25 January 2011

Justice Arthur G. Scotland Defends Co-Worker and Friend Judge Peter J. McBrien at Commission on Judicial Performance

3rd District Justice Arthur G. Scotland Helps Former Co-Worker Peter McBrien Beat CJP Rap and Remain on Bench

UPDATE: For updates to this article, visit our special 3rd District Court of Appeal page. Click here
California Supreme Court Justice Leondra R. Kruger, Justice Mariano-Florentino Cuellar, Justice Goodwin H. Liu, Justice Carol A. Corrigan, Justice Ming W. Chin, Justice Kathryn M. Werdegar, Justice Tani G. Cantil-Sakauye - California

One of the few Third District opinions to critically, and scathingly scrutinize the problematic Sacramento Family Court system was the 2008 decision In re Marriage of Carlsson, which was authored by Associate Justices M. Kathleen ButzCole Blease and Rick Sims. None of the three had ever worked as a judge in Sacramento County. 

The Carlsson case subjected controversial Sacramento County Family Court Judge Peter J. McBrien to a second disciplinary action by the state Commission on Judicial Performance

The judge's first go-round with the CJP stemmed from McBrien's 2000 arrest for felony vandalism under Penal Code § 594 in connection with the destruction of public-owned trees - valued at more than $20,000 - in Ancil Hoffman Park in Carmichael, a suburb of Sacramento.  

McBrien had the trees cut to improve the view from his home on a bluff above the park. Click here for the 2001 Sacramento News and Review coverage of the case. Click here to view the original summons charging McBrien with felony vandalism. 

Click here to view the report of Sacramento County District Attorney's Office Criminal Investigator Craig W. Tourte detailing the complete investigation of McBrien's crime, posted online for the first time exclusively by SFCN. McBrien's 2009 sworn testimony before the CJP recounting his criminal case starkly contradicted Tourte's report. 

To continue reading, click Read more >> below: 

Less than 48 hours after the judge was charged with the felony, McBrien negotiated a plea bargain, pleading no contest to a misdemeanor violation of Penal Code § 384apaying restitution of $20,000, and a fine of $500. 

The improved view increased the value of the judge's home by at least $100,00, according to a local real estate agent, and the sweetheart deal outraged the Carmichael Park personnel who originally discovered the butchered trees and conducted the initial investigation.

Presiding Justice Arthur G. Scotland Intervenes in McBrien CJP Prosecution

Judge Robert Hight – Judge Bunmi Awoniyi – Judge Steven Gevercer – Judge Tami Bogert – Judge James Mize – Vance Raye - Victoria Henley CJP - Judge Thadd Blizzard -Chief Justice Tani Gorre Cantil-Sakauye - Sacramento County Superior Court - Judge Author Scotland - Judge Vance Raye - Judge Harry Hull - Judge Ronald Robie - Judge George Nicholson - Judge Louis Mauro - Sacramento Family Court - Hon. Arthur G. Scotland
Arthur G. Scotland and Tani Gorre
Cantil-Sakaye were both judges in
Sacramento County Superior Court.
On his second trip to the CJP woodshed, Judge Peter McBrien needed all the help he could get to save his job, and then-Third District Court of Appeal Presiding Justice Arthur Scotland delivered in a big way. 

Among other slight-of-hand tricks, Scotland devised a clever artifice to make it appear to the CJP judges assigned to decide McBrien's fate that the trial court judge had a much lower than average rate of reversal in the court of appeal. 

Scotland's 2009 testimony on McBrien's behalf also was controversial and may itself have violated the Code of Judicial Ethics

A critical self-policing component of the Code, Canon 3D(1) requires judges who have reliable information that another judge has violated any provision of the Code take "appropriate corrective action, which may include reporting the violation to the appropriate authority." Click here to view Canon 3D(1). Click here to view a Judicial Council directive about the duty to take corrective action, and the types of corrective action required. 

While under oath before the CJPScotland verified that he was aware McBrien's misconduct in the Carlsson case. Scotland essentially defied the self-policing Canon andin effect, the published Carlsson opinion authored by his co-workers Butz, Blease and Sims, and instead testified in support of McBrien at the CJP

In it's final decision allowing McBrien to remain on the bench, the CJP specifically cited Scotland's testimony as a mitigating factor in determining McBrien's punishment. Click here. An examination of Scotland's career in government - funded by the taxpayers California - provides insight into the tactics, motives, and questionable ethics behind his unusual involvement in the McBrien matter.  

By his own admission, Scotland's career in the Judicial Branch of government was the result of connections and preferential treatment. The former justice candidly recited his life history in a nearly three-hour interview for the California Appellate Court Legacy Project in 2011. 

Like other gratuitous "tough-on-crime" conservative ideologues from a law enforcement background who rose to power in the 1980's, Scotland apparently lived the cliche of being born on third base and going through life thinking he hit a triple. His interest in law developed when he worked as an undercover narcotics agent for the state Department of Justice.
"[I] bluffed my way through the interview, and I got hired as a narcotics agent in 1969...I was an undercover narcotics agent. I've bought a lot of dope in my life...all lawfully, but I've bought a lot of dope," Scotland said. "And I testified in court. And that's what got me fascinated in the legal process...and it got me involved in the law." Click here to view. 
Having worked with prosecutors as an undercover cop, Scotland decided he wanted to be one. But due to his lackluster performance as a college student, law school presented a problem, albeit a problem easily solved through a family connection.
"[I] thought, I want to be a prosecutor. I'm going to go to law school; I want to be a prosecutor. So I applied in 1971. I applied to only one school: University of the Pacific, McGeorge School of Law...[M]y grades weren't all that great. I did very well on the LSAT test: I did excellent on that. But I didn't figure I could get accepted anywhere else, 'cause I really hadn't been a serious student. So I went to University of Pacific, McGeorge School of Law," Scotland explained. 
"I didn't know [McGeorge Dean Gordon D. Schaber], but my dad did. And my dad had done some life insurance, estate planning work for McGeorge. And again, my dad was an influence on my life because he knew people and he set me up with jobs. And I'm sure that one of the reasons I got selected for McGeorge School of Law is my dad's relationship with the dean." Click here to view.    
After graduation, but before he was licensed to practice law, Scotland nonetheless practiced law while employed as a deputy district attorney for Sacramento County. In the outside world, the unauthorized practice of law is a crime

But in Scotland's protective law enforcement bubble, "laws" are only enforced against drug addicts and the unwashed masses. As Scotland explained in his own words, laws are actually only "rules" when a sworn peace officer breaks one. 
"Actually, before I even got sworn in in the bar, I was assigned out to juvenile hall and we prosecuted...I prosecuted cases without any supervision - you know, against...really against the rules...we were trying cases without any supervision." Click here.
In McGregor v. State Bar, the seminal case on the unauthorized practice of law, the California Supreme Court explained why a nonlicensed person is prohibited from exercising the special powers and privileges of a lawyer.  
"The right to practice law not only presupposes in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust. It is manifest that the powers and privileges derived from it may not with propriety be delegated to or exercised by a nonlicensed person." Click here.
25 years after he obtained his license to practice law, Justice Arthur G. Scotland exploited the implied integrity of his court of appeal office and exercised his special privilege in a way that to many Sacramento Family Court litigants was a manifest violation of the public trust.

The Artifice

Hon. Robert C. Hight – Hon. Bunmi O. Awoniyi – Hon. Steven M. Gevercer – Hon. Tami R. Bogert – Hon. James M. Mize – CJP Victoria B. Henley – Hon. Thadd A. Blizzard - 3rd District Court of Appeal Arthur G. Scotland
To help his old friend Pete McBrien keep his job, Justice Arthur G. Scotland concocted a clever plan intended to deceive the judges deciding McBrien's punishment at the Commission on Judicial Performance.
In his sworn character witness testimony for his old friend and law enforcement co-worker Peter McBrienArthur Scotland drew on his training and experience in deceit from his days as a narc. "[Y]ou have to be an actor, you have to play the game," Scotland explained in the 2011 interview. 

In front of the three judges responsible for hearing evidence and deciding McBrien's fate, Scotland concocted a clever, deceptive plan - an artifice in legal terminology - and convincingly executed it in an Academy Award worthy performance. 

While testifying for McBrien, Scotland also revealed that his appearance on the troubled judge's behalf effectively was voluntary. Before subpoenaing Scotland to testify, McBrien's defense attorney confirmed that Scotland would not object to the subpoena. Click here

Judicial ethics Canon 2B restricts use of the prestige of judicial office to advance the personal interests of the judge or others. Canon 2B(2)(a) permits a judge to testify as a character witness only when subpoenaed. 

The transcript of Scotland's testimony also showed that - to prepare his CJP testimony - the presiding justice of the 3rd District affirmatively and voluntarily took the initiative (presumably on his own time) to research 3rd District family court appeals where McBrien was the trial court judge.
His objective was to show the CJP that McBrien had a low reversal rate in the appellate court.  
"I also, by the way -- when you called me to ask if I would object to being Subpoenaed as a witness, and I said no, I did research. I looked up -- I knew what this was all about, so I researched the number of appeals from cases from Judge McBrien's court. And so I -- and I looked -- I read all the opinions in which he was reversed in full or in part...
I've known Judge McBrien for 32 years. I got to know, then, Deputy Attorney General Pete McBrien. When I left the Sacramento County District Attorney's Office and went to work for the California Attorney General's Office, he was already a Deputy Attorney General there. So I got to know him there, mainly professionally.
Socially to a relatively minor extent. We had -- we had two co-ed softball teams. He played on one; I played on another. Of course, we would attend office functions together. His -- one of his very best friends was my supervisor in the Attorney General's Office. So, on occasion -- not frequently, but on occasion we would attend social events with others from the office....
[McBrien had] seven reversals in whole or in part, out of 110 appeals, which is about 6%, which actually is a remarkably good reversal rate. Because our average reversal rate in civil cases is 20 to 25 percent." Scotland testified at pages 549-553 of the reporter's transcript. Click here. 
Scotland's claim that McBrien had a "remarkably good reversal rate" was, at best, a half-truth. Under the legal and ethical standards applicable to lawyers and judges, a half-truth is the same as a "false statement of fact" or what the general public refers to as a lie. Click here

What Scotland withheld from the CJP is the fact that the vast majority of appeals from family court are never decided on the merits. Unlike appeals from civil cases, most family court appeals are taken by unrepresented parties who fail to navigate the complexities of appellate procedure and never make it past the preliminary stages of an appeal. 

In other words, Scotland rigged his statistics. While McBrien may have had seven reversals out of 110 appeals filed, only a small portion of the 110 appeals filed were actually decided on the merits. Scotland then made a disingenuous, self-serving apples-to-oranges comparison between the reversal rate in civil case appeals - where both sides are usually represented by an attorney, or team of attorneys, and appeals are decided on the merits - with the reversal rate in family court cases, where neither qualifier is true. 

SFCN currently is conducting an audit of 3rd District family court appeals, and will have more on this subject in the near future. 

In a final act of both flagrant cronyism to his former Department of Justice co-worker and friend Pete McBrien, and disrespect to the work of his fellow 3rd District Court of Appeal Justices Kathleen ButzCole Blease and Rick Sims whose published opinion in the Carlsson case had resulted in McBrien's prosecution by the CJP, Scotland had the balls to suggest that disciplining McBrien for his conduct in Carlsson would be a "miscarriage of justice," that would allow "incompetent attorneys to run the court instead of competent judges." 
"And you haven't asked me this question, but if [McBrien] were, for some reason, to be found to have violated the canons or judicial ethics, or whatever, I frankly -- I know about these cases; I know about the Carlsson case.
I think it would be a miscarriage of justice. I think it would send the wrong signal to judges and practitioners that you don't allow -- that you would be allowing incompetent attorneys to run the court instead of competent judges," Scotland testified at the CJP.   
Butz, Blease and Sims reversed and remanded the Carlsson case for retrial based on extremely rare, reversible per se, egregious structural and constitutional error by Judge McBrienand made no mention of attorney "incompetence" in their published opinion. 

However, Scotland's incompetence assertion before the CJP did, coincidentally, perfectly dovetail with the carefully crafted defense McBrien's legal team presented during three days of CJP testimony. 

A key component of McBrien's defense relied on testimony portraying Ulf Carlsson's attorney Sharon Huddle as incompetent and effectively provoking McBrien's multiple violations of the Code of Judicial Ethics. A time-tested, repugnant but effective, blame the victim strategy.

Scotland's blame the victim testimony, misleading appeal reversal data, and the weight of character witness testimony from a sitting Court of Appeal presiding justice, along with similar character testimony from Sacramento County Superior Court Judges James MizeThomas Cecil (currently Of Counsel at the family, family law firm Cecil & CianciMichael Garcia and Robert Hight, and Sacramento County Bar Association Family Law Section attorneys and judge pro tems Camille HemmerJerry GuthrieRobert O'Hair and Russell Carlson all tipped the scale just enough to enable McBrien to keep his job. Click here to view the complete, 12-page CJP summary of the McBrien character witness testimony. 

Despite the army of supporters McBrien marshaled on his behalf, two of the voting CJP members saw through the ruse and dissented from the decision to let the judge remain on the bench, stating they would have removed McBrien from office. Click here. 

In subsequent proceedings in his courtroom involving the attorneys who testified on his behalf, McBrien reportedly has never disclosed the potential conflict of interest as required by Canon 3E(2) of the Code of Judicial Ethics.