The Marin Lawyer December 2020

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER December 2020 Editor Robert Rosborough Guest Editors Marie Barnes, Ann Munene, Timothy Nardell, Andres Perez Creative Director Kiersten Ross

2020 Officers President Susan Feder President Elect J. Timothy Nardell Secretary Scott Buell Treasurer Robert Rosborough Past President Charles Dresow 5 Year Past President Matthew White Board of Directors 2020 Directors Marie Barnes Gregory Brockbank Chelsea Heaney Andres Perez Nestor Schnasse 2021 Directors Habib Bentaleb Michael Chaput Ahtossa Fullerton Sarah LÊger G. Kelley Reid 2022 Directors Emily Charley Kristine Cirby Christopher Locke Ann Munene Karthik Raju Executive Director Mee Mee Wong Communications Director Kiersten Ross Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org Š 2020. All Rights Reserved.

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CONTENTS 6

Editor’s Introduction: A Bad Year Makes for a Good Amount of New Law ROBERT ROSBOROUGH

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President’s Message: A Light at the End of the Tunnel SUSAN FEDER

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The California Family Rights Act: A Dramatic Expansion Brings Leave Requirements to Small Employers LISA SPANN MASLOW

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Commercial Lease Restructuring Update from the Trenches: The Surprising Tenant Defense You May Be Overlooking JEFFREY H. LERMAN, PHILIP R. DIAMOND & DANIEL E. DERSHAM

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Marin County's Probation Department in the Age of Social and Restorative Justice MARLON WASHINGTON

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Controlling COVID-19: Does the Equal Protection Clause Limit What Can Be Done?

DANIEL J. SCHNEIDER

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COVID-19 and the Workplace: More New Law CARI COHORN THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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CONTENTS 30

Two Copyright Cases of Note FRANCINE WARD

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MCLE Fair Recap: Virtual MCLE Fair a Great Success!

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The (Never-Ending) Quest to Distinguish Employees from Independent Contractors PATRICE GOLDMAN

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Nonprofit Update: Nonprofits Respond to the Pandemic THE MARIN LAWYER

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Probate Court Update: News from the Court and Important Reminders About Compliance with Rules ROBERT ROSBOROUGH

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Did the U.S. Lose Half of Oklahoma? Recent Developments in Indian Law THOMAS WEATHERS

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The Brockbank Political Report: 2020 Election Results and Commentary GREG BROCKBANK

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The 2021 MCBA Officers and Board of Directors THE MARIN LAWYER

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A Design of Justice — The Courtroom of the Future ELAINE QUINN

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Upcoming Events

New Members

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EDITOR’S FAIRINTRODUCTION HOUSING A Bad Year Makes for a Good Amount of New Law ROBERT ROSBOROUGH

How did such a terrible year go by so quickly? Perhaps some of you disagree and felt endless hours at home made the year drag on endlessly. However quickly it passed, it was not uneventful.

With so many dramatic events unfolding so rapidly, one unsurprising result is con-

not to mention in their own working condi-

flict. And conflict leads to new law, from both courts and legislatures. This final 2020 issue

tions. They are stepping up and making an enormous difference. I encourage all our

of the Marin Lawyer covers just a few of the recent developments in the law—many, but

readers to read Nonprofits Respond to the Pandemic to find out how the Canal Alliance,

not all, of them stemming from the pandemic.

Legal Aid of Marin, LITA (Love is the Answer), Marin Child Care Council, and North Marin

Before turning to new law, something else stemming from the pandemic is unfortunately a greatly increased amount of human suffering. Certainly for many, the suffering of grief over the loss of loved ones. For many others, particularly elders, the suffering of being

Community Services are adapting and increasing their services in this time of tremendous need. Perhaps doing so will inspire you to help them help others.

And I would like to let you know if you don’t

alone all the time. For others, the loss of a job, the inability to pay the bills or even buy food,

already that MCBA’s own joint pro bono endeavor with the Marin County Law Library,

or the loss of a home (which will become

Lawyers in the Library, has resumed opera-

frighteningly common when eviction morato-

tions (via Zoom, making it easier than ever to

ria end). We have profiled many local non-

help) and is always looking for volunteers to

profits over the years in the pages of the Marin Lawyer, and they are all working hard to

donate just two hours of their time helping those who cannot afford a lawyer handle

make a difference in our community. We asked a few of them to tell us what changes

their own legal problems with the help of the library’s resources.

they have seen because of the pandemic and how they are responding. They are working

While the pandemic may have slowed the to-

harder than ever to adapt to enormous changes in the needs of the people they serve,

(the California Legislature passed less than

tal flow of information into the law library half its usual number of bills, for example),

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plenty of new law has still developed this

nificant changes, including in juvenile justice.

year. One area that has seen—and continues to see almost daily—vast changes both from

We report on highlights from MCBA’s firstever virtual, four-day MCLE Fair, including

the pandemic and otherwise, is employment law. We covered some of those changes in

outstanding keynote talks from Professor Rory Little (with predictions of what areas of

our June issue but the law is evolving so rapidly that we bring you several updates. Lisa

the law will see significant changes in the current U.S. Supreme Court term), Chief Justice

Spann Maslow contributes an excellent overview of the vastly expanded California Fami-

Tani Cantil-Sakauye, and Dean Erwin Chemerinsky of Berkeley School of Law. I re-

ly Rights Act, with bulleted highlights of major provisions. Cari Cohorn takes a helpful

port on Judge Kelly Simmons’ update from the probate court. If you practice in this area,

look at several of the key (quite) recent developments directly related to COVID-19.

be sure to read it to find out the most current court procedures. And we bring you Greg

And Pat Goldman covers both the history of the employee-independent contractor dis-

Brockbank’s latest political column, with excellent summaries of the results of contested

tinction and the most recent dramatic developments.

local elections and state propositions as well as his insight and analysis of the Congression-

Also workplace-related but moving into the real property arena, Jeff Lerman, Phil Diamond, and Dan Dersham bring helpful insights into commercial lease restructuring from their own representation of both tenants and landlords coping with the effects of

al and presidential races. If you are a Trump supporter, you might want to skip his final paragraphs, where he recounts Trump’s rise and fall and sets out his (perhaps shocking) reason he thinks Trump won’t be running in 2024.

the pandemic. Shifting gears to intellectual property law, music lovers should read Fran-

Addressing both local and national issues, Daniel Schneider writes a brief primer about

cine Ward’s report on two recent copyright

some of the potential constitutional chal-

cases, including the famous, and finally fin-

lenges to pandemic reopening rules, which

ished, “Stairway to Heaven” case. And just because you don’t practice Indian Law, don’t

includes the U.S. Supreme Court’s Thanksgiving-Eve ruling on the regulation of church ser-

skip Tom Weather’s report on recent developments in this area so you can find out

vices. While the pandemic has brought many formerly obscure areas of the law into our

whether the U.S. Supreme Court gave half of Oklahoma back to Native Americans.

consciousness (see, for example, Karthik Raju’s article on travel restrictions in the

Back closer to home, we are honored to have Chief Probation Officer Marlon Washington, newly on the job in Marin, report on some sig-

June issue), it is also prompting developments in areas already on the radar of many Supreme Court Justices as ripe for change,

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notably free exercise of religion.

jects of the article speak on reimagining the

Moving into the international arena, we are

courtroom, brought to you by The Project for Integrating Spirituality, Law, and Politics

privileged to reprint an article from The Conscious Lawyer magazine on courtroom design. If you are a regular reader of the Marin

(PISLAP), which collaborated with The Conscious Lawyer on its most recent issue.

Lawyer, you have seen me discuss the inte-

Finally, I would like to thank my guest editors

grative law movement, which seeks to bring

for this issue: Ann Munene, Marie Barnes,

the wisdom of other professions and areas of

Andy Perez and incoming MCBA President

knowledge to bear on the law in the hopes of

Tim Nardell. I wish everyone Happy Holidays

improving the law, the legal system and the

and a much happier New Year.

profession to reflect how people actually

View this article at Marinbar.org

make decisions and resolve conflict in a way that addresses more of our human needs. The Conscious Lawyer reports on the many fascinating developments in this field. In this case, lawyers and design students in the Netherlands got together to explore how to design a

better courtroom and two courtrooms are being built reflecting their ideas. Given the drastic changes needed in courtrooms be-

Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRestŽ meditation teacher. EMAIL | WEBSITE

cause of the pandemic, we should take note.

And on January 13th, you can hear the sub-

Reach a high-profile targeted audience of legal professionals in Marin County.

We have ad packages available for all budgets.

Website Advertising Digital Magazine Program Sponsor

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PRESIDENT’S MESSAGE FAIR HOUSING A Light at the End of the Tunnel SUSAN FEDER

As I write my final message as MCBA Presi-

of our in-person gatherings where we looked

dent, I am filled with bittersweet memories of a year unlike any other. At the beginning of

forward to mingling with friends and colleagues, we were relegated to the “Hollywood

my term, I hoped to inspire connection and collegiality, having no idea that these aspira-

Squares” format of Zoom, which is not ideal for interpersonal connections. Rather than

tions would be even harder to achieve as of mid-March. Our country, our colleagues and

learning from our respected teachers in person, we tried to keep our attention focused on

our values have been put to the test this year.

Yet I believe there is now a light at the end of

a screen and overcome the myriad distractions that entails. I hope you found our

the tunnel, and we have cause to be optimistic about 2021.

presentations throughout the year helpful and stimulating. MCBA faced a steep learning

It has been an extremely challenging year for

curve and I believe did a remarkable job continuing to bring benefits to our members un-

MCBA, as we were tasked with learning to adapt to an ever-changing environment. I am very proud of what we accomplished. Instead

der trying circumstances. I especially want to thank Executive Director Mee Mee Wong for

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her persistence, creativity and dedication in

and promote deeper understanding. I hope

keeping us vibrant and relevant in the face of the global pandemic and shut downs. Mee

you were able to attend and that you found them thought provoking and helpful.

Mee gave me and the MCBA board invaluable guidance and support and we truly appreciate

I have learned a lot this year as well. I have

it!

learned to be more adaptable and patient, to be a better listener, and to appreciate what is

With the background of the pandemic and its

truly important in life. I discovered my leader-

daily newsfeed of lives lost and positive test

ship style and learned to be comfortable with

results increasing exponentially, we survived

it. While I truly missed seeing all of you in per-

one of the most hotly contested and challeng-

son and enjoying the camaraderie we always

ing elections of our time. Come January 20,

share, with a vaccine on the horizon I now see

we will have a new leader in the White House,

the light at the end of the tunnel and know

and I hope that positive change will begin to

that we will be in that place again soon; we

repair the damage done to our democracy

just need to continue to be patient.

over the past four years. Incomprehensibly, the irrational contesting of election results continues, but it appears certain that these

efforts will fail. As the now former director of the Cybersecurity and Infrastructure Security Agency said, this election was “the most secure in American history.� The peaceful transition of power is a hallmark of our democracy and I believe that we will have just that in January. I know that I will have no issue handing over my gavel to my successor, Tim

My friends, my hope for all of us is that we stay healthy and positive and continue to strive for connection and involvement, notwithstanding the barriers in our way. I look forward to being together in person in 2021, and to continuing to help MCBA be your resource for education, connection and community.

All my best, Susan

Nardell, at the end of 2020!

This year saw a heightening of racial tension and an increased awareness in many communities of the ongoing presence of implicit bias and racism in our society. We lost great leaders such as John Lewis and Ruth Bader Ginsburg, who devoted their lives to the fight for equal rights for all citizens, regardless of race, gender or religion. At MCBA, we hosted several conversations about race, bias and institutional racism that were meant to educate

View this article at Marinbar.org

Susan has been a full-time mediator since 2010, and is on the panel of Judicate West statewide. She uses insight and intuition to bring a fresh and creative approach to reaching settlement. Before becoming a mediator, Susan was a business litigator with a national law firm and practiced in house as litigation counsel for Bank of America. Susan’s mediation practice covers a wide variety of cases, including tort, employment, real estate matters and commercial litigation. When negotiating a settlement, Susan focuses on uncovering the issues fueling the dispute, and redirecting the parties towards resolution and finality. Susan is the MCBA President for 2020.

EMAIL | WEBSITE

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THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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FAMILY RIGHTS ACT FAIR HOUSING The California Family Rights Act: A Dramatic Expansion Brings Leave Requirements to Small Employers LISA SPANN MASLOW

Starting January 1, 2021, a dramatic expansion of the California Family Rights Act (CFRA) requires California employers with a

mere five or more employees to grant workers up to 12 weeks unpaid leave per year for family care, medical leave and/or military family leave.

Medical Leave.

Medical leave covers employee absences due to a “serious health condition” that makes

To qualify for leave, an employee must have

an employee unable to perform his or her job functions, except for

completed at least one year’s service (including 1,250 hours worked in the preced-

leave due to an employee’s pregnancy, childbirth or related medical conditions (which is

ing 12 months). An employer must reinstate

protected under a different state law).

the employee to the same or a comparable position upon termination of the leave.

The new law repeals and replaces both the existing CFRA and the New Parent Leave Act, which currently apply to employers with at least 50 and 20 employees, respectively. The

Serious health condition means an illness, injury, impairment or physical or mental condition that involves either: •

Inpatient care in a hospital, hospice, or residential health care facility, or Continuing treatment or continuing super-

2021 CFRA no longer requires that an employee work within 75 miles of other employ-

•

ees in order to qualify for leave—an important exception for employee coverage under the

Serious health conditions covered by CFRA

federal Family Medical Leave Act. This means that California employers with 50 or more employees—already subject to state and federal family medical leave laws—should review their existing leave policies to ensure compliance with the amended CFRA.

vision by a health care provider. may also be subject to workers’ compensation law or eligible for EDD State Disability Insurance benefits.

Pregnant employees have a separate right to up to four months job-protected leave for pregnancy and maternity-related disability under the California Fair Employment and Housing Act (FEHA). This right applies to

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employees regardless of length of service

who work for an employer with five or more employees.

fornia Unemployment Insurance Code.

•

to a member of the regular Armed Forces

Family Care Leave.

•

of the United States, duty during the deployment of the member to a foreign

Family care leave covers:

country and, with respect to a member of the reserve components of the Armed

Birth of an employee’s child, or the placement and initial care of an adopted or fos-

Forces of the United States, duty during the deployment of the member to a for-

ter care child; and •

Care of an employee's spouse, domestic

eign country under a federal call or order

partner, child, parent, grandchild, grandparent, or sibling who has a serious health condition.

Both types of family leave are eligible for up to eight weeks of EDD Paid Family Leave Insurance benefits.

Covered active duty means, with respect

to active duty.

•

Qualifying exigency is defined at great length in UIC section 3302.2.

Military family leave is eligible for up to eight weeks of EDD Paid Family Leave Insurance benefits.

Generally Applicable Requirements.

•

Employee Notice Requirements If an employee’s need for leave is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for the leave.

•

If the employee’s need for leave is foreseeable due to a planned medical treatment

Military Family Leave.

•

or supervision, the employee shall make a reasonable effort to schedule the treat-

Military family leave covers:

ment or supervision to avoid disruption to the operations of the employer, subject to

Leave because of a “qualifying exigency” related to the “covered active duty” or call

the approval of the health care provider of the individual requiring the treatment or

to covered active duty of an employee's spouse, domestic partner, child or parent

supervision.

in the Armed Forces of the United States, as specified in section 3302.2 of the Cali-

Medical Certification Requirements An employer may require that leave requests

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due to the serious health condition of an em-

of providing health care services under the

ployee or the employee’s family member be supported by a certification issued by the

federal Family Medical Leave Act.

“health care provider” of the employee or family member. That certification shall be sufficient if it includes all of the following: •

provider for certification or other medical information about an employee or employee’s family member. Employees must communicate certi-

The date on which the serious health con-

fication requests to the health care provider.

dition commenced;

DFEH has a model CFRA medical certification

•

The probable duration of the condition;

•

For employee medical leave, a statement that, due to the serious health condition, the employee is unable to perform their job function;

•

Employers may not directly contact a health care

form on its website. Note that a separate cer-

tification form must be used for FEHA pregnancy/maternity disability leaves.

Compensation During Leave •

crued vacation during any type of CFRA leave.

For family care leave, a statement that the serious health condition warrants the participation of a family member to provide

•

accrued sick leave during leaves due to the employee’s serious health condition. Both

care.

employees and employers must agree whether accrued sick leave may be applied

employer may require that the employee provide subsequent recertification of the need for leave.

Health care provider means any of the following: A physician, surgeon, osteopathic physician or surgeon licensed in California or in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.

•

Employers may require employees to use

care during a period of the treatment or supervision of the individual requiring If additional leave is required beyond the time estimated by the health care provider, the

•

Employees may be required to use ac-

Any other person determined by the Unit-

during leaves to care for an ill or injured family member.

•

Whether an employee uses paid leave benefits during CFRA leave may impact an employer’s duty to continue to provide paid health and welfare group insurance benefits, as discussed below.

Vacation, sick leave or other employer paid leave benefits must be integrated with EDD benefits (SDI or PFL) received during CFRA leave to equal no more than 100 percent of the employee’s regular pay.

ed States Secretary of Labor to be capable THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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Group Health Insurance Benefits •

Employers with 50 or more employees must continue to provide health insurance coverage during CFRA leave for up to 12 weeks under the same conditions as coverage would have been provided if the employee had been actively at work. An employee may elect to continue medical insurance coverage for dependents at the

employee’s expense during leave.

•

Employees who work for smaller companies or firms shall continue to be entitled to participate in their employer’s group health plans at their own expense during leave. However, their employer must continue to provide health insurance coverage as if the employee were working during the period of CFRA leave in which an employee’s accrued vacation or sick leave

to the sweeping new requirements of the Cal-

ifornia Family Rights Act. The amendments to CFRA affect employers with as few as five employees. CFRA does not require any changes in existing collective bargaining agreements during the life of the contract “or until January 1, 1993, whichever occurs first.” (Apparently the legislators and Governor did not read through the end of the

amended statute.)

CFRA family care, medical and family military leave will soon be a right, not a benefit, for most California employees with at least one year’s service. It will be illegal to refuse an eligible employee’s request for CFRA leave, or to discriminate or penalize an employee for requesting or taking CFRA leave. Employers

should update their leave policies to ensure compliance with the new law.

View this article at Marinbar.org

is applied.

Employees may be required to pay premiums at the group rate for coverage under group life insurance, short-term or long-term disability or accident insurance, or other similar employee benefit plans during the period of unpaid leave (i.e., when no accrued vacation or sick leave is used). The nonpayment of premiums by an employee shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining

Lisa Maslow is a labor and employment law attorney and independent workplace investigator based in Mill Valley. She specializes in helping employers and employees avoid needless litigation through compliance or prompt resolution of wage and hour, discrimination and other employment law disputes.

Lisa is a member of the MCBA Labor and Employment Law and Diversity sections, the Association of Latino Marin Attorneys (ALMA), and Marin County Women Lawyers. She may be contacted at the Law Offices of Lisa Spann Maslow, P.C., 415/380-9470, or lisa@maslowlaw.com. WEBSITE

agreement, or any employee benefit plan.

Conclusion.

Starting January 1, 2021, most California public and private employers will be subject THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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COMMERCIAL LEASING FAIR HOUSING Commercial Lease Restructuring Update from the Trenches: The Surprising Tenant Defense You May Be Overlooking JEFFREY H. LERMAN, PHILIP R. DIAMOND & DANIEL E. DERSHAM

COVID-19’s most urgent and significant im-

ate when entering into the lease but which

pact on commercial tenants and landlords

thereafter becomes unlawful to operate by

may be the sudden inability of many commer-

operation of law, all obligations under the

cial tenants to pay their rent and the resulting challenges to their commercial landlords.

lease are terminated as of the time it becomes unlawful to operate the business, even if the

Nine months into the pandemic, the authors

prohibition is temporary. See, e.g., Lloyd v.

have had the opportunity to represent both

Murphy (1944) 25 Cal.2d 48, 50 (“The princi-

tenants and landlords in commercial lease restructurings. Based on our experience, you

ples of frustration have been repeatedly applied to leases by the courts of this state.”);

may be overlooking a surprising tenant defense if you represent a commercial tenant

Federal Leasing Consultants, Inc. v. Mitchell Lipsett Co. (1978) 85 Cal.App.3d Supp. 44, 47

attempting to negotiate a restructuring or termination of its lease (and consider for-

(lease for electric burglar alarm system was discharged when it became unlawful to use

warding this article to your friends or colleagues who are commercial tenants—they

the radio waves required for the system); Industrial Development & Land Co. v. Goldschmidt

will thank you).

(1922) 56 Cal.App. 507, 509 (lease for wine and liquor business was discharged upon pas-

Commercial Frustration Commercial tenant lawyers often discount the doctrine of commercial frustration as a defense because the general belief is that it is unlikely to succeed. Our advice? Don’t give up on it too readily: If the right facts are present for the tenant, both statutory and case law could lead to an acceptable lease restructuring or termination.

Under the doctrine of commercial frustration, tenants in COVID-19 commercial lease disputes have a strong argument that, where a lease is for a business that was lawful to oper-

sage of Prohibition); and 20th Century Lites, Inc. v. Goodman (1944) 64 Cal.App.2d Supp.

938, 945 (lease for neon advertising lights placed upon the lessee’s business was permanently discharged due to temporary wartime government order banning nighttime illumination).

Force Majeure If a lease has a force majeure clause with a carve-out for rent (i.e., rent must still be paid even if a force majeure event occurs), tenants arguing commercial frustration can expect

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landlords to argue that the contractual provi-

•

The tenant is engaged in a business that

sion takes precedence over the above caselaw. [Editor’s Note: For a general discus-

has been especially affected by jurisdic-

sion of force majeure and COVID-19, see Daniel Schneider’s article in the June issue of

salon, gym, theatre, family entertainment

the Marin Lawyer.] In response, tenants have a strong statutory argument, as follows: The

tional COVID-19 restrictions (such as a center, etc.); •

unique use as the primary purpose of the

common law doctrine of commercial frustration is codified in Civil Code section 1511.

(Northrop Corp. v. Triad Intern. Marketing S.A. (9th Cir. 1987) 811 F.2d 1265, 1270.) Section

lease, and the COVID-19 restrictions directly frustrate that purpose; •

The tenant is not arguing merely that payment of rent has become more difficult due to COVID-19 restrictions, but rather

1511(1) provides for discharge of an obligation, “[w]hen such performance…is prevent-

that the actual business operations have been prohibited or substantially restrict-

ed…by the operation of law, even though there may have been a stipulation that this shall not be an excuse….” (Emphasis added.)

Parties may not contract around that subsec-

The lease is clearly tailored to the tenant’s

ed; •

The tenant is in good standing under the

tion: If there is a conflict between that sub-

lease and has flexibility to pay a modest

section and the contract, section 1511(1) prevails. Peter Kiewit Sons’ Co. v. Pasadena City Jr.

settlement amount to terminate the lease (if termination is what the tenant wants);

College Dist. (1963) 59 Cal.2d 241, 243-244.

and

While there is not yet any published California case applying this provision specifically in the case of a lease, the statute provides a strong argument that a carve-out in a contractual force majeure clause for payment of rent is unenforceable where the purpose of the lease has been frustrated.

Factors That Increase the Likelihood of Tenant's Success in Arguing Commercial Frustration Finally, our experience has also revealed there is a higher likelihood of tenant success in restructuring or terminating an otherwise valid lease using the doctrine of commercial frustration when: THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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•

No end or meaningful loosening is in sight

for the COVID-19 restrictions affecting the tenant’s business.

The doctrine of commercial frustration can work to restructure or terminate a lease in the right COVID-19 circumstances and, of course, a tenant should work with a lawyer who knows how to handle this negotiation.

View this article at Marinbar.org

Jeff Lerman, Co-Founder of Lerman Law Partners, LLP, has a national reputation as “The Real Estate Investor’s Lawyer”® and is also a real estate investor. He focuses on helping investors with their transactions and litigation. He is Past President of MCBA and included in the list of Super Lawyers. You can reach him at jeff@lermanlaw.com.

Phil Diamond is a real estate attorney, Of Counsel to Lerman Law Partners, LLP, where he handles a wide range of real estate-related litigation and transactions, including commercial lease disputes. He is also a mediator and arbitrator through his independent practice, DIAMOND DISPUTE RESOLUTION. Phil is also a licensed real estate broker, commercial landlord, and developer. You can reach him at philipdiamond@comcast.net.

Daniel Dersham is an attorney with Lerman Law Partners, LLP in San Rafael, regularly representing commercial landlords and tenants, investors, developers, corporate clients, and individuals in the purchase, sale, financing, leasing, and development of residential and commercial real estate. You can reach him at dan@lermanlaw.com.

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PROBATION DEPARTMENT FAIR HOUSING Marin County's Probation Department in the Age of Social and Restorative Justice MARLON WASHINGTON

As the new chief probation officer for Marin

versive racism and systemic inequality. Active

County, I am excited to join a probation team

workgroups are in place to review our depart-

that is well-regarded statewide amongst its

ment policies and practices through this lens

peers, as well as a local criminal justice system that is cohesive and focused on constant

and we are committed to improvement.

improvement. I truly appreciate the welcome and support I have received in my first 90 days. Joining and leading a department during a pandemic, not to mention a period of social unrest and major legislative changes, is totally out of the norm but our team has been up to

the task of adjusting to this new normal.

Upon arrival, I was encouraged to discover that my new department had already taken steps to begin a dedicated process wherein individual team members are able to share life experiences in order to increase discussion and understanding amongst staff of sub-

Social unrest aside, it is a dynamic time for criminal justice in California with potential legislation and calls for reform at levels that rival the changes we saw in 2011 with the Public Safety Realignment Act. Some of the top issues for our criminal justice system that involve the Probation Department are: Bail Reform and Pre-Trial Detention (SB 10): In 2018, the Legislature passed SB 10, which, in a nutshell, would have eliminated cash bail in California. SB 10 was put on hold pending the outcome of the recently defeated Proposition 25, which means that the bill will not go into effect and cash bail will remain.

While Proposition 25, which was backed by civil rights groups and Democratic leaders, may have been defeated, it is clear that changes around the way we detain suspected criminals are still possible. According to the state Board of Community Corrections, as of June 30th, county jails in California held approximately 61,000 inmates of which only 29% had been convicted of crimes. In Marin County, with the threat of COVID-19, over one hundred people in pre-trial status were

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released to Probation’s developing pre-trial

decreased over the years in line with the state

program. These defendants received an assigned probation officer, accountability or-

trend. As I write this, we also have two youth in the state facility and 17 youth in secure,

ders and check-in directives. In many cases, judges ordered electronic monitoring to pro-

therapeutic facilities out of the county. Our juvenile hall is a critical piece of our system

vide added public safety.

for providing safe space for youth as we find appropriate long-term placement. We are al-

Our data shows that with very few exceptions, defendants on pre-trial release returned to court and did not commit new of-

fenses while out under the monitoring of our pre-trial program. My office is committed to continuing to develop the pre-trial program to provide more services and options to de-

so working to establish local options for the future that can keep these youth in safe home

settings that will allow them to remain close to family and services and allow our dedicated staff to continue their work directly with the youth.

fendants in pre-trial status so that they have a

The role of probation departments has been

path to a better self as they await the out-

increasing over the years, and I am proud to

come of their court processes.

be one of 59 chief probation officers in this

Division of Juvenile Justice Realignment (SB 823): Over the past two decades, reform has resulted in a move away from detaining youth in state and local detention facilities. The population of these facilities, which once rose In California to nearly 20,000 youth, is now less than 25% of that number and the state has committed to realigning the Division of Juvenile Justice (DJJ) with the passage of SB 823.

DJJ Realignment is a historic move to build upon the trauma-informed approaches that are necessary to keep youth in their communities to best serve and connect them to the resources they need. I strongly believe that youth should be kept within their community and custody is only appropriate when a matter of public safety or when the safety of the child cannot be managed in the community.

The population of our own juvenile hall has

state. We have been afforded the opportunity

to lead dedicated, hardworking staffs to making change at individual, community and systemic levels. I take this responsibility seriously and look forward to a long career in Marin County that is filled with a sense of accomplishment and partnership.

View this article at Marinbar.org Marlon Washington was appointed to the

position of Chief in July 2020. Chief Washington has primary responsibility for the department and its administration, mission, and goals. He is a Richmond native who earned a sociology degree with emphasis in law and society at UC Davis and began his probation career in Contra Costa County as a Temporary Probation Counselor. He is active in the California Association of Probation Institution Administrators and the California Probation, Parole, and Correctional Association. He enjoys coaching, sports, traveling, spending time with family, listening to music and mentoring. He has been married to his wife Jennifer for 21 years, has a son who is a junior at Stanford University and a daughter who is a junior in high school. WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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EQUALFAIR PROTECTION HOUSINGCLAUSE Controlling COVID-19: Does the Equal Protection Clause Limit What Can Be Done?

DANIEL J. SCHNEIDER

As states struggle to balance the economic

matically immunize the system from constitu-

disaster of closed businesses against public

tional attack. Even if the rules within a county

health risks of reopening during the COVID-

do not raise an issue, does disparate treat-

19 pandemic, their job is made harder because their

ment of counties? Picture two restaurants across the

police power is not unlim-

street from each other. If that

ited. Whatever balance they

street divides counties in dif-

strike must pass constitutional muster.

ferent tiers, allowing one restaurant to serve customers

In New York City, restau-

indoors and the other not to, does the worse-off restau-

rants were not permitted to offer indoor dining between July 6 and September 30, 2020, while those in neighboring New York counties were. During that time, the positivity rate in the City and Statewide was below one percent, meaning that the entire state would have been squarely in the yellow tier if it had been operating under the California system. New York State did not even attempt to provide a reason for the differential treatment of counties and found itself subject to constitutional challenge. The catastrophic effect was of permanent closures and likely a forever-altered New York City restaurant scene.

rant have a constitutional claim? The most plausible claims rest on whether the state has exceeded its police power or violated the Equal Protection Clause of the Fourteenth Amendment to United States Constitution.

Police Power During Health Emergencies The pandemic is not the first health emergency in this nation’s history. The leading precedent is Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11, where the U.S. Supreme Court declared the state’s police power to be broad: “[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the in-

California has attempted to add a reasoned

dividual in respect of his liberty may at times,

basis for its disparate treatment through its four-tiered county-by-county system. How-

under the pressure of great dangers, be subjected to such restraint, to be enforced by

ever, a reasoned basis alone does not auto-

reasonable regulations, as the safety of the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

22

general public may demand.” (Id. at 29.) How-

ment of restaurants, the thought and method-

ever, the power is not limitless: If a rule “enacted to protect the public health, the

ology that went into California’s four-tier county-by-county rule may be its saving grace

public morals, or the public safety, has no real or substantial relation to those objects, or is,

for non-religious establishments. While forced closures may remain oppressive to

beyond all question, a plain, palpable invasion of rights secured by the fundamental law,”

some, the reason of the rules has removed the arbitrariness.

then it may be held unconstitutional. (Id. at 34.) In short, according to the Court, a rule

The Equal Protection Clause

sufficiently “arbitrary and oppressive” will not pass constitutional muster. (Id. at 38.)

The U.S. Supreme Court has already weighed in more than once on the permissible scope of regulation during the current pandemic.

While the Court initially gave substantial deference to state executive orders, the addition of Amy Coney Barrett to the Court has shift-

ed the law. The Court recently enjoined enforcement of an executive order in New York that restricted occupancy at religious services pursuant to the free exercise clause of the First Amendment to the U.S. Constitution.

(Roman Catholic Diocese of Brooklyn, NY v. Cuomo (No. 20A87, November 25, 2020) 592 U.S. ____; but see S. Bay United Pentecostal Church v.

Newsom (2020) 140 S. Ct. 1613 (decided with Justice Ginsburg still on the Court).) While most businesses and institutions will not be able to take advantage of the fundamental free exercise right, these cases illustrate that disparate treatment under state pandemic regulations is unquestionably on the Court’s radar and that California must take care in crafting its rules.

That being said, in contrast to New York City’s seemingly unreasoned disparate treat-

The federal Equal Protection Clause forbids a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws” and is “essentially a direction that all persons similarly situated should be treated alike.” (City of Cleburne v. Cleburne Living Ctr., Inc. (1985) 473 U.S. 432, 439.) It “requires that the law be evenhanded as actually applied.” (McQueary v. Blodgett (9th Cir. 1991) 924 F.2d 829, 835 (emphasis in original).)

All businesses in California have a right to evenhanded imposition of laws and rules. While California’s tiered system does not explicitly discriminate on the basis of race, gender or any protected class, this fact is not a bar to an equal protection claim. (McQueary, supra, at 834; see also Harlen Assocs. v. Inc. Vill. of Mineola (2d Cir. 2001) 273 F.3d 494, 499 (“The equal protection guarantee ... extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials.”) Since no protected class membership is likely to be at issue in most disparate treatment claims, California’s reopen-

ing plan is subject only to rational basis review. (See Robinson v. Marshall (9th Cir. 1995)

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23

66 F.3d 249, 251; McQueary, 924 F.2d at 834.)

is unclear whether San Francisco can justify,

The four-tier California Reopening Plan permits businesses in different counties to be

even with just a rational basis, its decision to prohibit indoor dining.

treated differently. This rule, on its face, appears to be workable so long as its rules are

Moreover, government must take care to

based on rational distinctions. But the plan permits counties and municipalities to impose

other constitutional considerations such as a

discretionary heightened restrictions and doing so likely entails constitutional risk if the

standards are not articulated. Like New York City, San Francisco has at times permitted only outdoor dining, though its tier would allow for indoor dining, and it is unclear what criteria are being employed for such a distinction.

Departure from the general rule, without reason, led to equal protection claims in New York with some success.

avoid making distinctions that implicate any protected class, freedom of speech, freedom of religion or other fundamental right. Such distinctions appear to be facing strict scruti-

ny. (See, e.g., Roman Catholic Diocese of Brooklyn, supra, “The State’s discrimination against religion … triggers heightened scrutiny ….” (Kavanaugh, J. concurring, at * 2).) The U.S. Supreme Court has already demonstrated a refusal to simply rubber stamp public health rules related to the pandemic. While the contours of the limitations remain to be deter-

For instance, in DiMartile v. Cuomo, (N.D.N.Y.

mined, it is becoming clearer that govern-

August 7, 2020) 20-CV-0859, ––– F.Supp.3d

ments must make well-reasoned distinctions

––––, 2020 WL 4558711, the District Court

when crafting rules.

granted a preliminary injunction prohibiting

View this article at Marinbar.org

enforcement of a rule limiting a wedding venue’s capacity to 50 people. Plaintiff argued that the venue operated like a restaurant and restaurants were not limited to 50 patrons.

The Court held that it “can find no rational basis for [New York’s] difference in treatment between use of the venues in question for ordinary dining and use of those venues for weddings.” (Id. at * 10.)

Daniel J. Schneider is a New York based trial attorney and a Founding Partner at Farber Schneider Ferrari LLP. His practice centers around the real estate arena, representing

developers, design professionals, interior designers, contractors and others with a multitude of issues which affect real property and construction projects. This includes, without limitation, property damage, construction defects, personal injury defense, neighbor disputes, corporate disputes, contractual issues and employment issues

California governments should be on notice that they need to walk a fine line in crafting

within the various companies. Mr. Schneider previously

rules that distinguish among similarly situated businesses without, at the very least, a ra-

his California practice. He opened his firm with his partners

tional basis for such distinction. As was the case in DiMartile in New York, if challenged, it

practiced in Southern California as General Counsel for an education-based start-up and is on the cusp of expanding and a shared philosophy that good relationships are good business and that efficiency and effective advocacy cultivate a years long attorney-client relationship that spans multiple matters. EMAIL|WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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THE WORKPLACE FAIR HOUSING COVID-19 and the Workplace: More New Law CARI COHORN

As more California employers reopen their

Beginning January 1, 2021, pursuant to A.B.

workplaces, and more employees resume on-

685, employers who learn an employee may

site work, employers—and the lawyers who

have contracted COVID-19, or may have

advise them—must be aware of labor laws

been exposed to it at work, must promptly

and regulations enacted this year in response

notify other workers, as well as local public

to the COVID-19 pandemic. The law has

health authorities. The technical language of

changed substantially since articles on this

the statute provides that employers who re-

topic appeared in the June Marin Lawyer.

New legislation and administrative guidance

ceive a “notice of potential exposure” of an employee to a “qualifying individual" (i.e.,

address: (1) employers’ obligations for notifying workers and local health departments of

someone diagnosed with COVID-19, someone who died due to COVID-19, or someone

employees’ potential exposure to the coronavirus; (2) changes in workers’ compensation

who has been ordered by a public health official to isolate) will face strict reporting re-

procedures; and (3) types of leave and financial benefits that employers must make avail-

quirements. “Notice of potential exposure” means any of the following:

able to employees affected by COVID-19.1

(A) Notification to the employer from a public

1. New Requirements for Notifying Employees and Local Health Departments of Possi-

health official or licensed medical provider that an employee was exposed to a qualifying

ble Exposure to COVID-19.

individual at the worksite;

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(B) Notification to the employer from an em-

worksite within a two-week period among

ployee, or their emergency contact, that the employee is a qualifying individual;

employees living in different households. The employer must report the outbreak to the

(C) Notification through the testing protocol

public health department of the county where the worksite is located and to the

of the employer that the employee is a qualifying individual; or (D) Notification to an employer from a subcontracted employer that a qualifying individual was on the worksite of the employer receiving notification.

Within one business day, an employer receiving a notice of potential exposure must provide written notice (in both English and any other language understood by the majority of employees) to all employees who have been present at the same worksite that they may have been exposed to COVID-19. The notice must also advise employees of the disinfection and safety plan the employer intends to implement and of state-law protections against discrimination and retaliation for reporting exposure or infection. Finally, the notice must include information regarding COVID-19related benefits that may be available to the employees, such as workers’ compensation and sick leave. (Such benefits are discussed in more detail below.)

If the employer receives notice of enough COVID-19 cases to meet the definition of “outbreak,” the employer is required to notify the appropriate local public health agency or agencies within 48 hours. For purposes of this statute, an outbreak exists when three or more cases of COVID-19 have been confirmed through laboratory tests at a single

health department of each county where an infected employee resides.

2. Workers’ Compensation: Changes to the Presumption of Work-Related Injury and

Requirements for Reporting COVID-19 Cases to Claims Administrators.

On May 6, 2020, Governor Newsom issued Executive Order N-62-20, which created a rebuttable presumption that – for purposes of awarding workers’ compensation benefits – any employee who is diagnosed with COVID-19 within 14 days of working at his or her “place of employment” (or “POE”) contracted the virus at work. That is, unless the employer can prove otherwise, the workers’ compensation claims administrator and Workers’ Compensation Appeals Board must determine that the employee’s infection is an injury that arose out of and in the course of employment. S.B. 1159 extends this presump-

tion for certain specified categories of workers, such as firefighters, peace officers, and some health care workers, through January 1, 2023. (This presumption does not apply to employees working exclusively from home during the 14-day period. The employee’s residence is expressly excluded from the definition of “place of employment.”)

With respect to types of workers not in the enumerated categories, the rebuttable

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26

presumption of a work-related illness applies

ers who violate this reporting requirement

only if the employer has at least five employees, and the employee at issue tests positive

may face civil penalties up to $10,000.

for COVID-19 during an “outbreak” at his or her place of employment. An outbreak exists if, within 14 days, one of the following takes place at a particular POE: (A) If the employer has 100 employees or fewer at a specific POE, four or more employ-

ees test positive for COVID-19;

3. Leave Laws and Benefits Available to Employees Affected by COVID-19.

Numerous federal and state statutes and programs provide a complex web of jobprotected leave and financial benefits to employees impacted by the pandemic. For example, workers who are laid off, furloughed, or

(B) If there are more than 100 employees at

have their hours reduced are eligible for unemployment insurance benefits, and in some

the POE, four percent of the employees who reported to the POE during the 14-day period

circumstances those unable to work due to COVID-19 infection or quarantine can re-

test positive; or

ceive short-term state disability benefits.

(Note that, pursuant to S.B. 1159, an employ-

(C) A local health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent orders the POE to close due to a risk of COVID-19 infection.

S.B. 1159 also requires employers to report certain information to their workers’ compensation claims administrators so the administrators can determine whether an outbreak exists. Specifically, when an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report via email or fax, within three business days: (1) that an employee has tested positive; (2) the date the employee was tested (i.e., the date the employee provided a specimen for testing); (3) the address of the

ee entitled to paid sick leave benefits “specifically available in response to COVID19” – such as California COVID-19 Supplemental Paid Sick Leave –must exhaust those benefits before temporary disability benefits through workers’ compensation insurance are payable.)

Perhaps the most important COVID-19related leave law is the federal Families First Coronavirus Response Act (“FFCRA”),2 which requires employers to provide two weeks (up to 80 hours) of paid leave for employees who work for public entities or for private employers with fewer than 500 employees who are unable to work for one of the following reasons:

employee’s POE; and (4) the highest number

(1) They are subject to a federal, state, or local

of employees who reported to the employee’s

quarantine or isolation order related to

POE in the 45 days preceding the last date

COVID-19;

the positive employee worked there. EmployTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

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(2) They have been advised by a health care

signed A.B. 1867, a bill aimed at filling gaps in

provider to self-quarantine for concerns related to COVID-19;

the FFCRA. Most importantly, A.B. 1867 expands some of the paid leave provisions of the

(3) They are experiencing symptoms of

FFCRA to include employers with more than 500 employees, as well as health care

COVID-19 and seeking a medical diagnosis; (4) They are caring for someone who is subject to a quarantine or isolation order, or who has been advised by a health care provider to self-quarantine;

and emergency services workers whose employers were allowed to opt out of the FFCRA. A.B. 1867 only provides benefits for employees prevented from working for their

(5) They are caring for a child whose school or

own illness or need to quarantine, not to those caring for others or prevented from

place of care has been closed, or whose child care provider is unavailable, for reasons relat-

working by unavailability of school or child care. The paid leave created by A.B. 1867,

ed to COVID-19; or

knows as “Supplemental COVID-19 Leave,” generally runs concurrently with other leave

(6) They are experiencing “any other substantially similar condition” specified by the Secretary of Health and Human Services.

provisions specifically intended to address COVID-19 but is distinct from, and is allowed in addition to, non-COVID-19 sick leave and

When the employee is out of work due to his or her own illness or need to quarantine, the

family leave. Like FFCRA paid leave, Supple-

benefit under FFCRA is equal to the higher of minimum wage or the employee’s regular pay

per day. Any employee denied Supplemental

rate, capped at a maximum of $511 per day. If the employee is out of work caring for a fami-

bor Commissioner.

ly member, the benefit will be two-thirds of the employee’s regular pay, not to exceed

$200 per day. In addition to the initial twoweek leave, the FFCRA provides for up to 10 additional weeks of paid leave, at two-thirds the employee's regular rate of pay, for a worker who has been employed for at least 30 days and who is unable to work due to a need to care for a child whose school is closed or whose usual child care provider is unavail-

able for reasons related to COVID-19.3 On September 9, 2020, Governor Newsom

mental COVID-19 Leave is capped at $511 COVID-19 Leave can file a claim with the LaA.B. 1867 also requires that covered employers post a notice explaining employees’ rights (available on the DLSE website) or, if employees are not at the worksite, provide it to them electronically. In addition, employers subject to A.B. 1867 must provide employees, each pay day, documentation of their Supplemental COVID-19 Leave balances in the same manner in which they provide information concerning non-COVID-19 paid sick leave, such as on a wage statement or pay stub.

A.B. 1867 will lapse December 31, 2020, or when the FFCRA expires, whichever is later.

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Employers Must Stay Informed.

The legal landscape related to the pandemic has evolved a great deal over the course of this year, and it will likely continue to do so.

Employers should consult often with knowledgeable employment counsel to stay abreast of any significant changes and to ensure they comply with their obligations to employees as

THANK YOU TO OUR 2020 MCBA PROGRAM SPONSORS Silver

well as state and local authorities.

1

A thorough review of guidelines for when and how to safely reopen a workplace is beyond the scope of this article. However, a useful overview of these issues, as well as employers’ obligations for keeping records and reporting cases of COVID-19 to Cal/ OSHA, appears in the “COVID-19 Employer Playbook” (pdf) released by Governor Newsom’s office on September 25, 2020. The federal Centers for Disease Control and Prevention has also issued guidance on deciding whether to reopen a workplace, how to limit risk upon reopening, and best practices for cleaning and disinfecting.

2

Although the FFCRA took effect in April, new regulations implementing it were issued September 11, 2020.

3

An employer with fewer than 50 employees whose business may be threatened by the paid child-care leave requirement may claim an exemption. The revised regulations issued September 11, 2020, clarify when the exemption is available, such as when providing the paid leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity.

View this article at Marinbar.org

Cari Cohorn is an attorney with a proven track record of successfully representing cli-

Interested in sponsorship?

Contact Mee Mee Wong at mwong@marinbar.org

ents through all phases of employment disputes. Ms. Cohorn represents both employers and employees, focusing her practice on providing strategic, cost-effective solutions to a variety of employment law matters. EMAIL | WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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COPYRIGHT LAW FAIR HOUSING Two Copyright Cases of Note FRANCINE WARD

The Big Copyright Lie Copyright owners frequently hear—from friends, advisors, and even some attorneys— that they have a copyright the very moment

they reduce their original content into a tangible fixed format. While this is statutorily true, for all intents and purposes it is not in practice. The Copyright Act of 1976 states, “Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived,

reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C. § 102(a).) Unfortunately, relying upon this provision renders copyright owners helpless and often frustrated when they need protection the most. The Fourth Estate Public Benefit Corporation discovered this the hard way.

In Fourth Estate Public Benefit Corp. v. WallStreet.com (2019) 139 S.Ct. 881, the United States Supreme Court gave the copyright infringer a stunning victory over the copyright owner. Fourth Estate is a news group that licenses its articles to organizations, while retaining the copyright. Defendant WallStreet.com purchased a license to display a variety of articles on its website. After the license had expired, the defendant continued to display the articles without permission.

The Copyright Act identifies a copyright infringer, in part, as someone who "violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118.” (17 U.S.C. § 501(a).) The defendant’s continued display of the articles went beyond the scope of the license agreement and thus infringed plaintiff’s copyrights.

Despite this substantive violation that made defendant an infringer, a procedural requirement left the plaintiff without recourse. Copyright “registration” is not required for copyright ownership. However, it is required before filing a copyright infringement suit. Section 411(a) of the Copyright Act provides in part, “No civil action for infringement of the copyright in any United States work shall be instituted until … registration of the copyright claim has been made …. In any case, however, where the deposit, application and fee … have

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been delivered to the Copyright Office in

ful ones.

proper form and registration has been refused, the applicant is entitled to institute a

Those old enough to remember—and many

civil action for infringement if notice thereof, with a copy of the complaint, is served on the

“Stairway to Heaven,” widely considered one

Register of Copyrights.” (17 U.S.C § 411(a).)

As every trial lawyer knows, cases are often won and lost on the interpretation of a single word. “Registration” was the word here.

Circuit courts had split on the meaning of section 411. The First, Tenth, and Eleventh Circuits held that an application for registration must be approved or denied before filing an infringement action (the “registration approach”). The Fifth, Eighth, and Ninth Circuits required that a copyright owner merely file an application for registration before filing an

infringement action (the “application approach”). Fourth Estate had filed an application but it had not been approved or denied.

The Supreme Court unanimously decided on the registration approach, ruling in favor of Wall-Street.com. You may have a copyright the moment you write your words down but that does not mean much since you cannot enforce it without a registration or denial by the Copyright Office.

Led Zeppelin Climbed the Stairway to Heaven

who are not—are familiar with the 1971 song of the greatest rock songs ever written. Forty -three years after the release of the song, Michael Skidmore, trustee for the Randy Craig Wolfe Trust, filed a lawsuit alleging copyright infringement against Led Zeppelin and indi-

vidual members of the band.

Randy California was a guitarist in the rock group Spirit. He wrote the music for the group’s song “Taurus” and was the sole copyright owner. He passed away in 1997, and his mother, who had become trustee of the Randy Craig Wolfe Trust (reflecting Randy California’s legal name), passed away in 2006.

Skidmore then became trustee and eventually filed a copyright infringement claim on May 31, 2014.

To sustain a copyright claim, the copyright owner must prove: (1) That he owns a valid copyright in the work in issue, and (2) that the alleged infringer [Led Zeppelin] copied protected aspects of the work. (See, e.g., Rentmeester v. Nike, Inc. (9th Cir. 2018) 883 F.3d 1111, 1116-17, citing Feist Publications Inc. v.

Rural Telephone Service Co. (1991) 499 U.S. 340, 361.) Skidmore's ownership of a valid

Over the past decade, a number of musicians have been sued for copyright infringement, as

copyright in “Taurus” was not challenged on appeal.

well as a number of other intellectual property law violations. A few have successfully de-

The second prong of the copyright infringe-

fended the claims and others, not. The 1960s rock band Led Zeppelin is one of the success-

First that there was actual copying of the work

ment analysis incorporates two distinct parts: and second that there was unlawful

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appropriation. Rentmeester, supra, 883 F.3d at

sidered by the district court and the ju-

1117. Collectively, these two factors are often referred to as “substantial similarity.” In

ry. Because the 1909 Copyright Act did not offer protection for sound record-

this case, as is typical, there was no direct evidence of copyright infringement. Infringe-

ings, Skidmore's one-page deposit copy defined the scope of the copyright at

ment must then be proven by circumstantial evidence. The plaintiff must show that the de-

issue . In line with this holding, the district court did not err in limiting the

fendant had “access to the plaintiff's work and that the two works share similarities pro-

substantial similarity analysis to the deposit copy or the scope of the testimo-

bative of copying.” Rentmeester, supra, 883 F.3d at 1117.

ny on access to Taurus. As it turns out, Skidmore's complaint on access is moot

The outcome of most copyright infringement

because the jury found that Led Zeppelin had access to the song. We affirm

cases hinges on whether there was substantial similarity of the works at issue. The Ninth Circuit has held that “substantial similarity is inextricably linked to the issue of access,” and the court has consistently adhered to the

“inverse ratio rule,” which permits “a lower standard of proof of substantial similarity when a high degree of access is shown.” (Three Boys Music Corp. v. Bolton (9th Cir. 1996) 212 F.3d 477, 485, citing Smith v. Jackson 84 F.3d 1213, 1218.)

After a jury verdict in favor of Led Zeppelin, followed by a series of remands and rehear-

ings, Led Zeppelin ultimately prevailed in its six-year copyright dispute when the Ninth Circuit affirmed the lower court’s decision and the Supreme Court denied certiorari this October. The Ninth Circuit noted that, “The trial and appeal process has been a long climb up the ‘Stairway to Heaven’” and it concluded that Led Zeppelin’s mammoth hit did not infringe “Taurus,” stating: This copyright case was carefully con-

the district court's challenged jury instructions. We take the opportunity to reject the inverse ratio rule, under which we have permitted a lower standard of proof of substantial similarity where there is a high degree of access. This formulation is at odds with the copyright statute and we overrule our cases to the contrary. Thus the district court did not err in declining to give an inverse ratio instruction. Nor did the district court err in its formulation of the originality instructions, or in excluding a selection and arrangement instruction. Viewing the jury instructions as a whole, there was no error with respect to the instructions. Finally, we affirm the district court with respect to the remaining trial issues and its denial of attorneys' fees and costs to Warner/Chappell.

(Skidmore v. Led Zeppelin (2020) 952 F.3d 1051, 1103, 1104.)

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Skidmore is notable for the Ninth Circuit

overruling its own “inverse ratio rule.” However, in doing so, it has joined the majority of circuits in recognizing that access to a copyrighted work “does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work. By rejecting the inverse ratio rule, we are not suggesting that access cannot serve as cir-

cumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity.” Skidmore, supra, 952 F.3d at 1066.

1

As the Ninth Circuit noted, there was no protection for sound

recordings under the 1909 Copyright Act, which was the version applicable here, and the Court concluded that in such cases, copyright is based on the “deposit copy” (with the Copyright Office) of a song’s sheet music, which generally includes lyrics, basic chords

Copyright Act of 1909. Image Source: Copyrightact.gov

and melody but little of the performance interpretation that makes a song unique. And in fact, it was “Stairway to Heaven’s” opening guitar arpeggios that were not in the deposit copy but were the main source of similarity to the earlier song.

View this article at Marinbar.org

Francine is Of Counsel at Monty White, LLP, a full service law firm in San Rafael, CA. She heads its Business and Intellectual Property Law Group, as well as managing its Palm Desert, CA office. Francine is a 1989 graduate of the Georgetown University Law Center and admitted to practice in California, New York, and the District of Columbia. WEBSITE

19th Century Newspaper Advertisement for Patents, Trademarks, and Copyrights. Image Source: Wikipedia Public Domain

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MCLE RECAP FAIRFAIR HOUSING Virtual MCLE Fair a Great Success!

THE MARIN LAWYER

MCBA hosted its first-ever all-virtual MCLE

to reform the criminal justice system with

Fair last month. In another first, we partnered

Marin County District Attorney Lori Frugoli,

with multiple Bay Area bar associations,

Public Defender Jose Varela, and Cristine

which allowed more people to attend at mem-

Deberry from the Prosecutors Alliance of

ber rates. The Bay Area-wide audience and

California.

ability to appear via Zoom enabled us to attract prominent speakers and panelists from around the Bay Area and beyond. With thirteen separate programs over four days, including several panel discussions, program highlights will have to suffice for our recap.

The day finished with a discussion of the struggle to combat racism in our own legal community. Former MCBA President Otis Bruce, former MCBA board member Toussaint Bailey, and Ruthe Ashley highlighted

The Fair’s first day comprised three topical

how far we have to go to promote diversity, inclusion, and equity here in Marin. We hope

and timely presentations: A panel discussion on criminal justice reform in California and

that this panel will return to continue this discussion.

two presentations that earned attendees elimination-of-bias credits, one on race and

The remaining three days of the Fair featured

one on gender. Our kick-off presentation was a celebration of the 100-year anniversary of the adoption of the Constitution’s Nineteenth Amendment. Sister Pat Dougherty from Dominican University discussed the many years of activism that often-forgotten leaders of the Suffragist movement undertook to win universal voting rights. She highlighted the continued struggles to realize the right to vote for African American women and to maintain that right in the face of numerous contemporary efforts to disenfranchise voters.

three exciting keynote presentations. On Tuesday, MCBA fan favorite, Professor Rory Little, gave a preview of what is likely to be a notable SCOTUS term. Professor Little opined that the newly expanded 6-3 conservative majority is likely to bring us groundbreaking decisions on the Establishment Clause and on personal privacy. On Wednesday, NPR political reporter Marisa Lagos interviewed Tani Cantil-Sakauye, Chief Justice of the State of California. The Chief Justice spoke candidly and informally about the challenges the courts and Judicial Council have faced during the pandemic and the challenge

At lunchtime, MCBA board member Karthik

systemic racism poses to our judicial system,

Raju moderated a lively discussion of efforts

even as she leads a Supreme Court that

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

35

proudly reflects the diversity of California.

ing. Chef Scott Cardel efficiently demonstrat-

Day four of the Fair featured a wide-ranging conversation between Erwin Chemerinsky,

ed the preparation of several delicious and easy Thanksgiving side dishes (recipes availa-

Dean of the UC Berkeley School of Law, and incoming MCBA President Tim Nardell. Dean

ble here), for which Dan Moberg of ThirtySeven Wines artfully paired a choice of wines.

Chemerinsky addressed the challenges of running a law school and teaching remotely

MCBA members who participated in the Fair

during a pandemic, the mechanics of the Presidential transition process, his vision for a

download certificates of attendance from

more progressive interpretation of the Constitution, the extremely conservative bent of the current Supreme Court, and potential changes to that Court.

The Fair presented several panels on practical aspects of practice. These included a bootcamp covering IP basics for non-IP lawyers, brought to us by Naomi Gray, Jeffrey

Knowles, and Steve Nielsen and a roundup of changes in real estate law during the COVID19 era, brought to us by Elva Harding, Len

will be able to access their MCLE credits and their account page on the MCBA website.

You can access the materials from all of the presentations on the Fair’s handouts page.

The MCLE Fair would not have been possible without the tireless work of Mee Mee Wong, with support from Denise Belli and the MCLE Fair Committee: Tim Nardell, Susan Feder, Ahtossa Fullerton, and Karthik Raju. Thank you all for your innovative efforts to create a stimulating, engaging and useful virtual program.

Rifkind, and Sean Ponist. Incoming MCBA

View this article at Marinbar.org

board member Tom McInerney moderated a discussion with Therese Lawless and Donna Rutter regarding some of the innumerable recent changes in employment law. Valerie Fenchel moderated a lively and informative discussion of the crossovers between family law and probate law with Renee Chernus and Michelle Lerman. MCBA’s litigation section held a conversation about jury trials during the COVID-19 era, featuring war stories from Stuart Chandler and Ricardo Echeverria, moderated by MCBA President Susan Feder.

The Fair concluded with a fun and mouthwatering experiment in virtual social gatherTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

36

VIRTUAL MCLE FAIR November 16-19, 2020

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

37

2020 Bay Area MCLE Fair Sponsors

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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INDEPENDENT CONTRACTORS FAIR HOUSING The (Never-Ending) Quest to Distinguish Employees from Independent Contractors PATRICE GOLDMAN

Borello. Dynamex. AB 5. Lyft. Uber. DoorDash.

fying an employee as an independent contrac-

Prop. 22. Flexibility Lost. Benefits Gained.

Who is and who is not an independent con-

tor saves an employer a great deal of money.

Independent contractors are not subject to

tractor has been the subject of considerable debate—in the courts, in the Legislature, and

numerous wage and hour laws, such as minimum wage, overtime, meal and rest breaks,

in the voting booth—and the fight will continue well into the future. What started in the

sick leave laws, family leave laws, and discrimination laws (although the harassment laws

courts as a change to a somewhat complicated multi-factor legal test has led to much lob-

do apply). Independent contractors pay for their own equipment. They pay one hundred

bying and even a referendum on whether specific categories of workers are or are not in-

percent of their social security and Medicare taxes. They either pay for their own benefits

dependent contractors. Uber and its compatriots spent over $200 million to pass Proposi-

or do without them. They are not protected by the workers compensation laws or unem-

tion 22 to settle the question for just one type of job.

ployment insurance laws. On the other hand, some workers prefer to avoid the potential

Why all the fighting? One reason is that classi-

headache of having to be beholden to an

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

39

employer, preferring the flexibility that often

factors were:

goes with being an independent contractor.

And certain professions that have always

1. The employer's right to control the man-

thrived as creative, independent contractors, e.g., musicians and freelance writers, found their livelihoods threatened by the restrictions of “employee” status that were suddenly imposed upon them by the passage of AB 5, discussed further below.

California’s Initial Approach Originally, courts looked to the employer’s degree of control over the worker’s activities to determine whether the worker was an in-

ner and means of performance; 2. Whether the employment relationship

could be terminated at will; 3. Whether the worker engaged in an occu-

pation or business distinct from the em-

ployer’s; 4. Whether the type of work performed was

usually done under the employer’s direction, or by a specialist without supervision;

dependent contractor or an employee. One test, which courts used in a variety of con-

5. The skill required to perform the work;

texts, originated from Labor Code section 2750.5. This statute set forth a rebuttable

6. Who provided the instrumentalities, tools

presumption that a worker performing services was an employee unless it could be shown that: the individual had the right to control the manner of performance; was “customarily engaged in an independently established business”; and their independent contractor status was “bona fide and not a subterfuge to avoid employee status.” The

statute also enumerated various factors indicative of the latter. (Cal. Lab. Code § 2705.5 (c).)

The Borello Years In 1989, after years of dispute over what this meant, the California Supreme Court adopted an “economic realities” test, consisting of eleven potential, yet none dispositive, factors.

and place of work; 7. The length of time for which services were

to be performed; 8. Whether the worker could hire and fire

others; 9. Whether payment for work was by time,

piece, rate or job; 10. Whether the services were part of the em-

ployer's regular business; and 11. Whether the parties believed they were

creating an employment or independent contractor relationship.

Id. at 404.

(S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.) Those THE MARIN LAWYER An Official Publication of the Marin County Bar Association

40

As had been the case for the past decades, the

control and direction of the hiring enti-

first factor, i.e., the employer’s right to control the manner and means of performance, was

ty in connection with the performance of the work, both under the contract

considered to be the most important factor in establishing the nature of the relationship.

for the performance of the work and in fact; and (B) that the worker performs

(Borello, supra, 48 Cal.3d at 404; Arzate v.

Bridge Terminal Transport, Inc. (2011) 192

work that is outside the usual course of the hiring entity’s business; and (C) that

Cal.App.4th 491, 426.) The remaining factors were considered “‘secondary’ indicia of the

the worker is customarily engaged in an independently established trade, oc-

nature of a service relationship.” (Borello, supra, 48 Cal. 3d at 350.) The Court confirmed

cupation, or business of the same nature as the work performed.

that whether the parties proclaimed the worker to be an independent contractor was

(Id. at 957.) Perhaps anticipating the future,

“not dispositive, and subterfuges are not countenanced.” (Id. at 349.) Importantly, the

stressed the importance of the “B” factor:

Court also confirmed that the employer bore the burden of proving the worker was an independent contractor. (Ibid.)

Dynamex’s Updated Test After continued disputes about what factors to apply and how, in 2018, the California Supreme Court issued Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. Limiting the decision only to occupations subject to the California Wage Orders,1

i.e., the Borello “economic realities” test would apply to non-Wage Order occupations, the Court adopted what it referred to as “a simpler, more structured test” known as the ABC test. (Id. at 955.) The Court held that the hiring entity had the burden to establish that the worker was an independent contractor by establishing each of the following three factors:

e.g., Proposition 22, the Dynamex court whether the worker performed work outside the usual course of the hirer’s business. Such a categorical requirement would ensure all

workers with the same role received the protections of their Wage Order as none could “voluntarily” opt-out. The danger of not including such a strict requirement would allow employers of superior bargaining power to coerce employees to waive their protections “voluntarily” and allow the depression of wages. (Id. at 960.)

Codifying Legislation: AB 5 On September 18, 2019, Governor Newsom signed into law AB 5, codifying Dynamex and “clarify[ing] its application.” Expanding Dynamex beyond the Wage Orders, what became California Labor Code section 2750.3 memorialized the ABC test. But the statute continued past the ABC test to attempt to

reference, in one place, all the exemptions,

(A) That the worker is free from the THE MARIN LAWYER An Official Publication of the Marin County Bar Association

41

exceptions, and preexisting codifications of

criteria (some of which overlap with the Borel-

workers who had already been statutorily declared independent contractors, as well as to

lo factors and others of which do not) that must be met for Borello to apply. (Cal. Lab.

fall back upon the Borello test if for some reason a court might rule the ABC test did not

Code § 2776(a).)

apply. (Former Cal. Lab. Code § 2750.3(a)(3), (b).) This resulted in massive discontent from individuals and business owners.

Follow-Up Legislation: Article 1.5 and New

(and Not-So-New) Rules for Many Jobs

Section 2777 takes a similar approach with referral agencies and service providers and includes a long, nonexclusive list of service providers, such as graphic designers, tutors, dog walkers, etc.

The uproar led to the repeal of section 2750.3

Likewise, section 2778 sets out six factors to determine when someone providing their

and its replacement by Labor Code sections 2775 to 2787, which went into effect on Sep-

own “professional services” directly to a client (as opposed to through a referral agency)

tember 4, 2020 (and per section 2785 are generally retroactive to work performed

is subject to Borello instead of the ABC test. It contains a long (and in this case, exclusive) list

since the beginning of 2020). New Article 1.5, entitled “Worker Status: Employees,” begins

of professional services, sometimes with additional criteria to be met to qualify for ex-

with a declaration that, unless expressly excepted, the ABC test applies to the Labor

emption from the ABC test.

Code, the Unemployment Insurance Code, and the Wage Orders and that the Borello test should be used when a court finds the ABC test inapplicable. (Cal. Lab. Code § 2775(b).)

Section 2779 sets forth a “business-tobusiness exemption” which confirms that sole proprietors who work on a singleengagement event, i.e., a “stand-alone non-

Most of the remainder of Article 1.5 (sections

recurring event in a single location, or a series of events in the same location no more than

2776 through 2785) addresses different in-

once a week,” will be able to maintain their

dustries and professions that had either pre-

independent contractor status so long as

viously been expressly classified by statute as independent contractors or had complained

eight criteria are met. These criteria are somewhat similar to the Borello test and focus

vigorously about how AB 5 adversely affect-

mainly on control and independence. They

ed them.

are designed to ensure the independence of the sole proprietor so as to prevent an em-

Section 2776 requires that the Borello test be used to determine independent contractor/ employee status in cases the statute refers to

ployer from misclassifying individuals who are really employees.

as “bona fide business-to-business contract-

The music industry was very vocal about its

ing relationship[s].” It then goes on to list 12

discontent with AB 5. Section 2780 attempts

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

42

to meet its concerns by applying the Borello

business along with the phrase “independent

test to certain occupations, such as recording artists, songwriters, lyricists, managers, rec-

contractor” to attempt to determine whether any exception, exemption, or determination

ord producers, directors, engineers, musicians, photographers, and independent radio

has already been made about the status of the particular job. If you’re lucky, one will

promoters, whose occupations are in connection with “creating, marketing, promoting, or

come up and you can see whether it covers the job at issue. Of course, it is always best for

distributing sound recordings or musical compositions.” However, musicians and vocalists

an employer to obtain legal advice from a knowledgeable legal professional, which in

who are not royalty-based must be treated as employees “solely for purposes of receiving

this arena means someone who is keeping up with the constant changes in the law. Given

minimum and overtime wages for hours worked….” (Cal. Lab. Code § 2780(a)(4)(B).)

the pace of change, not to mention that lobbyists and employers are trying their best to

Furthermore, musicians or musical groups who perform at a single-engagement live per-

legislate their own exceptions, it would be hard for even a large employer to keep up.

formance event are governed by the Borello test, unless they are the headliner at a larger

With the substantial penalties for getting it wrong, employers should be certain they are

venue, or are performing at a theme park, or

making the correct determination before tak-

in a musical theater production. (Cal. Lab.

ing action.

Code § 2780(b)(1).)

Finally, section 2783 exempts many traditional licensed knowledge professions from the ABC test, such as insurance and financial services professionals, doctors, lawyers, architects, engineers, and accountants.

1

The Industrial Welfare Commission (“IWC”), a Commission ap-

pointed by the Governor and residing within the California Department of Industrial Relations, has issued 17 Wage Orders, which regulate the wages, hours, and working conditions in certain industries or occupations.

View this article at Marinbar.org

What to Do? Clearly, employers need to be careful when classifying a worker as an independent contractor. The wrong decision, if willfully made, can subject the employer to civil penalties of up to $25,000 per violation, along with criminal action and even prosecution by the IRS. What’s a small employer to do? One can al-

ways search the internet for all synonyms that could be used to describe the employer’s

For more than twenty-six years, employment attorney Patrice L. Goldman has provided compassionate, experienced representation for employees in a variety of workplace rights situations, both in the courtroom and through mediation. Recognized by her peers as one of the top employment lawyers in Northern California, Patrice was selected as a “Super Lawyer” “for the years 2004, 2005 and 2007 through 2018. She has also held an “AV” rating in the

Lexis-Nexis/Martindale Hubbell Bar Registry (the highest rating for ethical standards and legal ability) for nearly two decades. WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

43

NONPROFIT UPDATE FAIR HOUSING Nonprofits Respond to the Pandemic THE MARIN LAWYER

COVID-19 has brought change everywhere.

clients and community members access

It has dramatically affected how nonprofits

resources and support, and making refer-

serve some of our most vulnerable citizens.

rals to its licensed behavioral health spe-

We asked several beloved local nonprofits

cialists to address elevated levels of stress

how they are adapting to the pandemic. We

and trauma.

found plenty of resilience and innovation as they not only adapt to continue providing ser-

•

Quickly transitioned its Immigration Legal Services (ILS) department to virtual operations and cloud-based case management.

vices but develop new services to address new needs brought about by the pandemic.

Almost overnight, ILS was operating as a virtual law office. Unfortunately, the pandemic highlights the many digital barriers its clients experience: Most lack access to

the internet and do not have laptop or desktop computers; many are not proficient with the use of technology, making tasks as simple as taking a picture of a doc-

Canal Alliance: Critical Support for a Com-

ument and sharing it via email difficult and incredibly challenging. In light of the pan-

munity Disproportionately Affected by COVID-19 The pandemic is taking a devastating toll on

demic’s dramatic impact on its clientele, Canal is constantly evaluating methods to

the lives and livelihoods of Latino immigrants

be more mindful of trauma and the fact

and their families. In Marin County, Latinos comprise 16% of the population, yet account

that clients are now having to reveal very

for 80% of coronavirus cases. In response, Canal Alliance has pivoted to offer all of its pro-

the phone. As a result, it offers some inperson services when needed.

grams virtually and to better serve the Latino immigrant community, it developed and implemented a comprehensive crisis response.

Canal Alliance: •

Ensured its Social Services team has been

personal and sensitive information over

•

Continues to provide legal outreach and education through its Know Your Rights and Public Charge initiatives, especially important in light of relentless immigration policy changes.

on the front lines of the response, helping THE MARIN LAWYER An Official Publication of the Marin County Bar Association

44

•

Adapted its free weekly food pantry to im-

plement health protocols and now distributes groceries to a record 500 families each week.

•

Partnered with the county to offer free, on -site coronavirus testing for 10 weeks, and continues to provide case management for clients who test positive for the virus at Marin Community Clinics in order to link

them with resources and treatment.

•

Hired and trained bilingual Promotores de

Legal Aid of Marin Tips the Scales Toward

Salud to provide health outreach and education, and hired five bilingual community-

Justice during COVID-19

based contact investigators, who received training through UCSF and work in partnership with the Department of Public Health.

•

•

Legal Aid of Marin has been busy since the beginning of the pandemic, not just directly assisting clients, but also advocating for necessary legal protections for the greater Marin Community, and working in partnership with

Raised and distributed $2.2 million in di-

Canal Alliance, San Francisco-Marin Food

rect cash assistance through its Client Support Fund to help families purchase

Bank, Community Action Marin, Vivalon (formerly Whistlestop), Phoenix Project, and

groceries, diapers, medication and pay for other urgent needs.

many more organizations to provide much needed legal services. As the most vulnerable

Launched a Financial Assistance team to

people in our community are disproportionately endangered by the health and economic

partner with the Family Independence Initiative to rapidly distribute cash assistance to community members through direct bank deposit.

Learn more about Canal Alliance’s many programs or volunteer or donate by visiting its website.

impacts of COVID-19, the demand for legal services has increased dramatically.

As the only free civil legal services provider with offices in Marin, Legal Aid of Marin’s mission is to provide access to the civil justice system to low-income, vulnerable and otherwise underserved residents of Marin County.

It helps clients stay in their homes, recover lost wages, reinstate driver licenses, draft wills, and secure essential safety-net benefits.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

45

Much of this work it does through the gener-

attorneys, in partnership with Marin Organiz-

osity of pro bono volunteers. Since the beginning of the pandemic, Marin lawyers have vol-

ing Committee, to advocate successfully for local rent moratoria and other protections.

unteered hundreds of extra hours of legal services. For example, volunteer attorneys

And it is now assisting in pro per parties in Marin Court remote hearings with eviction

helped two Spanish-speaking families obtain monetary judgments against their unscrupu-

mandatory settlement conferences.

lous landlord for serious housing habitability violations; another volunteer helped an Afri-

can American young man in a successful claim against his auto insurer for bad faith denial of coverage.

The long-established commitment of the local bar, judges, and community partners to the provision of free legal services led Legal Aid

to help create the Marin Pro Bono Network.

A collaboration among Marin Community Foundation, One Justice, Legal Aid of Marin,

Pro bono volunteers (the editor of this publi-

and Canal Alliance, the Marin Pro Bono Net-

cation among them) also assist seniors 60 and

work connects attorneys to pro bono oppor-

over with general estate planning advice as

tunities appropriate to their expertise and in-

well as other legal concerns they face. And

terests. You can also visit Legal Aid of Marin’s

through the expertise of Legal Aid’s growing

website to learn about how you can help us

staff, it is now able to take on a limited num-

provide life-changing equitable access to jus-

ber of elder abuse claims. When an 80-year-

tice for all Marin residents, or email Helen

old West Marin woman was sued by an un-

Castillo to volunteer.

scrupulous contractor who overcharged for unapproved remodeling work, it negotiated a fee reduction over $100,000.

Learn more about Legal Aid of Marin at www.legalaidmarin.org.

Since not long after the pandemic began, Legal Aid has been able to provide legal consul-

tations every Tuesday morning outside Canal Alliance’s offices. It is also sharing outreach with food pantries in West Marin and Novato to respond to legal questions from food insecure tenants and workers. But perhaps more than anything else, it has brought together a legal team of its own legal staff, pro bono lawyers, volunteer law students, interpreters, and bilingual legal assistants to answer the huge volume of desperate tenant calls. The dire plight of so many tenants led Legal Aid’s

LITA: Love is the Answer Forty-five year old Marin nonprofit LITA

(Love is the Answer) has the mission to improve the quality of life for older people.

LITA’s volunteer programs do this by helping

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

46

to reduce isolation and loneliness. This isolat-

unteers bake, conduct tours, take virtual

ing pandemic has revealed people’s need for connection more than ever and LITA is work-

walks and read poetry. Some care facilities are now allowing outdoor performances.

ing hard helping many older adults who have not been able to receive visits from family and

•

cuses on those with dementia residing in

friends since March.

Memory Care units of facilities and is cur-

LITA had to find a way to protect the physical health of the older adults it serves—and of its volunteers and employees—while fulfilling

rently on hold.

•

their need for loving human connection.

Caring Connections: Launched in September in collaboration with Vivalon (formerly known as Whistlestop), LITA matches volunteers to visit with isolated and lonely

markably one of Inga, a black Labrador, who has been a popular pet visitor.

•

strongly encourages families to stay in touch during the pandemic by contacting

partment of Public Health are outdoors with people at a distance with facial cover-

their friend online, by mail or phone. In

ings.

one case, a family created homemade cards. The mother, an artist, and her

One-to-One Connections: LITA matches volunteers with care facility residents for

daughter, undaunted by her own physical mobility constraints, made beautiful cards

weekly in-person visits. While these visits are not allowed in person now, some vol-

with inspiring messages for their LITA friend.

unteers are connecting with residents by video chat, by phone, or through letter writing. Sometimes, they will do activities together like read aloud, or play word or

•

Family Connections: An entire family will ‘adopt’ an older person to visit. LITA

homebound individuals in their private homes. Current visits approved by the De-

•

Pet Connections: Volunteers have visited long-term care facilities with their pets, primarily dogs. During the pandemic, LITA’s most popular YouTube video is re-

LITA has adapted their programs: •

Memory Care Buddies: This program fo-

•

Bridging Generations: During a typical school year, this program is fun to watch as elementary school children are paired

trivia games.

off with one or two retirees. Because most schools are not yet meeting in person, this

Bridging Thru Music: Our volunteers bring engagement through music performances,

program has been on hold for the past few months. However, several young people

sing-a-longs and lessons. LITA’s YouTube

are organizing efforts on their own

channel includes volunteers performing

through LITA. For example, a group of chil-

and leading singalongs with large-font

dren made homemade Halloween cards,

captioned lyrics. Residents can watch vol-

and a LITA high school volunteer created

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

47

Letters of Comfort, through which high

school students have sent over one thousand letters to older people!

•

Seniors in the Park: LITA organizes trips to Marin County parks where older people enjoy being outdoors in nature. Often all of LITA’s programs come together for these events, which include music, snacks, and nature talks. When these trips were

halted, LITA created a virtual workbook to bring love of nature and the parks to facility residents. This program is supported

by Marin County Parks.

It has not been easy for LITA to adapt to a changing environment, but according to Tanya Mendoza, LITA Director of Volunteers, “There is always a way to create human connection. This involves thinking outside the box and embracing the technology designed to help us to do this.” Barbara Brown, LITA’s new Executive Director says, "LITA is grateful for our amazing and talented volunteers.

They bring a spirit of love, compassion and kindness to older people, along with their expertise, even during a pandemic.”

Learn more about LITA at www.litamarin.org.

Marin Child Care Counci Founded in 1979, Marin Child Care Council (MC3) works to improve the availability, accessibility and affordability of quality child care throughout Marin County. It provides support to child care providers through trainings and advice; to low-income clients through subsidies for child care; and to parents through referrals to child care providers.

MC3’s work has continued through the pandemic with the provision of reliable child care resources and referrals, as well as social and emotional support, nutrition, and physical activities.

When the County Health Department issued its shelter-in-place order in March, many child care programs continued to operate in some capacity to serve essential workers.

When emergency pop-up child care was implemented, MC3’s state-funded child care programs were the primary centers to open for nurses and doctors. Several of the county’s family child care homes and a few centers also remained open. Over the past several months, many more have chosen to re-open, but only after serious contemplation,

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

48

planning and program changes. It is a highly

stressful time for the early childhood education community as educators and caregivers balance their own personal and family safety while striving to provide as safe, secure and high-quality an environment as possible for the children and families they serve.

North Marin Community Services: Stepping Up in a Crisis

Since March, MC3 has spent over $500,000

In March 2018, the Marin Lawyer profiled

on grants for child care providers throughout

North Marin Community Services. While the

Marin County and has recently distributed an

name was brand new, the nonprofit had been

additional $1 million in small grants to child

serving vulnerable people in Novato since

care programs thanks to a large grant from

1972. Both the name and the organization re-

the Marin Community Foundation and sup-

sulted from a strategic merger in 2018 be-

port from First 5 Marin. In addition to its reg-

tween Novato Youth Center and Novato Hu-

ular programs, MC3 has:

man Needs Center. Little did NMCS know the

•

Provided trainings for trauma-informed care;

•

Organized food banks to help feed the children;

•

And set up drive-through handouts of critical supplies (masks, wipes, sanitizers, air purifiers, touchless thermometers, bleach).

As the pandemic is still with us and the first

vaccines will likely not be widely available for at least several months, these needs—and their costs—will continue well into the future.

No one knows what the final effects of the pandemic will be on the child care field, but MC3 will be there for the community, advo-

intense challenges that would ensue in just two short years.

But it was well-positioned and ready to provide its anti-poverty services when the pandemic hit, with a team of 290 (60 staff and 230 volunteers) and a growing budget of $4.4 million supported by diverse revenue sources.

Over its last fiscal year, the organization provided basic needs support (housing, food, childcare) to 8,400 people, an increase of 40%

from the prior year. Since sheltering in place started in March, NMCS has helped even more people who are struggling. This increased service has been possible because of its strong infrastructure, committed and ex-

cating and providing support.

perienced staff and volunteers, and dedicated contributors and partners.

Learn more about MC3 at www.mc3.org.

NMCS has many excellent programs helping

those in need. As an active member of VOAD (Volunteer Organizations Active in Disaster), THE MARIN LAWYER An Official Publication of the Marin County Bar Association

49

it mobilized quickly to ensure all programs

erational cycles of poverty within families,

continued to operate either virtually or onsite. Since the pandemic began:

particularly through a commitment to offer diverse, inclusive services, and help correct

•

Its emergency rental assistance program has prevented homelessness for 1,331 low -income seniors, adults and children, a 275% increase from last year;

•

Its Tuesday food pantry was converted to a drive-through to continue operating during the pandemic and prevented hunger and food insecurity for 2,022 people (672 households);

•

Its teachers have been providing quality childcare, enrichment and remote learning five days a week to 75 children of essential workers;

•

Its mental health clinicians have supported 1,200 people by providing therapy in-

systems of inequity and injustice. Over half of its staff are bilingual and bicultural and serve clients in a culturally sensitive manner.

NMCS believes that good, hard working people sometimes fall upon difficult times and need a helping hand. CEO Paddack says,

“We’ve seen firsthand how access to health care, food, emergency rental payments, financial assistance, quality education and affordable childcare can change the trajectory of lives for vulnerable people in our community.

Our doors are always open to welcome and provide hope to people in challenging times and in times of celebration.”

Learn more at NMCS' website.

View this article at Marinbar.org

person and through Telemental health (Zoom for Healthcare), a vital service as more and more people struggle with depression, anxiety and suicidal ideation; •

Its Promotores Program has 17 community health advocates working directly with

THANK YOU TO OUR 2020 MCBA PROGRAM SPONSORS

the Latinx and immigrant communities to connect people to all available public and

BRONZE

private resources, including COVID-19 testing, the largest program of its kind in Marin County.

CEO Cheryl Paddack noted that NMCS’ legal service partners are also key to this work, and thanked the Marin County Bar Association members for the important role they play.

Contact Mee Mee Wong at 415-499-1314 or mwong@marinbar.org to become a Sponsor.

One of NMCS’ goals is to help break intergenTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

50

WEBINAR UPDATE FAIR HOUSING Probate Court Update: News from the Court and Important Reminders About Compliance with Rules ROBERT ROSBOROUGH

On Friday, November 13, outgoing Co-Chair

1) Exhibits Must Be Tabbed. Judge Simmons

of MCBA’s probate and estate planning sec-

is receiving many documents where the ex-

tion Tim Barteau welcomed attorneys via

hibits do not have tabs. Tabs are required—an

Zoom to an update from Probate Court Judge Kelly Simmons.

ordinary sheet of paper is not sufficient! It is an enormous pain for her to read submittals

Tim reminded the audience that he and CoChair Valerie Kushel (who will join MCBA’s board of direc-

without tabbed exhibits because she is frequently flipping back and forth and not having tabs makes reading your documents take much

tors in 2021) are retiring as co -chairs after three years of

longer, not to mention tedious. Neither is some-

service. He welcomed Paul

thing you should aim to inflict on your judge.

Gruwell and Laura Gibbons as incoming co-chairs. Many thanks to Valerie and Tim for

2) File on Time. Judge

doing a great job for such an extended term and to Judge

Simmons is also receiving many late filings. It has

Simmons for taking her valuable time to meet with us.

not been an isolated case where she has gotten ex-

Documents Judge Simmons welcomed everyone and thanked them for taking the time to attend this update. She was happy to see familiar faces on Zoom but said that it’s not the same as in-person and she missed seeing us in person.

She then addressed a number of recurring issues she and our Probate Examiner, Trudy Verzosa, are encountering either with the mechanics or substance of documents.

tensive documents at 8:30 a.m. for a 9:00 a.m. hearing. But even for Monday hearings, the prior Thursday or Friday is still not timely.

Please file your documents on time—five court days before the hearing unless otherwise directed by the Court—so that she can read them before a hearing as she does with all documents. Perhaps forcing her to read your documents over her weekend is not the best invitation to a pleasant Monday morning hearing.

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3) Minor Defects. Judge Simmons is changing

neys are asking for “anticipated” fees. If you

her approach to “small” issues in filed documents. She had earlier changed the Court’s

incur more fees between the time of filing and the hearing date, you can file an amendment,

policy to no longer be continuing matters with minor defects until they were corrected.

signed and verified by the Petitioner, for the additional fees. But otherwise, or for any fees

But when she would talk to lawyers in court about the defects, the lawyers were frequent-

beyond the hearing date, she will not grant anticipated fees—you will have to wait until

ly unable to address the issue. Her hearing calendar grew to be out of control (even aside

the next accounting. However, this will not apply at the conclusion of matters where

from the effects of the pandemic).

there will be no further accounting or hearing.

In such cases, you may request anticipated

Judge Simmons’ new policy will be to issue a tentative ruling that specifies any defects and puts the hearing over one month. You can

fees that you will incur after the filing, which you can confirm at the final hearing.

contest the tentative ruling and show how it

5) Tentative rulings. Judge Simmons asks

is wrong if that is indeed the case. Or you can

that you be prepared to discuss the specific

fix any defects. You are welcome to contact

issues she specifies in the tentative ruling. If

the probate examiner after you have read a

she says in the tentative ruling that issues a, b,

tentative ruling for clarification of any issues.

and c need to be addressed at the hearing,

4) Fee Requests. When you are requesting extraordinary fees in a probate matter, please submit a summary of all the work performed, including your work for the statutory fee.

Judge Simmons needs to determine whether the extraordinary compensation is warranted based on the relationship of all the work done

to the total fee, not just the extraordinary portion. If you are requesting only statutory fees, you just need to comply with what the code requires. In response to a question about the desired level of detail, she said not as detailed as an accounting, but you must show why the statutory fees are not sufficient to compensate you for the extraordinary work.

Judge Simmons also noted that many attor-

discuss only a, b, and c. Many attorneys are immediately arguing their entire case, not the specified issues. Furthermore, both sides should be prepared to discuss all of the specified issues, not just ones that appear to be aimed at your side—attorneys have sometimes made incorrect assumptions about the issues and not realized that the request in the tentative ruling was aimed at them. Please answer these pointed questions—and just these pointed questions, and do not discuss your whole case. You can argue the whole case later if you really want. And do not say, “Judge, you don’t understand, we should talk about this other thing instead.” Insulting your judge is rarely a good move.

6) Certified copies. Certified copies are unfortunately taking a long time. If you request

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them when you are in court and you have al-

ty in your proposed order unless you ad-

ready submitted a check, Judge Simmons can handle your request then and there. If you

dressed the validity as one of the issues.

have to go upstairs afterwards to request them or to provide a check, it will currently take about four weeks for your copies.

2) Different Files for Each Case Type. When you need to open a different type of case for an ongoing matter, please open a new file for it. For example, if you are handling a guardi-

7) Ex parte matters. Please do not file an ex

anship and a trust needs to be created, open a

parte petition unless it is truly necessary, i.e.,

separate file for the trust. Each type of case

it is an emergency. Judge Simmons estimates

should be in a different file (trust, estate,

that currently only about 50% of filed ex

guardianship, conservatorship). But please

parte matters are really ex parte. Help keep

also include notice of a related case when you

her calendar from becoming even fuller; if it is

do open a separate file (Judicial Council Form

not an emergency, do not file it ex parte.

CM-015). Judge Simmons will also talk to the

8) Digital signatures. The code is highly specific about what constitutes an acceptable digital signature. You must comply with all of the requirements or your document will be rejected and most people are not complying with them all. Local Rule 8.15 requires compliance with Government Code section 16.5.

Many people, for example, fail to provide the certificate of authority required by 16.5(d).

Electronic signatures or wet signatures are much simpler and not rejected nearly as often.

clerical staff about ensuring compliance with this rule.

Conservatorships 1) New Procedure for Handling Appointments. The Court has traditionally maintained a short list of attorneys willing to represent proposed conservatees. Over the years, that list dwindled down to just a few people. Judge Simmons reached out to the public defenders to take on this responsibility and has been appointing only them. Now they are saying that it is more than they can han-

Judge Simmons then turned to address issues

dle.

that have been arising in one or more specific practice areas.

Judge Simmons is now instituting a new pro-

Trusts and Estates 1) Validity of Trusts. Many proposed orders contain a request to confirm the validity of the subject trust when nothing in the pro-

ceeding relates to the validity of the trust.

Please do not include a confirmation of validi-

cedure and is asking attorneys to volunteer to represent proposed conservatees. Please note the need to comply with CRC 7.1101 for conservatorship panelists. She will then alternate appointments between public defenders and volunteers. Furthermore, any appointed attorney will now represent a (proposed) conservatee only through a decision in that

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particular stage of the matter, rather than for

backlog. Judge Simmons went to the filing

the rest of the existence of the conservatorship, which will ease the burden considera-

room herself and determined that the filing backlog is significant. She met with Court

bly. To volunteer, please let Tim Barteau know (tbarteau@rflawllp.com or

CEO James Kim the day before this update and the problem exists across all depart-

415.453.9433) and he will provide the final list to Judge Simmons. Keep in mind that the

ments. She and other judges have volunteered to learn to do filings themselves and

work may require speaking to the conservatee or court investigators but that may be

the Court is looking into it and is otherwise trying to figure out a solution.

done via telephone or Zoom during the pandemic.

Revising Rules of Court

2) Filing Petitions. If you are filing a petition in a conservatorship, please include a proposed order appointing counsel as part of the filing.

Accountings 1) Excess Documentation. Judge Simmons noted that some attorneys are submitting more documentation with an accounting than required. Please review, for example, Probate Code section 2620 et seq. and CRC 7.575(b) in guardianships and conservatorships. You do not need to submit bank statements for the entire accounting period. You need to

As Judge Simmons has mentioned before, including at the most recent update from the Probate Court, she would like to revise the Local Rules of Court. No one has paid attention to keeping the rules up-to-date for years, and in her opinion, they could use significant modifications. Because of her schedule, she was not ready to take this on during the pandemic until now. She is now setting up three separate committees to work on significantly revising the rules to make them work for us.

She envisions meeting about once a month (via Zoom) to work on them.

One committee will address trusts, one es-

submit only the ending statement or if it is the

tates and one guardianships and conserva-

first accounting, the beginning statement too.

torships. At the suggestion of Robin Christo,

You also do not need to submit care facility statements.

Judge Simmons added a fourth committee to address contested matters generally. She en-

Judge Simmons then turned to some general issues about operation of the Court.

Filing Backlog The Court is experiencing a serious staffing shortage. It currently has only a single probate clerk, who cannot devote full time to the

courages you to volunteer for a committee.

To do so, please let Tim Barteau know and specify which committee you would like to join (or you can specify you would serve on any one of them). Judge Simmons and Trudy

Verzosa will themselves take on the initial revision of the rules regarding filings, etc.

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located at the beginning of the rules.

in the chat about unfairness of certain filing

Questions

fees in probate, where one must pay what feels like a duplicative first appearance fee.

Judge Simmons then answered questions from the audience. Note that the answers to some questions have been incorporated above.

Helen Milowe asked whether attorneys should submit Letters in advance. Yes.

Judge Simmons was unaware of this and will look into it. She noted that the rules committees can resolve it.

Finally, Judge Simmons discussed how because of the workload, the Court has generally been unable to post tentative rulings by

Robert Epstein asked about Judge Simmons’ role as a settlement judge and in particular

noon and it has been as late as 3:00. She does

what impact she thinks it will have on her availability. Judge Simmons said that all man-

She said that she will have a goal of posting

datory settlement conferences will be as-

2:00. But please be understanding during the

signed to her. If she is busy, then a conference will be assigned to a panelist. She will conduct

pandemic.

settlement conferences on Tuesdays, Wednesdays and Fridays. When she is in trial, either another judge or a panelist will conduct the settlement conferences. While she may still do a small amount of criminal work, for the most part this assignment is taking the place of her criminal work and she does not envision that it will impact her availability in probate.

Tim Barteau noted that there was a question

not think posting them piecemeal is practical. them by noon and will try not to be later than

She reiterated her thanks for all of us being here and misses seeing us in court.

MCBA would like to thank Judge Simmons for a very productive update. We hope that all attorneys who practice before the Probate Court will take note of everything they can do to improve the workflow of the Court and help not only the Court but themselves and their clients as everyone continues to adapt to our unusual and changing circumstances.

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View this article at Marinbar.org

55

INDIAN LAW FAIR HOUSING Did the U.S. Lose Half of Oklahoma? Recent Developments in Indian Law THOMAS WEATHERS

Federal Indian law deals primarily with the

other tribe from opening a competing off-

intersection of three separate sovereigns:

reservation casino. The secretary had ap-

Federal, state, and tribal governments. This

proved the second tribe for off-reservation

area of the law is complex and ever-evolving, with courts handing down key cases and Con-

gaming and the governor had concurred. The first tribe sued, claiming the governor lacked

gress passing key legislation this year.

the power under state law to ever concur

State Case Law: Casino Gaming in Marin County?

The California Supreme Court recently addressed off-reservation gaming in a decision involving California government separation of powers issues. Under the federal Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq.), the secretary of the interior may allow casino-style gaming on land the federal government takes into trust for an Indian tribe (even if far away from that tribe’s reservation) if the secretary determines that the gaming would be in the best interest

with an interior secretary’s decision of this kind.

The California Constitution, as amended in 2000, permits casino-style gaming under certain conditions on Indian and tribal lands. It also authorizes the governor to “negotiate and conclude compacts” for certain types of gaming on those lands and the Legislature to ratify those compacts. It does not address the governor’s power to concur in the interior secretary’s decision, nor has the Legislature enacted any law addressing that power.

of the tribe and would not be detrimental to the surrounding community. But the decision cannot take effect unless the governor of the state concurs. The California Supreme Court recently upheld our governor’s implicit power to so concur.

In United Auburn Indian Cmty. of Auburn Rancheria v. Newsom, 10 Cal.5th 538 (2020), one tribe sued to stop anTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

56

In the absence of an express grant or denial of

tary approves and the governor concurs, we

authority in state law, the California Supreme Court found that the governor had inherent

could see a casino in Marin County.

executive authority to concur, finding that it fell within a “zone of twilight” where the governor and the Legislature may have concurrent authority. (Id. at 544, citing Youngstown Co. v. Sawyer (1952) 343 U.S. 579, 637 (conc. opn. of Jackson, J.)). The court went on to also

find that the Legislature has the power to restrict or eliminate the governor's implicit power to concur if it so chooses. The case is notable for its discussion of the source of executive authority, the separation of powers, and a reminder that tribes can game offreservation under certain circumstances.

So, for now, the governor has the authority to

give the concurrence required by federal law to allow casino-style gaming on offreservation lands taken into federal trust for an Indian tribe. In theory, a tribe could request land be taken into trust in Marin County for the tribe to open a casino. If the secre-

Federal Case Law: Oklahoma Is Not Being Split in Two In McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), the U.S. Supreme Court held this summer that much of the land comprising eastern Oklahoma—including the City of Tulsa—remains a reservation for purposes of federal criminal law. In the 1800s, the Creek Nation agreed to relocate to what is now Oklahoma as part of the Trail of Tears in exchange for a new homeland. As a result, Congress reserved through a series of treaties much of eastern Oklahoma for the Creek Nation. According to the high court, once Congress establishes a federal reservation, only Congress can diminish or disestablish it—which Congress never did here.

Even though much of the land in eastern Oklahoma has been purchased and settled by non-Indians—and any reservation status

The 1866 boundaries of the Five Civilized Tribes. Photo credit: McGirt Court Records.

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ignored by Oklahoma—that land still lies

which $8 billion was allocated to tribal gov-

within a federal Indian reservation. Because a federal statute gives the federal government

ernments, far below the true needs in Indian country. Given this shortfall, Congress essen-

exclusive jurisdiction to prosecute certain major crimes committed by Indians in Indian

tially pitted tribe against tribe. One manifestation of this was a lawsuit challenging

country, Oklahoma has no jurisdiction to criminally prosecute Indians in state court for

whether Alaska Native Corporations (entities similar to tribes) qualified as tribal govern-

these crimes in much of eastern Oklahoma.

The federal government must do it. Undoubt-

ments under the CARES Act. (Confederated Tribes of the Chehalis Reservation v. Mnuchin,

edly, Indians convicted in an eastern Oklahoma state court will be challenging their con-

2020 U.S. App. LEXIS 30649, at *2-3 (D.C. Cir. Sep. 25, 2020).)

victions.

Under the Alaska Native Claims Settlement

Some news organizations mistakenly re-

Act of 1971 (43 U.S.C. § 1601 et seq.), the fed-

sponded to the decision by saying that Okla-

eral government departed from the reserva-

homa had been split into two or that half of

tion system used in the lower 48 states, in-

Oklahoma could be returned to Native Amer-

stead establishing 12 private, for-profit re-

icans. That is not true. The decision did not

gional corporations and over 200 private, for-

deal with land ownership, it dealt with juris-

profit village corporations to be owned by

diction. The Supreme Court’s decision simply

Alaska Natives as shareholders. Because

prohibits Oklahoma from prosecuting Indians

these Alaska Native corporations (“ANCs”)

for crimes committed on this reservation

can serve quasi-governmental functions, the

land. Nonetheless, the decision might provide

federal government treats these ANCs the

a basis for giving the Creek Nation tax or reg-

same as or similar to Indian tribes for many

ulatory jurisdiction over the land as well. Oklahoma and the Creek Nation will have to

purposes.

work out the additional jurisdictional issues as separate sovereigns.

More Federal Case Law: The CARES Act Pitted Tribe Against Tribe The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act was a $2 trillion relief package aimed at helping individuals, businesses, and governments survive the

COVID-19 pandemic. The Act established a $150 billion Coronavirus Relief Fund, of

The CARES Act defined a tribal government

as the recognized governing body of an Indian tribe. Several tribes sued, arguing that ANCs did not qualify as Indian tribes. The U.S. Court of Appeals for the District of Columbia agreed. According to the D.C. Circuit, to be eligible to receive funding under the CARES Act, a tribe must be “recognized,” which means eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Federal recognition establishes a government

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58

-to-government relationship between the

ence murder rates that are more than ten

United States and the tribe and makes the tribe a "domestic dependent nation" eligible

times the national average. Native American women are also two times more likely than

for certain federal benefits.

other groups to experience rape or sexual assault and two-and-a-half times more likely

The federal government currently recognizes 574 Indian tribes but none of them is an ANC. According to the D.C. Circuit, the lack of recognition means ANCs are ineligible for re-

than others to experience violent crimes in their lifetimes. (See generally, H.R.Rep. No. 116-508., 2d Sess. (2020).)

lief funding under the CARES Act. Not sur-

The law should help address these problems

prisingly, the ANCs have appealed to the U.S.

by clarifying the responsibilities and increas-

Supreme Court. If the Court does not take the

ing coordination and communication of vari-

case, tribes in the lower 48 states will have

ous law enforcement agencies in cases of

more relief funding, but at the expense of

missing or murdered Native Americans, par-

Alaska Natives.

ticularly critical in light of the complicated in-

Federal Legislation: Savanna’s Act—A Step in the Right Direction Lastly, in a rare bipartisan piece of legislation, Congress passed Savanna’s Act (134 Stat.

760) in September and the President signed it in October. The law directs the U.S. Department of Justice to review, revise, and develop law enforcement and justice protocols appropriate to address missing and murdered Native Americans. The votes in the House and

tersection of federal, state, and tribal governments. The law will also increase the collection of data related to missing or murdered

Native Americans and empower tribal governments with the resources and information necessary to effectively respond to these cases. Natives deserve more and deserve better from the three sovereigns that govern them and this legislation is a step in the right direction.

View this article at Marinbar.org

Senate were unanimous. The law is named for Savanna LaFontaine-Greywind, a member of the Spirit Lake Nation in North Dakota who was murdered in 2017.

The law is designed to help establish better

Thomas Weathers is Aleut and an enrolled member of the Qawalangin Tribe of Unalaska.

He practices Indian law, business law, and related litigation as the principal of The Law Offices of Thomas Eagle Weathers, P.C. and

law enforcement practices to track, solve, and prevent crimes against Native Americans. Ac-

as of counsel to Monty White LLP in San Rafael, CA. He is a

cording to the House Report, violence against

tion and licensed to practice law in California, Washington,

past president of the National Native American Bar Associa-

Native Americans is higher than against other

Alaska, and several tribal courts. He can be reached at

racial and ethnic groups. In some tribal com-

tom@thomasweatherslaw.com. WEBSITE

munities, Native American women experiTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

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THE BROCKBANK POLITICAL REPORT FAIR HOUSING 2020 Election Results and Commentary GREG BROCKBANK Note: The views expressed in this article are opinions of the author and are not intended to reflect those of MCBA nor is this column an endorsement of any candidate.

MARIN’S NONPARTISAN RACES

Marin’s November 3rd election featured more local races than in past years because it was the first time most city councils, school boards, and special districts had been consoli-

but what was unusual was the strength of the

dated into an even-numbered-year election under a recent state law. It also featured first-

challengers in terms of their experience and preparation for this race, along with the fact

time races by district, instead of at large, for

that a surprising number of them raised a significant amount of money, especially com-

San Rafael and Novato city council and school districts, with more districts coming in 2022.

There were a couple hundred or so potential

pared with many of the incumbents, who surprisingly often did not raise much or any mon-

seats up for election in the fifty or so different bodies in the above three categories, but as

ey. Many or most of these challengers were surprisingly young (20-somethings) and pro-

usual, less than half had contested races because in most of them only the same number

gressive (clearly and proudly stated in the many candidates’ forums I watched or

of candidates filed as there were seats available—often just the incumbents running for

worked on). And some of them were also

another term. Throughout Marin, there were seven contested (i.e., with more candidates than seats available) races in six cities for city council (counting the San Rafael Mayor’s race), seven contested school board races, and five contested special district races.

This election showed many exceptions to the usual rule of thumb that incumbents usually win. In a surprising number of races, all incumbents ran for re-election (not unusual),

LGBTQ activists. It’s unusual to see more than the occasional candidate who fits this description in Marin, so it is indeed surprising to have so many such candidates run in a relatively large number of races, and most surprising of all was that so many of them won.

Most of the losing incumbents were older white guys.

SAN RAFAEL MAYOR. People started talking

about Kate Colin running to replace retiring incumbent Gary Phillips nearly two years

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ago, and as a former council member myself

was unopposed in her new San Rafael city

and candidate for Mayor nine years ago (I lost by 11 points to Phillips), I rarely found anyone

council district. Gulati is also an incumbent school board member as well, and the board’s

who didn’t agree that Colin, who was first appointed a couple years after my service and

first-ever Hispanic board president, and will now be the first-ever Hispanic councilmem-

then re-elected unopposed, is a bright light, if not the bright light on the council, as the most

ber, from a district based in the Canal area (which was the purpose of changing to district

active, energetic, and invested in things like community participation, environmental pro-

elections: to give under-represented minorities a better chance to win seats).

tections, and what we can do to prevent and adapt to climate change. So it’s no surprise

SAN ANSELMO TOWN COUNCIL. This was

she did in fact run, as an overwhelming favorite, and although she had a local unknown

bents filed for re-election, which is not unusu-

shop owner run against her at the last minute, she got over 86% of the vote.

another of the races in which all three incumal, but where there were two strong challengers, which is unusual. One of the challengers, Eileen Burke, came in third, winning a seat

SAN RAFAEL CITY COUNCIL, DISTRICT

with two of the three incumbents: Brian Col-

FOUR. This race featured John Gamblin, an

bert and Alexis Fineman. The odd-incumbent

incumbent councilmember appointed about

-out who did not win re-election was John

six years ago, who then ran unopposed for a

Wright, who spent over 20 years on the ele-

full term, but this time was challenged by two

mentary and high school district boards, and

incumbent school board members in this new

then the town council, and even had a dog

Terra-Linda-based district. The incumbent

park named after him behind Red Hill Shop-

wasn’t well-known or very experienced or ac-

ping Center.

tive when he was appointed, and didn’t seem to gain much during his time in office, and didn’t seem to campaign much, at least judging by his failure or unwillingness to raise money, so we shouldn’t be surprised he lost. One school board member challenger—Greg Knell—has been a well-known community activist, is from a political family, and raised about $25,000, but lost to his school board colleague Rachel Kertz, who got nearly 50% more votes than he or Gamblin did. She, along with all other election winners, will be sworn in this month, along with Maika Gulati, who

FAIRFAX TOWN COUNCIL. Like San Anselmo, this race featured all three incumbents

running for re-election, plus two challengers, one of whom was particularly strong and won: Chance Cutrano, one of several young (20-something) progressive activists who ran for seats in Marin, in this case an executive of an environmental nonprofit. He raised the most money in his race, so we shouldn’t be surprised he was in fact the top vote-getter.

The other winners were incumbents Barbara Coler and Bruce Ackerman. The oddincumbent-out who did not win re-election

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was John Reed, a decades-long Fairfax volun-

Democratic party experience, is a marathon

teer who, like John Wright in San Anselmo, has spent several terms on the council but

swimmer, and indefatigable campaigner.

perhaps did not campaign hard enough.

BELVEDERE CITY COUNCIL. Far fewer people care about this council, and the one in

SAUSALITO CITY COUNCIL. This race featured only one of the three incumbents run-

Ross, because the towns are so tiny, and their councilmembers are so rarely active outside

ning for re-election, Joan Cox, and she led at the end of election night by 29 votes for the

their towns. One incumbent ran for reelection and won, Nancy Kemnitzer, and two

third and final seat. But she then saw her lead

of the three new candidates, Steve Block and

evaporate in the subsequent weeks of ballot

James Lynch, also won.

counting, with Ian Sobieski having a lead as high as 10 votes at one point. It finally came

MARIN COMMUNITY COLLEGE (COLLEGE

down to Sobieski winning the third and final seat by one vote over Cox. The first- and sec-

I served on this board for 18 years, before I

ond-place winners were impressive young newcomers who each raised over $30,000 (a startlingly large amount for Sausalito): Janelle Kellman, a planning commissioner and progressive activist, and Melissa Blaustein, running for a second time, who has

OF MARIN) DISTRICT. (Full disclosure again: was elected to the San Rafael City Council.)

This was still another race with all incumbents running for re-election (four in this case, all veterans of more than one term), but with two challengers, one of them quite strong, Paul da Silva, who raised over $50,000, a surprisingly large amount, and

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who was the top vote-getter, followed by

Marin City, and a larger, more diverse charter

three of the incumbents: Stephanie O’Brien, Phil Kranenburg, and Eva Long, leaving in-

school in Sausalito. Earlier this year, the Attorney General’s office announced the con-

cumbent Stuart Tanenberg as the oddincumbent-out who did not win re-election.

clusion of a long, drawn-out investigation and declared the district to be illegally segregated

COUNTY BOARD OF EDUCATION, AREA

and ordered it to integrate immediately. The investigation was the backdrop of the last

FOUR. This board is the poster child for incumbents who stay on for decades, often unchallenged, and when they are, rarely serious-

ly. But in this race, such an incumbent, Robert Goldman, was challenged by heretofore unknown Felicia Agrelius, a 20-something LGBTQ activist and professional educator who raised over $12,000. The incumbent raised little or nothing and apparently didn’t feel the need to campaign much, if at all. Agrelius won with about 60% of the vote.

TAMALPAIS UNION HIGH SCHOOL DISTRICT. This race, again, featured both incumbents running, who both seemed fine and were ultimately re-elected: Leslie Harlander and Karen Loebbaka, but it certainly wasn’t the kind of smooth sailing that you might expect for seemingly fine incumbents. There were three strong, young, impressive chal-

lengers, two of whom raised some money (unlike the incumbents), and there is enough dissatisfaction in the community that a parcel

election two years ago, and now this one, where the proponents of the two schools bat-

tle it out in various forums, including the ballot box. Neither of the two incumbents ran for re-election, but four candidates threw their hats into the ring, including a slate of two supporting the charter school. One of them, Alena Maunder, was the top vote-getter, despite the fact that her slate-mate, who ran two years ago, came in fourth. The other winner was recently emerged progressive superactivist Lisa Bennett, who was the only one who raised any significant money (over $15,000).

NOVATO UNIFIED SCHOOL DISTRICT BOARD, AREA THREE. Here, a young, progressive LGBTQ activist and professional educator, Desmond Fambrini, but who raised no money, lost to super-activist (at least in the school district) Julie Jacobsen, who had raised about $9,000.

tax renewal and increase was soundly defeated in March, although a straight renewal

MILL VALLEY SCHOOL DISTRICT BOARD. One incumbent ran for re-election in this

passed last month.

race, and he lost. Michele Crncich Hodge was the only candidate who raised any money

SAUSALITO MARIN CITY SCHOOL DISTRICT. This has been a contentious district

for decades, and again in recent years, with a basically all-Black public elementary school in

(about $17,000), and was the top-vote-getter, with the second-place-vote-getter (and seatwinner) being super-district-activist Elli Abdoli.

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REED UNION SCHOOL DISTRICT BOARD.

“professional” Monty Schmitt, supported by

Incumbent Liz Webb was the only incumbent running for re-election, and she was the top

mainstream environmentalists, won the seat by beating local high school teacher and San

vote-getter. The other winner was a new candidate, Jacqueline Jaffee, a local volunteer.

Rafael Planning Commissioner Mark Lubamersky. Schmitt raised over $45,000,

MARIN HEALTHCARE DISTRICT. After dec-

and Lubamersky about $20,000, despite the fact that Lubamersky’s campaign consultant

ades of division over progressive control of this board, including corporate control by Sutter, they’ve seemingly been singing

Kumbaya in recent election cycles, with former-opponent incumbents now running alongside each other with each other’s full

was Paul Cohen, Chair of the Marin Democratic Party (my successor), who has an ex-

tremely impressive won-lost record since he became an independent campaign consultant in Marin about a decade or so ago.

support. It looked like this year might be an-

TAMALPAIS COMMUNITY SERVICES DIS-

other one of those, as the two incumbents

TRICT BOARD. Incumbents Steffen J.

(always allies) who were up for re-election

Bartschat, Steven M. Levine, and Mathew

ran together as a slate. But they were chal-

McMahon defeated their lone challenger and

lenged by Edward Alfrey, a prominent sur-

were handily re-elected.

geon (which fits the typical profile of board members), who had run two years ago and lost, but who raised the most money this time.

Both incumbents, especially one, were quite weak as campaigners. Not surprisingly, Alfrey came in first by a considerable margin, followed by the not-quite-as-weak incumbent Ann Sparkman for the second and final seat.

MUIR BEACH COMMUNITY SERVICES DISTRICT BOARD. New candidates David H. Taylor and Paul Jeschke beat another new candidate in this district of several hundred voters. What I like about this district as an example of pure democracy was that, several years ago, they held a public forum for some parcel tax or local measure, and over half the

MARIN MUNICIPAL WATER DISTRICT

district's voters showed up.

BOARD, DIVISION FIVE. This board has also seen pitched battles in recent decades, but

STATE BALLOT PROPOSITIONS

not recent years, and the two races this year seemed relatively civil. In division five, longtime incumbent Larry Russell got over twice as many votes as challenger Chris Hobbs.

MARIN MUNICIPAL WATER DISTRICT

BOARD, DIVISION TWO. A board member stepped down, and for this open seat, water

PROPOSITION 14: STEM CELL RESEARCH FUNDING. Even though this seems like an unusual way to fund scientific research, I guess just enough people like at least the idea of stem cell research enough to barely grant it a second round of funding, passing this measure with 51% of the vote.

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PROPOSITION 15: REASSESSMENT OF

current “national reckoning” over racial rela-

COMMERCIAL PROPERTY TO FUND SCHOOL AND GOVERNMENT SERVICES.

tions would help it pass, but it got just under 43% of the vote and failed.

Proposition 13 in the 1970s limited increases in assessed value for property tax to 2% per

PROPOSITION 17: RESTORES RIGHT TO

year until the properties were sold, at which time they would be reassessed to market val-

ally leads in prison reforms and electoral re-

ue. Residential properties do eventually turn over, but commercial properties markedly

less often, in large part through corporate ownership where each transfer involves less than 50% of the ownership, thereby avoiding an official change of ownership for assessment purposes. To correct that unfair advantage of almost eternally and unfairly low property taxes on too many commercial properties, this measure, talked about for years as a much-needed revenue source for schools and local governments, and as leveling the playing field with residential property owners, lost narrowly with 48% of the vote, perhaps because too many voters were scared

VOTE AFTER PRISON TERM. California usuforms, but somehow this one remained undone, until now. It passed with 58.6% of the vote.

PROPOSITION 18: VOTING RIGHTS IN PRIMARY ELECTIONS FOR 17-YEAR-OLDS. Our voter registration and voter turnout levels are fairly low among civilized countries, contrary to the jingoistic impressions we may get in grade school about our wonderful democracy. This measure would have gotten 17year-olds more interested in voting (too few are) in November general elections if they were going to be 18 then by allowing them to vote in the primary election even if they weren’t quite yet 18. It got only 44% of the

that soon their residential property taxes

vote and failed.

might go up, as falsely advertised by commer-

PROPOSITION 19: CHANGES PROPERTY

cial property owners, or because commercial tenants feared that their rents would go up.

TAX EXCLUSIONS. Currently, seniors can transfer their low property tax basis when

PROPOSITION 16: AFFIRMATIVE ACTION

buying a new house only once in a lifetime,

IN GOVERNMENT DECISIONS. You’ll recall that affirmative action used to be legal in California and was indeed practiced by various government agencies in hiring and contracting, as well as in admissions to UC, until a state ballot measure in the 1990s banned the use of it and enshrined that ban in the state Constitution. This measure was an attempt to overturn that ban, with some hoping that our

only within the same county except for a small minority of counties, and only when purchasing a lower-priced home. This measure got just over 51% and will allow three lifetime transfers to any county in the state and to a home of any value (although increasing the transferred basis by any increased value of the new home over the sold home), having been pushed entirely by realtors who can

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now make more sales. After a recent, similar

set records for spending by Uber, Lyft, Door-

failed measure, proponents bet that there were enough additional senior voters to pass

Dash, and similar companies to exempt themselves from the landmark AB 5 passed last

this year’s measure, and there were. But it nearly eliminated the ability of children to in-

year, which requires many heretofore independent contractors like those in the compa-

herit their parents’ property tax basis, which is now restricted only to a primary residence,

nies mentioned above to be employees, with increased rights and costs. Over $200 million

limited to one million dollars in value, and requires the child to make it his or her primary

bought these companies their exemption by getting 58.6% of the vote, but I fear the prec-

residence within one year. By lowering the hit on tax revenue and creating a firefighting

edent that sets for rich companies who want to go to the ballot to abrogate employee

fund, the realtors were successful this time, although at the cost of close to $50 million,

rights. I also just heard that the new administration may try to do something early next

with essentially no money spent in opposition.

year on the federal level regarding employee status and rights for ride-hailing app compa-

PROPOSITION 20: PAROLE RESTRICTIONS

nies. It will be difficult for California to do anything because of a little-noticed provision in

FOR CERTAIN OFFENSES. There was a time

when Californians would pass sentence enhancements regularly, but those days have

the proposition that requires a 7/8 vote of the Legislature to change the law.

been gone a while, and this anachronistic at-

PROPOSITION 23: STATE REQUIREMENTS

tempt garnered only 38% of the vote.

FOR DIALYSIS CLINICS. This is another

PROPOSITION 21: GOVERNMENTS’ AUTHORITY TO ENACT RENT CONTROL. This incredibly complex measure, very similar to one which failed two years ago, got only just

over 40% of the vote this time and failed again. A statewide law from the 1990s restricted localities’ ability to enact rent control going forward. Despite the Legislature’s recent passage of a limited statewide rent control law, relentlessly rising rents in many locations (until the pandemic at least) led proponents to try again—and fail again.

PROPOSITION 22: APP-BASED DRIVERS AND EMPLOYEE BENEFITS. This proposition

measure that failed two years ago and again last month, getting only 36.6% of the vote. It’s a “typical” story (which some people say should never be on the ballot) of a relatively recent industry (two companies, mainly) who figured out how to make a lot of money, and whose employees objected to the lack of safety they felt they, and the patients, were being forced to endure, relative to the profits (which would have been capped in this measure in a complicated formula, possibly saving patients and insurance companies money). In my opinion, it’s a shame the public didn’t seem to understand what this would have done, in the face of the rich companies’

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massive advertising to keep the status quo

dustry, for whom this new idea is an existen-

and all their profits, framing it as a threat to dialysis itself and the lives of dialysis patients.

tial threat, got this referendum on the ballot and funded it, getting it a 56% “no” vote and

PROPOSITION 24: AMENDS CONSUMER

killing last year’s bill.

PRIVACY LAWS. This measure was confusing, and some good-government and privacy groups said it will make things worse, but it got 56.2% and passed, perhaps because it sounds good, and most people want more pri-

vacy in a world where it seems to be diminishing. More education and time are needed to assess its effects, and the possible need for a follow-up measure.

PROPOSITION 25: MONEY BAIL. In the United States, cash bail for defendants charged with a crime has been around since before the Constitution. Supposedly proportional to the defendant’s income or net worth, it was designed to make all defendants equally loathe to flee when the financial pain should theoretically be equal for them, regardless of their wealth. But too often very poor people (a huge percentage of the cases) can afford no bail at all, causing them to be jailed until trial, snowballing their and their

families’ problems because the jailed person can’t work and earn money they need for their everyday lives. New criminal justice reforms (including by progressive district attorneys who oppose cash bail, and who are still rare, but increasing in number) are moving away from cash bail, and in fact the Legislature last year banned its use, in favor of a different approach that would evaluate defendants’ flight risk regardless of their net worth.

In opposition to that law, the bail bonds in-

CONTROL OF CONGRESS DEMOCRATS SUFFER SURPRISING LOSSES IN THE HOUSE Everyone, including me, predicted that Democrats would gain another dozen or two seats in the House this year, to add to the 41 they added in 2018 to take the majority, and would keep all seven of the newly added Democratic seats in California, but we were all wrong. It wasn’t the polling, at least not directly, since House races aren’t polled very often, if at all, so there wasn’t much to go on in the polls except the “generic” polls asking whether voters preferred a generic Democrat or a generic Republican; enthusiasm for the generic Democrat has been consistently high all year (in fact, since the 2018 election, and even since Trump’s election in 2016).

Perhaps Democrats at all levels got complacent, thinking their blue wave of 2018 would continue through this year, just as the blue wave of 2008 followed the blue wave of 2006

(when Democrats took the House and made Pelosi the Speaker the first time). Several

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races had not been called as of December 1,

essential to victory. If the Dems don’t win

including one in California where the candidates are separated by 400 votes out of near-

both Georgia Senate seats on January 5th, then the Republican Senate Majority will be

ly 350,000 counted, which is a wide margin compared to a race in Iowa with 40 votes sep-

able to block nearly all of Biden’s and the Dems’ proposed ideas, making this a do-

arating the candidates, and Democrats’ margin in the House could be as small as four

nothing session that will further frustrate voters. Such frustration could possibly lead to

seats past the halfway mark, although it may be slightly larger. Why at least a dozen Demo-

more Republican gains in the House in ‘22, since the Dems are still in the majority in the

crats, mostly new ones, lost this year, in a presidential election year (when turnout is

House (albeit a smaller majority), and will have had the White House as well for two

supposed to be more favorable to the party not in the White House), is being hotly debat-

years. But if the Dems do take control of the Senate, and produce significant and meaning-

ed. Progressives and moderates are pointing fingers at each other. Some say strategy from

ful legislation (easier said than done) which impresses enough people, perhaps the Demo-

the DNC was not tailored to specific races and quite interestingly, some say the DNC’s

crats can gain back the seats in the House they lost this year, and more.

blanket prohibition on in-person, on-theground campaigning because of the pandemic was unnecessarily restrictive and was certainly a disadvantage compared to the amount Republicans were doing.

I took particular note of first-term Democrat Elyssa Slotkin, who just missed losing her seat, who at a Democratic Caucus meeting immediately after the election called out what she said was poor Democratic strategy and execution, predicting an even worse slaughter in ’22 unless things change. She cited “radical” proposals like the Green New Deal, Medicare for All, etc., as dooming too many Democratic members, and she thinks will doom many more unless the Dems change their message. Will they? Certainly many of the Democratic losses were in swing districts where winning over independents is

THE SENATE HANGS IN THE BALANCE UNTIL AT LEAST JANUARY 5 The Senate results were the big disappointment for the Dems. Their chances of capturing majority control of the Senate went from “slim” a year or two ago, based just on the number of incumbent Republicans that the Dems needed to beat whose seats were up, to

“quite good” in this election, based on polling showing slight Democratic leads, regular or occasional, in four or five states that ultimately narrowly re-elected their Republican incumbents, including, as discussed below, Maine, North Carolina, Iowa, and Montana.

Some of us optimists were looking at even longer shots where the Democrat was only a few points down in some polls, like South Carolina, Alaska, and Kansas.

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Democrats did beat Republican incumbents

advertised four percent, and we may or may

in Arizona (Mark Kelly beat Martha McSally) and Colorado (John Hickenlooper beat Cory

not ever fully understand why. At this point, many theories are being debated.

Gardner), as expected, but they lost, also as expected, Doug Jones’ seat in Alabama. That

NORTH CAROLINA. Cal Cunningham, the

net gain of one seat brought their number from the current 47 to the projected 48, with

charismatic to take a pretty good lead over

the two Georgia runoff races to be decided by the special election on January 5th. If the

Dems take them both, there will be a 50/50 tie in the Senate, thus creating lots of work for Vice President-elect Kamala Harris, whose office rarely has to break ties, but may well in the next two years at least.

MAINE. Longtime Republican incumbent Susan Collins often poses as a rare (perhaps only?) moderate Republican Senator, but mod-

erate voters in Maine had seemingly given up on her and were particularly incensed by her vote to confirm Brett Kavanaugh to the Supreme Court. Four million dollars was raised last year for whomever the Democratic nominee turned out to be in the hope of defeating her. It turned out not to be needed because the Democratic candidate, Sara Gideon, raised $34 million by herself, an astounding sum for a state like Maine with inexpensive media markets. Collins trailed moderately or badly in nearly all the polls, nearly all year, and yet she won by ten points. The result was especially surprising since Trump lost Maine badly, as expected, making Collins the only incumbent Republican Senator to survive in a state Trump lost (not counting the yet-to-bedecided Georgia Senate races). Clearly the polls were way off, well beyond their usually

Democratic candidate, must have been quite his Republican incumbent opponent, Thom Tillis, relatively quickly this summer and fall.

But his racy texts to a paramour from the

campaign were discovered, leading to his admission of an affair. Even then, he held onto a narrow, but meaningful, lead. In the end, he lost, like the others on this list.

IOWA. Republican incumbent Joni Ernst was first elected six years ago on the strength of her claim to have significant experience castrating hogs, but she couldn’t use that line again, which didn’t leave her with much of anything. As happened in Maine, a top state legislator, Theresa Greenfield, ran against her and suddenly led in the polls, albeit narrowly.

But Greenfield lost, albeit narrowly.

MONTANA. Republican incumbent Steve Daines was elected to the Senate after serving in the state’s only House seat, but he was challenged by current-but-termed-out Governor Steve Bullock, who is still popular, and a major method of his campaigning seemed to be getting on the news all the time talking about what his state is doing about COVID19, which all governors are doing. The polls showed a close race, but sometimes Bullock had a slight lead. Even though Montana is a

pretty red state in presidential elections, they usually have Democratic governors (like

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Bullock), and their other Senator, Jon Tester,

Democrat’s opinion, by virtue of his superior

is also a Democrat. But Bullock lost, like the others.

ideas and strengths and experience as a candidate (since he was lacking all those things),

THE PRESIDENTIAL RACE

but through sheer audacity and brashness, perhaps, as the well-known host playing him-

It is virtually always true that presidential races are of far more interest to most of the public than everything else, and there’s almost never a snoozer.

That’s been particularly true in recent decades as we’ve gotten more polarized than ever, and people must be getting tired of being told every four years that this one is the most important election of their lives.

Still, we’ve never seen a president like this one, or an election like this one. From the day he descended the Trump Tower escalator five and half years ago to announce his candidacy, Donald Trump riveted the public’s attention and never let go. And although few took him seriously at first, despite his celebrity and wealth, he was just shocking enough to grab just enough people’s attention to give him a quick lead in an extremely crowded field, which stayed so crowded that none of the others could ever get close to Trump’s increasing lead.

But few thought he’d ever win over a majority of the American people, even many of his supporters. And he didn’t, but unlike every other president, he didn’t even try. But perhaps surprisingly, he did win over virtually all the Republicans (The Lincoln Project and other prominent Republican never-Trumpers notwithstanding), not so much, in this

self as the domineering billionaire boss.

He catered only to his base, which consisted then and now of about 40% of the voters, give or take (but remarkably stable given his huge

number of scandals and gaffes, which his base either didn’t believe or care about), with the rest of the Republicans going along (some reluctantly, some enthusiastically), and surprisingly even a few independents.

That put him over the top of the electoral college four years ago, but that was with a Democratic opponent whom many people viscerally disliked (deserved or not), who ran a campaign that was considered not all that great (going for Arizona and Georgia was apparently premature, and neglecting the three upper Midwest states was fatal). And we Democrats who believed the polls (which were flawed then, as they were again this year with the same candidate) watched in horror as one

state after another we’d hoped and expected to go to Clinton went to Trump instead, starting with Florida and North Carolina, and then the upper Midwest.

This year it looked like déjà vu all over again in Florida and North Carolina, which Joe Biden once again narrowly lost despite what we’d thought and hoped was a narrow lead in

the polls (Biden underperformed the polls by one-half percent on average, and Trump

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over-performed them by five percent on av-

lantly throughout the debate (which was not

erage), and with even greater horror at the huge Trump leads in the three upper Midwest

a good look for him or anyone), not to mention being hospitalized briefly by a case of

states early on election evening, unless we knew about the expected “red mirage.” A red

COVID-19. I think he was aware of his slightly dropping polls and desperately threw one

mirage of Trump leading substantially on election day was forecast based on Trump

Hail Mary pass (explosive and reckless and false charges, for example) after another, and

leading among election-day votes, which are counted first in many states, because he

perhaps just enough voters sensed that desperation and basic dishonesty to decide to

urged his supporters to vote in person on election day. Biden would supposedly catch

vote against him after all, and flip the five states in the prior paragraph that Clinton had

up in subsequent days as the vote-by-mail ballots, which were counted later in many

lost.

states, were tabulated and of course fell heavily for Biden, because he told his supporters that it was safer to vote early by mail.

Volumes will be written (some already have been, and more are being written as we speak) about this sui generis president, who nonetheless has set a precedent which makes

That scenario more or less played out, alt-

it more likely for other anti-democratic presi-

hough it took until the Saturday after election

dents to be elected in the future. Much was

day for enough close swing states to be called

written about the supposed “shy Trump vot-

to put Biden over the 270 electoral-vote

er,” a theory modeled after the Bradley effect,

threshold needed to win. Pennsylvania, which

in which voters may well have been embar-

does not start counting mail-in ballots until

rassed to even tell a pollster they were voting

election day, confirmed it, ironically giving

against Tom Bradley (the LA mayor running

Biden the exact same number—306—of electoral votes that Trump won with four years

for governor of California some decades ago), but it went much deeper than that with

earlier, having won back the three upper Mid-

Trump. His constant criticism of the media as

west states, as well as Arizona and Georgia

“fake news” generally made a surprisingly

(the first time in decades either had voted Democratic in a presidential race).

large number of his supporters refuse to even talk to pollsters, which is why Trump over-

When Trump took office, many of us thought

performed the polls by an average of 5% (varying widely by state), while Biden under-

his already-low approval ratings would fall far and fast, but we were wrong. They did fall, perhaps, a little, and only at the very end as Trump approached the election with an everincreasing number of scandals and gaffes, including a debate in which he exploded petu-

performed the polls by only one tenth of that.

Almost everyone missed these “non-talking” Trump supporters and one mysterious Republican pollster who didn’t miss them thought there were more than there were,

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foiling his prediction of a wide Trump victory.

The reason I don’t believe those things is that

No one disputes that a huge part of Trump’s

I think Trump will be imprisoned in a New York state prison in a year or two, given the

base was white men with no college education, who are understandably quite sensitive about their stereotyped negative portrayals in the media. They stayed loyal to Trump, although they are a shrinking demographic.

Where Trump lost a few key percentage points was among women, particularly subur-

ban and/or college-educated women, some of whom voted for Trump four years ago primarily because they were white, but then turned on him because of his continuing outrageous comments and behavior, not to mention his undisguised misogyny.

Speaking personally and not just as a leftleaning Democratic political pundit, I’ve been

time it will take the politically ambitious Manhattan D.A., Cyrus Vance, who has designs on the governor’s mansion, to bring charges (even if Biden or Trump himself gives Trump a valid federal pardon). I believe a jury will believe the Michael Cohens and numerous oth-

ers testifying at the trial(s) against Trump, even if some or most of those witnesses have lied in the past, because there will be documentation of tax fraud and other crimes to back up those witnesses. When he’s found guilty, and it is clear he will be sentenced and imprisoned, maybe then we can consider our long national Trump nightmare to be over.

View this article at Marinbar.org

waiting for weeks and months (four years, actually) to say that we are seeing the beginning of the end of our long national nightmare, as Trump exits stage right. I never believed so many of my friends who thought Trump would win, or that if he lost, he would incite his supporters to riot and/or insurrection, and refuse to leave power and the White House,

and on and on. As much as Trump may have tried to go down that path, he hasn’t made it very far. Nor do I take seriously those who say, including Trump himself, that he may well run again four years from now (he’d be 78—

Greg Brockbank is a 30-plus-year attorney and civic and political activist, having served for 18 years on the College of Marin Board of Trustees and then 4 years on the San Rafael City Council. He is the senior member and immediate past chair of the Marin Democratic Party governing board and has attended 30 state Democratic conventions. For over 20 years, he has provided numerous groups with detailed lists of the contact info for all candidates for Marin’s local offices, and appears as a commentator and election-night co-host on public access television.

EMAIL | WEBSITE

Biden’s age now, but I think his health is much worse than Biden’s), or have a family member or at least another Trumpy candidate run, allowing Trump himself to continue to pull strings and have a huge influence in the national dialogue for at least another four years.

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OFFICERSFAIR & BOARD OF DIRECTORS HOUSING Meet the 2021 MCBA Officers & Board of Directors THE MARIN LAWYER

The Marin County Bar Association is pleased to announce our 2021 Officers and Board of Directors. Thank you to Past President Charles Dresow, 5-Year Past President Matthew White, and Directors Marie Barnes, Gregory Brockbank, Andres Perez and Nestor Schnasse, whose terms will expire at the end of 2020, for their invaluable support and stewardship.

Any Attorney Member may be nominated for any office to be filled, if such Member possesses the qualifications required in the MCBA Bylaws. Nomination in writing must be signed by at least ten Attorney Members of the Association and presented to the Secretary by the deadline of October 26, 2021.

Executive Board Officers

PRESIDENT J. Timothy Nardell Nardell Chitsaz & Associates www.ncalegal.com

PRESIDENT ELECT Robert Rosborough Monty White LLP www.montywhitelaw.com

TREASURER Ahtossa P. Fullerton Wasacz, Hilley & Fullerton LLP

SECRETARY Scott Buell Buell Law & Mediation www.buellmediation.com

PAST PRESIDENT Susan Feder Susan Feder Mediation www.susanfedermediation.com

5-YEAR PAST PRESIDENT Joel Gumbiner Williams & Gumbiner LLP www.williamsgumbiner.com

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Board of Directors

2023 DIRECTOR Chelsea Heaney Vance & Wills, P.C. www.vwfamilylaw.com

2023 DIRECTOR Valerie Kushel VGK Law www.vgklaw.com

2023 DIRECTOR Thomas McCallister Marin County District Attorney Office www.marincountyda.org

2023 DIRECTOR Thomas McInerney Ogletree Deakins www.ogletree.com

2023 DIRECTOR Mary Sackett Office of Supervisor Damon Connolly www.marincounty.org

2022 DIRECTOR Emily Charley Hanson Bridgett LLP www.hansonbridgett.com

2022 DIRECTOR Kristine Cirby Cirby Family Law www.cirbyfamilylaw.com

2022 DIRECTOR Christopher Locke Farella Braun + Martel LLP www.fbm.com

2022 DIRECTOR Ann Munene Jones Clifford LLP www.jonesclifford.com

2022 DIRECTOR Karthik Raju Marin County Public Defender Office www.marincounty.org

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Board of Directors

2021 DIRECTOR Habib Bentaleb Ragghianti Freitas LLP www.rflawllp.com

2021 DIRECTOR Michael Chaput Law Offices of J. Michael Chaput www.chaputlaw.com

2021 DIRECTOR Sarah Léger Ragghianti Freitas LLP www.rflawllp.com

2021 DIRECTOR G. Kelley Reid Borton Petrini, LLP www.bortonpetrini.com

Visit MCBA or email volunteer@marinbar.org to learn more and to get involved.

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COURTROOM DESIGN FAIR HOUSING A Design of Justice — The Courtroom of the Future ELAINE QUINN

New Amsterdam juvenile courtroom design

Between September and December 2018, students of the Amsterdam Law School (UvA) and Architectural Design students of the Rietveld Academy engaged in a collaborative project that involved challenging the current structures of the criminal courtroom and developing design concepts for the ideal space for justice. Thirteen innovative, inspired and thought-provoking designs were created. After a presentation to members of the courthouse in Amsterdam, including senior judges, it was agreed that two new juvenile justice courtrooms should be created, inspired by the students’ designs. The new courtrooms are due to open in early 2021, and represent a great step forward for a more human approach to criminal law. Similar projects are

now underway in other Dutch cities.

On 22 July 2020, Elaine Quinn spoke with one of the founders of the project, lawyer Wikke Monster, of Freeke & Monster criminal law practice in Amsterdam. Below is Elaine’s edited account of Wikke’s words

alongside inspirational imagery and words from the students’ designs.

It was a unique, immersive learning experience and we think there were some remarkable results. For the students, it was an extremely meaningful learning experience and this is reflected in the designs. You can sense not only the care and thoughtfulness that went into the process, but also the vision and possibility.

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“What the courthouse needs is

pects, it is a one-off meeting with

someone who is not there to judge, but someone who hears you, who

the judge who can make a lifechanging decision. My ritual would

sees you… who supports and wants to help you.”

contain an introduction, poetry and a mindful breathing exercise.”

— Annan Yap, Design Student

— Milou Francisca, Law Student

I used to practice criminal defence law in a

Alongside our criminal practice and day-to-

very conventional way - always battling, al-

day work, we have a foundation called Law-

ways “making noise,” always working hard to

yers as Changemakers which is involved in

defend my clients and prevent the prosecutor

various projects about transformation of the

from winning the case.

legal system into a more human, smarter and

In 2014, I founded a different type of criminal law practice with my colleague Klaartje Freeke. We transformed our way of practising law. Our focus turned to searching for the balance in a criminal proceeding. We deal with all types of criminal cases - from murder, drug trafficking, violent assault, fraud and embezzlement to more minor offences. Nowadays, the common thread is: “Are you willing to take responsibility?” I am not talking about admitting guilt here, that is a different question. I am talking about a holistic approach in which our clients work on accepting that the conflict in their lives may be trying to teach

them what they most need to learn. This applies for all parties in a criminal proceeding, so also victims. We talk with our clients about the possibilities of reconciliation and forgiveness. For us, this is a much more fulfilling and soulful way to work, much closer to the true meaning of justice, and much closer to why we became lawyers in the first place.

“The court-sessions are daily business for the judges. For most sus-

sustainable system. The idea for ‘A Design for Justice: The Courtroom of the Future’ came one day after I had been working at court. I was cycling back home and reflecting on the court session that day. I was trying to imagine how a suspect must feel in the environment of

the courtroom having all the lawyers looming around, the judge sitting up front, the prosecutor standing to one side, and the victim possibly sitting behind. The society – and in particular judges, prosecutors and victims – so much want the suspect to be honest and take responsibility. But how can we expect this to happen in this context? Can he or she possibly feel comfortable enough to be vulnerable and to take responsibility for the offence? I found myself imagining and envisioning a different type of courtroom, a different type of environment, one which would evoke feelings of safety and trust, one which might actually encourage a suspect to take responsibility more readily.

A renovation project was about to begin on the courthouse in Amsterdam and so, with my colleagues, we took the chance of

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approaching the court about the possibility of

a suspect and a victim. The sessions took

engaging in a design project to rethink one of the courtrooms. They were immediately en-

place in the courthouse, and tours of the courthouse and the police cells were organ-

thusiastic. At this point we had no idea that the designs would eventually be taken up and

ised. It was a unique, immersive learning experience and we think there were some re-

would become a reality. That has been an incredible outcome. In the beginning, we were

markable results. For the students, it was an extremely meaningful learning experience

simply allowing ourselves to envision something better.

and this is reflected in the designs. You can sense not only the care and thoughtfulness

“By applying the organic and calming aspects of … nature, I’m creat-

that went into the process, but also the vision and possibility.

ing an equal and soothing environ-

“…I created a calming courtyard

ment. A space that [can] engender

with the intention to get people’s

an intimate conversation and [that

minds out of [an] often stressful

can enable] personal adaptation

courthouse and [to] bring them

for [the] body.”

back to earth.”

— Lisa Andren, Design Student

— Annan Yap, Design Student

We planned the course as a collaboration between law and design students. From the be-

Apart from the design of the courtroom space itself, students looked at other important ele-

ginning, we were certain that, for this type of new courtroom, we needed artists. I believe

ments like the chairs, the costumes, and the various rituals and processes. One student

that we need artists to help transform the legal system. We told the students: “The sky is

illuminated our understanding about how our feeling of confidence, power and authority

the limit. Do not to be held back by practical considerations.” Of course, as founders of the

can change depending on whether we are sitting on a large, expensive chair or a small,

project, we were interested in what would re-

cheaper chair. Of course, in most courtrooms,

ally work but for the creative process itself, we did not want there to be any limitations.

the suspects sit on small, often uncomfortable, chairs while the judges (and maybe law-

“Nature and the womb were sources of inspiration.”

— Chaja Laurey, Law Student During the course, which took place over 3 months from September to December 2018, the students had interactive learning sessions about the court system from judges, lawyers,

yers) sit on large, comfortable, expensive chairs. Can we reflect on this and how it may be impacting behaviour in court?

“The chair you are sitting on affects not only your body posture, it also

affects your behaviour.”

— Birte Geraerts, Law Student

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Designing a Reconciliation Module, Eloi Gimeno

New Amsterdam juvenile courtroom design / round table

Organic and Calming, Lisa AndrĂŠn The field of contact, Roos Brantjes

Imagining the courtroom as a sports field, Alma van de Burgwal

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Legal dress in the Netherlands is unimagina-

vate walk and talk.

tive, all of the gowns are black with a white collar regardless of the legal party’s position

“Based on sawas and waterfalls, I

in the proceeding. One student worked on reimagining their look, design and colour – a

ment for the trial participants. …

really exciting prospect. Her focus was on emphasising the independence of the prosecution to support the feeling of a fairer procedure. There were thought-provoking ques-

tions around the positive and negative emotions that different colours can have, and the legitimacy of considering all of those emotions. For example, rather than ignore it, can we acknowledge fear and think about its function in the proceeding?

“Just outside of the courtroom is a corridor. Leaving the courtroom

without actually leaving the process is possible to stimulate conversation, thought-process and a feeling of safety.”

— Esther Ruiter, Law Student Another enlightened idea was the importance of movement, and an exploration of the courtroom as a sports field. Usually, in court,

we are fairly static – we sit, we stand, we read, we talk. But if we consider the fact that there is almost always conflict and therefore tension present, we can see how important movement is. This student included adjusta-

came up with a layered arrangeDifferences in height are not dictated by position or role, but by choice of the participants.”

— Chaja Laurey, Student An unexpected result of this project is the way it has been embraced by members of the courthouse here in Amsterdam. The timing was perfect because the renovation was underway and there was an openness to trying something new. The design aspect that has been taken up, and now upgraded into a professional architectural design, is the circular table.

In early 2021, two new juvenile courtrooms will open with these new designs. It feels like a wonderful success that this is moving ahead particularly with everything that is happening in the world right now. Although not all of the students’ ideas have been adopted (many because of practicalities), we want to continue to explore them. We also plan on monitoring the effectiveness of the new courtrooms when they open to see what impact the new space will have on parties and the decisions.

It feels important for us to keep moving, to

ble spaces so that parties could move closer together, or further away, during the process;

keep progressing, and to keep asking questions. We are delighted that the project has

a central high table where conversations could take place; and a corridor or garden

three other Dutch cities – Amelo, Arnhem

around the courtroom where he envisioned the judge and the suspect could have a pri-

also been taken up now, and will continue, in and the Hague – with further collaborations between the law and art students in those

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cities.

We are delighted that the seed of the original vision of a courtroom of the future has been planted, and that the sprouts of something

UPCOMING EVENTS

truly different and hope-giving are beginning

TUE | DEC 15 | 12:00-1:15P

to appear.

FAMILY LAW SECTION Update on DCSS INFO & REGISTRATION > THU | JAN 7 | 12:00-1:30P

MENTOR MEETING Probate and Estate Planning INFO & REGISTRATION > NEW DATE: FRI | JUN 04, 2021| 6:00-9:00P MCBA Lifetime Achievement Dinner Honoring Gary T. Ragghianti *subject to change MCBA IS AN APPROVED PROVIDER AND CERTIFIES THAT THESE ACTIVITIES HAVE BEEN APPROVED FOR MINIMUM CONTINUING EDUCATION CREDIT BY THE STATE BAR OF CALIFORNIA IN THE AMOUNT OF 1 HOUR (PER CLASS).

Biography Wikke Monster (right in photo) has been a

Please join us (free of charge) at

MTLA's Annual (Virtual) Judges' Dinner

lawyer since 1999, and a mediator since 2013. Her work focuses on adults and chil-

December 10, 2020 6:15 p.m.- 7:30'ish p.m.

dren who have ended up in criminal cases, as suspects or victims. Wikke lets them tell their story so that they are listened to. She is committed to her clients and has a very personal approach. Together with her colleague, Klaartje Freeke (left in photo), she set up a different type of criminal law practice in Amsterdam – FREEKE & MONSTER – with a more humane and sustainable approach.

View this article at Marinbar.org This article was reprinted with the kind permission of The Conscious Lawyer. You can also read this article on its website. And you can hear Wikke Monster speak about reimagining the courtroom on January 13, 2021 via Zoom (scroll down in the link).

as we honor

Judge Andrew Sweet as 2020 Judge of the Year for his extraordinary leadership during the Pandemic and we present our

2020 President’s Award to Canal Alliance for its stellar efforts in supporting Marin’s Latino Community Festivities include: A Silent Auction, a Live Auction with exciting get-away adventures.

Video reports from members of the Bench and Bar on 2020’s Challenges.

Share the Holiday Season, light some candles, and chat with your colleagues.

CLICK HERE TO REGISTER There is no charge to attend, but we hope you will bid on the varied auction items. Funds raised will (1) support the MTLA, (2) fund its Annual Fellowship which assists in funding summer law clerks for Legal Aid of Marin, and (3) assist Canal Alliance in its provision of legal services to the community.

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THANK YOU TO OUR 2020 MCBA PROGRAM SPONSORS

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UPCOMING EVENTS NEW MEMBERS Christopher Clark cjclark7@dons.usfca.edu 209 371 7662 Affiliate Student Tahirah Dean Legal Aid of Marin tdean@legalaidmarin.org 857 225 4656 Non-Profit Laura Gibble LFGF Law gibble@lfgflaw.com 408 483 8829 Attorney Membership Paige Gordon pgordon@ucdavis.edu 209 639 6866 Affiliate Student

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Thank you to our 2020

LEADERSHIP CIRCLE MEMBERS CHARLES D. DRESOW, ESQ. EPSTEIN + HOLTZAPPLE LLP MONTY WHITE LLP

RICHARD WATSON & GERSHON ROUDA FEDER TIETJEN & MCGUINN SARAH WRIGHT, THE WRIGHT LAW OFFICE SUSAN FEDER MEDIATION

The Leadership Circle is an elite group committed to and acknowledged for the vitality of our Bar Association. Leadership Circle contributions permit MCBA to better address and expand community programs such as Teens in the Law and Marin County’s Mock Trial Program, among others.

Leadership Circle contributions also provide much needed capital to underwrite our MCLE initiatives and keep current with technology advances. Leadership Circle members receive expanded visibility throughout the year at Membership Meetings, monthly email newsletter, and at special events.

Contact MCBA to join the Annual Leadership Circle.

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MISSION STATEMENT To involve, encourage and support Bar Association members, to serve as a liaison to the Marin County courts, and to educate the community and enhance access to legal services.

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