Peter J. McBrien’s conduct in divorce case raises red flags
There’s little love lost in the courtroom of Sacramento Superior Court Judge Peter J. McBrien. By the time most couples appear before him at the William R. Ridgeway Family Relations Courthouse, any prior affection between the pair has been all but wrung out of the relationship. Ulf and Mona Carlsson’s acrimonious divorce trial in March 2006 was no different. Nevertheless, Ulf Carlsson sat calmly through the first day of the proceeding as his wife’s attorney presented the case against him, confident that he’d get his fair hearing in court.
But Carlsson’s fair hearing never came.
Near the end of the trial, as Carlsson’s attorney was cross-examining a witness, Judge McBrien left the bench to answer a phone call, abruptly ending the trial. He never returned to the bench and later rendered a decision that weighed heavily against Carlsson, even though the judge hadn’t heard all the evidence in the case.
“I was shocked,” said Carlsson, a Swedish native who moved to the United States in 1984 to pursue a degree in architectural engineering at UC Davis. “It was like a big circus. He rubber-stamped all of the opposing attorney’s demands.”
The circus was about to turn even weirder. McBrien, the only Sacramento County judge who has ever been publicly admonished by the Commission on Judicial Performance, went beyond the boundaries of the divorce case and took action that would eventually cost Carlsson his job with the state Department of General Services, where he had worked since earning his degree. While not illegal, most legal experts contacted for this story characterized the sudden ending of the trial and McBrien’s later actions against Carlsson as unusual.
McBrien declined to comment on this story. ”As long as it is a case I have heard or might hear, I can’t comment on it,” he said.
The actions that led to Carlsson’s dismissal at DGS, where he had a superlative, unblemished 20-year work record, concerned his investment in a fourplex rental property and whether he had properly reported it to his employer and the state Fair Political Practices Commission.
Questions involving the fourplex arose during the first day of trial. Even though both parties agreed the filing was a side issue, McBrien pressed for more information. According to court reporter Robbi Joy, McBrien’s clerk then attempted to secretly obtain a copy of that portion of the transcript—a violation of court etiquette, if not the law.
“The clerk came to me and said the judge is requesting just this part of the transcript, don’t tell anybody,” Joy recalled. “He didn’t want people to know, and to me, boom! That’s unethical already.”
As she is required by law, Joy informed both parties of the request, and sent the copy of the transcript to the judge. Months later, a copy of the exact same portion of the transcript was sent to the DGS deputy director. A week after that, the department fired Carlsson, citing his failure to file the proper FPPC form as the primary reason.
Joy believes that the copy of the transcript received by DGS had to come from McBrien’s office, since McBrien’s clerk ordered it before it entered the public record. The DGS refused to tell Carlsson who had sent the transcript. The department declined to comment on Carlsson’s firing. “We can’t comment on disciplinary matters in any way,” DGS spokeswoman Kirsten Macintyre told SN&R.
Ironically, the dismissal from his $78,000-per-year job has prevented Carlsson from paying the financial support to his ex-wife and their 15-year-old daughter ordered under the divorce settlement, which is currently under appeal. In a separate action, Carlsson has turned to the State Personnel Board to appeal his dismissal from DGS.
Davis attorney Brendon Ishikawa is handling Carrlson’s appeal of the divorce decision. In his opening brief, he argues that “ending a trial while an attorney is in mid-sentence to a witness constitutes structural error. … The court must vacate the judgment in its entirety.”
Neither party in the divorce questions that McBrien abandoned the trial, which is also verified by the court transcript.
The proceeding began with a full day of testimony on March 2, followed by half days on March 3 and March 9. Mona Carlsson’s entire side of the case was presented first; Ulf Carlsson’s presentation began midway through the second hearing. As the court transcript notes, McBrien walked out near the end of the third day.
Ulf Carlsson’s divorce attorney, Sharon Huddle, was questioning Joe Mayo, a friend of Carlsson’s who also had an interest in the fourplex—an interest disputed by Mona Carlsson. Huddle was in the middle of questioning Mayo about the fourplex when McBrien received a phone call.
“If you redid your capitalization and your sales-market approach …” Huddle began.
“Pardon me,” McBrien interrupted. “I have an EPO. Court is in recess.”
An EPO is an emergency protective order issued when there is a threat of domestic violence in a case. One of McBrien’s duties as a judicial officer is to field EPO calls.
“I think he’s taking an emergency-protective-order request,” Huddle said. “Is that it, a domestic violence? It’s his week, right?”
“He’s always assigned to EPOs,” the clerk said before McBrien cut back in.
“We’re going to have to adjourn this,” he said. “The county operator is on the phone. The trial has ended.”
Despite objections from both Huddle and Charlotte Keeley, Mona Carlsson’s attorney, McBrien ended the trial. According to Joy, the court reporter, McBrien later stuck his head back in the courtroom and said, “That’s it.” He never returned to the bench.
McBrien’s behavior was definitely unusual. According to Ishikawa, it is apparently without legal precedent in the state of California.
“I’ve spent a considerable amount of time doing legal research looking for another case in which a judge just walked out in the middle of trial,” he told SN&R. “I have not seen a case like that anywhere.”
McBrien’s actions came at the end of a trial in which he had repeatedly threatened both parties with a mistrial if they didn’t rush the proceeding along. Most of his admonitions were directed at Huddle.
“Your honor, I am going to have to eat,” she said near lunch on the first day.
“The reason I am going forward is because tomorrow afternoon I have a continuing trial,” McBrien said. “It has statutory preference. So, I’m ensuring that we’re going to complete it by noon tomorrow. Otherwise we may as well call a mistrial now.”
On another occasion, Huddle requested a bathroom break.
“Your Honor, is there any way I could get a break to use the ladies room?” she asked.
“You know, you’re approaching mistrial,” McBrien responded.
Interestingly, in the brief responding to Carlsson’s appeal, Mona Carlsson’s appellate attorney argued that because McBrien repeatedly warned he would declare a mistrial if the parties didn’t rush their presentations, the trial’s sudden end did not violate procedure. If Ulf Carlsson objected to the way the trial was conducted, he should have accepted the mistrial. Carlsson rejects such reasoning.
“We were trying to avoid a mistrial,” he said, noting that his attorney fees for the divorce exceeded $100,000. “Why would we want a mistrial? I was already spending a ton of money.”
Oddly, for someone who was in such a hurry to complete the trial, McBrien returned repeatedly to the issue of the fourplex, even though Keeley had moved past it. Carlsson explained in court that whether or not the property needed to be filed with the FPPC was a matter of some dispute at DGS. Carlsson told SN&R that the filing discrepancy was similar to an incident earlier this year involving Sacramento Mayor Heather Fargo, who was fined $2,000 by the FPPC for failing to list the name of the person who purchased her home. Carlsson, on the other hand, wound up losing his job over an erroneous filing after McBrien notified his employer.
According to the transcript, at the end of the second day, McBrien suggested that Carlsson bring the FPPC filing to court for the next hearing. Carlsson was on a medical leave of absence (due to stress from the divorce) and unable to retrieve the file. At the next session, during a heated exchange with McBrien, Huddle noted that the judge only had suggested that Carlsson retrieve the document and that because it might potentially incriminate her client, she was recommending he take the Fifth Amendment. McBrien claimed it wasn’t a Fifth Amendment issue; Huddle said she wasn’t certain about that.
“Ms. Huddle, am I to take that as a ‘no’ placing you in the possibility of contempt?” McBrien asked.
It was after the second session that McBrien’s clerk approached Joy and requested the copy of the transcript in secret before it entered the public record. Joy sent the transcript to the judge via United Parcel Service, which notified her that the package had been received. Several months later, near the time Carlsson indicated he planned to appeal the case, McBrien’s clerk again requested the transcript; Joy sent it and again received confirmation of its delivery. In September, immediately after Ishikawa filed the appeal, McBrien’s clerk again requested the transcript, this time via e-mail.
Joy no longer works in Sacramento, but she is worried that talking to SN&R could negatively effect her continued employment as a court reporter. Nevertheless, she agreed to be named in the story because she found McBrien’s conduct so upsetting.
“I’ve been doing this for 20 years, and I’ve never seen such outrageous behavior,” she said. “He’s really drunk with power, and he’s gotten so drunk, he feels invincible.”
Carlsson and several other people interviewed for this story who asked not to be named said they have filed complaints against McBrien with the California Commission on Judicial Performance. The commission investigates legal and ethical complaints against judges and issues penalties, varying from private rebukes to removal from the bench. But often what seems wrong to a wounded party is not necessarily illegal or unethical, explained Peter Keane, the law-school dean at Golden Gate University.
Keane wrote the 1995 state law that sharpened the judicial commission’s teeth by diversifying its panel to include members outside the judiciary and opening disciplinary hearings to the public. While he declined to comment specifically on the McBrien case without examining the full record, he made some general observations on the role of judges in the courtroom.
“A judge has the power to control the proceedings and determine what the extent of the proceedings will be,” Keane said. “But, generally, judges also have an obligation to allow both sides to be heard to their full extent before giving a decision.”
Keane said a judge probably would not be crossing any judicial boundaries by sending a portion of a transcript that detailed an improper FPPC filing by someone standing before him to that person’s government employer.
“If a judge sees something that a judge believes is criminal conduct, there are instances in which a judge goes ahead and refers that to prosecution or refers it on to investigation by police or prosecutors. That’s certainly not unusual. In that sense, what you’re telling me generally fits into that kind of category.”
However, he said a judge attempting to obtain a copy of the court transcript in secret is uncalled for. “The secrecy stuff is out of line,” he said. “There’s no need to have that classified.”
Keane also found the contempt threats odd. “That’s somewhat strange,” he said. “Lawyers advise their clients. Lawyers might be wrong in their advice [but they are permitted to give it.]”
Victoria Henley, CJP executive director, would not confirm the status of Carlsson’s complaint against McBrien—or whether such a complaint had been filed. When presented with a hypothetical case consisting of the elements of the grievances detailed in this story, she said the example was “too specific.”
But the CJP previously has come down on McBrien. In April 2002, the commission publicly admonished McBrien after he pleaded guilty to misdemeanor vandalism for chopping down oak trees on public land because they obscured the view of the American River from his home. As detailed in SN&R’s cover story on the crime (“A view to kill for,” August 16, 2001), McBrien originally was charged with a felony, which he plea bargained to a misdemeanor and paid $20,000 in restitution. The commission’s admonition was harsh:
“Judge McBrien’s conduct evidenced disregard of the principles of personal and official conduct embodied in the California Code of Judicial Ethics, including failure to observe high standards of conduct so that the integrity and independence of the judiciary will be preserved … and constituted conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”
The fact that the CJP refuses to comment on his complaint against McBrien frustrates Carlsson, who as a result of the trial lost his job, nearly lost his home and was forced to sell the fourplex. He claims the DGS never asked him for his side of the story; the appeals of the divorce settlement and his firing may grind on for years.
Carlsson now works at a furniture store for considerably less than he made as a state employee, and the alimony, child support and legal bills are mounting. The Swedish native has no love lost for McBrien or America’s judicial system.
“I trust no one now,” he said. “The American legal system is just a big money-making machine. It’s all about power and money.”