Robie and Peter McBrien were kind of
on the Orders to Show Cause
10
the trials so that there would be a continuity.
11
People would know the reasons behind the rulings.
12
so when it came to trial time,
13
matters had already been determined by the same trier
14
of fact,
15
the right reasons.
16
matters were going to be determined.
17
18
19
20
21
Q.
many of the factual
and cases would resolve,

That is,
And
as I would say,
for
people understood how the
So Judge McBrien brought continuity to the
family law bench?
A.
He -- he continued that.
towards that,
Q.
Now,
He -
and he worked
yes.
when Judge McBrien joined the bench and
22
was assigned to the family law department,
23
law system in Sacramento County changed from when you
24
were in family law?
25
A.
the family
It did.
L------------------------IN RE CJF NO. 185 -
4/3/09--------------------~
538
Q.
change?
A.
And was Judge McBrien instrumental ln that
He was,
very much so.
He was part of this
Judge McBrien wanted to be in family law,
unique at the time.
assignment by many judges.
did Judge Robie and Judge Scotland.
9
10
Family law was not a sought-out

He enjoyed family law,
and your involvement,

the new system,
at least as Presiding Judge,
A.
12
stated.
13
think,
14
participation by the family law bar to help matters
15
resolve.
16
will.
Q.
in
is the new system an improvement?
11
17
as
Based upon your experience in the old system
Q.
and that was
think i t is,
for the reasons I
previously
Is that the cases are really resolving,

for the r
ght reasons.
It is a
it's a
There's a lot of
joint venture,
And at the present time,
if you
do you believe that
18
Judge McBrien is a benefit to the bar
19
the bench?
excuse me,
20
A.
21
Q.
And what benefit do you believe that he
22
brings?
23
A.
to
do.
Well,
again,
for the strengths -- those
24
reasons that I made him a supervising judge,
25
he still has those.
And that is,
IN RE CJF NO.
believe
he has a respect for
185 - 4 / 3 / 0 9 - - - - - - - - - - -
539
the family law bar and the mental health
professionals.
curiosity.
believe,
that are very positive.
He still has his intellectual
He still
eps up with the law and,
makes good decisions.
He has people skills
Family law is a very difficult assignment,
6
7
and there's a lot of
- well,
I think everybody
anybody who has served in family law has an
understanding of the difficulty that family law
10
presents in regards to the participants,
in regards to
11
the issues,
I think,
12
simplest thing is you do not have two households that
13
need to be supported on the same amount of funds that
14
couldn't support one household very well.
15
factors are difficult for a bench officer.
16
children -- issues regarding children.
17
Judge McBrien really is very good at that and
18
continues to be very good at that,
19
issues.
20
21
MR.
have,
in regards to the fact that,
MURPHY:
Your Honor.
All those
The
And I think
resolving those
Those are all the questions I
22
23
MR.
24
25
the
BLUM:
Mr.
Blum?
No quest ons.
May this witness be
excused?
L-------------IN
RE CJF NC . ..I85 - 4 / 3 / 0 9 - - - - - - - - - - - - - - - 1
540
Your Honor.
MR.
THE WITNESS:
SPECIAL MASTER ANDLER:
MURPHY:
Yes,
call Justice Arthur Scotland.
THE WITNESS:
---000--
JUSTICE ARTHUR SCOTLAND
10
baving been first du1y sworn,
12
Please have a seat.
Please state your full name and spell your last name.
THE WITNESS:
15
16
testified as f0110ws:
---000--
13
14
Raise your right
hand.
11
Thank you,
Your Honor.
S c-o t
Arthur George Scotland,
I-a n-d.
17
18
You may examine.
19
DIRECT EXAMINATION
20
BY MR. MURPHY:
Thank you.
21
Q.
Good morning,
22
A.
Good morning.
23
Q.
You are the Presiding Judge of the Third
24
25
Justice Scotland.
District Court of Appeal?
A.
Presiding Justice
L------------------------IN RE CJF NO. 185 -
4/3/09--------------------~
541
Q.
Excuse me.
A.
Of the Court of Appeal,
District.
Q.
I'm a stickler.
called you "Justice" Scotland.
How long have you been the Presiding Justice
Sorry,
of the Third District Court of Appeal?
A.
Since 1998.
Q.
Could you set forth,
Third Appellate
briefly,
for the
ecial
Masters your educational background?
10
A.
have a Bachelor of Arts degree from the
11
University of California Davis.
have a J.D.
12
from the University of Pacific McGeorge School of Law.
degree
13
Q.
And when did you become a member of the Bar?
14
A.
In 1974.
15
Q.
And when did you take inactive status,
16
accepting a
17
A.
In 1987.
18
Q.
Between 1974 and 1987,
judicial position?
could you briefly set
19
forth for the Special Masters your professional
20
21
erience?
A.
Yes.
Actually,
before I
was a law enforcement officer.
went to law school,

When I
graduated
22
23
from the University of California Davis in the
24
was into excitement and challenges,
25
narcotics officer for the State of California.

L------------------------IN RE CJF NO. 185
so I
'60s,
became a
So I
4/3/09--------------------~
542
did a number of undercover buys and frequent y
testified in court as a witness,
and that's what got
me interested in going to law s
001.
to Sacramento,
prosecutor with the Sacramento County District
Attorney's Office.
So I
and I went to law school.
came back
I became a
After several years there -- I tried quite a
7
8
number of jury trials,
graduated with me in law school.
and I had a friend who

She encouraged me to
And I was
10
come to the Attorney General's Office.
11
young,
and I thought,
12
and
just a different pace,
13
bit more about the law than just trying cases all the
14
time.
15
worked in the criminal appeals and trials unit,
16
did some jury trials.
17
and writs,
18
District Court.
19
"Well,
I'll give it a go,"
and learning a little
So I went to the Attorney General's Office.
I did mainly cr
writs of habeas corpus,
so I
inal appeals
some in the Federal
And then a state senator by the name of
20
George Dukemajian was elected Attorney General,
21
his senior staff approached me and asked me if I would
22
do some special projects.
23
unit.
24
the legislature on criminal justice legislation.
25
would frequently speak with legislators.
So I
and
One was in the legislative
represented the Attorney General before
' - - - - - - - - - - - - - - - - - I N RE CcJF NO.
185
So I
I would also
4/3/09-------------------~
543
testify before committee hearings,
or opposition to legislation depending on the Attorney
General's position.
either in support
I was then asked to do some special -- other
special projects for the Attorney General.
when he ran for Governor,
of absence and work on the campaign,
office.
campaign.
And then
I was asked to take a leave

in the policy
So I was a Deputy Policy Director of the

And then when he was elected Governor,
10
was asked to serve in the transition office.
11
Assistant to the Chief of Staff Elect and -
12
and the Governor asked me to serve in the Governor's
13
Office.
14
Governor Dukemajian.
15
liaison between the Governor and the Chief of Staff
16
and the heads of all of the state agencies and
17
departments for administrative policy.
18
example,
19
it would go through the Chief of Staff and me;
20
would communicate that to the heads of the agencies
21
and departments and ensure that those policies were
22
carried out.
23
in policy,
24
Staff and the Governor to make sure it was consistent
25
with the Governor's policies and priority.
So for four years,
I was
did that,
I was Cabinet Secretary to
That's a position that's the
So,
for
if the Governor wanted to implement a policy,

and I
If an agency wanted to effect a change
they would run it through me,
L-------------------------IN RE Cc7F NO. 185
the Chief of
So I did
4/3/09--------------------~
544
ars.
that for four
And then I
2
3
Governor,
Sacramento County Superior Court.
than two years.
office in
1989,
Associate Justice from 1989 to 1998,
Justice Puglia retired,
10
and I
was an attorney to the new
got appointed as a
judge of the
did that for less
I was appointed in 1987;
ril of 1987.
took
And then in February of
was elevated to the Court of Appeal.
when Presiding
and Governor Wilson appointed
me to be the Presiding Justice.
11
Q.
You touched on the matter,
but are you a
lifetime resident of Sacramento?
12
13
A.
Born and raised in Sacramento.
14
Q.
You know a
15
A.
16
Q.
A lot of lawyers in Sacramento?
17
A.
18
Q.
Now,
lot of people in Sacramento?
do.
know a lot of lawyers.

in connection with your judicial
19
position when you were on the Sacramento County
20
Superior Court,
21
was
A.
what assignments did you have?
My first assignment was family law.
22
never practiced family law before.
23
relished the assignment.
24
assignment.
25
practitioners.
had
actually
It was a very challenging
I have great respect for family law

Most of them,
' - - - - - - - - - - - - - - I N RE CJF NO.
the good ones.
185
There's
4/3/09-------------'
545
nothing more important to people than children and
property and those sorts of things.
turmoil in their life,
challenging,
mu
law.
August of
Presiding Judge,
criminal law assignment.
And during a
found it to be a very
interesting position.
enjoyed it very
And I developed a great fondness for family

And I did that for -- from April of
'88,
'87 until
when the Presiding Justice asked me -

excuse me,
as
d me to go to a
And so I
handled a number of
10
major criminal law cases, murders and things of that
11
nature.
12
Q.
What was the family law system like when you
13
sat as a family law judge in the Sacramento County
14
Superior Court?
15
A.
Sacramento County Superior Court is unlike

erior Courts.
We had
16
other S
17
calendar at that time,
18
handled all pretrial and post-Judgment proceedings.
19
If a matter went to trial,
20
calendar system;
21
courts.
22
relatively short cause,
23
matters where you could hear it in four hours or less,
24
you would handle those types of
25
But mainly it was all sorts of pretrial motions,
Unless
the family law
there were three judges; and we
then we had a master
so those would go out to other

-
we had
unless i t was a
what we called a long cause
L-------------------------IN RE CJF NO. 185 -
dentiary hearings.
4/3/09----------------------~
546
temporary child support,
did have a settlement conference -- one day was for
settlement,
they did not settle,
the master calendar.
assignment.
post judgment type actions.
Q.
things of that nature
where you would try to settle trials.
If
then they would be sent out to

They would go to another
And as I mentioned,
we had many,
Of your own personal knowledge,
many
did that
system change at some time after you left the bench?
10
A.
It did.
11
Q.
Do you know how it changed?
12
A.
It changed in several ways.
13
is -- first of all,
14
law lawyers
15
Of course,
16
compared to the time I was there.
17
terribly lengthy pro per calendar.
18
handled,
19
adoptions.
20
the assignment.
My understanding
it expanded the number of family
I mean family law judges,
of course.
the In Pro Per calendar just skyrocketed
by the way,
We did not have a

And we also
domestic violence.
We handled
That was one of the really great parts of
21
And it changed in that they tried to get away
22
from the master calendar -- sending out these cases to
23
master calendar.
24
the family law judge to actually hear the trials.
25
they set aside certain days,
And instead,
L-----------~------------IN
freed up more time for
as I
RE CJF NO. 185
And
un
4/3/09--------------------~
547
towards the end of the week where they could hear -
other than their law and motion,
hear trials.
while you were there?
THE WITNESS:
BY MR.
Q.
Appeal,
10
they could actually
That did not occur
That did not,
correct.
MURPHY:
As Justice of the Third District Court of
do you have occasion to review matters
involving Sacramento County family law?
11
A.
12
Q.
Have you familiarized yourself with the local
13
do.
rules of family law in connection with those cases?
14
A.
I wouldn't go so far as to say I
have a great
15
depth of knowledge on the local rules of family law
16
court.
But I
17
course,
that corne to our court for review.
18
because I have always had a great fondness for family
19
law,
20
family law gatherings.
21
period of time,
22
with a number of family law attorneys;
23
always concerned and interested in how the bench is
24
doing in family law.
So I
25
how things are going,
how the judges
have reviewed a number of decisions,
I've frequently attended,

I often
of course,
of
also
continue to attend
-
have,
over a
made some acquaintances

and so I'm
frequently ask attorneys
RE CclF NO.
185 - 4 / 3 / 0 9 - - - - - - - - - - - - - - '
548
so 1 get a lot ot teedba
also,
when you called me to
by the way
ask if I would object to being Subpoenaed as a
witness,
up
the number of appea s from cases from Judge McBrien's
court.
opinions in which he was reversed in full
and I
said no,
knew what this was all about,
And so I
and I
did research.
looked
looked
so I
researched
read all the

or in part.
also contacted certified family law specialists with
10
whom I
am acquainted and with whom I
11
much,
12
own personal dealings -- of course,
13
Judge McBrien
14
but
to gain their insights.
I'm sorry.
respect very
Because I
knew from my
I have known
I'm being narrative here,
15
Q.
It speeds things up;
16
A.
I've known Judge McBrien for 32 years.

then,
that's for sure.

I got
17
to know,
Deputy Attorney General Pete McBrien.
18
When I
19
Office and went to work for the California Attorney
20
General's Office,
21
General there.
22
professionally.
23
extent.
24
He played on one;
25
would attend office functions together.
left the Sacramento County District Attorney's
he was already a Deputy Attorney
So I
got to know him there,
mainly
Socially to a relatively minor
We had -- we had two co-ed softball teams.

I played on another.
L--------------------------IN RE CJF NO. 185
Of course,
we
His -- one of
4/3/09 - - - - - - - - - - - - - - - '
549
his very best friends was my supervisor in the
Attorney General's Office.
frequently,
events with others from the office.
So,
on occasion -
but on occasion we would attend social
So I got to know him there,
not
mainly
professionally,
then,
Governor's Office,
McBrien to go to the Governor's Office.
I,
10
mentioned,
11
refer to him as Pete -- was the special assistant in
12
charge of constituent affairs.
13
of the correspondence and inquiries,
14
So we worked together for four years there.
of course,
in the Attorney General's Office.

when we -- when I went to the
Governor Dukemajian also asked Pete
was cabinet secretary.
Then 1 knew him -
15
And
Pete
as I
if I may
So he dealt with all

public inquiries.
we were appointed to the
16
trial court about the same time.
17
have been the same day;
18
with you.
19
to the Municipal Court.
20
extent,
21
Municipal Court.
22
Court of Appeal,
23
Court.
24
family law assignment.
25
assignment.
In fact,
I can't remember,
it might
to be honest
But I went to the Superior Courti he went

So I was aware,
to a certain
of how he was doing as a judge of the

And then after I was elevated to the
he was appointed to the Superior
And he went into -- ultimately went into the
~-------------------------IN
It might have been his first
RE CJF NO. 185
4/3/09--------------------~
550
Because of my -
as I
interest in family law,
was doing and how
judges were doing.
good position -
think I'm in a very good position to assess his
performance as a
him individually as an attorney,
Q.
indicated
kind of kept track of how he
- not only he,

And so I
but how all of the
think I'm in a fairly
also having read the opinions,
judge,
and I think I can comment on
Going back a little bit,
as well.
in addition to your
10
judicial career in the Sacramento County Superior
11
Court and on the Third District Court of Appeal as a
12
justice and now Presiding Justice of that court,
13
you also sat as a
14
Judicial Proceedings matters?
have
ecial Master in Commission on
15
A.
have.
16
Q.
On how many occasions?
17
A.
sat in a contested hearing on one occasion.
18
I was appointed as Special Master on another occasion
19
that was settled.
20
Q.
21
detail,
22
and how you got to know him.
23
reviewed some statistics of the Third District Court
24
of Appeal with respect to matters presented to that
25
court involving Judge McBrien's decis
Now,
you've already covered,
in fairly great
your working relationship with Judge McBrien
~--------~------~-----IN
You testified that you
RE CJF NO. 185 -
4/3/09----------------------~
551
A.
have.
Q.
What period of time did you inquire into?
A.
All -- from the entire period of time that he
was a
judge of the Superior Court until the present.
Well,
when I
probably -- at the time I did it,
Q.
say the present,
think it was
it was in mid-March.
And how many cases were there presented to
the Third District Court of Appeal involving decisions
by Judge McBrien?
10
A.
110.
11
Q.
And of those 110 decisions,
12
reversals?
13
A.
Yes.
14
Q.
And how many reversals?
15
A.
There were seven reversals,
16
17
either in whole
Mostly in part.
or in part.
Q.
were there any
And does that seven include the case of
18
Carlsson v.
19
A.
It does.
20
Q.
And let's exclude that case and just talk
21
22
23
Carlsson?
about the other six.

A.
Did you review those decisions?
read all of the opinions.
One of them was
authored by me.
24
Q.
Okay.
25
A.
Yes.
One of the reversals?
L------------------------IN RE CJF NO. 185
4/3/09--------------------~
552
Q.
In connection with those rev
reversed on all issues?
A.
Only
if I can look at my notes,
were reversed in full.
part.
Q.
number of reversals,
approximately 5%?
A.
The others were reversed in
So based on the number of appeals and the
only two
If I
the reversal rate was
include the Carlsson case.
Because I
10
calculated that,
11
part,
12
actually is a remarkably good reversal rate.
13
our average reversal rate in civil cases is 20 to
14
25 percent.
15
complicated area of law,
16
respect to tracing and other
17
issues.
out of 110 appeals,
So that,
18
19
20
21
that's seven reversals in whole or in

which is about 6%,
which
Because
ly law cases are a particularly

involving many things with
some very complicated
in the scheme of things,
is a very
small percentage of reversal for a trial judge.

Q.
These would be published as well as
unpublished decisions?
22
A.
Correct.
23
Q.
All decisions issued by the Third District
24
25
Court of Appeal?
A.
Correct.
L-------------------------IN RE CJF NO. 185
4/3/09--------------------~
553
Q.
Now,
you also testified that you consulted
with family law practitioners in this area recently
and made inquiry of them.
determine the reputation of Judge McBrien in the
family law community?
A.
Yes.
Was the purpose to
already had what I
thought was fairly
good knowledge of his reputation,
current.
specialists that I particularly respect and one former
10
And so I called seven certified family law
family law specialist who's now a trial judge.

Q.
11
12
but I wanted to be
the
And what is your opinion of his reputation in
fami~y
13
A.
law area?
Well,
it's excellent.
He has a reputation as
14
a very dedicated family law judge,
15
knowledgeable,
16
of the contacts emphasized that he had a great ability
17
to understand sophisticated and complicated issues,
18
particularly issues relating to numbers and tracings
19
and that sort of thing.
20
pleased if they could be assigned to him because he
21
was able to grasp the more difficult issues very,
22
well.
23
very thorough,
who's very
very careful.
A number
So those attorneys were very
very
Everyone indicated that they felt he applied

They -
one emphasized that
24
the law without any bias.
25
he would change his mind if he was convinced that that

L--------------------------IN RE CJF NC. 185
4/3/09--------------------~
554
was the appropriat
commented that he -- you have to understand the family
law court in Sacramento County.
cases and you have such limited time.
honest with you,
with as a family law judge is to let attorneys/parties
present their case for as long as you can; but at a
certain point,
on.
10
You have so many

And to be
one of the things I would struggle
you just have to -- you have to move
You can't spend hours and hours on every single
case.
And Judge McBrien -
11
a number of them
12
mentioned that he didn't
13
waste time.
14
perhaps,
15
but he would not -- he would not allow -- he would not
16
allow attorneys to waste t
17
understand the law or were unprepared,
18
would
19
didn't use that word;
20
made that up.
21
But,
And that he could,
appear abrupt.
Maybe that's the wrong word,
If attorneys did not
23
prepared.
Q.
then he
so to speak.
I'm using that word.
in other words,
just to go on and on.
25
from time to time,
he would call them on it,
22
24
he doesn't let attorneys
They
just
he wouldn't allow people
He would expect attorneys to be
Does his reputation demand efficiency from
lawyers?
L-------------------------IN RE CJF NO. 185 --
4/3/09----------------------~
555
A.
Yes,
yes.
And actually,
one of the attorneys
said that he had been in the courtroom on a number of
occasions when Judge McBrien remained calm,
person said,
Q.
as this
So -
when I might not have.
What is his reputation for judicial
temperament?
A.
Well,
the same.
think that his reputation
is being -- is being very thorough,
being very open,
being not biased in any way but expecting that people
10
do the job well.
And if you don't do the job well,
11
you know,
12
of the attorneys said any time that they ever saw him
13
perhaps being short with an attorney,
14
pro per.
responding appropriately.
In fact,
several
it was a
15
Q.
What is his reputation for fairness?
16
A.
Every attorney that I
spoke with said that
17
they felt he was fair and would be very pleased to be
18
in his court.
19
Q.
What is
20
A.
Well,
let's put it this way.
If you're a good,
is:
22
you want to be in his court.
23
you're not a good family law attorney,
24
necessarily want to be in his court.

Q.
heard
prepared family law attorney,
21
25
What I
If you're unprepared and

you may not
What is his reputation for being patient,
~------------------------IN
RE CJF NO. 185 -
4/3/09----------------------~
556
dignified and courteous,
the canons?
A.
as that language
The attorneys with whom I
,
lS
used In
spoke all said that
To the -- he's never
he was always dignified.
undignified.
was wasting time or was unprepared or wasn't doing the
job.
inappropriately,
law judge,
They said he would react if an attorney
The sense that I got was he didn't react

but -- my gosh.
When I was a family
I reacted when people weren't prepared,
10
know.
11
has had a good reputation for judicial demeanor.
12
13
And so I would say that generally speaking,
Q.
In your opinion,
you
he
is Judge McBrien an asset to
the Sacramento County family law bench?
14
A.
Absolutely.
I think it would be a serious
15
blow to the family law bench and the family law
16
practitioners in Sacramento County if Judge McBrien,
17
for any reason,
18
another assignment.
19
I'm not being exactly responsive.
20
things I really respected about Judge McBrien is that
21
he voluntarily stayed on that assignment.
22
first carne on Sacramento County Superior Court,
23
practice was you're a brand new judge,
24
25
time and then they moved you out,
ly law,
left the family law bench,

One of the things -
if he took
I'm sorry,
But one of the
When I
the
you got put in
and you were there for a short period of
L-------------------------IN RE CJF NO. 185 -
and just when you

413109----------------------~
557
were really,
you know,
aw and applying it.
And it was unfortunate because
there was a lot of tu

in rulings,
petty much understanding th
over.
There wasn't con istency
and it was not a good thing.
always a push to try to get
And it was
judges to commit to the

years~
fami
y law assignment for multiple
th~t
was the best thing for the Court;
81
best thing for the parties.
Because
that was the
q!
And one thing I
~l
Judge McBrien
really respected of
s he was one of the promoters of that
111
policy.
that really advocated judges staying and promoted the
13
family law assignment.
141i
trying to talk up new judges
He and Judge Kobayashi were two,
think,
15
assignment it is.
actually promoted it.
And so -
l..;-J
as
what a good
but Judge McBrien not
16
only tried to promote it,
he stayed there.
He stayed
171
there for years and years and ye rs.
And i t ' s a tough
18
assignment.
ody happy.
19
Every single case,
20
cases,
don't make either party h
22
contentious court with difficult issues a
23
issues.
24
And I
25
wouldn't want to
And you never make ever
somebody goes -- you know in all
but especial y family law cases,
sometimes you
And i t ' s a very
y.
serious
And he stayed and he stayed and he stayed.
respected him for that because a
L---~~---------IIJ
lot of -judaes
~
CJ
that.
RE
~JC
..
-; 0
c:.
...L L'J
A- /I
r:;r:;o
..J ....J U
1
2
number of the attorneys talked about his great
3
commitment and his care and his concern about family
And I
4
law cases.
think by losing that,
if he were to
leave to go to another assignment,
I think it would be a serious blow because it would be
loss of a very talented and dedicated judge.
And you haven't asked me this question,
or whatever reason,
if he were,
for some reason,
to be found to have
10
violated the canons of judicial ethics,
11
frankly -- I
12
Carlsson case.
justice.
but
know about these cases;
or whatever,
know about the
think it would be a miscarriage of
think it would send the wrong signal to
judges and practitioners that you don'
allow -- that
you would be allow ng incompetent attorneys to run the

16
~
"I
I
court instead of competent judges.
possible crime.
19
judge and I
20
IvIR.
And I
canlt imagine,
if I
was the
came across evidence of someone

BLUJl.1;
I'm going to object.
There is no
question pending.
22

BY MR.
Q.
25
know that
there's one accusation about reporting evidence of a
18
21
And I
Sustained.
t1URPHY:
our Honor,
in your' opinion,
is Judge l\1cBrien
dedicated to the improvement of family law?

' - - - - - - - - - - - - - - - I N RE
!,IC"
1 85
s .
Has he demonstrated that dedication ov
Q.
years?
A.
In my opinion,
he has.
Q.
And in your opinion,
he is an asset to the
Sacramento County Superior Court bench in general and
specifically to the family law bench?

Without question.
A.
MR.
10
have.
MURPHY:
Thank you.
11
12
MR.
13
14
BLUM:
May this witness be
excused?
MR. MURPHY:
16
17
MR. MURPHY:
him,
He may be excused.
He wants to take his chair with
though.
19
(Discussion off the record.)
20
MR. MURPHY:
21
22
Blum?
No questions.
15
18
Mr.
Judge McBrien,
I call Judge McBrien back.

I ' l l remind you,
you're still under oath.
23
THE WITNESS:
24
25
You may examine.

~-----------------------IN
I am.
RE CJF NO. 185 -
Please be seated.
4/3/09--------------------~
560
MR.
Thank you,
MURPHY:
Your Honor.
---000--
JUDGE PETER MCBRIEN
havinq been previously sworn,
---000--
DIRECT EXAMINATION
BY MR. MURPHY:
Q.
Judge McBrien,
what I would like to do is
have you take a look in the Examiner's binder at the
10
Tentative Decision,
which is Exhibit 21.
11
that in front of you?
Do you have
12
A.
13
Q.
And when did you write out this decision?
14
A.
15
Q.
That's the date listed on the top of the
16
do.
presume around the 22nd of March.
first page of Exh
it 21?
17
A.
Yes.
18
Q.
And go through the procedure that you
19
20
employed in writing out this tentative decision.

A.
Well,
I,
first of all,
reviewed the various
21
pleadings and the various filings,
22
back to the file itself.
23
keep those in a book that
1S
24
And then I started writing.
25
Q.
continually looked
look at my trial notes.
in chronological order.
Did you consider the post trial submissions
L - - - - - - - - - - - - - J N RE CJF NO.
185 -
4/3/09--------------'
561
by the parties?
A.
I did.
Q.
And you had those available to you when you
were writing the decision?
A.
I did.
Q.
Did you read those before you wrote the
decision?
A.
I did.
Q.
The Tentative Decision -- looks to be the
10
third paragraph -- states -- well,
11
you read where it begins "The Court awards ..
A.
12
(Reading) :
actually,
why don't
"
"The Court awards each part:.y
13
one-half of the community property interest in
14
H's PERS retirement and does not order a segregated
15
account."
16
Q.
Why did you make that determination?
17
A.
During the trial,
the only evidence I
18
received was the testimony of Mrs.
19
did not want a segregated account.
20
elicited that testimony.
21
Ms.
Huddle cross-examined on that issue.
22
Ms.
Huddle did not ask her client questions about -
23
to the contrary.
So that was truly the only -- as
24
unusual as it is,
that was the only evidence that I
25
received on the retirement.

~-----------------------IN
Carlsson,
Ms.
that she
Keeley
I don't believe that
RE CJF NO. 185 -
And
4/3/09--------------------~
562
Did Mrs
indicate why she did not want a segregated account?

THE WITNESS:
No.
She was not questioned.
Although there was some testimony regarding a buy-back
by Mr.
Carlsson of a PERS Tier 2 time.
words,
the State of California has a Tier 1 retirement
and Tier 2 retirement.
contribute to;
certain date,
And the Tier 2,
Tier 1 you did.
Emplo
In other
you don't
es,
after a
could participate just in the Tier 2,
10
and there was an eventual benefit.
11
buy back those years where you had contributed to
12
the -- or not contributed by,
13
You could buy those back and qualify under Tier 1.
14
was
15
16
19
20
21
THE WITNESS:
BY MR.
Q.
I presume.
It was.
MURPHY:
The decision goes on to state:
awarded one-half" -- could you read that,

A.
It
The request by
Carlsson was extremely rare,
17
18
participated as Tier 2.

Mrs.
But you could also
(Reading) :
"Each is awar
"Each is
Your Honor?
d one-half of the
22
community property interest in the 401-K and one half
23
of the growth between the date of marriage,
24
and date of separation,
25
Q.
8/8/87,
3/29/04."
What was the basis for that ruling?
L------------------------IN RE CJF NO. 185
4/3/09--------------------~
563
A.
That was pretty standard for an account that
needed distribution,
some other mechanism,
parameters of that.
Q.
through a quadro
(phonetic)
or
and I was setting out the
Going down to t
bottom of the first page of
Exhibit 21, where it begins "Child support . . . "

Right.
"Child support was not argued but
A.
needed.
Ex-Spouse and the Minute Order."
1S
The Court's findings are included in the
10
Q.
What's the Ex-Spouse?
11
A.
That's one of the judicial
or the
12
Administrative Office of the Courts author -
13
evaluates and authorizes certain computerized programs
14
to calculate guideline child support.
15
well-known is DissoMaster.
16
created by the creator of DissoMaster who divorced
17
from DissoMaster.
18
there are several other programs.
19
new one that all DCS -
20
Support Services agencies must use.
21
Q.
22
needed?
23
A.
The most
Ex-Spouse is actually
And then there's Support Tax -

And there's now a
all Department of Child
Why did you conclude that child support was
First of all,
both sides argued it.
Both
24
sides presented evidence.
And in the petition,
25
petition authorizes the Court to address the issue of

L------------------------IN RE CJF NO. 185 -
the
4/3/09--------------------~
564
child support regardless of whether the motion is
brought.
So those were some of the reasons.
It wasn't,
to my mind,
support.
been addressed.
note it at the time -
upon the evidence that I

Q.
It was,
to my mind -- though I didn't
temporary child support based

received during the trial.
Okay.
judgment of child
Because the issue of judgment custody hadn't
Excuse me.
Did you
10
run the Ex-Spouse or the support program yourself,
11
did you have the attorneys each run a version and give
12
you the printouts?
How did you do that?
THE WITNESS:
13
Well,
14
But I think that at least Ms.
15
I think Ms.
16
or
Huddle too,
I always run it myself.

Keeley did offer
and
offered their versions.
And are the numbers
17
that you used to perform the calculation numbers that
18
were reflected in the printouts you received from
19
counsel?
20
THE WITNESS:
The numbers -- the only
21
difference would have been in the time-share,
22
there was some dispute regarding Mrs.
23
salary and what it should be.
24
of dispute.
25
Carlsson's
Those were the points

~-----------------------IN
and
RE CJF NO. 185 -
Thank you.
413109--------------------~
565
So you run the
DissoMaster after you make all your determinations
regarding the necessary orders.

THE WITNESS:
BY MR.
Q.
Correct.
MURPHY:
Judge McBrien,
Exhibit 21,
of spousal support.
turning to Page 2 of
this page appears to deal with the issue
A.
Correct.
10
Q.
And did you award spousal support?
11
A.
12
Q.
How much?
13
A.
It appears that I awarded $325.
14
Q.
Why did you make an award of spousal support?
15
A.
The
16
much as Mrs.
17
primarily from her employer,
18
one,
19
an accommodating employer that was willing to be
20
flexible and allow her to modify her hours based upon
21
the needs of their child.
22
an important,
23
flexibility of employment when you're a single parent
24
raising a child is rather important.
25
did.
Mr.
Carlsson made more than twice as
Carlsson.
Mrs.
Carlsson's evidence,
the dentist,
that she did work full-time and,
to my mind,
two,
suggested,
that he was
And I think that that was

factor simply because the
She had testified that her prior employer

---------------------IN RE CJF NO. 185
4/3/09--------------------~
566
used to throw records or books,
was a difficult working circumstance.
employer was willing to modify the time that she
worked.
testimony from the employer that had she worked more
hours,
that she would have made more money.
words,
the $3,000 a month was her set salary
regardless -- one could infer,
number of hours that she worked.
10
And fran
y,
or whatever,
And she -- the
there was no -- there was no
In other
regardless of the
The Tentative Decision,
Q.
and
on Page 2,
states:
could -
11
"While H/R" -- that's Husband/Respondent
12
"would have the Court not order spousal support,
13
circumstances of the case warrant an award of spousal
14
support."
the
15
A.
Correct.
16
Q.
And was that an argument that was being
17
advanced,
that the wife should not have any spousal
18
support?
19
A.
Yes.
20
Q.
Was she the primary custodial parent?
21
A.
She was.
22
Q.
And do you recall,
23
24
25
Mr.
as you sit here now,
what
Carlsson's visitation rights were?

A.
believe he had every other weekend.
an extended weekend,
~------------------------lN
It was
maybe Thursday night until Monday

RE CJF NO. 185 -
4/3/09----------------------~
567
morning.
Q.
believe,
was the time.
Let's go to the third page.

3
4
And that,
contested issue before you?
THE WITNESS:
It was not.
itself was somewhat temporary;
THE WITNESS:
That wasn't a
BY MR.
10
That arrangement
is that correct?
It was.
MURPHY:
Q.
The third page,
at least the first half,
11
deals with the issue of the two disputed parcels of
12
real property,
13
Ri ver house.
14
A.
Correct.
15
Q.
And did you order each of those properties to
16
the 24th Street four-plex and the Gold

Right?
be listed and sold?
17
A.
18
Q.
Why?
19
A.
First of all,
did.
nobody wanted the
And secondly,
the
20
four plex.
I was aware that
21
Mr.
22
no evidence to suggest that he qualified for any -
23
had any ability to buyout Mrs.
24
really didn't want to put the parties in a position of
25
limbo where I make an order awarding it to
Carlsson wanted the house.
~-----------------------IN
RE CJP NO. 185
However,
he presented
Carlsson.
or
And so I
4/3/09--------------------~
568
Mr.
Carlsson but he really couldn't qualify for the
loan or to buyout her interest in it.
that by doing that,
it was still Mr.
house,
amount,
both would feel fair and that he could qualify for a
loan on.
was going down in value,
So I
by ordering it sold,
figured
certainly if
Carlsson's desire to obtain the
that they would be able to get to a point of an

in a descending market,
that would be
that
And the testimony indicated that the house

and the duplex was holding
10
its own simply because commercial or rental property
11
at the time hadn't yet started tanking.
12
13
Q.
Was there an argument or contention that a
lis pendens existed against the 24th Street property?
14
A.
don't recall that.
I mean,
know that
15
there was a lawsuit that Mrs.
16
on in one of the days of trial that surprised her
17
attorney.
18
But I
Carlsson had been served
don't know the nature of it.
Q.
Finally,
20
A.
I did.
21
Q.
And that was in favor of Mrs.
22
A.
It wa s.
23
Q.
Why did you make that award?
24
A.
For several reasons.
19
25
you also made an award of attorney's
fees?
Mr.
Carlsson?
First of all,
Carlsson made significantly more money,
~-----------------------IN
RE CJF NO. 185
more than
413109--------------------~
569
two times the amount that Mrs. Carlsson made.
Secondly, we had spent probably,
third of the trial dealing with this third-party
interest in this property,
could adjudicate that without the third party present.
When you say
"present," you mean joined in the litigation?

THE WITNESS:
and there was no way that I
I want to say,
any,
Joined and his interest,
if
determined by me.
10
And also,
I was a little concerned about the
11
changes in position.
12
fair to change or unfair to change your position;
13
fine to change your position.
14
that was brought to my attention during the trial was
15
that Mrs. Carlsson had two appraisals on both the
16
house and the four-plex,
17
one a month before the trial.
18
to reach some agreement regarding the times -- or the
19
price,
20
and that's where I determined that the price of the
21
house,
22
in the
23
indicated they didn't want her -
24
Mr.
25
four-plex,
you know,
Not from the perspective of it's

it's
But one of the points
one six months earlier and

And in an effort to try
the price that it would be valued -
of the family residence,
was falling.
I had indicated early on,
And then
when they had both
actually,
Carlsson had indicated he did not want the

that we could address simply the is
L . . . - - - - - - - - - - - - - I N RE CJF NO.
185 -
4/3/09-----------------1
570
attor
appraisal at a later point,
agree to sell the four-plex,
immensely the amount of time spent in the trial on
that issue.
discuss it,
a new topic.
recess?
then I
which would have reduced
sent the attorneys off to
but no agreement was reached.
MR. MURPHY:
Your Honor,
I'm going to go into
Do you want to take the first morning
10
11
But I
if they were willing to
Yes.
We'll take our
first morning recess and be in recess for 10 minutes.
12
(Recess taken.)
13
We're back in
14
session in the matter of Judge McBrien,
15
16
You may continue,
17
MR.
18
During the break,
MURPHY:
Mr.
Murphy.
Thank you,
Mr.
in the
Your Honor.
Blum and I
-- or
19
Mr.
Blum graciously agreed that when I complete my
20
direct examination of Judge McBrien,
21
fairly short,
22
cross examination and allow me to take out of order
23
three very brief witnesses ..
which should be
that he will reserve his
24
Okay.
25
MR.
MURPHY:
Your Honor,
- - - - - - - - I N RE CJF NO.
185
have,
as noted,
413109--------------------~
571
had marked,
which I
will provide to the Special
Masters and provide to Mr.
Exhibit K.
Ex Parte Application in the matter of Carlsson vs.
Carlsson dated March 1,
Exhibit L,
Myles; as Exhibit M,
case of Barrett vs.
portion of Chapter 14 of the Sacramento County Local
Blum,
a one-page document,
It's an Order to Terminate Disposition of
2006 at 1:45 p.m.i
as
a Minute Order in the case of Myles vs.

as in Mary,
a Minute Order in the
Barrett; and as Exhibit N,
10
Rules of Court pertaining to family law matters;
11
as Exhibit 0,
12
Sacramento County Superior Court that were in effect
13
as of March 2006.
15
the Family Law Local Ru es of the
14
MR.
17
BLUM:
into evidence.)
21
BY MR.
24
25
Your Honor.
They will be
(Respondent's Exhibits K through 0 received
20
23
No,
received.
19
22
Any objection to the
of these exhibits?
recei
16
18
and
Q.
MURPHY:
Judge McBrien,
can you explain to the Court
what Exhibit K is?

A.
Exhibit K is a local form that we affix to
each ex parte,
and it indicates who's present and the
L------------------------IN RE CJF NC.
85 -
4/3/09--------------------~
572
dispos
on
e ex par e.
Q.
And what does Exhibit K pertain to?
A.
It pertains to the request by Mr.
through counsel,
the trial scheduled for March 2nd of 2006,
brought to my attention on March 1st of 2006.

Q.
Sharon Huddle,
Carlsson
for a continuation of
and it was
So that ex parte application to continue the
trial date was presented to you?
A.
It was.
10
Q.
And is that the ex parte application you
11
denied?
12
A.
It is.
13
Q.
And this document refreshes your recollection
14
that you,
in fact,
denied the ex parte?
15
A.
It does.
16
Q.
Could you take a look at Exhibit L.
17
A.
Yes.
18
Q.
Could you explain to the Court what Exhibit L
A.
Exhibit L is the Myles vs. Myles case heard
19
20
is?
21
in 1998 by me,
with Sharon Huddle as the attorney for
22
Larry Myles,
23
the attorney for Mrs. Myles,
24
there was a claimant,
25
was the paternal grandmother,
as she testified to,
and John Munsell as
Rebecca Myles.
Gladys Myles,
And then
who I'm presuming
also represented by
L------------------------IN RE CJF NO. 185
4/3/09--------------------~
573
Ms.
Huddle.
of that Minute Order reflecting that it had been
estimated for two court days.
half trial days,
completion and,
Q.
And I made various findings at the bottom
wo and a
the matter was still not near

at that po
, declared a mistrial.
In the Myles case,
was the parties'
estimate
a two-day trial?
A.
It was.
Q.
And did you
withdraw that.
At the conclusion of two days,
10
11
But after
was there a
request for additional time?
12
A.
There was.
13
Q.
And was that request rna
14
A.
It was.
15
Q.
Did you grant that request?
16
A.
I did.
17
Q.
And then you declared a mistrial after two
18
and a half days;

A.
19
Yes.
by the parties?
correct?
It was a very complicated custody case.
20
There was a question of a 290 registrant -- Penal Code
21
Section 290 registrant,
22
the child.
23
before we had much,
24
area,
25
their testimony.
And,
Mr. Myles wanting custody of
frankly,
it was heard at a time
if any,
statutory guidance in the
and all we had to go on were psychologists and

But I wasn't to a point,
' - - - - - - - - - - - - - - I N RE CJF NO.
certainly,
185 - 4/3/09
574
of satisfaction in terms of being able to reso ve
issue.
When a
strial is
declared,
they have to file a new at-issue memorandum?
the parties are back in the position where
THE WITNESS:
Actually,
they could do that,
but they don't have to if they agree.
always do.
setting calendar.
10
11
And they almost
just send them back down to the trial

This 101 MC on the Minute Order -
So they go down and
get a new date without having to file a document?
12
THE WITNESS:
13
14
Right.
In this case,
it
looks like you did direct them to file an at-issue.
15
THE WITNESS:
did.
It was probably because
16
there were other issues that hadn't been yet resolved
17
that -- this is probably a long cause on a custody
18
only issue,
19
Minute Orders reflecting the disposition of other
20
property and other related issues.
21
BY MR.
22
23
Q.
because there were no other attached
MURPHY:
Ju
Exhibit M,
e McBrien,
can you take a look at
as in Mary.
24
A.
Yes.
25
Q.
What is Exhibit M?
~-----------------------IN
RE CJF NO. 185
4/3/09--------------------~
A.
Exhibit M is a Minute Order from 1995,
dealing with the Barrett case in which Ms.
Ms. Huddle were representing the respective parties.
It was again scheduled for two days,
third day and were able to get enough evidence and
information to resolve the matter.

Q.
Keeley and
and we went a
Did you unilaterally extend the length of the
trial to a third day?
A.
I did not.
10
Q.
And how was that trial extended to a third
12
A.
One or both of the parties requested it.
13
Q.
And you ruled on that request?
14
A.
15
Q.
And the request was granted?
16
A.
Yes.
17
Q.
And that case was completed?
18
A.
It was.
19
Q.
11
20
day?
did.
want you to now take a look at Exhibit N
and Exhibit 0.
21
A.
Yes.
22
Q.
Exhibit 0,
which the Special Masters do not
23
have,
24
department in existence in 2006;
25
was the local rules for the family law
A.
right?
Correct.
L------------------------IN RE CJF NO. 185 -
4/3/09--------------------~
576
Q.
And was there a provision in the loca

specifically authorizing a
in 2006 authorizing
judge to declare a mistrial in the event parties
exceeded their estimated time limit?
A.
There was not.
And let me explain.
On
March 10, the day after this trial,
the Fourth
District Court of Appeal in Blumenthal decided that an
Orange County judge could not declare a mistrial due
to the lack of time or exhaustion of time or not
10
having enough time in the
11
authorized the Court and gave notice to the parties
12
that this might be one of the possibilities.
13
we became aware of Blumenthal,
14
court rules to reflect that in Exhibit N,
15
Q.
Now,
Judge McBrien,
sence of a court rule that
And when
we then modified our

as in Nancy.
prior to the amendment
16
following the Blumenthal case,
17
departments have a practice of discretionarily
18
declaring mistrials if parties exceeded the time
19
estimates?
20
A.
did the family law
We always make the threat.
It's rare to
21
carry it out.
22
much resolved in the case as possible so that the
23
parties don't have to redo it.
24
able to complete everything they wanted to complete,
25
but at least they can set it for further hearing on
It's preferable to bifurcate,
------------------IN RE CJF NO. 185
get as
And they may not be
4/3/09--------------------~
577
remaining issues.
MR.
MURPHY:
Your Honor,
have copies of the
Blumenthal decision if the Court would prefer to have
it.
Superior Court of Orange County,
real party in interest,
Division 3,
a copy.
but counsel
I'm familiar with
I would love
can read it on the plane.
I ' l l take it too,
to
be complete.
MR. MURPHY:
Okay.
MURPHY:
Sorry,
MR.
21
22
book.
23
BY MR. MURPHY:
Q.
Based on Blumenthal,
I've read the book.
Your Honor?
20
25
I don't,
18
24
2006.
them.
16
17
filed March 10,
may.
14
15
137 Cal. Ap 4th 672,
12
13
the Fourth Appellate District
copy?
10
11
Edward Blumenthal,
Would the Court prefer to receive the hard
8
9
can give you the cite . . It's Blumenthal v.
said I've read the
you said the Court
amended the local rules to specifically provide for

L------------------------IN RE CJF NO. 185
413109--------------------~
578
the
exceeded?
A.
Correct.
Q.
What was the process that was employed in
5
6
making that amendment?

A.
Well,
first of all,
I brought the case to the

Then we took it to
attention of the family law bench.
the attention of the FLEC committee.

The "FLEC"?
10
THE WITNESS:
Family Law Executive Committee.
11
12
THE WITNESS:
13
And then they discussed it,
Thank you.
Sorry.
had no real
14
objection to it.
And it was then -- with our local
15
court rules at the time,
16
them twice a year.
17
And so it took a little while to do that because,
18
addition to getting that in print,
19
circulate it among the Bar.
I believe we could modify
Now we're back to once a year.
you have to
20
21
THE WITNESS:
22
And so then that process was completed,

so on January 1st of 2008,
24
BY MR. MURPHY:
Q.
For public comment.
Yes.
23
25
in
and
that became the rule.
And it has been the rule ever since?
- - - - - - - - - I N RE CJF NC.
185
4!3!09--------------------~
579
A.
Yes.
Q.
Judge McBrien,
could you take a look at
Exhibit 4 in the Examiner's binder.
A.
Yes,
Q.
And you were admonished by the Commission
6
7
see it.
previously for cutting trees on public property?
A.
Well
referring to here?
10
MR. MURPHY:
11
12
Is that what you're
Yes.
I
think the document
speaks for itself.
13
MR. MURPHY:
14
THE WITNESS:
15
MR. MURPHY:
Right.
I think
But I
want an explanation of
16
what he actually did and show that i t ' s not related to
17
his judicial duties.
18
the judge has had an opportunity to expla n.
19
20
THE WITNESS:
It's mitigation.
I've never spoken in public
regarding it.
21
22
THE WITNESS:
23
I don't think
would be here,
Go ahead.
And I was hopeful that the Bee
but they aren't.
24
MR. MURPHY:
Okay.
25

L-----------------------IN RE CJF NO. 185
Why were you hopeful

4/3/09--------------------~
580
that the Bee
- the Bee is the loca
THE WITNESS:
Because they're the ones
and
the various news media have not ever spoken to me,
I haven't also spoken to them.
I'm the Paul Bunyan of Sacramento.
involved one limb on one tree.
the tree was cut -- by an arborist,
personally
law.
~-
but
Everyone assumes that

In fact,
it
And at the time that

not me
I did not know that it was against the
There exists a Sacramento County Parks and Rec
10
code provision that makes it a misdemeanor to cut any
11
Oak tree in Sacramento County, whether it be on
12
private or public land,
13
without a permit.
And so I have no dispute or concern regarding
14
the Commission having taken action against me.
15
think it entirely appropriate.
16
misdemeanor.
17
Commission to follow up on that.
18
unrelated to any of my judicial duties.
19
I pled no contest to a
I think it appropriate for the
After I had done so,
But it was also
at the full monthly
20
judges' meeting,
21
the embarrassment that I had brought to them,
22
them some examples of how they could avoid the same
23
calamity in the future.
24
BY MR. MURPHY:
25
Q.
I apologized to my fellow jurists for

and gave
Was there a question in your mind whether
L--------------------------IN RE CJF NO. 185 -
4/3/09----------------------~
581
this limb was on your property or not?

There was.
A.
It was.
The trunk was in the
crotch of the land.
the backyard,
The trunk of the tree on which the limb was attached
came from the crotch of that flat land versus the down
I and.
then it fell off on a 75 foot cliff.
We had been visited by the Metropolitan Fire
The piece of property we had was
District approximately six months before that time,
10
which
11
little white jeep with the man in the white came and
12
asked if he could look on the property to see
13
assess it for fire risk.
14
at it.
15
certain number of stations would need to be called
16
because of this limb.
17
not cut for viewing purposes.
He said if,
Q.
18
I was out doing some yard work,
and the
- to
And he was allowed to look
in fact,
there was a fire,
It posed a fire threat.
Judge McBrien,
It was
did you discover after you
19
hired the arborist who cut the limb that the
20
Sacramento County ordinances prohibited any type of
21
cutting of Oak trees even on private property?

A.
22
24
25
I did.
MR.
23
have.
at
MURPHY:
Thank you.
' - - - - - - - - - - - - - - I N RE CJF NO.
Mr.
Blum?
185 - 4/3/09
582
MR.
1
2
his remaining character witnesses.
Judge.
THE WITNESS:
MR.
Thank you.
MURPHY:
I call Robert O'Hair.

Please raise your
right hand.
---000--
10
11
You may step down,
We had agreed that he could call
BLUM:
ROBERT O'HAIR
12
---000--
13
14
sir.
15
name.
Please have a seat,
Please state your full name and spell your last
16
THE WITNESS:
17
18
You may examine.
19
MR. MURPHY:
20
DIR!~CT
21
BY MR. MURPHY:
Robert J. O'Hair,
Thank you,
O'H a-i r.
Thank you.
Your Honor.
EXAMINATION
22
Q.
Good morning,
23
A.
Good morning.
24
Q.
Mr. O'Hair, what is your profession?
25
A.
I'm an attorney,
Mr. O'Hair.
family law
IN RE CJF NO. 185 - 4/3/09
583
Q.
And what is your educational background?
A.
U.C.
3
4
Berkeley,
McGeorge School of Law,

Q.
communications,
J.D.
in 1977.
When did you start practicing law in the
State of California?
A.
Either '77,
Q.
And since that point in time,
early '70s.
early '78.
have you been
an active member of the State Bar?
A.
Yes,
10
Q.
Does your practice focus on any area of law?
11
A.
Family law.
12
Q.
How long has your practice focused on that
13
I have.
area?
14
A.
Probably since about 1981,
15
Q.
And have you held -
16
'82.
are you a member of the
Sacramento County Bar Association?
17
A.
Ye s
18
Q.
Family law section?
19
A.
Ye s.
am.
20
21
keep your voice up,
22
to me.
Excuse me.
Could you
because the back of your head is
Yes.
23
THE WITNESS:
24
25
MR. MURPHY:
Actually,
L . . . - - - - - - - - - - - - - J N RE CJF NO.
185
Thank you.
Mr.
O'Hair,
it's
4/3/09
584
pr
er
2
can hear you rather than me.
THE WITNESS:
4
BY MR.
Q.
Okay.
MURPHY:
Have you held any positions with the
6
Sacramento County Bar Association?
A.
Yes,
Q.
What positions have you held?
A.
I've been on the executive board twice.
10
First time,
11
The second time,
have.
about
2
on the board,
'89 to
'94,
something like that.
from about 2000 to 2006.
And while
you go through all the various offices
3
from treasurer/secretary,
chair,
past chair.
done that,
15
been on -- we used to have a separate liaison
16
committee separate from the executive board.
17
started that way back in the
18
on the child support committees that really did the
19
initial child support guidelines for Sacramento County
20
before we had statewide guidelines.

Q.
'80s.
guess.
I've
14
21
held all the offices twice,
So I've
was on that and
Are you a family law certified specialist by
22
the Board of Legal Specialization of the State Bar of
23
California?
24
A.
Yes,
25
Q.
And how long have you been s
am.
L - - - - - - - - - - - - - - I N RE CJF NO.
185
4/3/09-----------------~
585
A.
Since 1985,
Q.
Does that particular certification require
think.
recertification every five years?
A.
Yes,
Q.
And have you been constantly a member -- or
it does.
certified family law practitioner since 1985?
A.
Yes.
Q.
Is there an executive committee of the family
law bar?
10
A.
That's the one I was just describing.
11
Q.
Okay.
12
A.
It - i t ' s the executive board or executive
13
committee of the family law bar,
14
yes.
And in connection with that particular
Q.
15
committee,
did you ever have a professional
16
relationship or relationships with Judge Peter
17
McBrien?
18
A.
Yes.
19
Q.
Could you describe what those were?
20
A.
Well,
as I
indicated,
the liaison committee,
21
which also the executive committee took over in the
22
mid
23
committee met approximately once a month,
24
other month with the family law judges.
25
it's
'90s,
became the liaison committee.
And the
once every
And I believe
time kind of runs together a little bit.
~------------------------IN
RE CJF NO. 185
But
4/3/09--------------------~
586
was on
rs
oar ,
ge
r en came
the
on the family law bench probably ha fway through that.
So I would have met with him probably once a month as
part of the liaison committee where we developed loca
rules for various problems between bench and bar.
then the second time,
on the entire time so we would have participated
together in that same committee,
committee,
10
11
12
13
through 2000,
And
Judge McBrien was
guess joint
through that time period also,
five or six
years.
Q.
Are those committees intended to streamline
family law matters?

A.
think streamline along with deal with any
14
other problems that,
15
be having with the Bench or the Bench with the Bar,
16
to -- you know,
17
things.
18
created the settlement conference system that we have
19
right now.
20
That was a result of working -
21
and the judges.
22
23
Q.
you know,
either the Bar seems to
to figure out different ways of doing
To tweak local rules,
work on calendars.
That's been in place since the early
This committee,
you know,
We
'90s.
the liaison
liaison committee and judges,
is designed then to improve family law?
24
A.
Yes.
25
Q.
And you've seen Judge McBrien in connection
L-------------------------IN RE C,lF NO. 185 -
413109----------------------~
587
with your involvement with that committee and his
2
involvement with that committee?
3
A.
Yes,
Q.
And based upon your involvement in that
5
committee,
I have.
would you say that he's dedicated to the
6
improvement of family law in Sacramento County?
A.
Yes,
8
active judges,
9
I would.
He's been one of the more
at least through my tenure,
compared to
some of the other judges.
Q.
Now,
as a family law practitioner,
have you
1
appeared before Judge McBrien?
12
A.
Yes.
13
Q.
Tried cases before Judge McBrien?
14
A.
Yes.
15
Q.
Approximately how many?
16
A.
Trials?
Probably four or five.
17
only have a couple,
18
Hearings -
19
I mean,
20
track.
21
Q.
two or three,
probably
trials a year.
which would be much more
I don't know.
probably 20 or 30 over the years.
I lost
Based on your experience appearing before
22
Judge McBrien,
23
judge?
would you consider him to be a fair
24
A.
Absolutely.
25
Q.
Patient?
~------------------------rN
RE CJF NO.
185
4/3/09
588
Q.
Courteous to the litigants?
A.
Yes.
Q.
Courteous to counsel?
A.
Yes.
Q.
Knowledgeable in the law?
A.
Yes.
Q.
Hard working?
A.
Yes.
I mean,
yeah.
He's generally always
read the file,
11
they read the file before we get out there -- or come
12
into the court.
13
submission for a long period of time.
14
to both is he seems to be prepared,
15
rulings back relatively quickly.
16
Q.
which is the way we measure it.
Have
10
And do we get things that stay under
Has he ruled in your favor
And the answer
and we get our
or in your
17
client's favor in every matter that you have had
18
before him?
19
A.
Unfortunately,
I've had some of my worst
20
decisions from Judge McBrien.
defeats have probably come from Judge McBrien.
22
Q.
Some of my biggest
Based on your experience,
would you say he is
23
an asset to the family law department of the
24
Sacramento County Superior Court?
25
A.
Yes,
I would.
L------------------------IN RE CJF NC. ]85 -
413109--------------------~
589
MR. MURPHY:
have.
Thank you.
MR.
BLUM:
No
May this witness be
excused?
MR. MURPHY:
MR.
10
Call your next witness.
11
MR. MURPHY:
12
BLUM:
Yes.
Yes.
Call Camille Hemmer.

Please raise your
right hand.
14
---000--
15
CAMILLE HEMMER
16
baving been first
du~y
17
sworn, testified as
19
THE WITNESS:
20
Please have a seat.
Thank you.
Please state your
full name and spell your last name.
THE WITNESS:
22
23
fo~~ows:
---000--
18
21
Blum?
estions.
13
Mr.
Hemmer,
My name is Camille Heath
H e-m-m-e-r.
24
25
You may examine.
~----------------------IN
RE CJF NO. 185
Thank you.
413109--------------------~
590
DIRECT EXAMINATION
BY MR. MURPHY:
Good morning,
Ms.
Hemmer.
My name is Jim
Q.
Murphy.
A.
No.
Q.
What is your profession?
A.
I'm a family law attorney.
Q.
And when did you become licensed to practice
10
A.
In 1984.
11
Q.
Could you briefly set forth your educational
12
background?
13
A.
We've never met,

Not that I
have we?
remember,
anyway.
law?
14
I graduated from McGeorge School of Law and
then have practiced in Sacramento since then.
15
Q.
16
And since 1985
(sic),
has your practice
focused on any particular area of the law?
17
A.
Exclusively in family law.
18
Q.
And are you a
family law certified
ecialist
19
recognized by the Board of Legal Specialization in the
20
State of California?
21
A.
22
Q.
When did you become a certified specialist?
23
A.
I wish that you could tell me that.
am.
24
it was in the early '90s,
25
date.
think
but I'm not certain of the
L - - - - - - - - - - - - - - I N RE CJF NO.
185
413109-------------------~
591
Q.
Since your certification,
have you been a
family law certified specialist up to the present
time?
A.
Yes.
Q.
And that specialty for certification requires
that you have a certain degree of learning experience;
right?
A.
That's my understanding,
Q.
You have to take an eight-hour written
10
yes.
examination?
11
A.
Yes.
12
Q.
And you have to pass peer review;
13
A.
Correct.
14
Q.
In other words,
right?
people In the area of family
15
law have to pass on your application for
16
certification;
correct?
17
A.
Yes.
18
Q.
Are you a member of the Sacramento County Bar
19
Association?
20
A.
21
Q.
Are you a member of the family law section of
22
am.
the Sacramento County Bar Association?
23
A.
Yes,
24
Q.
Have you ever held any positions with that
25
am.
particular section?
L-------------------------IN RE CJF NO. 185
4/3/09
592
on two different occasions.
chair,
and I
I'm the current past
was the chair in the early '90s.
Q.
And your practice is exclusively family law?
A.
It is.
Q.
You represented Ulf Carlsson for a limited
period of time in the Carlsson vs.
you not?
A.
That's correct.
10
Q.
Now,
Carlsson case,
in your practice in family law,
did
have you
11
worked professionally with Judge McBrien as a member
12
of this family law section committee?
13
A.
Yes.
14
Q.
Could you describe for the Special Masters
15
the nature of that professional relationship?
16
A.
Judge McBrien and I
have attended many
17
meetings together.
18
basis.
19
of the Family Law Executive Committee.
20
with our bench officers.
21
of working very cooperatively to try to advance the
22
practice of family law within our community.
23
fact,
24
active part of that for many years.
25
When I
Q.
We typically meet on a monthly
say "we," I'm referring to the members
think we have.
And we meet
And we have a long practice
And in
And Judge McBrien has been an
Have you also appeared before Judge McBrien
L--------------------------IN RE CJF NO. 185
4/3/09--------------------~
593
as an attorney representing a client?
A.
Yes.
Q.
Have you ever tried any cases in front of
Judge McBrien?
A.
Yes.
Q.
Approximately how many?
A.
You know,
question.
recall.
10
Q.
1]
knew you were going to ask that
Probably five or six.
I honestly don't
And you've had also law-and-motion matters
before Judge McBrien?
12
A.
Many law and-motion matters.
Q.
Do you have a best estimate?
14
A.
Oh.
15
Q.
Over the years that you've practiced family
6
17
law,
40.
have you been able to observe Judge McBrien's
courtroom demeanor?
18
A.
I have.
Q.
Would you describe him as patient?
20
A.
Yes.
21
Q.
Dignified?
22
A.
Yes.
23
Q.
Courteous to litigants appearing before h
24
A.
Yes.
25
Q.
Courteous to counsel appearing before him?
In my experience,
~~~~~--------~~~--IN
RE CJF NO. 185 -
he is.
413109--------~~--~~~~~
594
Q.
In your opinion,
based upon your experience
with Judge McBrien in the courtroom and outside,
interfacing with this committee,
is an asset to the Superior Court bench?
would you say that he
A.
Yes,
Q.
A good judge?
A.
Yes.
Q.
A judge that you would accept a trial
10
I would.
assignment to?
11
A.
have,
and I would.
12
MR.
13
14
Mr.
MURPHY:
Thank you.
have.
Any questions,
Blum?
15
MR.
16
17
That's all I
BLUM:
No,
Your Honor.
May this witness be
excused?
18
MR.
MURPHY:
19
MR.
BLUM:
20
21
MR. MURPHY:
could I check;
Yes,
Your Honor.
Yes.
Your Honor,
22
not sure if my last witness,
23
scheduled for 11:30,
24
here,
25
subject to the cross examination that Mr.
I'm
who was originally
is here or not.
If he's not
then I will just suggest that Judge McBrien be
L - . - - - - - - - - - - - - - I N RE CJF NO.
185 -
Blum has
4/3/09-----
~------1
595
1
2
3
graciously agreed to defer.

a short witness?
MR.
MR. MURPHY:
7
8
Is your last witness
MURPHY:
don't know how tall he is.

Clever,
Do you want me to be specific?
He will be short in duration.
Thank you.
take a brief stretch while you're chec
10
(Pause in proceedings.)
11
MR.
12
13
(Discussion off the record.)
14
15
Raise your right hand.
MURPHY:
Back on the record.
17
THOMAS RUSSELL
20
21
22
23
ng.
Off the record.
---000--
19
We'll
call Thomas Russell.
16
18
clever.
---000--
Please have a seat.
Please state your full name and spell your last name.
THE WITNESS:
Thomas Leval Russell,
Junior.
R u-s-s-e 1-1.
24
25
You may examine.
L-------~------IN
RE CJF NO.
185
Thank you.
413109-------------------~
596
DIRECT EXAMINATION
BY MR. MURPHY:
Q.
Good morning,
Mr.
Russell.
represent
Judge McBrien.
A.
Yes,
Q.
What s your profession?
A.
I am a licensed clinical social worker.
Q.
And how long have you been a licensed
sir.
I
clinical social worker?
10
A.
35 years.
11
Q.
What,
12
13
generally speaking,
lS
the nature of
your practice as a licensed clinical social worker?

A.
I provide private mediation services for
14
Sacramento County and for the surrounding counties.
15
do 3111 child custody investigation evaluations,
16
am also a Special Master for high-conflict cases here
17
in the surrounding counties.
18
Q.
In connection with this position,
and I
do you work
19
with the Sacramento County Superior Court family law
20
department?
21
A.
Yes,
22
Q.
Have you ever had a professional relationship
sir.
23
with Judge McBrien in connection with your position as
24
a licensed clinical social worker?
25
A.
Yes,
sir.
L------------------------IN RE CJF NO. 185
4/3/09 - - - - - - - - - - - - '
597
2
3
Could you describe that professional
Q.
relationship?
A.
provide expert testimony on high-conflict
cases,
allegations made by one or both parents,
violence situations because of my background and
experience.
usually involving alcohol/drugs,
Q.
9
10

I'm having trouble hearing you,
THE WITNESS:
12
MR. MURPHY:
14
or domestic
Have you been -
11
13
where there's
Please speak up.

sir.
I'm sorry,
sir.
It would be better if you
address the Special Masters.

Q.
In connection with that professional
15
relationship,
have you been able to see Judge McBrien
16
in a courtroom environment?
17
A.
Yes,
Slr.
18
Q.
And would you say,
19
with Judge McBrien,
20
patient?
that,
based upon your experience
in a courtroom,
21
A.
Very patient.
22
Q.
Would you say he's dignified?
23
A.
Yes,
24
Q.
Would you say he's fair?
25
A.
Yes,
he's
sir.
sir.
L-------------------------IN RE CJF NO. 185 - 4/3/09
598
Q.
A.
Yes,
Q.
Is he courteous to litigants appearing before
A.
He has always been extremely courteous.
sir.
him?
That's been my observation when I've been testifying
before him.
Based upon your observations,
Q.
earing before him?
courteous to the attorneys
10
A.
Yes.
11
Q.
And courteous to you?
12
A.
Absolutely.
13
Q.
Has he demonstrated,
14
has he been
to you at least,
knowledge in the law?
15
A.
Yes.
16
Q.
Based upon your experience in the courtroom
17
environment involving Judge McBrien,
18
member of the public,
19
in his judicial duties?
20
A.
21
22
23
24
25
as a
be impressed by his perfbrmance
Absolutely.
MR.
have.
would you,
MURPHY:
Thank you.
you testified before him,

THE WITNESS:
How many t
shave
approximately?
Probably 40 to
L------------------------IN RE CJF NO. 185
413109--------------------~
599
Have you ever
interacted with him professionally off the bench,
you prepare reports and counsel and mediate with
custody matters?
THE WITNESS:
question,
Have you had any
regular contact with him off the bench

THE WITNESS:
No.
10
11
THE WITNESS:
12
13
Do you have any questions,
14
MR.
15
MR. MURPHY:
16
17
BLUM:
No,
Thank you.
Mr.
Blum?
Your Honor.
Thank you,
Mr.
Russell.
May this witness be
excused?
MR. MURPHY:
19
MR.
20

Mr.
BLUM:
Russell.
Yes,
23
witness stand.
24
oath.
Your Honor.
Yes.
Thank you,
You're excused.
Judge McBrien,
22
25
as a mediator?
No.
18
21
understand your
sir.
I'm not sure I
when
would you please resume the
I ' l l remind you you're still under
You may cross examine,

------------IN RE CJF NO. 185
Mr.
Blum.
4/3/09--------------------~
600
MH..
Thank you,
BLUl'1:
Your Honor.
---000--
JUDGE PETER McBRIEN
hav~ng
been
prev~ous1y
sworn,
test~f~ed
as f0110ws:
---000--
CROSS-EXAMINATION
BY MR. BLUM:
Q.
Good morning,
A.
Good morning.
10
Q.
You began testifying this morning by
Your Honor.
11
referring to your Tentative Decision,
12
Examiner's 21?
which is
13
A.
Yes.
14
Q.
Could you please turn to that exhibit.
15
a couple of items I wanted to ask you about here.
16
17
Just
The first one on Page 1,
third paragraph,
you
were talking about the PERS segregation order?
18
A.
Yes.
19
Q.
And you testified that of course it's quite
20
unusual not to segregate the account?
21
A.
It is.
22
Q.
And you gave -
one of your reasons for not
23
segregating it
24
Mr. Carlsson hadn't testified to that issue.
25
A.
not segregating the account was that
He presented no evidence that would support
L-----~-----------------IN
RE CJF NO. 185
4/3/09--------------------~
601
the Court ordering it.
You were aware at the time,
Q.
weren't you,
you made this Tentative Decision,
Ms.
finished the testimony of her client when the case
ended;
correct?
Correct.
8
9
Yes.
THE WITNESS:
11
13
Is getting a
segregated account under these circumstances an easy

task that can be accomplished post trial?
THE WITNESS:
14
15
Had the PERS
retirement system been joined?
10
that at least
Huddle had represented to you that she had not
A.
when
BY MR.
Yes.
BLUM:
16
Q.
PERS itself does that fairly often?
17
A.
Very often.
18
Q.
You also testified
and I'm not contesting
19
the wisdom of your decisions in this case.
20
clearly not my job.
21
jurisdiction.
22
or
23
had not proven his ability to buyout his wife -- his
24
ex wife?
25
That's the Commission's
But you said one of the reasons you
red the house sold was because Mr.
A.
That's
Ulf Carlsson
Correct.
~------------------------IN
RE CJF NO. 185
4/3/09--------------------~
602
Q.
Again,
same lssue:
When you made that
decision,
to you that she had not completed the testimony of her
client when trial ended;
you knew at least Ms.
Huddle had represented
correct?
A.
Correct.
Q.
And her closing argument
MR.
11
please turn
to Exhibit 18.
10
well,
Q.
BLUM:
Yes,
18?
18.
And we saw this earlier.
I'm just refreshing
your recollection here.

Line 22:
12
"Respondent objects to the
13
procedure as Respondent's redirect testimony was not
14
concluded and rebuttal testimony not allowed."

So you had read this document;
15
you were aware
16
of that when you reached your Tentative Decision.
17
Correct?
18
A.
Correct.
19
Q.
Another thing you just testified about on
20
direct from your attorney was this My es case -
21
A.
22
Q.
23
A.
Yes.
24
Q.
Do you have that in front of you?
25
A.
Yes.
which lS Exhibit L?
do.
IN RE CJF NO.
185
4/3/09
603
Q.
This was a case in which you declare a
mistr al in a case in which Ms.
attorneys?
Huddle was one of the
A.
Correct.
Q.
Do you remember the case?
A.
remember various aspects of it.
The main
issue basically.
Huddle represented the father?
Q.
Ms.
A.
She did.
10
Q.
This was mainly a custody issue?
11
A.
It was.
12
Q.
And he was a registered sex offender?
13
A.
He was.
14
Q.
And the wife
15
mother in this case,
excuse me,
should say the
she also had issues?
16
A.
Apparently.
17
Q.
Do you remember what the recommendation by
18
the -- what do you call it?
The Special Master?
19
A.
20
it 3111 or -
21
evaluation by a psychologist.
22
was at issue in the trial.
23
24
25
Q.
I believe they had either a -- now you call

which is an evaluation,
In the report,
or a 730
They had a report that
was it recommended that
custody be given to the father?
A.
I don't recall the specifics of the report,
' - - - - - - - - - - - - - - I N RE
C~JF
NQ.
185
4/3/09---------------------~
604
I do recall that aft
quite frankly.
it then went to a further evaluation and eventually
must have settled.

Q.
So you just don't recall what the report
suggested?
A.
don't.
Q.
But that would be a -
as you described,
a complicated custody situation where there were
questionable -- suitability questions about each
10
parent?
11
A.
Correct.
12
Q.
A fair way to phrase it?
13
A.
Very fair.
14
Q.
The attorney who was opposing Ms.
15
A.
John Munsell.
17
Q.
Munsell.
And he'd only recently gotten into
A.
don't recall that.
20
well qualified attorney,
21
got into the case.

Q.
But that's possible?
23
A.
It's possible.
but I
I don't
he's a very
but I don't recall when he
22
25
the case before trial started?
19
24
Huddle,
can't read the name.
16
18
it's
We were on the second volume,
didn't go through the whole file.

Q.
Did he put on a very elaborate presentation?
' - - - - - - - - - - - - - - - - I N RE CJF NO.
J85 -
4/3/09-------------'
605
A.
That,
Q.
Including videotapes?
A.
I don't know.
4
5
-- I couldn't tell you.
could have resurrected my
notes from that trial and reviewed them,

Q.
but I didn't.
It's okay.
Is it fair to say that the reasons that it
took longer than the estimate were not particularly
the fault of Ms.
Huddle?
A.
10
anyone.
11
was granted pursuant to the request of someone,
12
but it still was far from completion.
13
Q.
wasn't really trying to attribute fault to
All I was doing was indicating that more time
But that's not particularly
14
recollec ion,
15
by Attorney Huddle?
16
17
A.
to your
that's not due to delays or wasted time
couldn't tell you.
I could -- I
Q.
There's no question pending.
19
A.
Okay.
20
Q.
You testified to Exhibit 4,
testimony about
your prior discipline.
22
A.
Correct.
23
Q.
Did this case matter go to hearing,
24
25
do have an
observation though.
18
21
and
or was
this an agreed to disposition.

A.
It was agreed to.

-------------IN RE CJF NO. 185 -
4/3/09----------------------~
606
2
3
4
5
Q.
So did you agree to the language in the
admonishment?
A.
No.
don't know that I
but possibly my attorney did.

Q.
Well,
if your attorney had it,
A.
Presumably.
Q.
Now,
10
wouldn't you
have looked at i t as well?
had the language,
maybe I misheard you,
said you violated a
but I
thought you
you referred to a county
ordinance
Correct.
11
A.
12
Q.
13
A.
Correct.
14
Q.
What did that have to do with this matter?
15
A.
That was the underlying basis upon which the
- about cutting trees?
16
Sacramento County District Attorney charged me with a
17
felony.
18
Q.
The ordinance?
19
A.
Well,
20
Q.
The document itself indicates that you were
they used a penal code section.
21
convicted of a penal code violation,
22
ordinance?
23
A.
Correct.
24
Q.
Penal Code Section 348(A)?
25
A.
Correct.
L - - - - - - - - - - - - - I N RE CJF NO.
not a county
185 - 4 / 3 / 0 9 - - - - - - - - - - - - - '
607
Q.
And that is what you were convicted of?
A.
Correct.
Q.
And under the Statement of Facts and Reasons,
third paragraph down,
Section 384(A),
where it starts Penal Code
do you see that paragraph?
do.
A.
Q.
(Reading)
"Prohibits the willful or
negligent cutting or mutilation of any tree growing
upon pub ic lands."
10
11
12
13
14
15
16
The trees in question were on public land?

1\ .
That was in dispute,
but certainly not worth
going to trial regarding.

Q.
But it's now a part of the Statement of
Facts?
A.
understand that.
I'm not disputing what
the Commission did.
17
Q.
No,
18
A.
All I was trying to do was explain the
19
20
21
but -- well -
underlying circumstances that actually existed.
Q.
I'm trying to clarify what those facts are.
You seem to be questioning them.
The next sentence:
22
"Judge McBrien's criminal
23
conviction arose out of the 1999 cutting of trees" -
24
plural
"and removal of limbs from trees" -- also
25
plural
"on public land adjacent to his residence."
L-------------------------IN RE CJF NO. 185
413109--------------------~
608
Isn't that accurate?
A.
That's what that says.
Q.
Is i t accurate?
A.
Is i t accurate?
and there was a
and the river.
call i t a limb,
downed fence between the tree
if you wish to
removed for what purpose?
From my perspective,
A.
--
You had the tree and/or limb,
Q.
fence
There was one tree involved,
it was to enhance the
10
fire safety of our residence and the residence next to
11
us.
12
13
removed?
THE WITNESS:
14
15
mean -- I mean,
16
BY MR.
17
18
How many limbs were
One.
It was a
lengthy one.
i t was probably 20 or 30 feet long.
BLUM:
Q.
Same paragraph,
next sentence:
were growing in a nature center.
II
"The trees
Is that correct?
19
A.
That's what that sentence says.
20
Q.
Is i t true?
21
A.
The trunk of the tree was in the crotch of
22
the land.
23
the nature center.
24
up to the crotch,
25
Q.
And below,
Correct.
at least beyond that fence,
was
Whether it was the nature center

I
don't know.
"The trees included mature Oa
~------------------------IN
RE CJF NO. 185 -
4/3/09----------------------~
609
true?
don't -
A.
In what respect?
Q.
The trees that were cut included mature Oaks.
Is that true?
A.
The 1
that was cut by me involved a mature
Oak.
says "trees," not "limb."
Q.
A.
Q.
And you agreed to this language?
10
A.
11
Q.
Why would you agree to it if you believed it
12
understand what it says.
did not dispute it,.
to be untrue?
A.
13
The language of the actual charge was
14
presented to me on the morning of the plea,
15
accepted it.
16
Q.
and I
Are you saying you didn't have adequate time
17
to review i t and ask for changes to make the document
18
true?
19
20
A.
in fact,
You're referring to
the morning of the plea in the Municipal Court?
23
THE WITNESS:
24
25
what,
happened.
21
22
I'm just saying -- explaining what
Correct.
Your plea of no
contest?
I . . . - - - - - - - - - - - - - I N RE CJF NO.
185 -
4/3/09------------'
610
5
6
I think it might
been the Superior Court.
Yes.
THE WITNESS:
BY MR.
BLUM:
Q.
What about when you agreed to the language of
the disposition with the Commission?
A.
I'm not disputing it.
Q.
Well,
9
10
11
12
13
Okay.
it sounds like you're disputing the
facts that are stated here in this discipline.
A.
'm -- I'm telling you what happened.
all I'm doing.

Q.
Well,
if what happened is different,
A.
Probably to avoid a hearing.
15
Q.
You were ordered to pay $20,000 in
restitution?
17
A.
Correct.
18
Q.
For one branch?
19
A.
Correct
- no.
20
measured,
21
And as I indicated,
22
23
then why
would you agree to this language in the discipline?
14
16
That's
apparently,
It was a limb.
It was
by so many dollars per inch.
it was a lengthy limb.
We'll take our
second morning recess and be in recess for 10 minutes.
24
(Recess taken.)
25
SPECIAL MAS ER CORNELL:

~-----------------------IN
RE CJF NO. 185
We're back in
4/3/09--------------------~
611
session in the matter of Judge McBrien,
Mr.
Blum,
MR.
BLUM:
in the
you may continue.
Yes.
I have just a couple more
questions.
Q.
You stated earlier that you cut the limb for
fire safety purposes?
A.
Correct.
Q.
Looking again at the third paragraph on the
10
Statement of Facts in Exhibit 4,
"The trees included
11
mature Oaks and were cut for the purpose of improving
12
the view of a nearby river from the McBrien
13
residence."
Is that the reason the trees,
14
15
or limb,
were
cut?
16
A.
That is what that statement says.
17
Q.
I asked you if that's the real reason?
18
A.
That's the real reason in that it was a side
19
20
21
22
benefit,
Q.
but it wasn't the reason we did it.

SO you felt one limb had to be cut for safety
purposes?
IL
That one limb stretched probably at least 30
23
feet in length.
And the fire representative is the
24
one that made me aware of its potential to increase
25
the likelihood of fire danger to our residence and the

' - - - - - - - - - - - - - - I N RE CJP NO.
185 - 4 / 3 / 0 9 - - - - - - - - - - - - - "
residence next door.
MR.
REDIRECT EXAMINATION
BY MR. MURPHY:
have no further questions.
have you been vilified by
Sacramento Metropolitan News -- whatever i t ' s called?

Sacramento News and Review still portrays me
A.
Judge McBrien,
Q.
BLUM:
as the Paul Bunyan of Sacramento.
Q.
Do they call you Chainsaw McBrien?
10
A.
They do.
11
Q.
Is that the reason why you wanted to
12
explain
13
A.
14
Q.
15
A.
That is.
16
Q.
And you hired an arborist?
17
A.
We did.
18
Q.
The arborist is the one who trimmed the tree?
19
A.
Correct.
20
21
Correct.
what you did?
MR. MURPHY:
have.
Thank you.
22
23
MR.
24
25
THE WITNESS.:
BLUM:
Mr.
Blum?
No questions.
I have some.
Okay.
L------------------------IN RE CJF NO. 185
4/3/09-------------"
613
EXAMINATION
BY SPECIAL MASTER CORNELL:
Did you ever take this Carlsson case under
Q.
submission?
A.
6
7
trial,
Q.
I did.
I mean,
at the conclusion of the
we informed them that they could

Let me help you.
understand that.
What
I'm getting at is the records don't reflect anywhere
where there was a formal submission or -
10
A.
That's correct.
11
Q.
So formally,
12
submission?
13
A.
That is correct.
14
Q.
Do you normally enter a formal submission
15
16
it was not taken under
order at the completion of trials?

A.
If,
in fact,
17
opinion right away,
18
orally that I ' l l take i t under submission;
19
likely note that on the Minute Order.
20
21
Q.
I'm not going to issue the

would.
And frequently,
I mean,
I would indicate
and I would
you also just announce your
decision from the bench?
22
11'\
Often.
23
Q.
Do you ever
if a case comes to you for
24
trial,
do you ever engage in settlement discusses with
25
the litigants before you commence taking testimony?

-------------IN RE CJF NO. 185
413109--------------------~
614
A.
in fact,
try that if,
they are willing to
stipulate to my use as both the potential settlement
judge and as well as the trial judge.

Why do you feel that stipulation is
Q.
necessary?
A.
Well,
because if,
in fact,
they engage in
settlement negotiations/discussions with me without
that stipulation,
the contested matter.
10
11
Q.
I believe I'm precluded from hearing
What authority do you have for that
position
12
A.
13
Q.
14
A.
or is it just common practice?

That's common practice.
And I believe that I
15
saw authority; but it was so long ago,
16
you what it might be.
17
participate in that process.
18
case,
19
existence of a Special Master,
20
likely that settlement negotiations involving myself
21
would be successful.
22
Q.
can't tell
But I do encourage and offer to
recognize that -
And in this particular
particularly because of the

that it was not quite
Before the Carlsson matter,
had you ever
23
reported any litigant for what you perceived to be
24
criminal conduct to any authority?
25
A.
Not that I'm aware of.
L------------------------IN RE CJF NC. 185 -
4/3/09--------------------~
615
1
2
Q.
And in the course of your hearing trials,
frequently receive tax returns;
you
is that correct?
A.
Yes.
Q.
Which are filed under penalty of perjury?
A.
Yes.
Q.
And the information on the tax returns is
frequently different than the information provided
under oath before you?
That is,
A.
at times,
the claim.
But I accept
10
the tax return as truly reflective of what they are at
11
least willing to provide to the federal government.
12
Q.
At the
13
A.
I also try to admonish them to avoid that as

And i t ' s a common
14
a tactic.
15
to claim,
16
table and,
17
that kind of thing.
18
19
Q.
"Well,
not an uncommon tactic
he makes a lot of money under the
you know,
Frequently,
did so during the marriage" and
i t ' s the case when you operate a
business that's owned by the parties?
20
A.
Right.
21
Q.
Did you,
22
to you,
23
you may have a bias that would require your recusal?
24
25
A.
at the t
this case was assigned
knowing the attorneys involved,
don't -- I didn't -- today,
with either attorney.
consider that
I'd hear a case
I don't believe I
L------------------------IN RE CJF NO. 185 -
do have a
413109--------------------~
616
bias that would require my recusal from hearing one
for
a case from either attorney.
Q.
Did you consider it?
A.
At the t
But I
honestly couldn't tell you
-- there are no attorneys in Sacramento
that.
County that I
from.
would not be willing to hear a case
Any
Okay.
questions?
10
EXAMINATION
11
BY SPECIAL MASTER ANDLER:
12
13
If you
Q.
Was this case assigned to you for all
purposes?
14
A.
It was assigned to me for trial.
15
Q.
Were you also the motion judge
16
A.
17
Q.
18
A.
19
Q.
So prior to this case corning to trial,
was.
on the case?
was.
were
20
you the judge who heard Orders to Show Cause regarding
21
temporary custody and support or
22
A.
23
available,
24
25
department.
heard -- normally I
rs?
would.
If I
were
would be the one that would hear it.
were unavailable,
If
it might get passed off to another
L------------------------IN RE CJF NO. 185
4/3/09--------------------~
617
2
3
Q.
Do you recall if you had previously made any
custody or support orders in this case?

A.
recall that I
did make an order some months
before involving a
ordering Ms.
employment.
resolution of that was to defer that to trial.
8
9
10
11
12
13
Q.
support related issue,
namely
Mrs. Carlsson to seek full time

And the Minute Order reflects that the
Had you previously made any orders regarding
temporary possession of the family residence or

exclusion from the f
A.
ly residence?
don't recall that.
don't recall a
contested order to that effect.
Q.
Had you previously reviewed the parties'
14
income and expense declaration in hearings prior to
15
the trial?
16
A.
17
18
Yes.
Thank you.
Those are
my all my questions.
19
would like
20
a little more clarification of the family law
21
department's system,
22
THE WITNESS:
if you would.
Sure.
23
EXAMINATION
24
BY SPECIAL MASTER DE BELLEFEUILLE:
25
Q.
Could you tell me how many full time family
' - - - - - - - - - - - - - - I N RE Cc7F NO.
185 -- 4 / 3 / 0 9 - - - - - - - - - - - - '
618
judges does Sacramento County Central have?
A.
Now?
Q.
Now.
A.
Now we have five who hear family law and one
who hears domestic violence only.

Q.
Do all five of the judges have the
Thursday/Friday trial two-day schedule?
A.
We do.
Q.
In 2006,
10
there working under this system?
11
A.
12
been three,
13
was,
14
15
how many family law judges were
believe there were four.

but I
believe,
There might have
believe there were four.
And one
usually gone for teaching someplace.
Q.
Did that create extra burdens for the rest of
A.
We would share her calendar if she were gone
you?
16
17
during Monday/Tuesday/Wednesday.
18
one department less to hear a trial.
19
Q.
And it would be just
So every Monday/Tuesday/Wednesday you had
20
four
judges doing law and motion calendars in the
21
morning with attorneys?
22
A.
Right.
23
Q.
And pro per calendars in the afternoon?
24
A.
Correct.
25
Q.
Would a typical law-and-motion day be a
L-------------------------IN RE CJF NO. 185 -
4/3/09----------------------~
619
1
2
six hour full day,

A.
all three days?
It probably depends on the department and the
longevity of the judicial or bench officer in that
department.
better than 90% of the cases settle.
frankly,
mornings.
hearing self-represented cases,
settle,
10
11
For instance,
in my department,
probably
And so If
have a very light calendar on law and motion

And then in the afternoon,
when we're
very few of those
and I would have a bigger
bigger, more
wholesome day at that point.

Q.
Was there ever an opportunity to carve out
12
additional trial time on short cause matters on
13
Monday,
14
A.
15
Tuesday or Wednesday?
There sometimes is on Tuesday afternoons or
over the lunch hour Monday/Tuesday/Wednesday.

You would take trials and do them during the
16
Q.
17
lunch hour?
18
A.
I would.
19
Q.
How often can you estimate,
20
have.
in the Year 2000,
did you do that?
21
A.
In the Year 2000?
22
Q.
2006.
23
A.
The years blend,
Pardon me.
and I couldn't tell you if
24
it was that year or another.
But I have heard them.
25
Not frequently but,
once every other month
~------------------------IN
you know,
RE CJF NO. 185 -
4/3/09----------------------~
or s
Q.
Did that create some staffing issues?
A.
It doesn't because I tell my bailiff and my
clerk they are free to go to lunch and whatnot.
wouldn't do it with a domestic violence tri~l where
there may be some safety issues.
case with just either self-represented litigants or
attorneys,
10
I wouldn't have any hesitation to do that.

All right.
Thank you.
11
12
But certainly for a
have one more
question.
13
You had mentioned to the parties that you had
14
another matter that had some statutory preference or
15
priority,
16
17
and I don't recall hearing what that was.

Were you hearing domestic violence matters at
the time or -
18
THE WITNESS:
19
20
THE WITNESS:
It was actually a termination.
Pardon me?
No.
Rental?
It was the
21
most -- may be the most unusual case I've ever heard
22
because it was a motion to terminate an adoption.
23
it was on the second or third partial day of the case.
24
25
And
So that was already
pending at the time you commenced the

L-------~----------------IN
RE CJF NO. 185
4/3/Q9~~------------~~--~
621
THE WITNESS:
It was.
Mr.
FURTHER REDIRECT EXAMINATION
BY MR.
It was.
Thank you.
Anything else,
Murphy?
MURPHY:
What would be your estimate of the number of
Q.
trials that you have handled since being a member of
the bench?
10
A.
I've estimated
11
Q.
Trials.
12
A.
Others have estimated that I've probably done
13
40,000.
14
how many I've done.
well,
don't know if there is any way to calculate

I don't know.
15
MR.
16
THE WITNESS:
17
18
MR.
MURPHY:
BLUM:
Thank you.
I've stayed busy.
Mr.
Blum?
Just briefly following up with the
ecial Masters asked.
19
question one of the
20
FURTHER CROSS-EXAMINATION
21
BY MR.
22
cases or trials?
BLUM:
Q.
If a trial goes beyond Thursday/Friday and
23
maybe there's an hour or two left to finish it,
24
those occasionally heard on Monday/Tuesday/Wednesday?
25
A.
They can be,
if they
if,
are
with their
RE CJF NO . .1 85 - 4 / 3 / 0 9 - - - - - - - - - - - - - '
622
schedule and my schedule,
time,
yes.
Q.
it appears that we have
And I'm willing to do it.
You call that "specially set"?
Yes.
Q.
trial"?
A.
Explain "specially set
What does that mean?
Special set would be that we're setting it in
a timeframe when there wouldn't normally be a
calendar.
10
Q.
In other words,
11
A.
It has been.
12
13
MR.
MURPHY:
this is a recurring practice?
But in that instance,
parties who need to request the continued time;
14
THE WITNESS:
15
MR.
16
MURPHY:
right?
It is.
Thank you.
17
per one of your local rules,
18
copy of yet;
19
i t ' s the
And that's
which we don't have a
is that true?
THE WITNESS:
It probably is culture more
20
than anything.
21
authorized by the local rules.
22
the culture understands that.
I don't know.
I don't know that i t ' s

But certainly i t ' s -
23
24
MR.
25
BLUM:
No,
Anything else?
Your Honor.
L-------------------------IN RE CJF NC. 185
Do you have any more
4/3/09--------------------~
623
of this witness?
MR. MURPHY:
case,
own retrials,
No,
Your Honor.
THE WITNESS:
MR. MURPHY:
Generally.
Thank you.
You may step down.
Respondent rests.

Mr.
Anything else,
Blum?
12
MR.
13
14
Do you re-try your
generally speaking?
11
If you miss-try a
does it come back to you?
10
BLUM:
No,
Your Honor.
Okay.
From my understanding,
the court reporter has
16
two weeks to submit the transcript,
17
her to April 17th.
18
That's your understanding,
Yes,
Madam Court
sir.
THE REPORTER:
21

due 30 days after that.
MR.
24

to May 17.
BLUM:
Then your briefs are
Is that correct?
23
25
which would take
Reporter.
20
22
Let's talk
about the briefing schedule.
15
19
We rest.
Correct.
Which would take you
And our report will be due on June 16,
~-----------------------IN
RE CJF NO. 185 -
4/3/09--------------------~
624
which would be 60 days a
transcript.
We have tentatively picked as our first
preference as the day for oral argument,
at the Ninth Circuit in San Francisco,
May 29,
to take place
to be Friday,
if that date is acceptable to you.

MR.
MURPHY:
I think it should be,
I'm scheduled to start trial in Federal
Your Honor.
Court in San Jose in front of Judge White,
10
believe he is dark on Fridays.
11
May 18.
12
13
14
15
16
17
18
'm scheduled to start
And it will go long
enough to create a problem if he is not?

MR. MURPHY:
Well,
it's going to be about a
20-day trial.
Would he allow you a
day for a special session?

THE WITNESS:
I
I believe he's dark on Fridays.
19
But if not,
20
Friday morning or Friday afternoon?
can probably request.
21
22
MR. MURPHY:
23
24
25
and I
Would it be
Friday morning.
could make that request if
he's not dark on Fridays,
but I'm pretty sure he is.
Mr.
Blum,
any
problems with that?

L------------------------IN RE CJF NO. 185 -
4/3/09--------------------~
625
MR.
BLUM:
No,
Your Honor.
That date is
2
fine.
So we 11 schedule
the briefs to be received simultaneously
contemporaneously,
on May 17.
let's put it that way,
or
6
And oral argument will be scheduled for 9:00 a.m.
7
May 29 at the Ninth Circuit,
on
with a specific location
8
to be set up by notice from the Commission.
MR. MURPHY:
10
1
12
7th and Mission.

No.
The notice
of -- the specific notice of the courtroom in the

Ninth Circuit.
13
MR.
14
(Sotto voce discussion between the Special
15
MURPHY:
Okay.
Masters.)
16
17
briefs with the CJP,
18
our e-mail addresses,
19
have
can you PDF each of them to us at
MURPHY:
which I believe both of you
20
MR.
21
22
Yes,
Your Honor.
-- so we can receive
them at the same time.
23
MR.
24
25
When you file your
BLUM:
Certainly.
else we need to do on the record?

L------------------------IN RE CJF NO. 185 -
Is there anything
I believe all the
413109--------------------~
626
exhibits have been marked and received,
exception of those original rules which you're going
to-
MR.
BLUM:
MR. MURPHY:
Oh,
with the
that.
Actually,
Mr.
Blum and I
have
decided that it would be best for the Commission to
send copies of those local rules to the Special
Masters and a copy back to me,
that exhibit and returning it to the court reporter.
rather than me taking
10
Subject to that one
11
exhibit,
think we have everything.
12
the matter at this point is concluded.
13
either one of you want to bring up?
14
MR.
BLUM:
15
MR.
MURPHY:
16
17
18
much,
No,
And I
believe
Anything else
Your Honor.
No,
Your Honor.
Thank you all very
and we are in recess.

(Time noted:
11:29 a.m.)
19
20
21
22
23
24
25
- - - - - - - - - - I N RE CtJF NO.
185
4/3/09--------------------~
627
STATE OF CALIFORNIA
ss.
I hereby certify that the foregoing
proceedings in the within-entitled cause occurred at
the time and place herein named; that the
transcription is a true record of the proceedings as
reported by me,
and a disinterested person,
10
a duly certified shorthand reporter

and was thereafter
transcribed into typewriting by computer.
11
further certify that I am not interested in
12
the outcome of the said action,
13
nor related to any of the parties in said action,
14
to their respective counsel.

IN WITNESS WHEREOF,
15
16
17
18
hand
__ ~ __L]____ ,
nor connected with,

nor
I have hereunto set my
2009.
----~--~----
19
SANDRA LEHANE,
20
STATE OF CALIFORNIA
C.S.R.
7372
21
22
23
24
25
L------------------------IN RE CJF NO. 185 - 4/3/09
628
INDEX
PAGE
WITNESSES:
4
5
MICHAEL GARCIA
DIRECT EXAMINATION
(BY MR. MURPHY)
531
7
8
JUSTICE ARTHUR SCOTLAND

DIRECT EXAMINATION
(BY MR. MURPHY)
541
(BY MR. MURPHY)
561
10
JUDGE PETER MCBRIEN
11
DIRECT EXAMINATION
12
CROSS EXAMINATION
13
EXAMINATION BY SPECIAL MASTER CORNELL
614
14
EXAMINATION BY SPECIAL MASTER ANDLER
617
15
EXAMINATION BY
16
(BY MR.
BLUM)
SPECIAL MASTER DE BELLEFEUILLE
17
RE DIRECT EXAMINATION
18
RE-CROSS EXAMINATION
(BY MR. MURPHY)

(BY MR.
601
618
613,
BLUM)
622
(BY MR. MURPHY)
583
(BY MR. MURPHY)
591
622
19
20
21
ROBERT O'HAIR
DIRECT EXAMINATION
22
23
24
CAMILLE HEMMER
DIRECT EXAMINATION
25
' - - - - - - - - - - - - - - I N RE CJF NO.
185
4/3/09-----------.1
629
WITNESSES
(CONTINUED):
3
4
THOMAS RUSSELL
DIRECT EXAMINATION
(BY MR. MURPHY)
597
5
6
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
L - - - - - - - - - - - I N RE CJF NO.
185
4/3/09-----------.....l
630

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1

COMMISSION ON JUDICIAL PERFORMANCE

HEARING BEFORE SPECIAL MASTERS

REGISTERED PROFESSIONAL REPORTER

CERTIFIED SHORTHAND REPORTER NO. 7372

155 Orr Road

Alameda, California 94502

Superior Court of Orange County

Honorable Denise de Bellefeuille

Superior Court of Santa Barbara County

SPECIAL MASTER CORNELL:

are on record in the matter of Judge McBrien,

presence of Judge McBrien and counsel.

There are some administrative duties we need

to take care of from yeste

SPECIAL MASTER CORNELL:

I presume -- these would

And you have no

SPECIAL MASTER CORNELL:

have been provided to the court reporter?

objection to their receipt,

SPECIAL MASTER CORNELL:

And the originals

sake of the record,

whatever you provided to the court reporter?

have you provided the original of

I have the binders that I will

review at the conclusion of testimony to make sure

that they are accurate and provide them to the court

SPECIAL MASTER CORNELL:

Thank you very much.

at the close of business,

L------------------------IN RE CJF NC. 185

asked both coun

referred to by Witness Keeley.

And you indicated you

a copy of the Rule of Court that was

SPECIAL MASTER CORNELL:

SPECIAL MASTER CORNELL:

provided a copy to Mr.

It's only one page from the local rules.

will need to be some explanation,

will testify about this.

the local rule effective 2008.

rule effective 2006.

It was not the local

SPECIAL MASTER CORNELL:

and Judge McBrien

We can wait for his

I do have copies of that.

chapter involving family law,

which is multiple pages.

intending to have additional copies made after today,

discussed this with Mr.

get back to my office,

then provide a copy to

Blum and a copy to the Court.

RE CJF NO. 185

This copy was taken

from the website of the Sacramento County Superior

So this is the 2006 local rules,

SPECIAL MASTER CORNELL:

SPECIAL MASTER DE BELLEFEUILLE:

what was the number?

SPECIAL MASTER CORNELL:

SPECIAL MASTER CORNELL: