The Marin Lawyer June 2019

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

THE MARIN LAWYER June 2019 Editor Robert Rosborough Guest Editor Ahtossa Fullerton Editorial Producer Kiersten Ross

2019 Officers Charles Dresow, President Susan Feder, President Elect Robert Rosborough, Secretary J. Timothy Nardell, Treasurer Thomas Brown, Past President David Feingold, 5 Year Past President Board of Directors 2019 Directors Scott Buell Anna Pletcher 2020 Directors Marie Barnes Gregory Brockbank Andres Perez Nestor Schnasse 2021 Directors Habib Bentaleb Michael Chaput Ahtossa Fullerton Sarah Léger G. Kelley Reid Executive Director Mee Mee Wong Membership & Events Manager Kiersten Ross

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 © 2019. All Rights Reserved.

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

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IN THIS ISSUE Editor’s Introduction: Civil Rights Robert Rosborough

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President’s Message: Lawyers Advancing Civil Rights Charles Dresow

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Supreme Uncertainty for LGBTQ Rights: A Look at the Three Title VII Cases Pending Before the High Court David Nahmias

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Event Recap & Reflections From Our Past Presidents Charles Dresow & The Marin Lawyer

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Getting your AARP card? The Civil Rights Act of 1964 turns 55 Chris Goodman

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Reasonable Accommodations Catherine Ross-Perry

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Constructive Exclusion From the Profession: How Far Have We Really Come Since Hong Yen Chang?

Dorothy Chou-Proudfoot

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Ensuring Justice: Representing the Most Vulnerable Barbara Monty

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Everything You Ever Wanted to Know About the Marin County Human Rights Commission but Were Afraid to Ask Matt White

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Director Spotlight: Habib Bentaleb Ahtossa Fullerton

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Nonprofit Profile: Fair Housing Advocates of Northern California Nicole Çabalette

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Dramatic Increase in Funding for Juvenile Dependency Counsel Finally on the Horizon Jill McInerney

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The March 2020 Primary and More on the Leading Presidential Candidates' Pros and Cons Greg Brockbank

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Martin v. Boise: Not a Case to Sleep Through A.J. Brady

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Upcoming Events

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New Members

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

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EDITOR’S INTRODUCTION ROBERT ROSBOROUGH

Civil Rights

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he Marin Lawyer has published many articles on civil rights, often without any explicit civil rights label, addressing issues from bail reform to sexual harassment. This month, we bring you an issue with an explicit civil rights theme. I would like to thank Guest Editor Ahtossa Fullerton for putting together a great selection of articles addressing a variety of civil rights issues.

Certainly one of the most basic civil rights is the right to be raised in an environment free from abuse and neglect. While we have a long way to go as a society to make this a reality, we are trying. Jill McInerney brings us some rare good news on this front, reporting that Governor Newsom’s budget for the upcoming fiscal year will likely include a substantial funding increase for juvenile dependency counsel. The effect will be to reduce the caseloads of these dedicated lawyers to a level that starts to approach giving adequate representation to perhaps our most vulnerable citizens. Few lawyers would disagree that adequate representation is a key component of civil rights.

On the occasion of the 55th anniversary of the Civil Rights Act, Professor Chris Goodman reflects on the progress, or the

lack thereof, we have made. She notes the still dramatic income and wealth gaps among whites and people of color, the underrepresentation of people of color in the workplace, and de facto segregation in housing and education. A lot remains to be done.

If you attend the upcoming June membership luncheon where Professor Rory Little will review the Supreme Court’s term, you can ask him for his thoughts on three important LGBTQ civil rights cases the Court just accepted. You can read about them in David Nahmias’excellent summary. I am sorry to say that many straight, welleducated and otherwise knowledgeable people I know do not realize that in much of our country you can still be fired for being gay or transgender. The only real progress on that front on the federal level has come through the courts, which in some cases, and most definitely not in others, have applied the Civil Rights Act’s Title VII protections against discrimination “because of sex” to sexual orientation and gender identity. The Supreme Court will likely either extend those federal protections to the entire country or eliminate them where they now exist. We should know in about a year.

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Did you know that the MCBA’s own Matt White (one of a bevy of former MCBA presidents fêted at our May 22nd reception) chairs the Marin Human Rights Commission? Did you know there was a Marin Human Rights Commission? You can learn about it in Matt’s article.

And don’t miss our reprinted civil rights articles, which address everything from landlord disability accommodations to the right to sleep on the sidewalk.

I hope you enjoy another online -magazine edition of the Marin Lawyer. Don’t forget that you can still read it on MCBA’s website or you can print the magazine as a pdf to take with you.

View this article online at Marinbar.org.

Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adultfamily conflict such as disagreement over caring for an aging parent and HOA disputes. He maintains an estate planning and general advisory and transactional law practice focusing on personal and small business issues. Rob also 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 iRest® meditation teacher.

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PRESIDENT’S MESSAGE CHARLES DRESOW

Lawyers Advancing Civil Rights

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he American lawyer has had a role in creating, expanding, and protecting civil rights from before the founding of our country to the present day. Part of that role is working to ensure that our disagreements are handled inside courtrooms and not in the streets.

Our revolutions come through protest, legislation, litigation and election rather than brute force and bloodshed. Not all of us can have careers where we are on the civil rights front lines but we can take inspiration from those who are or were.

John Doar was one such attorney. Mr. Doar served as Assistant Attorney General of the Civil Rights Division of the United States Justice Department from 1960 through 1967, playing a critical role throughout the era. In 1961, while riding with the Freedom Riders in Montgomery, Alabama, he watched one of his Justice Department associates beaten unconscious by a white mob angry at efforts to desegregate a bus terminal.

In 1962, he helped escort James Meredith into Ole Miss and stayed with Mr. Meredith in his dorm room while segregationists seeking to violently remove him from campus fought U.S. Marshals. During this “Battle of Oxford,” two civilians were killed and almost one-third of the Marshals were wounded.

Mr. Doar stayed with Mr. Meredith for the next three weeks. In 1964, he was involved in the investigation and prosecution of those who murdered young civil rights workers Michael Schwerner, James Chaney and Andrew Goodman.

But perhaps Mr. Doar’s most dramatic moment came in 1963.

He was in Jackson, Mississippi for the funeral of murdered civil rights leader Medgar Evers. The largely African American crowd from the funeral was facing off with a heavily armed white police force. Bottles and bricks were flying through the air. In his obituary, the New York Times described the scene as follows: An angry crowd of several hundred black marchers was stopped by police officers with drawn weapons. The police ordered the marchers to disband; they responded with bricks, bottles, stones and curses.

With the situation growing more tense by the second, Mr. Doar, 6 feet 2 inches and still as solid as the school athlete he had been, walked into the 50-yard space separating the two groups and addressed the marchers.

Bricks and bottles crashed around his feet. One man

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stood behind him brandishing a tire iron.

‘My name is John Doar — DO-A-R,’ he shouted to the crowd. ‘I’m from the Justice Department, and anybody here knows what I stand for is right.’

Mr. Doar’s actions saved lives.

His credibility as a civil rights attorney enabled him to persuade the crowd that violence would not serve their purpose.

As President Obama described during the ceremony awarding him the Presidential Medal of Freedom: It was a scorching hot day in 1963, and Mississippi was on the verge of a massacre.

The funeral procession for Medgar Evers had just disbanded, and a group of marchers was throwing rocks at a line of equally defiant and heavily-armed policemen. And suddenly, a white man in shirtsleeves, hands raised, walked towards the protestors and talked them into going home peacefully. And that man was John Doar. He was the face of the Justice Department in the South. He was proof that the federal government was listening. And over the years, John escorted James Meredith to the 5

University of Mississippi. He walked alongside the Selmato-Montgomery March. He laid the groundwork for the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In the words of John Lewis, ‘He gave [civil rights workers] a reason not to give up on those in power.’

And he did it by never giving up on them. And I think it's fair to say that I might not be here had it not been for his work.

John Doar was one example of a person who used his power as an attorney to advance civil rights substantially. Clara Foltz was another. Her fight to advance civil rights began with the fight to become a lawyer in the first place. To earn admittance to the bar, which then was a privilege granted only to white males, she persuaded the governor to sign a bill that replaced “white male” with “person” in the requirements to sit for the bar exam. She subsequently passed the exam and became the first woman admitted to the California Bar. She then decided that to better serve her clients, she needed to go to law school.

But Hastings College of the Law restricted its admissions to men only and rejected her application. So she did what any good lawyer would do and sued. The California Supreme Court encapsulated the issue: The question presented for decision, is whether the Board of Directors can lawfully reject the plaintiff's application for admission as a

student in the College, on the sole ground that she is a female?

Foltz v. Hoge (1879) 54 Cal. 28, 31.

The California Supreme Court ruled in her favor and ordered Hastings to admit Ms. Foltz as a law student, finding: Females are entitled, by law, to be admitted as attorneys and counsellors in all the courts of this State, upon the same terms as males. The College was founded for the purpose of affording instruction to those who desire to be admitted, as well as those who have been admitted, to practice as attorneys and counsellors. It was affiliated with the University, and thus became an integral part of it, and in our opinion became subject to the same general provisions of the law, as are applicable to the University; and the same general policy which admitted females as students of the University, opened to them as well the doors of the College of the Law. Foltz v. Hoge (1879) 54 Cal. 28, 35.

Her journey did not end with these remarkable accomplishments. Having fought for and earned her admission into Hastings, she attended for two years before leaving to focus on her practice and her family; it is worth noting she did all of this while raising five children. Even-

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

tually, she decided to address the injustice of the criminal justice system of her day, and began advocating for a system of public defenders to represent indigents facing criminal accusations. She authored a model statute, the "Foltz Defender Bill,” and campaigned for it in multiple state legislatures. The first public defenders’ office opened in Los Angeles in 1913 and her bill was adopted as California law in 1921. In 2002, Los Angeles’ main criminal courthouse was renamed in her honor.

Ms. Foltz and Mr. Doar demonstrate what a determined attorney can do to expand civil rights. In our current climate of national discord, we can let lawyers like Ms. Foltz and Mr. Doar and others who used their law licenses to protect the highest ideals of our society inspire us. I hope you find inspiration in their stories and in the topics addressed in this special issue of the Marin Lawyer to work to preserve and expand civil rights for all.

View this article online at Marinbar.org.

Charles Dresow is a partner at Ragghianti Freitas LLP and is the MCBA President for 2019. His practice focuses on representing those accused of crimes.

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LGBTQ RIGHTS DAVID NAHMIAS

Supreme Uncertainty for LGBTQ Rights: A Look at the Three Title VII Cases Pending Before the High Court

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itle VII of the Civil Rights Act of 1964 bans employment discrimination “because of sex.” Courts’ interpretation of this language has evolved to prohibit discrimination in hiring and promotion, sexual harassment, employment decisions motivated by sex stereotypes, and same-sex harassment.1 Since 2000, multiple courts (including the Ninth Circuit) have interpreted Title VII to also prohibit discrimination based on gender identity, including nonconformity with gender norms and transgender status.

More recently, the Second and Seventh Circuits interpreted the statute to prohibit discrimination because of sexual orientation. These courts’ enforcement of Title VII protections have afforded lesbian, gay, bisexual, transgender and queer (LGBTQ) employees greater workplace protections in some parts of the country, approaching those of their straight, cisgender colleagues.

Yet these moderate advances could be taken away shortly, as the U.S. Supreme Court is poised to hear a trio of cases presenting the question of whether Title VII’s prohibition of discrimination “because of sex” includes discrimination on

the basis of sexual orientation and gender identity. After months of waiting, the Court granted petitions for certiorari in Altitude Express, Inc. v. Zarda (17-1623), Bostock v. Clayton County, Georgia (17-1618), and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. (18-107). These cases could have a significant impact on LGBTQ workers’ rights under federal law.

Altitude Express, Inc. v. Zarda (sexual orientation) In Zarda, the Second Circuit, sitting en banc, became the second appellate court in the nation (after the Seventh Circuit in Hively v. Ivy Tech Community College) to hold that “sex,” as it is used in Title VII, includes sexual orientation.2 Donald Zarda was a sky diving instructor whose employer, Altitude Express, fired him after he reassured a female client not to worry about being strapped to him for a jump because he was gay “and ha[d] an ex-husband to prove it.” She later told her boyfriend about the comment and accused Zarda of inappropriately touching her, which Zarda denied. The boyfriend relayed her complaints to Zarda’s supervisor, who terminated his employment. Zarda claimed that he was fired for being gay and not

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

the alleged touching.

Zarda filed suit in 2010, claiming sex discrimination under Title VII and state law. The district court granted partial summary judgment to Altitude Express on the federal claims. Zarda’s state law discrimination claims went to trial and also resulted in a judgment for Altitude Express.

A Second Circuit panel affirmed the lower court’s Title VII ruling because of circuit precedent holding that sex discrimination does not include that based on sexual orientation.

Sitting en banc, the Second Circuit reversed the panel. Writing for the court, Chief Judge Katzmann described multiple reasons why Title VII protects gay, lesbian, and bisexual workers. First, sexual orientation discrimination is sex discrimination per se because “sexual orientation is a function of sex,” and taking an adverse employment action based on the gender of the person that the employee is attracted to “is a decision motivated, at least in part, by sex.”

Second, sexual orientation discrimination is unlawful discrimination on the basis of sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), because it is rooted in stereo7

typical assumptions of how a man or woman should behave.

Quoting Hively, the court observed that “same-sex [sexual] orientation ‘represents the ultimate case of failure to conform’ to gender stereotypes.” Third, sexual orientation discrimination is associational discrimination because it is “predicated on opposition to romantic association between particular sexes.”

For all of these reasons, the court concluded that Zarda stated a valid claim under Title VII. Altitude Express subsequently appealed to the Supreme Court.

Bostock v. Clayton County, Georgia (sexual orientation) Conversely, in Bostock, an Eleventh Circuit panel issued a short per curiam opinion affirming the district court’s dismissal of Gerald Lynn Bostock’s Title VII sex discrimination complaint.3 Bostock was a ten-year courtappointed advocate at the Clayton County juvenile court who endured ridicule and disparaging remarks at work after he mentioned that he participated in a gay softball league. Bostock was terminated three months later. In his pro se complaint, Bostock alleged Title VII sex discrimination because of his sexual orientation. The court dismissed the complaint.

Bostock appealed with counsel, but the Eleventh Circuit panel affirmed, citing precedent that Title VII did not prohibit sexual orientation discrimination.4 The court denied Bostock’s petition for en banc review of the deci-

sion.5 Bostock subsequently appealed to the Supreme Court.

R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. (gender identity) In Harris Funeral Homes, the Sixth Circuit ruled in favor of a transgender woman alleging sex discrimination under Title VII. Aimee Stephens worked for almost six years as a funeral home director, but she was fired after she transitioned at work and asked to wear the female attire authorized by her workplace dress code. After Stephens filed an administrative charge, the EEOC took her case and initiated a Title VII action against the funeral home.

The district court granted summary judgment to the funeral home after finding that, although the EEOC had sufficiently demonstrated a Title VII violation based on binding Sixth Circuit precedent, the employer had a viable religious-based affirmative defense. But the Sixth Circuit panel reversed. The court first reiterated its previous decisions that discrimination because of transgender status is unlawful sex-stereotyping discrimination. Second, the panel held for the first time that discrimination because of transgender and transitioning status is per se sex discrimination. The court held that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” and that “[t]here is no way to disaggregate dis-

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

crimination on the basis of transgender status from discrimination on the basis of gender non-conformity.” The panel concluded that unlawful sex discrimination extends to requiring transgender workers to comply with a sex-specific dress code that is inconsistent with their gender identity. The panel also rejected the employer’s religious-based defenses. The funeral home appealed, requesting review only of whether Title VII’s prohibition of sex discrimination includes discrimination based on transgender status.

Supreme Uncertainty Looming Zarda and Bostock evidence the current circuit split over the question of whether Title VII prohibits discrimination based on sexual orientation. However, there is no circuit split with regard to gender identity, as presented by Harris Funeral Homes.

At least five circuits have held that transgender status discrimination is unlawful sex discrimination; none have held to the contrary. In granting certiorari in all three cases, the Supreme Court is taking on one of the most critical issues facing the LGBTQ community: whether federal law protects employees’ right to express their identity in the workplace without reprisal or harassment.

These decisions could also reach far beyond the LGBTQ community. In Harris Funeral Homes, the Court restated the Question on appeal as “whether Title VII prohibits discrimination against transgender people 8

based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v.

Hopkins.” The “or” is important, and civil rights advocates fear that an answer in the negative to the second question could upend decades of case law protecting all women from discrimination because of a failure to conform to female stereotypes.

light. The Equality Act would add prohibitions on discrimination based on sexual orientation and gender identity to Title VII and other civil rights laws. The President has publicly stated his opposition to the bill. With the Supreme Court now involved, the debate around civil rights protections for LGBTQ people is becoming even more fierce.

The Court consolidated Zarda and Bostock and placed all three cases on the same briefing schedule. Briefing will be complete in August; oral argument has not been set. The Court’s decisions could come in the midst of the 2020 presidential election. Their outcome likely will thrust the Equality Act (recently passed by the House as H.R. 5) into the national spot-

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See, e.g., Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

2 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018). The Seventh Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc) was the first federal appellate court to conclude that sexual orientation-based claims are viable under Title VII. 3 Bostock v. Clayton Cty. Bd. of Comm’rs, 723 Fed. App’x 964 (11th Cir. 2018).

4 Bostock cited Evans v. Georgia Regional Hos-

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pital, 850 F.3d 1248 (11th Cir. 2017), and Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) (decided before the Eleventh Circuit split from the Fifth Circuit).

The Supreme Court declined to review Evans. 138 S. Ct. 557 (2017).

5 Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d 1335 (11th Cir. 2018) (en banc).

View this article online at Marinbar.org.

David Nahmias is a Law Fellow and attorney at the Impact Fund, a non-profit legal foundation supporting strategic litigation for social justice.

David manages Impact LGBTQ, an initiative expanding the community of advocates for low-wage LGBTQ workers. He received his J.D. in 2018 from U.C. Berkeley School of Law, where he was a Supervising Editor of the California Law Review and Editor-in-Chief of the Berkeley Journal of International Law. David recently co -presented the MCLE program “Recent Developments in LGBTQ Employment Discrimination Law” for the Marin County Bar Association’s Labor and Employment Section.

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EVENT RECAP CHARLES DRESOW

MCBA Cocktail Reception

Past Presidents of the Marin County Bar Association, May 22, 2019 Pictured: Wanden Treanor, Peter Flaxman, Jessica Karner, Mary McLain, Judge Richard Breiner (Ret), Judge Beth Jordan, Terry Mason, Larry Baskin, Len Rifkind, Joel Gumbiner, Randy Wallace, Judge Michael Dufficy (Ret), Thomas Brown, Otis Bruce, Elizabeth Brekhus, and David Hellman. Attended but not pictured: Judge Lynn Duryee (Ret), David Feingold, Neil Moran, Gary Ragghianti and Matt White.

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n May, MCBA hosted a cocktail party honoring past presidents of our bar and current members of our bench. Threatening weather cleared, providing blue sky and warm temperatures for a lovely evening outdoors of drinks, hors d'oeuvres and lively conversation (and no speeches!) for the 100 attendees.

nals illustrated MCBA's strong tradition of educating our membership and improving access to justice.

Our pop-up history museum with old bar journals, membership documents and other ephemera was popular. Gone are the days when member luncheons were only $4 and membership for the year was only $10! The archived bar jour-

View photos from the event on our Facebook page.

In preparation for the event, we asked past presidents to submit a short paragraph or two with wisdom gleaned from their tenure. The following responses are a wonderful read.

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THANK YOU TO OUR EVENT SPONSORS 

Ragghianti Freitas, LLP

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Foley & Lardner, LLP

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Marie Barnes, MB Law Law Office of Jonathan Pickett

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Strick Schnasse Lawyers

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Law Offices of Borton Petrini, LLP

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Buell Law & Mediation

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Epstein+Holtzapple

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Friends of the Marin County Public Law Library

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The Freitas Law Firm 10

MCBA PAST PRESIDENTS THE MARIN LAWYER

Reflections From Our Past Presidents 1977 MCBA President I became involved in the BAR early and worked my way through the chairs, becoming president in 1977. I only served half a year when I was appointed to the Superior Court bench by Governor Jerry Brown. I enjoyed my 20 years on the Bench. When I left the Bar presidency, we had approximately 560 members. As I look back at my career over the five decades here in Marin both as a lawyer and a Judge, I remember those years with great fondness.

- Judge Richard Breiner (Ret.)

1982 MCBA President When I was President, the Bar was much smaller as was the Board. Jeanette Stewart was the Bar Exec. We had our board meetings at Dominican. During my presidency we developed a program called Tel Law which allowed people to call in and get general info in several areas of law and be directed to attorneys expert in the areas included in the program.

Times seemed much less hectic then...there were no cell phones and everyone smoked! The good and the bad! I recall my service fondly and am proud that our office has over the years produced 5 Bar Presidents including the current one.

- Gary Ragghianti

1991 MCBA President Just out of law school, I started my own practice in Sausalito in 1980 and did not know a single lawyer in Marin. The MCBA welcomed me with open arms and put me in charge of the Law Day committee. There, I worked with a handsome young lawyer named Neil Moran, and we married in 1985. Working my way through the chairs and offices, I got to know all the lawyers and judges in the County. In 1991, I served as president and three big things happened: (1) I presided over the swearing in ceremony of Judge Lynn Taylor, the second woman to serve on the Marin Superior Court. (2) on February 1, 1991, I gave birth to my second daughter, Sarah, without missing a single membership or board meeting, and (3) I became proficient in asking lawyers to do things, a skill which assisted me greatly when I was appointed to the bench in 1993. So you could say that the MCBA was instrumental in my success and happiness in both my professional and personal life.

- Judge Lynn Duryee (Ret.)

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1992 MCBA President Since it was about 25 years ago that I was President, my recall is that we did make CLE a more regular program and financially we were stable. Taking leadership positions is important to keep the MCBA functioning, but the time and effort involved are well worth it for the networking and new contacts that you make with members of MCBA and other community members.

- David Hellman

1993 MCBA President My year as President of the Marin Bar is one of the major highlights of my career. It was an honor to be selected and honor to serve with my fellow board members. I enjoyed the challenge of writing the monthly President’s Report, working with the Executive Director to keep the business of the board running smoothly and running the monthly meetings. The relationships forged during my year as President and the years on the Board still remain and are an indelible part of what I look back on in my career as a lawyer. Those relationships help remind me that as lawyers we have so much in common starting with the stress and anxiety of law school and the bar, the burden and responsibility of representing our clients, the long hours of work and our responsibility to the Court and the community in which we serve.

- C. Clay Greene

1994 MCBA President Shortly before the start of 1994, Past President Leonard Shaw gave me this advice: “Here is the advice I got in 1973. You were elected because people like you. No matter what you say at the podium, the audience will smile. But they don’t want to hear you talk a lot. So, when you are running a meeting, stand up, introduce yourself, say what you have to say in as few words as possible, and sit down.” I did that, and no one ever complained that my remarks were too short. Thank you, Len, for the great advice. During my year, I wrote monthly columns in the Bar newsletter, “10 Things Lawyers Can Do to Make the World a Better Place.” When I re-read the columns recently, I found them wordy.

- Neil Moran

1995 MCBA President “Coming Out” in 2019 is quite different than it was in 1995. While it took guts on my part, we all can be proud that in 1995 the Marin County Bar Association didn’t hesitate to elect me the first LGBT president of MCBA. Changes in societal attitudes and changes in the laws came about when enough of us boldly spoke our truth, causing others to understand we are all people, regardless of who we love, because love is love!

- Wanden Treanor

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1997 MCBA President I had the honor of working with a great Board of Directors. In my year, we created and adopted the MCBA'S Mission Statement and the Code of Civility.

- Terry Mason

1998 MCBA President My term as President of the Marin County Bar Association provided me with the opportunity to participate in ways my practice had not: With the court in issues concerning the administration of justice, and in the Bar, where we fostered renewed activity in the Sections, reigniting the then inactive Barristers and starting the Intellectual Property Section, and initiating the Vendor Fair (now, the CLE Fair). Also, we focused on programs, including bringing in highly regarded luncheon speakers on then current relevant topics, and having regular afternoon meet and greet receptions for Members around the county. It was a very satisfying and rewarding experience: It furthered my appreciation of the community we live in, and at the same time, enhanced my practice.

- Peter Flaxman

2000 MCBA President We had all held our collective breath waiting for midnight on December 31, 1999, watching countries around the world begin the new century and searching for any sign of the massive power and technology failures that had been predicted (remember “Y2K”?). We then breathed a sigh of relief as those predictions never came true. In mid-January, 2000, and thinking the biggest challenge was behind me, I was sworn in as MCBA President by the Hon. Judge (Ret.) Lynn Duryee during a rainy evening at the Marin County Country Club. It was a wonderful evening – and I enjoyed it. A good thing, as a massive controversy soon sprang up concerning the Marin County Family Law Court. There were protests, public outbursts and accusations from family law litigants. There were newspaper articles and burning telephone wires. My goals that year - to have more women lawyers actively a part of the MCBA and not just the Marin Women Lawyer’s group and to improve the diversity in hiring of local folks in the county - were sidelined as the MCBA Board and I had to deal head on with the Family Law controversy. Needless to say, it took a huge amount of time in interviewing Judges and attorneys and complainants about the issues and developing a plan of action. Thankfully, I had a wonderful board and we were able to keep the public calm and work with the Family Law Court as it made some internal changes. An exhausting, but, at the end, a wonderful year.

- C. Royda Crosland

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2001 MCBA President Writing the monthly President’s message was a major challenge for me. My first message said everything I had to say about the practice of law and the bar. The rest of my columns were musings on issues pretty much unrelated to the Bar and only sometimes to the practice of law. I received great feedback from local bar members who seemed to appreciate my observations and thoughts about life and life’s lessons. One column stood out. It was the message for the October 2001 issue. I was writing it immediately after 9/11/01 and tried to put in perspective an unbelievable event and tragedy.

My term was focused on being the fence-builder to re-connect the Bar with the Marin judiciary, after the Family Law Court “scandal” and the rift arising out of the unauthorized release of “confidential” comments part of the anonymous responses by association members to a bar sponsored survey of the Marin judiciary. My message to future presidents is to enjoy the experience, honor the relationship of the bar with the judiciary and always bring your “A” game to the job and the practice of law.

- Lawrence Baskin

2002 MCBA President A few highlights of MCBA in 2002, an exciting and expanding year for the organization despite following the most horrific terrorist attack of 9/11/2001.

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Opened the Self Represented Litigant Center at the Marin Justice Center at 30 San Pedro Road. MCBA offices moved into the Marin Justice Center at 30 San Pedro Road.

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MCBA Administrative Hearing Officer Panel formed with established guidelines and hearing officer procedures

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MCBA Website www.marinbar.org designed and published

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MCBA ADR section established best practices and minimum standard requirements for mediators.

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California Supreme Court Justice Carlos R. Moreno presented the Legal Aid of Marin pro-bono attorney awards at the Cline Cellars.

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Domestic Violence Response Team (DVRT) established by MCBA, Marin Abused Women Services (now the Center for Domestic Peace) and Marin District Attorney Paula Kamena

- Mary McLain

2003 MCBA President Every attorney is ethically obligated to protect the independence of the judiciary. In my experience, taking on a leadership role with the MCBA is one of the best ways to fulfill that obligation.

- David Feingold

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2004 MCBA President Want to promote equality and justice? In 2004, we created the Diversity Section for the purpose of promoting equality and justice in the in the legal community, in the justice system, and throughout Marin County. We haven’t quite achieved all of our goals, so we need your help. I encourage new members to make a difference and get to know lawyers of varying backgrounds and practice areas.

- Matt White

2005 MCBA President MCBA 2005. The biggest issues of the day were: MCBA’s efforts to support an independent judiciary by opposing a judicial recall effort brought by disgruntled litigants against the judges in the family law department, courthouse security, courthouse child day care, and getting the MCBA Directory updated. Lastly, Tamalpais High School won the state and national mock trial competition and all of Marin’s elected representatives, state and federal, and the State Attorney General showed up to congratulate the team at a Bar event.

- Len Rifkind

2007 MCBA President My time as 2007 President of MCBA is one of the greatest highlights of my career. It gave me the opportunity to ask what I could do to have the most positive impact possible for the benefit of MCBA members and the Marin community. I truly enjoyed working with the Marin Board of Education to create the “Parents, Teens and the Law” symposium, bringing some fascinating speakers to the General Membership meetings, and getting to meet more of my colleagues. I encourage every member to take advantage of the opportunity serve as President.

- Jeffrey Lerman

2009 MCBA President What I loved most about being President was the enthusiasm board members had on working on board projects. During my tenure as President we created a program for law offices to become “green” businesses. It was a lot of fun working with the members of the board.

- Marlene Getchell

2012 MCBA President My “theme” as MCBA President was connecting with the Marin community. With lots of help from the board, the bench and other MCBA members, we started some great projects that I think still benefit the community: We launched the Discovery Facilitator Program, resurrected the Bench-Bar Committee and instituted the non-profit profiles in The Marin Lawyer. I would encourage all younger members to pursue MCBA leadership to connect with other local lawyers and be of service to the broader community.

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

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2013 MCBA President The greatest joy of the job was getting to know, and working with, the people on the Board and so many members who stepped up to participate on committees and sections. I am very proud that we had a Board-driven agenda, formed at the retreat through our review of member polls, which included the young lawyer mentor program, the Superior Court Modest Means Mediation program, stabilization of our budget, concepts for a digital Marin Lawyer, renewed financial commitment to (and member participation in) MCOE’s high school Mock Trial program, and continuation of the great work started in the prior years. I enjoyed every minute of the job and treasure the lifetime relationships that formed through our work.

- Joel Gumbiner

2014 MCBA President The year I served as President, we lost our long time executive director and had to search for a new one. There was a lot of concern about the change by board members. I was certainly sad to see Robin go as I enjoyed working with her and thought she did a good job for MCBA. But I also felt that MCBA could benefit from new leadership. Hiring Mee Mee Wong, making sure she had the support and authority to improve MCBA, and seeing all the great changes she made to professionalize and modernize MCBA was the single most important change that happened during the year I served as President.

- Elizabeth Brekhus

2015 MCBA President Leadership Lessons Learned by a Past President 1. Delegate as much as you can to competent people. Let them do their jobs. When the process and result is successful, the people get all the credit. If and when everything goes south, the president accepts responsibility.

2. Do not fear failure in what you do and how you do it, fear mediocrity.

3. Your job as a leader is to make everyone around you better.

- Randy Wallace

2016 MCBA President It was an honor to work with MCBA Board, The Court and Marin County Law Library to launch “Lawyers in the Library” and provide a legal counseling program to our community.

It was a privilege to serve as an MCBA President.

- Lawrence Strick

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2017 MCBA President I will always be grateful for the experience of serving as the 2017 MCBA President. My tenure taught me how to be a leader. One of the many things I learned was that the key to being effective is to amplify the efforts and achievements of others. Leading with this mindset will move the organization farther and faster than putting all the weight on your own shoulders and trying to do it all yourself. I am proud of the high caliber of events and programs we were able to deliver to the Marin legal community.

- Hon. Dorothy Chou Proudfoot

2018 MCBA President My goal as president was to promote the Mission of the MCBA, which is 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. The Board sought to achieve this by hosting interesting and provocative speakers, revitalizing the Bench Bar Committee and maintaining the very successful Lawyers in the Library and other programs founded by my predecessors. It was an active time in the local bar, with the District Attorney election on the heels of the retirement of Edward Berberian and the appointment of a new member to the bench. I enjoyed my time as president, getting to know more members of the bar and also working with such a dedicated staff and Board.

- Thomas S. Brown

PAST PRESIDENTS OF THE MARIN COUNTY BAR ASSOCIATION Founder Carlos Freitas 1937 Samuel Gardiner 1942 Wallace Myers 1950 Richard Sims 1951 Harold Haley 1952 Jerome Duffy 1953 William O. Weissich 1954 Guy Ciocca 1955 John Buresh 1956 Delger Trowbridge 1957 Bryan McCarthy 1958 Thomas Boyd 1960 Joseph Wilson 1961 Roger Garety 1962 S.J. Hugh Allen 1963 Arthur Lebow 1964 Peter Allen Smith 1965 Howard Morehouse 1966 E. Warren McGuire 1967 Richard Bettini 1968 John Rockwell 1969 Herbert Walton 1970 Lawrence Wright 1971 D.K. McDonald

1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995

Robert Corlett Leonard Shaw Robert Praetzel Ann Diamond Herbert Hawkins Richard Breiner A. Leonard Bjorklund Jerry Ackeret Robert McCreadie Beverly Savitt Gary Ragghianti J. Ralph Thomas Michael Dufficy Marshall Krause Verna Adams Gregory Dyer Richard Barry Peter Mitchell Victor P. Obninsky Lynn Duryee David Hellman C. Clay Greene Neil Moran Wanden Treanor

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1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

Marta Osterloh Terrel J. Mason Peter Flaxman Myron Greenberg C. Royda Crosland Lawrence Baskin Mary McLain David Feingold Matt White Len Rifkind Dan Harris Jeffrey Lerman Edward Berberian Marlene Getchell Beth Jordan Otis Bruce Jr. Jessica Karner Joel Gumbiner Elizabeth Brekhus Randy Wallace Lawrence Strick Dorothy Chou Proudfoot Thomas S. Brown

17

Civil Rights Act of 1964

Retrieved from National Archives Catalog. National Archives Identifier 299891.

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THE CIVIL RIGHTS ACT CHRIS GOODMAN

Getting your AARP card? The Civil Rights Act of 1964 turns 55

A

ARP cards come in the mail around age 50, which is earlier than most of us want to see that we are officially “old enough” to be members of the American Association of Retired People. Yet we accept the benefits, like discounts, special shopping days and hours, and cheaper home and auto insurance rates. Membership provides access, which eases some of the financial burdens, whether we are actually retired from working, or not. In a similar way, we enjoy the benefits of the Civil Rights Act of 1964, which turns 55 on July 2, 2019, and has provided easier access to voting booths, to hotel and restaurants, to government offices, public schools, jobs, and federally funded programs.

What is it?

The Civil Rights Act of 1964 (“1964 CRA”) is comprehensive federal antidiscrimination legislation that applied based on race, color, religion, and national origin. In Gallup polls conducted in a few months after the 1964 CRA passed, a majority of those surveyed said that they approved of the civil rights legislation. In a 1999 survey, the 1964 CRA ranked as the fifth most important event of that century.i While the goals of this broad civil rights legislation were and remain laudable, and

progress has been made in the last 55 years, at each anniversary someone asks, “What else remains to be done?” The answer seems to still be, “A lot.”

Many are familiar with its Title VII, which bans discrimination by employers, and Title VI, which provides for nondiscrimination when distributing federal funds. Those who have had their AARP cards for a while may also recall Title II, which prohibits discrimination or segregation in places of public accommodation, such as restaurants, hotels, and entertainment venues. In addition, Title I addressed voting rights, Title III required the desegregation of public facilities and Title IV addressed desegregation of public schools.

Title V created the Commission on Civil Rights.ii This article focuses on the impacts of four main aspects of the 1964 CRA: public education and employment opportunities directly included in its language, and the related benefits of housing and income opportunities.

What was the point of the 1964 CRA? The legislative history supports the view that congressional intent was to provide equal opportunities: (1) for children in the public school systems after the Supreme Court-ordered de-

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

segregation in Brown v. Board of Education had yielded little, and (2) to ensure that employees were not limited to particular jobs because of their race but rather on their individual qualifications. The third area, housing opportunity, while not specifically mandated by the 1964 CRA, was impacted by Title VI’s prohibition of discrimination in federally-assisted programs like Veterans Administration and Federal Housing Administration loans. In a similar vein, the fourth area of income opportunity is related to expanding educational and employment opportunities.

At a certain level, promises have been kept. For instance, people of all races can attend free public schools, can be hired for most jobs by most employers, can live in whatever neighborhood they can afford, and can become millionaires. The reality on the ground is somewhat disappointing.

Net worth is a function of education, employment, income, investments and appreciation.

In 1967, median income for blacks was $24,700 compared to $44,700 for whites (adjusted to reflect 2014 dollars). So where are we now? The median wealth of all White households in 2016 dollars was about $140,000 (the price of a house 19

in many areas outside of California) and for Black households was about $15,000 (the price of a small car). On the income front, median household income for Asians was $81,000, Whites was about $68,000, while for Blacks it was about $40,000, and Hispanics $50,000. Some scholars have concluded that “next to no progress has been made in closing the black-white income gap,” nor in reducing the wealth inequalities between black and white households.iii

fying supervisor and management roles has an impact on the promotion pipeline. However, 71% of supervisors and managers in their study were White, and 84% of White employees directly reported to a White supervisor; 79% of the CEOs/ Founders of the mid-sized companies surveyed were White, and 81% were male, with 1% Black, and 4 % Hispanic, and 11% Asian.v

rates are about double for Blacks (21%) and Hispanics (18%) over Whites (8.7%) and Asians (10%).vii On the housing issue, in California, many people, especially those in the middle class, enhance their net worth through real property purchases.

So where are we now?

On the schooling issue, more than half of those polled in 2019 prefer that students go to school in their local community rather than in schools that are racially and ethnically mixed.

Schools in many California districts are largely so-called de facto segregated. This brings us back to the education issue because those who live in high poverty neighborhoods and attend those neighborhood schools do not have the resources needed to give them adequate, and certainly not equal, educational opportunity.vi

In 2019, the majority of Americans surveyed said that they liked the current racial mix of their neighborhoods and only a small minority would prefer a more (or less) racially mixed neighborhood—even those who live in neighborhoods that are the most homogenous.viii In 2018, about half of Blacks and 40% of Latinos lived in neighborhoods with virtually no white presence.ix For those who do manage to purchase a house, there is an “appreciation gap,” such that property values appreciate more over time for homes in homogenous White neighborhoods than they do in racially diverse or mixed neighborhoods.x

We see the results of this view in a recent Workplace Diversity Report, which shows that Black workers are under-represented (in terms of their percentages in the available population) in all industries except food services, and Hispanics are significantly over-represented in construction and personal services.

When it comes to promotion and supervising, that same study found that supervisors have higher percentages of direct reports who share their racial or ethnic group, so diversi-

Education levels impact poverty. For instance, in 1964, 4.7% of Blacks and 10% of whites had a college degree, and 27% of Black and 51% of Whites had completed high school. In 2017, over 23% of Blacks and 36% of Whites have a college degree, 93% of Whites have completed high school, as did about 88% of Blacks and 67% of Hispanics.

24.5% of adults over 25 who have not completed high school are in poverty, while only 4.8% of those with a college degree are in poverty. The poverty

On the fiftieth anniversary of the 1964 CRA, the majority of Blacks surveyed thought additional civil rights legislation and a greater government role were needed, while the majority of White respondents did not. In a 2019 poll, a majority agreed that racial and ethnic diversity is very good for the country, and has a “positive impact on the country’s culture,” but a large percentage also felt that “diversity makes it harder for policymakers to solve problems.”xi What remains to be

One key component of employment opportunities became affirmative action programs.

However, a recent Pew Research Center poll shows that while 75% of people feel that it is important for companies and organizations to promote racial and ethnic diversity in their workplace, 74% say that on decisions about hiring and promotions, employers should consider qualifications only, “even if it results in less diversity.”iv

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done? A lot. Access matters, but it is not enough. i

https://news.gallup.com/opinion/pollingmatters/169361/public-opinion-civil-rightsyears-civil-rights-act-1964.aspx. ii Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (1964). Some of the lesser known provisions include Title VIII, which applies to registration and statistical record-keeping in the voting area, the original Title IX (which provided for review of certain petitions and Attorney General intervention), and Title X, which established a Community Relations Service to address claims and concerns over desegregation issues. iii www.minneapolisfed.org/institute/workingpapers-institute/iwp9.pdf Income and Wealth Inequality in America, 1949-2016 (June 2018), at pp. 4, 25-26, and 28. iv www.pewsocialtrends.org/2019/05/08/ americans-see-advantages-and-challenges-incountrys-growing-racial-and-ethnic-diversity/. v library.namely.com/workplace-diversityreport-2018 Namely Workplace Diversity Report 2018, at pp. 8-9, 19-20, and 44. vi See www.pewsocialtrends.org/2019/05/08/

americans-see-advantages-and-challenges-incountrys-growing-racial-and-ethnic-diversity/. vii federalsafetynet.com/us-povertystatistics.html. viii www.pewsocialtrends.org/2019/05/08/ americans-see-advantages-and-challenges-incountrys-growing-racial-and-ethnic-diversity/. ix www.usnews.com/news/the-report/ articles/2018-04-20/us-is-still-segregated-even -after-fair-housing-act. x www.memphis.edu/law/documents/ brown_final.pdf. Dorothy A. Brown, Homeownership in Black and White: The Role of Tax Policy in Increasing Housing Inequity, 49 Univ. of Memphis L. Rev. 205, 215 (2018), explaining that the “appreciation gap begins whenever home and neighborhood is more than 10% black and increases as the percentage of Blacks in the neighborhood increases.� xi news.gallup.com/opinion/pollingmatters/169361/public-opinion-civil-rightsyears-civil-rights-act-1964.aspx.https:// www.pewsocialtrends.org/2019/05/08/ americans-see-advantages-and-challenges-incountrys-growing-racial-and-ethnic-diversity/.

View this article online at Marinbar.org.

Chris Goodman has been a professor on the Pepperdine faculty since 2001. She teaches Comparative AntiDiscrimination Law, Evidence, and Trial Practice. She writes on equal protection topics, including affirmative action, preferences, diversity and racial privacy, as well as evidentiary and criminal law issues, such as the lack of transparency in the death penalty decision-making process in California and medical privacy. The second edition of her book, California Evidence, in Aspen's Examples and Explanations series was released this past year. EMAIL | WEBSITE

Lyndon B Johnson signing Civil Rights Bill. https://catalog.archives.gov/id/299891

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FAIR HOUSING CATHERINE ROSS-PERRY

Reasonable Accommodations This article was published in the January 2009 issue of the Marin Lawyer and is reprinted here in its original form.

U

nder federal law, housing providers must allow disabled individuals to make any reasonable modifications necessary for their full enjoyment of the premises. These modifications include structural alterations like installing grab bars in bathrooms, widening doorways, lowering kitchen cabinets, and building wheelchair ramps.

Under most circumstances, tenants must pay for these modifications themselves. If the housing provider receives certain types of governmental assistance, however, he or she must pay for the modifications unless that would constitute an undue administrative and financial burden. In cases where the tenant pays, the housing provider is also entitled to condition permission for the modification on the tenant’s promise to restore the premises to their prior condition. This applies only to the interior of the unit, not to common areas, and also applies only where restoration is “reasonable.” For example, it would usually not be reasonable to insist that widened doorways be made narrow again.

landlords must make “reasonable accommodations” in their rules, policies, practices or services to afford disabled tenants “equal opportunity to use and enjoy a dwelling.” To obtain such an accommodation, the tenant must first request it.

If the housing provider asks, the tenant may then have to produce a physician’s documentation verifying that the accommodation is necessary due to the tenant’s disability. A common reasonable accommodation is reserving a particular parking place for a mobilityimpaired tenant. Other reasonable accommodations include such things as: •

•

•

•

•

•

Federal law also mandates that

allowing a representative payee or a co-signer for a disabled tenant waiving a rule against nontenants using the laundry facilities in order to allow a friend of a tenant with a disability to do the tenant’s laundry allowing a tenant with a mental disability to terminate a lease early; allowing a tenant with a physical disability to transfer to a ground floor unit postponing the eviction of a tenant hospitalized due to a mental disability and allowing physical modifications to common areas

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

despite rules prohibiting such modifications.

Courts have also interpreted “reasonable accommodations” to mean that a landlord must allow disabled tenants to have service animals in a “no pet” building, at least as long as the animal’s behavior does not violate any provisions of the lease.

Although guide dogs for the blind are the most common service animals, courts have applied the rule to many other situations. Thus, a housing provider must allow a deaf or emotionally disturbed tenant to have a service animal if that animal is necessary to allow the tenant to fully enjoy the housing opportunity. In addition, the service animal need not be a dog. There have been cases involving a disabled tenant’s right to have a cat, a monkey, a pig and even a snake.

There are many cases interpreting a housing provider’s responsibility with regard to reasonable accommodations. Essentially, the provider must make the accommodation if the tenant shows that: • •

he or she is disabled as defined under the law the owner knew or should reasonably be expected to have known of this disability 22

•

•

accommodation of the handicap may be necessary to afford the tenant an equal opportunity to use and enjoy the housing involved and the accommodation is reasonable.

Fair Housing of Marin is a private, non-profit agency serving the fair housing needs of Marin County and Sonoma County residents. For more information, call 415-457-5025 or visit our website at www.fairhousingnorcal.org.

Disclaimer: This article provides general information about reasonable accommodations. It is not intended to provide legal advice about specific situations. In such cases, consumers should seek legal or other expert advice.

This article was originally published in the January 2009 issue of the Marin Lawyer.

At the time of this article, Catherine Ross-Perry was a Staff Attorney with Fair Housing of Marin.

THANK YOU TO OUR 2019 MCBA SPONSORS Platinum

Interested in sponsorship? Contact Mee Mee Wong at 415-499-1314 or mwong@marinbar.org THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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DIVERSITY DOROTHY CHOU PROUDFOOT

Constructive Exclusion From the Profession: How Far Have We Really Come Since Hong Yen Chang?

This article was published in the August 2017 issue of the Marin Lawyer and is reprinted here in its original form.

R

ecently, Yale Law School and the National Asian Pacific American Bar Association jointly published a study, "A Portrait of Asian Americans in the Law.� Four Yale Law graduates and California Supreme Court Associate Justice Goodwin Liu conducted a two-year study that tracked the rise of Asian Americans in the law over the last three decades and some of its findings caused me to think about my own place in the law. Without going too deeply into the study's subjective factors of job satisfaction and perceived barriers to advancement (including, shockingly, overt racial and gender discrimination), the statistics are thoughtprovoking.

During the period of time roughly paralleling my own legal career, the number of Asian American attorneys in the US has doubled. The enrollment of Asian Americans in law school outpaced that of other ethnic minority groups, but since its peak in 2009, has drastically dropped, much faster than all other groups, for no readilyapparent reason. Currently, the percentage of Asian American

attorneys is representative of the overall population in the nation, but Asian Americans are still significantly underrepresented in leadership roles in academia, private practice, and the public sector.

This trend of disproportionality starts in law school: though Asian American students made up over 10% of the top tier law schools, they only obtained 6.5% of the federal clerkships, and 4.6% of the state clerkships.

A surprising/not surprising finding was that in the top tier schools, 58.2% of all the students were white, but they obtained over 82% of all federal clerkships and over 80% of all state clerkships. Perhaps consistent with those clerkship numbers, only 4.5% of law professors were Asian American, with only 3 of 202 deans and 18 of 709 associate or vice deans.

The law firm data were consistent with my anecdotal recollection of the big firm world: Asian Americans have been the largest minority group in major law firms for 20 years, but have the highest attrition rates, a 68% decline from 2 to 12 years of experience. Compared to other groups, they were the most underrepresented at the management level (on execu-

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

tive and review committees).

The picture was also dismal in the public sector. Within California, while the percentage of line prosecutors who were Asian American (12.6%) approached the overall makeup of the state's population (14.7%), the percentage for supervisory positions fell to 9% and at the top, there was only one Asian American elected District Attorney. In the entire nation, only 4 of the 2437 elected prosecutors and 3 of the 94 United States Attorneys (Hawaii, Guam, and the Southern District of New York) were Asian American. Public defender numbers were not even available. As for the judiciary, only 3.4% of federal judges nationwide were Asian American, compared to 14.2% African American and 10.6% Hispanic. Only 2% of state court judges were Asian American.

In focusing on the statistics, I do not mean to encourage a quotalike approach to the challenge of guiding the legal profession to be more representative of the general populace. Statistical reporting is a helpful shorthand mechanism to get the conversation going and tells us where we are now. Of course there are those who do not believe 24

diversity and inclusion matter— they see it as a distraction, or more insidiously, a “lowering of standards.” We know that confirmation bias inhibits people from modifying their beliefs, even in the face of contrary evidence, but the difficulty of change should not inhibit us from working for it.

There is insufficient space in this President's Message to do this discussion justice but I hope that readers of the study will allow themselves to ponder whether societal biases account for the reported results, and determine what we, as lawyers, can and should do about it.

This article was originally published in the August 2017 issue of the Marin Lawyer.

Dorothy Chou Proudfoot is a Past President of the Marin County Bar Association. She is a former Deputy District Attorney for Marin County and is an Administrative Law Judge in San Francisco. She earned her B.A. and J.D. from UC Berkeley.

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ALTERNATE DEFENDERS, INC. BARBARA MONTY

Ensuring Justice: Representing the Most Vulnerable This article was published in the May 2017 issue of the Marin Lawyer and is reprinted here in its original form.

Habeas Corpus, ADI provides the defense.

“

I have been impressed with the level of skill and experience of the ADI attorneys, all of whom are independent contractors dedicated to helping indigent clients. These attorneys work at rates much lower than those paid by their private clients.

They not only work vigorously to defend their clients in court but often find solutions to the

We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice.”

- Associate U.S. Supreme Court Justice Sonia Sotomayor For the past three years, I have had the great privilege to serve as the one civil attorney on the board of directors of Alternate Defenders, Inc. (ADI) As I complete my term, I thought it important to share with others the good work of this valuable organization.

ADI is a non-profit corporation that provides free representation to indigent criminal defendants for whom the Public Defender’s Office has a conflict of interest. Such conflicts exist where cases involve codefendants, or in which a victim or other witness is or was represented by the Public Defender. In these cases, the court must appoint a criminal defense attorney outside the Public Defender’s Office to represent that defendant. In these cases and in cases the Public Defender does not handle, such as misdemeanor appeals or Writs of

exclusively serves indigent clients against whom criminal cases ranging from misdemeanors to capital offenses have been filed in the Marin County Superior Court. Most clients are residents of the county. They comprise the most fragile and rejected segments of our society, particularly the homeless and those afflicted with mental health conditions or debilitating addictions.

Are There Similar Organizations in Northern California?

TRACY BARRETT, CYNTHIA PORTER, AND MARY STEARNS

problems in their clients’ lives that brought them in contact with the justice system in the first place. Many ADI clients struggle with untreated substance abuse and mental health problems and ADI attorneys connect clients with services that are often a critical part of representation.

Whom Does ADI Serve?

ADI (and the Public Defender)

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

Many of the Bay Area counties have organizations similar to ADI to assist the courts in appointing conflict counsel. What sets ADI apart is the additional oversight of ADI’s Peer Review Committee, a group of highly experienced criminal defense attorneys and judges who help to insure quality representation of our indigent defendants. The Peer Review Committee regularly evaluates new applicants to the panel and monitors attorney performance on an ongoing basis to provide competent counsel.

ADI also provides free continuing education to its panel attorneys in areas related to criminal defense such as crossexamination, jury selection, 26

immigration, legal writing and new laws.

liana Weil (President), Gary Ragghianti, Retired Judge Michael Dufficy, Charles Dresow, Antonia Stainbrook, Thomas Master, and Paul Burglin.

Marin County voters joined in passing these laws, which mostly benefitted criminal defendants.

“The reason I choose to represent In 2010, Proposition 36 passed, indigent defendants is simple. ameliorating some of the dracoThere but for the grace of God go I.” nian effects of the Three Strikes -Elissa Lasserre ADI is currently administered by Law. In 2014, Proposition 47 Director Mary Stearns, Assistant passed, changing the classifica“There can be no equal justice Director Tracy Barrett, and Ad- tion of less serious theft offenses where the kind of trial a man gets ministrator Cynthia Porter. and some drug offenses from feldepends on the amount of money onies to misdemeanors. he has.”-Associate U.S. Supreme “Our clients end up teaching us Court Justice Hugo Black every day…when we listen.”-Mary Last year, Proposition 57 passed, Stearns revising the criteria for state paHow Was ADI Established? role and putting decisions “You don’t judge a society by how it whether to charge juveniles in Before ADI, local judges made treats the people on top because adult court back in the hand of appointments in conflict cases it’s easy to be nice to them. Look at the judge. ADI provides excellent but it was time-consuming and how people on the bottom are trainings to the panel attorneys difficult to manage the fair rota- treated and assess the collective to ensure the highest quality reptional basis to be in compliance degree of humanity.”-John Rankin resentation. with the Penal Code requirements. Thus, a number of local How are Cases Assigned?

“For me, holding the government to criminal defense attorneys its burden of proof is an act of patworked with the court to explore Cases are classified into panels riotism.”-Morgan Daly options and in 1996, local attor- according to the seriousness of neys Michael Markowitz, Steve the charges against each client. “The right to counsel and the proBerlin and Kim Druglick, created Each panel comprises attorneys tections of our Constitution apply ADI. The organization would be a qualified to handle those charg- to the rich and the poor alike.” non-profit corporation responsi- es. All cases are assigned in rota- -Charles Dresow ble for assignment of counsel, tion to appropriate attorneys payment of services and record and the Peer Review Committee Over my three-year term, I have keeping. One of the stated reareviews any attorney request to witnessed ADI consistently desons the County and Court be moved up to a more serious liver high-quality legal services agreed to this option was to pro- panel. from respected criminal attormote the strength and viability neys. ADI attorneys consider of Marin County’s local criminal “There’s a reason criminal defense every case and client to be imdefense bar. attorneys are the happiest lawyers portant regardless of the underon the court floor. It’s incredibly lying charges and always strive Who Runs ADI? rewarding work. We get to work on to accomplish the best result for substantial constitutional issues every client. Sometimes the best A board of directors and a small and make a meaningful difference results go unnoticed by anyone staff. By design, the board com- in people’s lives.”-Tracy Barrett but the clients themselves. Often prises ADI attorneys, a public clients receive drug and alcohol defender, a private criminal atWhat Changes Has ADI Seen? rehabilitation, mental health torney, a civil attorney and a retreatment or anger management tired judge, all who volunteer Several ballot propositions have therapy instead of incarceration their time to manage this organi- changed classifications of crimes —a win for the both clients and zation. Current members are Ju- and sentencing. A majority of the county.

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Interested in Participating?

Attorneys may apply to be on the panels. Please call ADI at (415) 492-1039 and speak with Director Mary Stearns to request more information.

This article was originally published in the May 2017 issue of the Marin Lawyer.

Barbara Monty is a partner at Monty White LLP and mediator with Resolution Remedies.

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HUMAN RIGHTS COMMISSION MATT WHITE

Everything You Ever Wanted to Know About the Marin County Human Rights Commission but Were Afraid to Ask

F

ormer MCBA president Matt White interviews the chair of the Marin County Human Rights Commission, Matt White, and unveils the mysteries and secrets of the Commission.

Q: What is the Human Rights Commission, anyway?

A: Thank you for asking. The County Board of Supervisors created the seven-member commission some years ago, and gave it a rather challenging mission: “…To promote a community based on social justice, with equality for all, and to eliminate discrimination based on race, religion, color, age, ancestry, ethnicity, sexual orientation, place of birth, national origin, or disability….”

Q: Sounds easy.

A: But wait, there’s more: “…[T] he commission shall provide a public forum, serve as a resource to the community, and advise the Board of Supervisors on human rights issues.”

Q: Has the HRC succeeded in its quest to “eliminate discrimination” in Marin County?

A: [Chuckles.] No, not yet. It’s usually good to be Number One, but not always: We are not

proud of the recent award bestowed upon us by the Advancement Project California, which crowned Marin as the most racially unequal county in California. The report considered numerous factors, including home ownership, access to health care, and educational opportunities. For grim reading, check out the report here.

Q: What types of issues have you tackled?

A: Last year, we explored racial disparity at the Youth Court.

Youth Court is a successful restorative justice program for teenagers who commit minor crimes or infractions. Participants have an exceedingly low (8%) recidivism rate. Unfortunately, very few (if any) AfricanAmerican students are referred to the program. As it turns out, there are a lot of reasons for this. Chief among them: each police agency may choose either to refer youngsters directly to Youth Court, or to refer them to the probation department, which then decides whether Youth Court is appropriate. The Sheriff’s office, which patrols Marin City, does not make direct referrals to Youth Court.

Basically, we operate like a mini -grand jury, but without subpoena power. We act as the

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Board of Supervisors’ “eyes and ears” on human rights matters in the community.

Q: What else?

A: In recent months, we’ve urged the Sheriff’s office to limit its cooperation with ICE. Specifically, we want an end to the public posting of the release dates for all residents of the county jail, which makes it easy for ICE to pick up suspected undocumented people. We also waded into the Dixie School District controversy, adding our voice to those demanding a name change.

Q: Current projects?

A: At our May meeting, we heard from Cindy Ayala, the probation department’s restorative justice coordinator, and learned more about existing and proposed restorative justice programs in the county. (Ms. Ayala was featured in the April 2018 edition of The Marin Lawyer.) For June, we have invited a representative from the Spahr Center to address issues facing the LGBTQ community in Marin County. Beyond that, we are open to suggestions.

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Q: That sounds amazing! How do readers get on the Commission?

THANK YOU TO OUR 2019 MCBA SPONSORS

A: The Board of Supervisors just appointed two new commissioners, so there is no current vacancy. However, commissioners serve for fixed terms, so there are regular openings. There are no particular qualifications, although a demonstrated commitment to human rights seems to be the primary criterion. You can learn more at the HRC website.

Silver

View this article online at Marinbar.org.

Matt White is a personal injury litigator with Monty White LLP, a mediator with Resolution Remedies, and chair of the Marin County Human Rights Commission.

He was president of the MCBA in 2004. His comments are his own and do not necessarily represent those of the Human Rights Commission or the County of Marin. EMAIL | WEBSITE

Interested in sponsorship?

Contact Mee Mee Wong at 415-499-1314 or mwong@marinbar.org

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DIRECTOR SPOTLIGHT AHTOSSA FULLERTON

Habib Bentaleb What is your practice area?

My practice area is general corporate law with a specialty in advising direct operators, service providers, and investors in the cannabis industry.

Why did you decide to become a lawyer?

Becoming a lawyer wasn’t really on my radar until I took a class in college called “Supreme Court Issues.” The curriculum required us to draft a brief and then present oral arguments on one of the cases that was then before the Court. I played a lot of sports growing up and I really enjoyed the competitive aspect, as well as the camaraderie forged, in presenting your client’s case.

Why did you choose to live in Marin?

My wife and I met in Chicago, where we were both working at the time. During one of the coldest winters that I could remember, she was pregnant with our first child. She grew up in Marin and one day after I spent hours shoveling our car out of a parking spot, she asked if I’d like to move to California. Case closed.

What do you love to do when you're not busy practicing law?

When I’m not working, I’m usually running around coaching either my daughter's (8 years old) or my son’s (6 years old) sports teams. So far, I’ve got baseball, softball, soccer, and flag football under my belt – we like to keep the kids, and ourselves, busy. My son just entered kindergarten, which is great because he’s finally at the same school as his sister, who’s in second grade. My wife and I were counting down the days of having one drop-off and pick-up for both kids and we’re going to cherish it while it lasts.

If you could pursue any other career besides law, what would it be and why?

If I could pursue any career besides law, I would probably own and operate a restaurant (with a good beer selection!) I know the success rate for restaurants is probably lower than the passage rate for the California bar exam, but my grandfather and two of my uncles owned restaurants and I would work at all of them when I was growing up.

Perhaps I have fond memories and unrealistic expectations because they were usually summer jobs!

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Why did you join MCBA? I joined the MCBA because I wanted to be more engaged with Marin’s legal community.

At the time, I was working in San Francisco and I didn’t feel professionally connected to Marin. As someone who didn’t grow up in the Bay Area (born and raised in New York City), I didn’t really have many connections to Marin, and I thought the MCBA would be great way to broaden my network and increase my community involvement – which it has!

Why did you become a Director?

I decided to join the MCBA’s Board of Directors because I wanted to be a stakeholder and play an active role in shaping Marin’s legal community. Until I’m lucky enough to retire in Kauai (fingers crossed!), my family and I are firmly entrenched in Marin, and it’s important to me to be connected to such a fantastic civic-minded organization. My mother worked for a number of non-profit organizations and her commitment to helping others has definitely 31

inspired me and guides my commitment to the MCBA and Marin.

Describe how your work is related to racial justice.

It’s no secret that the war on drugs has had a disproportionate impact on communities of color. What we’re seeing now, after the legalization of cannabis with Proposition 64, is a concerted effort by many of the state’s biggest cities to rectify that impact. Whether through cannabis social equity programs – local ordinances drafted so that people and communities

that were hit hardest by the uneven application of cannabis regulations can participate in this new economy – or through automatic expungement of cannabis convictions, the cannabis industry and local governments are taking steps towards social justice.

If you had to pick a single highlight of your career, what would it be?

petitive aspect of arguing cases that attracted me to the law, I find the collaborative aspect of helping clients with their business needs to be more rewarding, both personally and professionally.

LAW OFFICE OF HABIB BENTALEB View this article online at Marinbar.org.

It’s hard to pick a highlight but if I had to, I would say it was winning my first bench trial many years ago back in Chicago. Although it was originally the com-

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Visit MCBA or email volunteer@marinbar.org to learn more and to get involved.

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NONPROFIT PROFILE NICOLE ÇABALETTE

Fair Housing Advocates of Northern California This article was published in the February 2018 issue of the Marin Lawyer and is reprinted here in its original form.

An African-American renter found a new home in Marin and moved in. Her landlord told her that her neighbors would be upset that she had rented to an African-American. The landlord began harassing the tenant, and following a dispute about rent, placed a sign in her window: “Black Section 8 Tenant – Shameless [tenant’s name].”

This tenant’s story of racial discrimination is devastating and is even more disturbing because it happened within the last year.

This year marks fifty years since the federal Fair Housing Act was enacted. After the assassination of Martin Luther King, Jr., 125 cities erupted in riots.

Seventy thousand military troops and National Guardsmen were deployed in twenty-nine states. One week later, in an attempt to address racial segregation and discrimination, Lyndon Johnson signed the Act into law.

The Fair Housing Act protects individuals from discrimination in the sale, rental and financing of housing based on race, color, national origin, religion, gender, disability and familial status. In California, there are additional protections for marital status, sexual orientation, immigration

status, citizenship, primary language, ancestry, source of income and arbitrary characteristics such as age or physical appearance through the California Fair Employment and Housing Act. Fast forward to 2018. Fair Housing Advocates of Northern California (“FHANC”), formerly known as Fair Housing of Marin, a nonprofit organization serving Marin, Solano, Sonoma and other Bay Area counties, works to ensure equal housing opportunity and to educate the community on the value of diversity in our neighborhoods.

Based in San Rafael, and celebrating its 32nd year serving our community, FHANC is a HUD-Certified Housing Counseling Agency which provides free fair housing counseling, investigation, enforcement, mediation, and legal or administrative referrals to those who have experienced housing discrimination. FHANC also provides foreclosure prevention counseling for distressed homeowners.

FHANC staff may represent tenants in the administrative complaint process, and as an agency with standing, sometimes brings administrative complaints and lawsuits in order to change discriminatory housing policies.

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Education For property owners and managers, and other real estate professionals in both the private and public sectors, FHANC provides fair housing law training programs and seminars. Community and tenant groups can also schedule fair housing presentations.

For homeowners suffering a financial hardship, FHANC provides guidance on eligibility and qualifications for participation in federal and state programs to help them stay in their homes, maintain an affordable mortgage payment, and avoid foreclosure.

For homebuyers, FHANC offers pre-purchase education workshops in English and Spanish in the fall and spring, with the next English workshop scheduled for March 1. FHANC’s website is also a fantastic resource for best practices and legal information for tenants, landlords, 34

homeowners and other industry professionals.

Advocacy FHANC conducts on-call housing discrimination investigations, wherein trained testers take on the role of someone inquiring about housing and report on their experience. Testing is critical to the enforcement of fair housing laws and serves to expose discriminatory practices and patterns that might otherwise go undetected. The reports can be used as evidence in support of a housing discrimination complaint.

For example, FHANC recently conducted a two-part investigation at a property in Marin, using callers with raciallyidentifiable voices. In both instances, the housing provider refused to schedule a private appointment with the AfricanAmerican callers; however, when speaking with Caucasian callers just hours later, he agreed to meet without question and offered a lower security deposit.

Another, lesser known piece of FHANC’s advocacy work is its investigations of bank-owned

(REO) properties, which commenced in 2013. On February 1, 2018, FHANC, together with the National Fair Housing Alliance and eighteen other fair housing organizations around the country, filed a lawsuit against a Deuschte Bank, its loan servicer, Ocwen Financial, and its property manager, Altisource Portfolian Solutions, related to their failure to maintain and market Deuschte Bank’s REO properties in neighborhoods of color compared to white neighborhoods. FHANC and its partners filed a similar lawsuit last year against Fannie Mae.

please email or call FHANC’s Executive Director, Caroline Peattie at 415-457-5025.

This article was originally published in the February 2018 issue of the Marin Lawyer.

The examples of blatant discrimination cited above provide a glimpse into the kind of work still required, fifty years later, to continue the fight for equal housing opportunity. If you are looking for ways to get involved, FHANC is always looking for volunteers interested in becoming testers. If you are interested in helping to uncover illegal housing discrimination, please visit our website.

FHANC is also seeking committed board members and donations are always welcome. If you are interested in learning more,

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JUVENILE DEPENDENCY JILL MCINERNEY

Dramatic Increase in Funding for Juvenile Dependency Counsel Finally on the Horizon

O

nly three days after taking office, Governor Newsom took direct and immediate action to deliver on his campaign’s commitment to invest in California’s most vulnerable children and families. In an unprecedented act, Governor Newsom included an additional $20 million for the legal representation of children and families involved in the state’s juvenile dependency courts, bringing the program that much closer to finally achieving full-funding. In his revised May budget, he seized on a new federal policy to identify an additional $34 million for legal representation, bringing the state closer than ever before to achieving full funding for this important work.

The decisions made in dependency courts have the potential to permanently sever the parent –child relationship. Courts have the power to temporarily remove children from their parent and sometimes even limit all contact prior to a full evidentiary hearing on whether the children are at risk for abuse or neglect. Depending on the trajectory of the case, the court may later decide whether a child should be placed with strangers, a relative, or whether

the child can remain or return to their home. The court may also decide whether to terminate all contact between the parent and child, and whether to permanently terminate parental rights and free that child for adoption by another family.

Ensuring that juvenile dependency judges have access to evidence on behalf of children and parents is essential to upholding the validity of these decisions and protecting the due process rights of each client in the dependency system.

Research shows that highquality legal representation increases the number of foster children who return to their families of origin. Washington State undertook a rigorous study from 2004 through 2008, and found that improving representation by providing reasonable compensation and reduced caseloads led to an 11% higher exit rate to reunification and shorter timelines to other forms of permanency, such as adoption and legal guardianship.i California has long recognized the right to court-appointed counsel for children and indigent parents in dependency court proceedings. In 1989, Cal-

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ifornia shifted the responsibility for funding this statutory right away from counties and placed it squarely with the state under the Trial Court Funding Act with the express purpose of ensuring statewide equal access to justice. However, the state has never fully funded this mandate.

Thirty years later, the program is now funded at only 66% of the Judicial Council’s conservative estimated need.

Statewide, dependency representation programs are choosing between drastically high caseloads and drastically low rates of compensation. All too often dependency attorneys are confronted with both problems.

These highly specialized attorneys for parents and children are experienced in both the complex statutory framework and the special skills needed to appropriately interview highly traumatized parents and children at different developmental ages and cognitive abilities. But the lack of funding has meant that these attorneys are significantly underpaid for their work.

A 2002 Judicial Council study determined that for optimal representation, a dependency attorney’s caseload should be 36

no more than 77 clients, and set a maximum of 141 clients for a “base-level standard of performance.” (The National Association of Counsel for Children recommends no more than 100.) California caseloads have averaged as high as 325 in some recent years. To bring the caseload down just to the 141 level, the Judicial Council estimates the statewide budget should be $196 million. Governor Newsom’s proposed budget is $190.7 million, which will bring the caseload to a number close to 141.

While still far from the ideal, Governor Newsom’s investment in lawyers for children and

families represents a historic moment for California. In the thirty years of this state’s promise, never before has a governor taken such dramatic steps towards meeting the needs of the children and families in our abuse and neglect system with improved representation. The California Legislature has been consistently supportive of efforts to increase funding for court-appointed dependency counsel.

A different version of this article was previously published in San Francisco Attorney magazine and is reprinted with permission by the Bar Association of San Francisco. i

Evaluation of the Impact of Enhanced

Parental Legal Representation on the Timing of Permanency Outcomes for Children in Foster Care

View this article online at Marinbar.org.

Jill E. McInerney is the Attorney Administrator of the Dependency Representation Program at the Bar Association of San Francisco. BASF maintains and manages the courtappointed panel of attorneys representing all children and indigent parents within San Francisco’s juvenile dependency court. Jill is a Child Welfare Law Specialist and was an active member of San Francisco’s court -appointed panel for fifteen years. Along with her colleagues statewide, Jill has spent much of the past five years addressing the state Legislature and the Judicial Council of California to advocate for increased funding for courtappointed dependency attorneys so that our state’s most vulnerable children and families receive appropriate legal representation.

EMAIL

THANK YOU TO OUR 2019 MCBA SPONSORS Bronze

Interested in sponsorship? Contact Mee Mee Wong at 415-499-1314 or mwong@marinbar.org

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37

THE BROCKBANK POLITICAL REPORT GREG BROCKBANK

The March 2020 Primary and More on the Leading Presidential Candidates' Pros and Cons deemed unwieldy, with too little time for each candidate), with qualified candidates randomly assigned to one night or the other.

Disclaimer: The views below are those of the author and do not necessarily reflect those of MCBA and its members.

MARCH ELECTIONS Most voters know that the next California presidential primary will be in March of 2020 rather than in the customary June. In fact, California has moved its primary month five times since 1992 – from June to March to February and back to June (to save the expense of separate primaries for president and for the rest of the races). This time, all the primary races will be held in March. This change, California hopes, will bring candidates to California and make us relevant in the presidential countdown.

That means March ballots (for which the filing period runs from mid-November to midDecember) will include: the county supervisor races of Katie Rice, Dennis Rodoni, and Kate Sears; two to three seats on each of the city and town councils of Belvedere, Corte Madera, Mill Valley, and Ross; new sixyear terms for Judges Verna Adams, Mark Talamantes, and

Beverly Wood (judicial challengers are always unlikely; successful ones even less likely); seats for two sanitary districts (Almonte and Kentfield); and the “races” for County Central Committees for each party (rarely contested, usually with no campaigns, for little-known candidates except for the few who are also current or former elected officials); and of course, the usual primaries for Congress and State Assembly.

TELEVISED DEMOCRATIC PRESIDIENTIAL DEBATES THIS JUNE AND JULY As Trump has a lock on the Republican nomination, there’s no one for him to debate, so we only have Democratic debates to look forward to. The first two will be held June 26th and 27th, with about ten candidates in each (more than that was

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In rules set by the Democratic National Committee, candidates must qualify to participate in the June debates by attracting at least 65,000 unique donors with at least 200 donors in at least 20 different states. It’s also possible to qualify through polls, that is by winning one percent of the vote in three qualified polls. All but a few of the current 24 candidates (as of late May) have qualified, and there is still time for a few more of the existing candidates, or maybe even a new one, to qualify as well. For the second round of debates in July, those requirements will double.

Some candidates will be disappointed to find that, even after months of campaigning in Iowa and other early states and trying to get enough media coverage to catch fire, they have not moved the needle much in poll numbers and fundraising and will drop out soon after the 38

June or July debates. Others will last a little longer but drop out before the start of primaries and caucuses in February. After that, unless a candidate places in the top two (or three?) in at least one (or two?) of the four early states (IA, NH, SC, and NV), then he or she has no chance and will drop out, whether they admit or not that they are also not increasing their fundraising enough, if at all, to continue.

FRONTRUNNERS By next March, we can expect to see maybe three or four final candidates, barring a surprise late emergence in the next few early primaries and caucuses.

(Remember that the last three Democratic nominees who went on to become President— Carter, Clinton, and Obama— were all little-known when they jumped in.)

“Super Tuesday” is March 3, 2020, immediately after the first four states in February, when a significant number states vote, some with significant populations and delegate allocations, including California.

So if we don’t have a clear frontrunner by early March, we are likely to have one by late March (the long, close Obama/Clinton and Clinton/Sanders races in ’08 and ’16 notwithstanding).

And the most likely frontrunner (and nominee, and president), in my opinion, is…

JOE BIDEN

As anticipated in my last column

two months ago, Joe Biden announced, and immediately became the Democratic frontrunner in the polls— overwhelmingly or narrowly, depending on which polls you count—and also in fundraising.

He narrowly beat Bernie Sanders’ impressive first-day online receipts of $6M, and Kamala Harris’ $3M, and all others by even wider margins.

Until he became Obama’s VP pick 11 years ago, Biden was a long-time prominent senator who never got much traction in his prior runs for president. Two cases of plagiarism (in college and in the Senate), harsh treatment of Anita Hill in the Clarence Thomas SCOTUS confirmation hearings a quarter century ago, a pretty bad case of foot-in-mouth disease, and the yearning in various wings of the Democratic party and electorate for a candidate younger, and/or of color, and/or female, and/or more progressive, might give some voters pause. But the friendly feelings for kindly Uncle Joe as Obama’s cordial and significant older junior partner has apparently left many people with warm and fuzzy feelings, perhaps in part because they liked and admired (and still like and admire) Obama so much that Biden still shines at least a little in Obama’s (continuing) reflected glory.

Many voters of course are still undecided, given the large field that few can name, much less be familiar enough with yet to make an informed choice, so it’s impressive that Biden already

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polls in the 30s in some polls and some states. He has a lead of 10 to 20 points or so over Sanders, in most polls, followed, in varying orders, by Kamala Harris, Elizabeth Warren, and Pete Buttigieg (who surprised many of us by rising as fast and as far as he did). Other impressive (but in the second tier or lower) candidates like Kirsten Gillibrand, Cory Booker, and Beto O’Rourke are all at about 1 to 5% (some say maybe 10%) in polling as of late May, and also far behind the first tier in fundraising.

WHAT, IF ANYTHING, COULD DERAIL BIDEN? Biden doesn’t have a majority in the polls anywhere yet (and may never), but in ’15-’16, Trump started with about 20% in the polls among Republicans, and then got up to about 30%, and then 40%, but the other candidates were so numerous that they spread out the non-Trump supporters, giving Trump a continuous, significant, and growing lead; I predicted in December 2015 that he would win the nomination for that reason. The same may happen to Biden, and he’s starting higher and better known (and has more political experience than any other candidate, contrary to Trump’s nonexistent, and even Obama’s, federal experience, which consisted of two years in the Senate when he announced, and four when he was inaugurated), and there are so many other candidates splitting up the non-Biden supporters, that Biden’s lead looks now, and may remain, 39

seemingly huge.

But anyone age 76 (as Biden now is) could have health problems, or his foot-in-mouth disease could have yet another eruption and diminish his lead, or make it evaporate entirely.

Although gaffes were often a death knell for candidates, especially Democrats, Trump makes them with alarming frequency (even if you don’t count outright lies as gaffes), and they don’t seem to hurt him. The large size of Biden’s lead, if it holds, may incline a significant percent of the significant number of fence-sitters to gravitate to him, if for no other reason than they want to support a winner. And he does seem to many people, in many ways, to be the “safest” choice: most experienced and least likely to blow up in ways we couldn’t have predicted.

Being the front-runner from wire-to-wire (as was pretty much the case for Trump), also puts a target on the frontrunner’s back and vastly increases scrutiny. Some wilt under that scrutiny, but Biden has already survived a lot. Occasionally an obscure candidate catches fire and shoots to the top of the polls (e.g., Gen. Wesley Clark in 2004, a late-entering relative unknown, who shot to the top very briefly, and then plunged down again to where he belonged), but such examples are rare. It’s likely that Biden will maintain or even increase his lead over the coming months (barring a serious gaffe that damages or ends his campaign),

and others may remain in their relative places, give or take, until they all drop out, one by one.

BERNIE SANDERS Bernie has numerous advantages and may be the only one with a serious chance to catch Biden, although he has weaknesses as well as strengths. As the runner-up last time, some feel it’s “his turn,” and he’s been vetted by the public and exceeded expectations. He’s thus seen as a “safe” and acceptable choice, despite his relatively far-left positions, which appeared radical three to four years ago, but now are endorsed by many of the other (progressive) presidential candidates, and now could be considered mainstream Democratic Party positions. Medicare for All, $15/hour minimum wage, and free college tuition may well make it into the party platform, if they’re not already there.

In my opinion, Sanders presents as rational, polite, and inspiring and is the right person to hold the bully pulpit, even if some or most of his proposals get bogged down, watered down, or fail in the near future. One would have guessed that he would have been hurt in 2016 by his age (a year older than Biden), his Einsteinian wild hair, Brooklyn accent, decades-long pre-politics background as a socialist rabble-rouser, or even his Jewishness. But none of those things ruled him out last time, and they may not this time, either.

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Yet, in many people’s minds, the number-one criterion is the likelihood of beating Trump, and Biden’s actual (or at least perceived) lead in that area may be enough to carry him to the nomination. Should a Sanders supporter vote with their heart, knowing polls now show him beating Trump by perhaps only five points, when Biden shows a lead of about twice that?

KAMALA HARRIS Harris may still be among the top few, but a considerable distance behind number two Sanders, who is a considerable distance behind number one Biden. She jumped in “early” (early January), as opposed to “late” (late January, which Warren, Gillibrand, and Booker all regretted as being too late, letting Harris get a slight head start), and by most accounts her kickoff and rollout were extremely good (20,000 people at her Oakland kickoff, and impressive first-day online donations), especially since she was a nationally little-known two-year U.S. Senator (unless you were a political junkie who saw an extremely charismatic and capable prosecutor at the Kavanaugh confirmation hearings last year.)

Some, including me, even thought that if Harris could hang close to the leaders in the first four states in February and win California in early March, she could be the leader in the delegate count, even if only temporarily. But recent polls indicate that the likelihood of 40

her winning her home state are not as high as she obviously would have hoped, and she may not do well enough in the early four states (other than South Carolina) to remain among the top few (or at least top two) after Super Tuesday. Some say she’d make a great VP (and possible heir four years later) if the nominee is Biden or Sanders, and they decline to run for a second term (which would be rare) because of age. Personally, I think Harris would make a great US Attorney General, given her 13 years (before she joined the Senate) as San Francisco D.A. and California A.G, although she might prefer to stay in the Senate.

be a great Secretary of Labor, or maybe any of several other departments as well? Although perhaps she would add the most value by staying in the Senate.

ELIZABETH WARREN

In my opinion, we have an amazingly large and talented field of Democratic presidential candidates of mainly well-qualified, experienced, thoughtful, and even inspiring candidates. It’s almost a shame that only one of them can win the nomination.

Warren continues to present some of the most bold and thoughtful ideas of any of the candidates, including some that may seem too far left and impossible to accomplish in the near future. As with Sanders, Warren appeals mainly to the left wing of the Democratic Party, and perhaps too many voters find her not very likable or even strident (too often a sexist term when used to describe a female candidate). She chose the highly ethical and admirable path of not holding any big-donor fundraisers, which are usually staples of candidates for president and nearly everything else. But while she’s done pretty well with small donors, and is among the top few in number of donors, without the big-donor fundraisers, she predictably lags in fundraising. But wouldn’t she

“TEAM OF RIVALS” FOR BIDEN’S CABINET? Let’s assume the most likely things will occur: Biden gets the nomination, and he beats Trump. Even though Trump has withstood numerous problems which many of us thought would be the end of him, his defying Congressional subpoenas and maybe even court orders may cause doubt in too many voters’ minds by November of next year.

Hickenlooper, and Steve Bullock, and maybe even mayors, like Pete Buttigieg? If even half of those people agreed to serve in the cabinet of whomever a Democratic President might be, it would be an unprecedented collection of former presidential candidates, with a huge amount of varied experience, who could conceivably quickly and successfully set about repairing the damage caused by the Trump administration, domestically and internationally.

View this article online at Marinbar.org Greg Brockbank is a thirtyplus-year attorney and civic and political activist, having served for twenty-two years on the College of Marin Board of Trustees and then 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 thirty state Democratic conventions. For over twenty years he has also appeared as a commentator and election-night co-host on public access television. EMAIL | WEBSITE‌

My imagination runs wild. Remember historian Doris Kearns Goodwin’s book, Team of Rivals? It detailed Abraham Lincoln’s cabinet, which he populated in part with some of the people who ran against him for president. Could Biden do the same and have an all-star cabinet (instead of Trump’s all-dud cabinet), which could include (in addition to Harris and Warren, as suggested above), Cory Booker, Kirsten Gillibrand, and Amy Klobuchar and perhaps even House members like Eric Swalwell, governors and former governors like Jay Inslee, John

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HOMELESSNESS A.J. BRADY

Martin v. Boise: Not a Case to Sleep Through This article was published in the October 2018 issue of the Marin Lawyer and is reprinted here in its original form.

T

he Ninth Circuit has again sent ripples across the legal landscape, this time through the crossroads of criminal justice and homelessness policy with its decision in Martin v. City of Boise (9th Cir. 2018) No. 1535845. In Martin v. Boise, a group of homeless individuals filed a 42 U.S.C. section 1983 action against the city of Boise accusing the city of violating their civil rights. Plaintiffs alleged that the city of Boise violated their rights by criminalizing "camping" and "trespassing" on public property. According to the appellate record, Boise enforced these ordinances against homeless people essentially for sleeping on public property.

The Ninth Circuit held that, "[T] he Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to."

While Boise has homeless shelters, the court indicated that there were numerous reasons why plaintiffs could be barred from entry aside from capacity, specifically if plaintiffs refused

to engage in a faith-based curriculum, exceeded limits on the number of days allowed, or left a program prematurely. The court reasoned that punishing basic behavior associated with being human, such as "sleeping" done in public without alternatives, is not punishing conduct but rather punishing the status of being poor, which has previously been held to be unconstitutional.

The potential fallout of its ruling was understood by the court, which in cautious language stated, “[W]e in no way dictate to the City that it must provide sufficient shelter for the homeless...." However, its ruling inevitably leads to the conclusion that sufficient shelter is a necessary precondition to a municipality using criminal sanctions against the homeless sleeping on public property.

The tentacles of Martin v. Boise are far reaching. In California, an analogous statute to those at issue in Boise is Penal Code section 647(e), which makes it a misdemeanor to "[lodge] in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it."

Numerous local laws could also be affected, such as Novato Municipal Code section 14-20 and San Rafael Municipal Code section 8.10.090(d), which both bar 'camping' and attendant conduct in similar ways to Boise.

It is also not hard to predict the expansion of Martin v. Boise.

While the ruling applied specifically to "sleeping," the court’s language encompasses all conduct which is a "universal and unavoidable consequences of being human." Other unavoidable consequences of being human are generally frowned upon or are illegal when done in public: relieving oneself; warming oneself, perhaps by fire; or accruing property and shelter in order to survive through a winter.

The Martin court took great pains to emphasize the limits of its ruling, even expressly stating, "Our holding is a narrow one." Yet legal observers may be left paraphrasing Queen Gertrude in Hamlet, “The Ninth Circuit doth protest too much.”

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The court indicated that there could be reasonable restrictions on camping, and city attorneys would be well advised to review their municipal codes and advise their police departments on proper enforcement procedures or risk a section 1983 lawsuit, with attendant damages and attorney's fees.

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However, it would be a huge mistake to view Martin v. Boise as simply a mandate to narrow the scope of public camping laws.

The clear import of the ruling is that traditional criminalization and law enforcement cannot be the primary method of 'dealing' with everyday conduct by a human being who is homeless.

This article was originally published in the October 2018 issue of the Marin Lawyer.

A.J. Brady is a Deputy District Attorney with the County of Marin. He has worked extensively in the crossroads of homelessness, mental health, and criminal justice. The views expressed are his own.

The Marin Lawyer encourages our readers to also be our writers. If you have something you’d like to write about, get in touch with us.

We also encourage our readers to be our critics. If there’s something you’d like to see (or not see) in the Marin Lawyer, let us know. If you’d like more articles on practical law firm topics, tell us. More book reviews? Let us know. All feedback is welcome. info@marinbar.org

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UPCOMING EVENTS UPCOMING EVENTS GENERAL MEETING

MCBA MEMBER LUNCHEON WED | JUN 26 | 11:30A-1:30P

The U.S. Supreme Court: Recent, Past & Future Predictions

SPEAKER

Professor Rory Little | Constitutional Law Professor, UC Hastings Buffet Lunch included with registration | 1 CLE General INFO & REGISTRATION

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).

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UPCOMING EVENTS UPCOMING EVENTS WED | JUN 19 | 12:00-1:30P SECTION MEETING: Probate & Estate Planning Brown Bag Lunch | 1 CLE General INFO & REGISTRATION >

WED | JUN 19 | 4:30-5:30P MARIN COUNTY LAW LIBRARY: Legal Research on Westlaw‌ MCLL Program | 1 CLE General INFO & REGISTRATION >

THU | JUN 20 | 12:00-1:00P SECTION MEETING: Construction Law Brown Bag Lunch | 1 CLE General INFO & REGISTRATION >

WED | JUN 26 | 11:30A-1:30P GENERAL MEETING The U.S. Supreme Court: Recent Past and Future Predictions | 1 CLE General INFO & REGISTRATION >

WED | JUL 17 | 11:30A-1:30P SECTION MEETING: Probate & Estate Planning Brown Bag Lunch | 1 CLE General INFO & REGISTRATION >

WED | JUL 24 | 6:00-8:00PM AFTER-WORK MIXER: SF Marin Midsummer Mixer Annual MCBA, CalCPA, and CFA-SF Mixer INFO & REGISTRATION > 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).

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NEW MEMBERS NEW MEMBERS Welcome to the Marin County Bar Association!

Daniel Dersham Harris Bricken daniel.dersham@harrisbricken.com 415-200-0648 Attorney Membership

Dylan Recht Lerman Law Partners, LLP dylan@lermanlaw.com 415-454-0455 Affiliate Attorney Membership

Liliana Gallelli Kerosky Purves & Bogue, LLP lgallelli@kpblawyers.com 707-433-2060 Attorney Membership

John Sanford Abbey, Weitzenberg, Warren & Emery jsanford@abbeylaw.com 707-542-5050 Attorney Membership

Meredith Jensen Morgan Stanley meredith.jensen@morganstanley.com 415-250-8225 Affiliate Non-Attorney Member

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MCBA MEMBERSHIP BENEFITS Networking & Community Learning & Education Volunteer & Leadership Opportunities Professional Credibility

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PLACE AN AD IN The Marin County Bar Association’s

Marin Lawyer Digital Magazine MCBA’s digital magazine is published quarterly on the issuu platform.

2019 INTRODUCTORY AD RATES Size / Placement

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$750

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Full Color Ad includes link to URL of your choice MCBA Members receive 10% discount off list rates.

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Thank you to our 2019 LEADERSHIP CIRCLE MEMBERS CHARLES D. DRESOW, ESQ. COBLENTZ PATCH DUFFY & BASS LLP ROBERT F. EPSTEIN, ESQ. THE FREITAS LAW FIRM MONTY WHITE, LLP RICHARD WATSON & GERSHON

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. sponsorship@marinbar.org 415-499-1314

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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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