Judge not, lest ye be judged

The never ending saga of Judge Peter J. ‘Chainsaw’ McBrien, or how birds of a feather flock together

Illustration By robert armstrong

Nominate embattled Sacramento Superior Court Judge Peter J. “Chainsaw” McBrien for magistrate of the year? That’s apparently the plan being cooked up by some members of the Sacramento County Bar Association’s Family Law Executive Committee, according to messages posted on a Yahoo e-mail list for local family-law attorneys.

McBrien has been targeted for recall in November by a group of litigants angry about the alleged ill treatment they received in court from the family-law judge. In messages apparently inspired by the bar association’s call for nominees last month, members of the bar’s family-law section discussed starting an underground campaign to elect McBrien “Judge of the Year” to help him defeat the recall.

Attorney Terri Newman, a former FLEC member, posted the first response to the bar’s call for nominees: “So, is this how we support Judge McBrien, maybe?” Attorneys Donna Read and Janelle Burrill concurred. However, before the idea snowballed, bar association executive member Jack Laufenberg weighed in.

“Before the Family Law Section travels too far down the Judge McBrien recall road, you need to be aware that any political activity on the part of the Sacramento County Bar Association or any of its sections is strictly prohibited,” Laufenberg wrote. “In other words, nominate Judge McBrien because you think he’s worthy, not because he’s subject to a recall effort,” he added in a follow-up message.

Laufenberg’s comment in turn appears to have inspired family-law attorney Diane E. Wasznicky, a past president of the Sacramento bar, to seek a plausible work-around. Wasznicky wrote that the FLEC “can inform section members who can then organize, as a group of individual attorneys, to do something. I wouldn’t be surprised if that certainly included the individuals who serve as officers of FLEC but coincidences occur all the time!”

FLEC member Camille Hemmer urged her fellow attorneys to be careful with their posts. “On behalf of the executive committee, I would like you to know that your strong messages have been received and will be acted upon. I think we all need to be reminded that much of the information which is communicated on this list serve may be accessed by third parties even though it is a ‘private’ list serve.”

I attempted to contact each of the attorneys mentioned above at press time; only Newman responded. “I believe that Judge McBrien has been a fair-handed and effective Judge, but that is my opinion, and I speak for no one else,” she replied via e-mail.

The high opinion of McBrien certainly isn’t shared by the state Third District Court of Appeal, which earlier this month reversed the judge’s decision in the divorce case that instigated the recall effort. Through his attorney, appellate Ulf Carlsson argued that during his divorce trial in 2006, McBrien walked out on the case before it was completed, denying him the right to a fair trial. The court’s three-judge panel agreed, issuing a stern rebuke of McBrien with their reversal:

“After displaying ill-disguised impatience with Ulf and his counsel and repeatedly threatening a mistrial if the proceedings were not concluded quickly enough, Judge McBrien abruptly ended the trial before Ulf had finished his presentation, cutting off any opportunity for rebuttal evidence (other than six questions posed to Ulf’s expert) or argument of counsel. This method of conducting a trial cannot be condoned in a California courtroom.”

How unusual was McBrien’s behavior? The court could find no previous record of a judge walking out on a trial, civil or criminal, in California case law history. In a sworn statement responding to the recall petition, McBrien denies “abandoning a trial in mid-session,” a claim that flies in the face of the appellate court’s findings.

What’s it all mean? Well, for Ulf Carlsson, it means he might yet get the chance to recoup hundreds of thousands of dollars in legal feels. The court’s reversal will undoubtedly strengthen the efforts to recall McBrien, which is being led by Carlsson. But cheer up, Chainsaw! You’re still apparently in the running for the Sacramento County Bar Association’s Judge of the Year. Huzzah!