1

2

3 - -- -- - -- -- -- ------- -- -

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

;.~.

COMMISSION ON JUDICIAL PERFORMANCE

--000--­

INQUIRY CONCERNING JUDGE PETER J. McBRIEN oRI-GINALCJP NO. 185

- -- -- - ---- -- - ----- -- --I

TRANSCRIPT OF THE

HEARING BEFORE SPECIAL MASTERS

SACRAMENTO, CALIFORNIA

APRIL 2, 2009

VOLUME 2, PAGES 251 525

REPORTED BY: SANDRA LEHANE REGISTERED PROFESSIONAL REPORTER

CERTIFIED SHORTHAND REPORTER NO. 7372 155 Orr Road

Alameda, California 94502 (510) 864-9645

L-----------IN RE CJF NC. 185 4/2/09--------~-----l

251

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

opportunity to take our second afternoon recess.

We'll be in recess for 10 minutes, and you can have

your next witness available after that.

(Recess taken.)

SPECIAL MASTER CORNELL: We're back on the

record in the matter of Judge McBrien in the presence

of Judge McBrien and counsel.

Mr. Murphy, you may call your next witness.

MR. MURPHY: Thank you, Your Honor. I call

Judge Robert Hight.

SPECIAL MASTER CORNELL: Please raise your

right hand.

---000--­

JUDGE ROBERT HIGHT

having been first duly sworn, testified as follows:

---000--­

SPECIAL MASTER CORNELL: Please have a seat,

sir. State your full name and spell your last name.

THE WITNESS: Robert Hight, H-i-g-h-t.

SPECIAL MASTER CORNELL: Thank you, you may

examine.

DIRECT EXAMINATION

BY MR. MURPHY:

Q. Good afternoon, Your Honor?

A. Good afternoon.

'--------------IN RE CJF NO. 185 - 4/2/09----------­

454

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

~----------~~-------.--.-----------

Q. You are a judge of the Sacramento County

Superior Court; is that correct?

A. Correct.

Q. And how long have you been a member of the

Sacramento County Superior Court bench?

A. Almost six years.

Q. And during that period of time, what have

your duties/assignments been?

A. For the first year and a half, 1 was in a

general trial assignment. In '06 and '07, I was in

family law. Since then, I've been mostly in a civil

assignment.

Q. During the period of time - withdraw that.

Did you ever practice in private practice in

the area of family law?

A. No.

Q. What was the nature of your practice?

A. It was all government. I was director of the

Department of Fish and Game, and I was chief counsel

to the State Lands Commission. Environmental land

law, oil and gas, water. Nothing that looks like

family law.

Q. Okay. And you obviously know Judge Peter

McBrien?

A. Yes.

L-------------IN RE CJF NO. 185 ~ 4/2/09--------------'

455

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Q. Did you first meet Judge Peter McBrien while

you were in private practice?

A. I may have, but my first recollection really

of him is when I carne on the bench. He worked in the

A.G. 's office, and I think we crossed paths; but I

don't have a good recollection of that.

Q. So when you joined the family law department

in 2006, you were kind of unschooled in family law?

Would that be kind of an accurate statement?

A. That would be a very fair statement.

Q. And did Judge McBrien provide any mentoring

services for you while you were a judge in the family

law department?

A. Yes. Our departments were adjacent to each

other's, and our chamber's doors were literally a few

feet apart. And every day, I would go in and ask him

some question; and he either give me an instant answer

or would say, you know, "I just read a recent

Appellate Court case on that," and he had a big stack

behind his desk of Appellate Court cases just related

to family law, and he would go through them and pull

out of the middle this recent case and say, "This is

exactly on point." I would read it and so I would

know what the right answer was.

Q. And did Judge McBrien provide any other

~------------------------IN RE CJF NO. 185 - 4/2/09------------------~---~

456

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

assistance to you while you were in the family law

departments?

A. Yes. When we - there were two of us that

started at the same time. So we watched we

observed in the courtroom. And so I sat with Pete for

a couple of days and, you know, watched him perform

his duties, was impressed with his patience,

understanding of the issues. We talked daily about

issues about cases. And so it was an ongoing

mentoring process that started before I got there and

lasted until the day I left.

Q. And you observed during these periods of time

that you were in his courtroom that Judge McBrien was

patient?

A. Yes.

Q. Was he dignified in the sense of judicial

dignity?

A. Yes. In fact, I was so impressed that I

tried to model how I treated the clients after the

example that he set because it felt to me warm and

hospitable because there's just a lot of tension, and

you've got to do something to break the tension. And

so his demeanor did that.

Q. Did you observe whether Judge McBrien was

courteous to the litigants appearing before him?

IN RE CJF NO. 185 4/2/09

457

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

A. Yes. They - the pro pers, ln particular,

never quite know what it is that they're there for.

And so he was always, you know, helping them, "What's

the point you're trying to make?"

Q. Was he, likewise, courteous to attorneys

appearing before him, as far as you observed?

A. Yes. I never observed anything other than

courtesy to all attorneys and pro pers.

Q. During that period of time that you sat in

family law, 2006 and 2007, did you consider

Judge McBrien to be an asset to the family law bench?

A. Oh, definitely. He was Presiding Judge for a

period during that time. He had administrative

background, had the ability to help organize the

place. I mean, it's a back-breaking job because

you'll have 20 cases in the morning, easily, and

another 20 in the afternoon; and it's just - it's

just a tough job.

Q. As a judge in the family law departments in

2006 and 2007, were you somewhat reliant upon the

lawyers to be prepared so that there was an - there

was an orderly judicial process?

A. Yes. In the - when I was there, in the

morning you had attorney cases and in the afternoon

pro per. But because of the volume of the attorney

L-------------------------IN RE CJF NO. 185 - 4/2/09----------------------~

458

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

cases, you relied upon them to have good pleadings,

you know, get to the point instantly because you don't

have a whole lot of time.

Q. Did you expect the attorneys appearing before

you to be prepared?

A. Oh, definitely. Because if they weren't, you

could wallow for some time.

Q. And in connection with family law matters,

were the attorneys and litigants encouraged to resolve

their differences before going to trial?

A. Definitely. Every member of the bench out

there, you know, had kind of a standard speech that

you give and say, you know, "Anything that you guys

can resolve, it will - everybody is ahead if you can

resolve it."

Q. Now, you were - or did preside over a matter

in the Carlsson v. Carlsson case; is that correct?

A. Yes.

Q. And that was an ex parte application by

Ms. Huddle, Sharon Huddle, to be relieved as counsel

in early June of 2006?

A. Yes.

MR. MURPHY: Those are all the questions I

have, Your Honor. Thank you.

SPECIAL MASTER CORNELL: Mr. Blum?

L-----~------------------IN RE CJF NO. 185 4/2/09-------~------------~

459

5

10

15

20

25

1

2

3

4

6

8

9

1 J

12

13

14

16

17

18

19

21

22

23

24

MR. BLUM: No questions.

SPECIAL MASTER CORNELL: May this witness be

excused?

MR. MURPHY: Yes, Your Honor.

SPECIAL MASTER CORNELL: You're excused, sir.

Call your next witness.

MR. MURPHY: I call Charlotte Keeley.

SPECIAL MASTER CORNELL: Please raise your

right hand.

---000--­

CE[ARLOTTE KEELEY

having been first duly sworn, testified as follows:

---000--­

SPECIAL MASTER CORNELL: Please have a seat.

Please state your full name and spell your last name.

THE WITNESS: Charlotte Keeley, K-e e-I-e-y.

SPECIAL MASTER CORNELL: Thank you.

You may examine.

MR. MURPHY: Thank you, Your Honor.

DIRECT EXAMINATION

BY MR. MURPHY:

Q. Ms. Keeley, what is your profession?

A. I'm an attorney_

Q. And when did you become an attorney?

A. In 19 9.

'---------------IN RE C,JF NO. 185 - 4/2/09-------------'

460

1 I JAN SCULLY i District Attorney

2 Sacramento County 901 G Street

3 Sacramento, CA 95814-1858 4 \ Phone (916) 87 4-663 7

I 5 6 7 8 SUPERIOR COURT OF CALIFORN�A

COUNTY 011' SACRAMENTO

10 11 \ 12 TIIE PEOPLE OF TIIE STATE OF CALIFOR.c1\l'IA,

I 13 Plaintiff, 14 vs.

I' 15 111 PETER J ALV!ES McBRlEN 16 17 18 19 20 TO: PETER JAlv1ES McBRIEN

Defendant

NO. OOF (f6�L""[ DEPT. 25

SUMMONS IN LIEU OF ARREST WARRANT

l (Penal Code section 813)

l Hearing: October 27, 2000 Time: 11:00 a.m.,

21 A complaint having been filed in this court charging you with the commission of 22

I violation of Penal Code sectio� 594, a felony, and good cause appt��ring, you are hereby-

23 summoned to appear before th1s court on the 27th day of October, :,WOO, at 11:00 a.m., m 24 25 26 27 28

Department 25 of said court, located at 720 Ninth Street, Sacramento, Califomia. You are

further directed to rep011 to the Sacramento Sheriff's Department, 7i 1 G Street, Sacramento, Califomia, no later than October 27th, 2000, to complete the booking process. On completion of the booking process, you are to submit the attached certification to this court. Your failure

(1)

:;·.

1 I to cm�::::e:e ::�����::::::::::::·:.:�s:tlt in the issuance of a warrant for your

2 / an-est. 3 ,-� Issued Octoberd�, 2000, at 4 5 6 7 8 9

10 11 CERTIFICATION OF BOOKING COMPLETION

12 13 I, L f / f112;Ztl ,t;;"f!tJt;7 , of the Sacramento Sheriff' i; Department, hereby certify

I 14 that Peter J. McBrien has comp1eted the booking process in the within matter. 15 16 DATE:�'rJ/27 '2000

I

17 18 19 20 21 22 23 24 25 26 27 28

(2)

Mv name is Craig W. Tourtc. I have be�n emp loyed by the Sacramento County District Attorney's Office as a Crim inal Investigator si.nce August 1989. I am currently

_ assianed within the office to the Special Investigations Unit. My primary duty IS to inv:Stigate and assist in the prosecution of major white--collar crimes, pub lie corruption

and conduct confidential investigations.

Prior to my employment with the Sacramento County District Attorney's Office, I was a Deputy with the Sacramento County Sheriffs Department. I was with that agency for approximately twenty years. In my thirty years of experience as a California Peace Officer, I have investigated a wide variety of offenses and have made over three hundred arrest<;. I have written and served and assisted in the writing and service of over one hundred search warrants for documents commonly held by businesses in commercial, privo.te and residential properties and vebicies.

I hold a Bachelor Degree from California State ·university Sacramento in Criminal Justice and have an Advanced Certificate from California Peace Officers Standards and TrainiTig. I have attended the Sacramento County Sheriff's Academy and the District Attorney's Investigator School. I have received tJ.wusunds of hours of training from/but not limited to; the Department of Justice, California District Attorney's Association , California District Attorney 's Investigators' Association, Northern California Public Safety Training and Education Center, Northern California Fraud Investigators Association, Napa Valley Crimina[ Justice Training Center, ,\Jameda and Napa County District Attorney's Office, National Insurance Cri.im: Bureau, Office of the U.S. Trustee, American Prosecutors Research Institute, as well as in-service training classes.

I was assigned an investigation regarding the unlawful cutting of Valley Oak trees along the American River Nature Area near the Ancil Hoffman Park Effie Y eaw Nature Center, on land identified by Sacramento County Park Rangers as being owned by the County of Sacramento. An arborist retained by Park Rangers with the County of

Sacramento Department of Regional Parks, Recreation and Open Space has estimated that the loss exceeds $20,000.00

� have reviewed documents prepared by Pa.rk Rangers with the C:mnty of Sacramento DepartriJ.ent of Regional Parks, Recreation and Open Space concerning the facts in this case, interviewed witnesses and learned the following:

On November 11, 1999, Sacramento County Park Ranger Ste•.ie l;·:annery was notified that trees had been topped along the American River Nature Area near Ancil Hoffman Park Effie Yeaw NatUre Center. Tne park ranger observed thai <.hree large Valley Oak trees appeared to have been recently topped, their limbs were lyi:tlg near the tree trunks.

Further observation revealed that two additional Valley Oak trees had also been topped. The park ranger believed that these two additional trees El<tY have been topped sometime previous to the most recent cut.

Houses bordering the nature area were located on a blufi <i; proximately 30 to 60 feet

higher in elevation from the location of the topped trees. Tne park ranger found that

fr�m the residence above the topped trees, there was an t:JH bstructed view of the river.

The p(lrk ranger observed the house numbers and address ;c be 3157 Oak Cl.iff Circle.

The park ranger contacted the female occupant of that re.'',i(icnc:c. She told the park

ranger that she was not :.nvare of the tree topping. She idcmificd herself as Barbara

:tv1cBrien who lived at the residence with her ln1sband wlhi1:• ;;he identified :,::; Peter McBrien, a Sacramento Ccnmty Family Comt Judge.

Subsequently the park ranger contacted the occupant of 315; Oak Cliff Circle which is

the residence located next door on the West sicle of 3157 (}ak Cliff Circle, tlle occupant v:as identified as Susan Arthm. i'v1s. Arthur toid the park i>;ngcr that the first topping of the Valley Oaks behind 3157 Oak Cliff Circle occurred i;i the spring of 1997. Sometime prior to that topping Ms. McBrien asked Ms. ;\,:\:ur for Mark Chamberlin's

telephone number. tv!s . . Arthur identified Mr. ChambcrLn '· mvner of Tit<m Tree Company who bad worked for l\'tS. Arthur ill the past. !vJ�;. i\1cBrien told Ms. Arthur that they were going to be cuning the oaks from the natme ; , ea so that they would bave a better view of the river from their property.

Ms. Arthur told the park ranger that she tried to change Ms. :r'l'lcBrien 's mind about topping the trees before the first cutting occurred. Ms. Artl!m told Ms. McBrien that she bad read an article in the newspaper about another incickm in whi ch sorneone bad been heavily fined for cutting down trees in the nature area. Ms. McBrien told Ms. Arthur that, "\\\:..just can't live here and not have a view of 1�1e river."

Nfs. "<\rthur had told the park ranger timt the second topping occurred on july 27, 1999. Ms. McBrien told Ms. Arthur that they planned on toppi.ng the trees but did not tell her

when the cutting would take piace. On July 27 the Arthur's ilad peopie over to their borne for dinner when the second cutting occurred. Ms. Arthur observed that Barbara

and Peter McBrien and their two sons were in the back yard while Mr. Chamberlin was topping the trees. Mr. McBrien was using a rope to help Mr. Chamberlin get dmvn the

slope of tbe bluff. While standing in their back yard watching Mr. Chamberlin, different members of the fam i ly would call om that another tree or limb needed to be

cut.

Ms. Arthur received a telephone call from l'v1r. Chamberlin apparently sometime after

the park rangers had talked to rvrr. Chamberlin. During their conversation lvlr. Chamberlin told Ms. Arthur that the McBriens bad paid him for the work with a check.

When the park ranger contacted Mr. Chamberlin be declined to provide a.;1y . information other than, he had worked for both the Arthurs and the McBriens.

On March 16, 2000, I spoke with Ms. Arthur on the telephone. Ms. Arthur told me

that on September 25. 1996. and again subsequent to that date she had the occasio� to hire rv1r. Chamberlin to cut and trim various trees and bushes around her yard; Pnor to

the ·work being done, Mr. Chamberlin provided Ms. Arthur with a written estimate .

\Vben the \Vork was completed and upon payment . tvfr. Chamber lin provided Ms.

Arthur with an invoice receipt describing work done. the amount paid and payment

check number.

Ms. Arthur faxed me copies of her Titan Trcr Compi1ny records. 1 reviewed cop ies of Titan Tree Company business cards along with copie•; of receipts ;wd estimates that Susan Arthur had received from Mr. Chamberlin. The estimate and receipt contained

the words , "Titan Tree Co., 7532 Hardy Lane , Granite Bay. CA 9�1746, Licensed,

Bonded & Insured, CA Contractor's License #669351, (916) 591-9323, 797-0805." The receipt had a sequential number printed on Lhe upper right hand corner . Ms.

Arthur told me that the estimate and receipt containing her name ;Jr.d address was

comprised of an original top page and a copy bottom page and is from a commercial type receipt book. Mr. Chamberlin gave !vis. Arthur the original top portion of the

receipt and he kept the bottom copy .

Tne Counry of Sacramento Department of Regional Parks, Recreation, and Open Space provided me with a report dated March 1. 2000. The report letterhead reads, "Tree Care Incorporated." This report closes with the name of Joseph 1\. Benassini, ISA Certified Arborist WC-0672. Mr. Benassini inspected and assessed the conditio n of the trees observed to have been cut. Mr. Benassini related that the information provided in his report is based on the Guide For Plant Appraisal, Eighth editinn. published by the Council of Tree and Landscape Appraisers. The Council is composed of representatives of the American Association of Nurseryman, the 1\rnerican Socie�y of Consulting Arborists, the Associated Landscape Contractors of A.Inerica, the International Society of Arboriculture and the National Arborist 1\ssociation. The methodology employed to determine the damage considers such f,J.ctors as size , condition, suitability of species to the region and any environmental and aesthetic contributions.

Mr. Benassini identified the damaged trees as being five mature 'Valley Oak trees (Quercus lobata) and three small interior Live Oak trees (Quercus wislizenii). He found the degree of damage to five of the trees to be an average •Jf 90%. He found the degree of damage to three of the trees to be an average of 50%. Using a series of established formulas, Mr. Benassini conservatively estimated thf: loss to the County of Sacramento to be $20,324.70.

I spoke to Mr. Benassini by telephone. He told me that the estin1D.ted loss described within his report was for the most recent cutting. During his inspe;;tion, he observed that there appeared to have been a cutting of trees sometime prior, however his estimate of loss does not reflect any loss other than the most recent cutting.

/'":

.•:

Mr. Benassini stated in his report that the damage sustained by the trees has been referred to as topping. Topping is the indiscriminate removal of a brge limb or po:tion of trunk w ithout regard to location of adjacent limbs, which might :;ssume the termmal role as a arowing D

-oint. Pruning wounds <J.re typically large, with decay and associated

cavities r;suiting. �Topping of trees is well documented as being e:-:tremely injurious and can be associated with tree death and hazardous conditions.

On March 3 i, 2000, I contacted Ms. Arthur at her residence. While standing on her backyard porch I observed a rear fence at what she described as th;� back of her property. This fence extended the width of the back of the properi :,r abov_e a bluff. The fence stopped at the end of the Arthur property at what Ms. Arthur descnbed as the beginning of the McBrien property. Ms. Arthur told me that the tdcBrien property did not have a fence at the end of their property before the bluff.

Below the bluff in line with the McBrien property, I observed several large trees with their tops cut off. The trees appeared to be in a natural forested area. A dirt footpath

next to the river was observed beyond the area where tbe trees had been topped. Because the trees had been topped, there was an unobstructed vie1v of the American River and foothills from the corner of Ms. Arthur's porch . tvls. ;\rthur told me that from the McBrien residence the view w:1s now unobstructed.

Ms. Arthur told me that the July 27 cutting was actually the final dean up day. The trees were actually cut in the evening th� three previous days. tvh·. McBrien was sitting in his back yard directing Mr. Chamberlin to c�t various limbs from the trees down the hill from the bluff on property located in the Nature Area.

Ms. Arthur said that on several occasions pr ior to the tree cutting in 1999 she and Ms.

McBrien went on guided bird watching walks ht)Si:ed by the Effie Yeaw Nature Center .

The walks were advertised as taking place along the American River Parkway and Effie Yeaw Nature Area. The walks had taken them to the area below ihe Arthur and McBrien residences. It was clear to her and should have been ckar to Ms. McBrien that the area behind their homes, located in the nature area was county property.

Ms. Arthur said that she was aware that even the cutting or trimi ning of oak trees on

her own private property was not permitted without a permit from Sacramento Count\'. She also believes that the McBriens as well as all of her neighbo•·s were aware of this·. The neighbors on the opposite side of the McBrien ' s residence have a completely obstructed backyard view because of tree and vegetation growth as do the neighbors en

the other side of the Arthur property.

Based on the above facts and circumstances, I submit that there is probable cause to believe, Peter McBrien, Barbara McBrien and Mark Chamberlir:, have engaged in vandalism, in violation of Penal Code section 594 (2), �-n that they maliciously damaged

r .... ....... . ...... .... . . , ............. · ··.- .... , ............... . . . · ·- - ----- .. - -�--.,.� . .. ......... . '' . . ....... ... .. .. . ... ·-·-... , .... . ··-· · ··-�·--··�----- ' " :·--···---........ __ .. ______ __________ � and destroyed real property belonging to the County of Sacramento, that said value of

the property so damaged and destroyed is over $20,000.00.