Contra Costa Lawyer - July 2018 Constitutional Law

Contra Costa

Lawyer Volume 31, Number 4 | July 2018

Constitutional Law The Right to Local Initiative in California The Humphrey Decision: Justice or Pandora’s Box

The Second Amendment

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Contra Costa 2018 BOARD of DIRECTORS James Wu President Wendy McGuire Coats President-Elect Oliver Greenwood Secretary Laura Ramsey Treasurer Philip Andersen Past President Gina Boer Steven Derby Mika Domingo David Erb Renée Welze Livingston David Marchiano

Ericka McKenna Nicole Mills Craig Nevin Dorian Peters Summer Selleck Qiana Washington

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Carole Lucido

LRIS & Moderate Means Director Communications Director

Jennifer Comages Anne K. Wolf

Membership Director Education & Events Director

Emily Day

Fee Arbitration Program Director & Systems Administrator

Contra Costa Lawyer CO-EDITORS EDITORIAL BOARD Suzanne Boucher David Arietta

Lawyer Volume 31, Number 4 | July 2018

The official publication of the

B A R A S S O C I A T I O N

features The Right of Local Initiative in California, by Jay Chafetz . . . . . . . . . . . 5 MCLE Self Study Viewpoint Discrimination at Public and Private Universities: An Attack on the First Amendment? by Suzanne Boucher . . . . . . . . . 8 The Second Amendment: What is It? by Tim Hyden . . . . . . . . . . . . 10 The Second Amendment Right to Self Defense and the Right to Form a Militia, by Joerg Knipprath . . . . . . . . . . . . . . . . . . . . 11 Reconciliation, by Justice James Marchiano (Ret.) . . . . . . . . . . . . . . . 17 In the Wake of Humphrey, by Chris Sansoe. . . . . . . . . . . . . . . . . . 24 The Humphrey Decision: Justice or Pandora’s Box,

by Dan Horowitz and Tom Kensok . . . . . . . . . . . . . . . . . . . . . . . . . 25

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COLUMNS INSIDE: Constitutional Focus, by Inga Miller, Guest Editor. . . . . . . . 4 Last Month: Business Succession Planning. . . . . . . . . . . . . . . . . . . . 35

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The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year – six times online-only – by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@ cccba.org.

The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

DEPARTMENTS 21

PHOTOS: Comedy Night, Food From the Bar Fundraising Results

22

PHOTOS: All Section Summer Mixer

22

PHOTOS: Induction of Judge Virginia George

30 SUSTAINING FIRMS 31

WELCOME New and Returning Members

34 Classifieds 34

INDEX OF ADVERTISERS

36-38 Calendar

EVENTS 7

Judges Night

16

Diversity Networking Event with Minority Bar Associations

28 Family Law Training – The Basics 32 cccba Goes to the Ballpark 33 cccba program: Member Information Series 39

Bar fund benefit

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

3

INSIDE Constitiutional

Focus

by Inga Miller, Guest Editor

July is the month when the hectic pace of lawyering slows down a bit and we have an opportunity to take a breath for reflection. It is also the month in which we celebrate the anniversary of our nation’s birth.

For those reasons, the Editorial Board picked July as the month to present a series of articles on both the United Stated Constitution and our California State Constitution. As shown by our authors, each require interpretation and adaption to a constantly changing world.

None of the amendments of either constitution garner more fierce debate or apply to circumstances so different today than those confronted at ratification than the Second Amendment, which likely was controversial even among those who signed the Bill of Rights as alluded to by author Professor Tim Hyden. On this flashpoint of our constitution, author Professor Joerg Knipprath takes a deeper dive to answering the question of what constitutes lawful gun control under the Supreme Court’s test.

Both the California and the United States constitutions meanwhile face questions raised by the case of Kenneth Humphrey, the indigent San Francisco defendant whose bail hearing led a State Appellate Court to decide that principals of due process and equal protection entitle defendants to bail set in light 4

JULY 2018

of their ability to pay. After the San Francisco District Attorney’s office declined to appeal the decision, the Supreme Court in late May decided to review the case on its own motion.

Defense council and litigators Daniel Horowitz and Thomas Kensok explore the often disparate results of bail hearings based on a defendant’s ability to pay and the unintended result on plea agreements.

In a companion article, Prosecutor Chris Sansoe focuses on two other questions on review by the Supreme Court in Humphrey centering on whether bail hearings can take into consideration victim safety and other rights and protections for victims and their families enacted by voters as an amendment to the California Constitution in 2008.

That California constitutional right of voters to enact laws by initiative and reject them by referendum is the subject of Jay Chafetz’s article (which offers MCLE self-study credit). Chafetz traces the evolution of initiative case law starting in Contra Costa County in the 1920s along a chain of decisions interpreting an ever-broader right of voters over the succeeding decades and culminating in a decision last year broadening the right of voters to consider a tax on cannabis.

No series of articles on the Constitution could be complete without one on the First Amendment.

Co-editor Suzanne Boucher writes about tensions between liberals and conservatives on college campuses and urges readers to question whether colleges and university policies constitute the First Amendment’s protection against viewpoint discrimination.

Finally, Justice James Marchiano shares a new short story from his series “Stories from the Bray Building” in which protagonist Judge Raymond Carlton confronts a difficult case.

We thank our authors who contributed great effort and work to this month’s issue. Longer versions of almost all of the articles and more thorough citations can be found online at www.contracostalawyer. org. We hope you will find the articles meaningful in your reflection of the values and principles of our California and United States constitutions.

Inga M. Miller is a real estate and business attorney and is Vice-Mayor of Orinda. She serves as co-editor of Contra Costa Lawyer. Contact Inga Miller at (925) 402-2192 or inga@ millerpropertylaw.com or visit www. millerpropertylaw.com.

On the Cover: George Washington, Robert

Morris and Haym Salomon commemorate the spirit of cooperation between civilians and soldiers during the Revolutionary War in this memorial statue in Chicago, Illinois

MCLE SELF STUDY

The Right of

Local Initiative

in California

by Jay Chafetz The California Constitution reserves to the people the right to enact laws directly by initiative. This article explores the right of local initiative, the limitations on that right, and the continually greater deference given that right, culminating in last year’s decision of the California Supreme Court in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 935 (“California Cannabis”).

Background In 1911, the California Legislature proposed, and voters adopted, an amendment to the California Constitution providing the right of voters to place initiatives and referendums on the ballot. Initiatives propose statutes and amendments to the Constitution whereas referenda approve or reject statutes. In 1925, the California Supreme Court confirmed the right extends to the electorates of cities and counties.

Early history One of the first California Supreme Court cases to construe the 1911 amendment was Galvin v. Board of Supervisors (1925) 195 Cal. 686.

It questioned the validity of an initiative that granted a franchise to a private company to build a toll bridge across the Carquinez Strait to connect Contra Costa to Solano County.

In striking down the initiative, the Court said the Constitution states a local legislative body may only make “ordinances . . . not in conflict with general laws.” Since existing general laws would have required the County to notify the adjoining county and the state engineer before adopting such an ordinance, the County was not required to place the initiative on the ballot. Similarly, four years later, the Court blocked an initiative that would have rezoned a lumber yard to residential use in Hurst v. City of Burlingame (1929) 207 Cal. 134 because the zoning change had not been subject to public hearings before a planning commission as required by existing law.

Everything changed 50 years later, however, when the Court overruled Hurst in Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582 and gave rise to a series of subsequent California Supreme Court cases as opponents explored other ways to attack initiatives.

Associated to Tuolumne In Associated, voters in Livermore enacted an initiative ordinance that prohibited issuance of residential building permits until completion of infrastructure for water, sewage and disposal. Following Hurst, the trial court ruled the initiative was invalid because the proposal had not been the subject of noticed hearings

required under the Government Code to change zoning or impose land use restrictions.

Overruling Hurst, the Court held that statutory notice and hearing provisions apply only to ordinances enacted by city council action and not to those enacted by a vote of the local electorate. The Court stepped further in DeVita v. County of Napa (1995) 9 Cal.4th 763 to extend the language in Associated resolving doubts in favor of the right of local initiative as a presumption in favor of that right. The Court stated that this presumption is rebuttable only “upon a definite indication that the Legislature, as part of the exercise of its power to preempt all local legislation in matters of statewide concern, has intended to restrict that right.”

The DeVita initiative amended the land use element of Napa County’s general plan and made the re-designation of existing agricultural land and open space conditional on voter approval until 2021. While recognizing that state laws concerning general plans express certain state interests, the Court said, “[I]t is erroneous to assume that a statute or statutory scheme that both asserts certain state interests and defers in other respects to local decisionmaking implies a legislative intent to bar the right of initiative. Rather, courts must inquire concretely into Continued on page 6

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

5

Local Initiative

Continued from page 5 the nature of the state’s regulatory interests to determine if they are fundamentally incompatible with the exercise of the right of initiative or referendum, or otherwise reveal a legislative intent to exclusively delegate authority to the local governing body.”

Re-confirming this favor of the right of local initiative, the Court held in Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029 that CEQA requirements do not apply to an initiative ordinance, whether the initiative is enacted through a vote of the people or by adoption by the local legislative body in lieu of an election, as permitted by the Elections Code.

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The court noted that CEQA review typically takes months, whereas the procedures under the Elections Code require prompt action on voter initiatives. If prior CEQA review were required, a city could never adopt a voter initiative under section 9214 or 9215 if the initiative had any potential impact on the environment.

California Cannabis California Cannabis addressed the issue of whether a potential tax proposed by local initiative could appear on the ballot in a special election even though taxes proposed by referendum are limited to general elections. The Court issued a sweeping opinion favoring initiatives and going further perhaps even than DeVita to require “a direct reference” or a “similarly clear, unambiguous indication” that a state law is intended to constrain the initiative process. Finding no such provision in Article XIII C, the Court ruled the initiative should have been placed on the ballot of a special election.

Limitations on California Cannabis While the Court favors initiatives, the Constitution sets boundaries.

The language of Article XI, Section 7 provides a county or city may make and enforce within its limits only local, police, sanitary, and other ordinances and regulations not in conflict with general laws. So for instance, the local electorate may not adopt an ordinance that purports to have statewide effect.

Second, while the progression from Galvin to California Cannabis shows the Court rarely constrains initiatives based on procedural conflicts with general laws, the same cannot be said regarding substantive conflicts. Both DeVita and California Cannabis expressly accept the principle that, after enactment,

a local initiative must not conflict substantively with general laws.

Thus, for instance, while an initiative proposing development may not require CEQA review prior to placement on the ballot, the development would be subject to CEQA upon passage of the initiative.

The Court has not often explored this distinction between substance and procedure, and almost never explicitly. The distinction seems to be this: if a requirement states what local government or the local electorate must do before enacting an initiative ordinance, or relates to election procedures, or sets the percentage of the vote required to prevail, the matter is procedural. If, however, it relates to permissible contents of the ordinance after it is enacted, it is substantive.

The path from Galvin to California Cannabis reveals a complete reversal of the Court’s approach to resolution of conflict between initiatives and general laws.

In Galvin, the initiative never made it to the ballot for failure to take notification steps that Tuolumne deemed procedural and properly made after the initiative was passed. Further, after California Cannabis, the Legislature must all but explicitly declare that procedures are meant to constrain the right of initiative for such procedures to bar initiatives. Under existing law, opponents of initiatives will generally have to find a

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Conclusion

substantive rather than a procedural way to attack an initiative – a challenge that usually can be brought only after, not before, a vote on the initiative.

Jay Chafetz practiced civil litigation for 34 years before joining the Contra Costa Superior Court as a research attorney in 2014.

He is a past president of CCCBA, and lead author of the Discovery Facilitator Rules. Any opinions expressed herein are his, not those of the court.

View the online version for a longer version of this article complete with extensive citations: www.contracostalawyer.com.

Earn one hour of general MCLE credit by answering the questions on the Self-Study MCLE test. Send your answers, along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non-members), to the address on the test form. Certificates are dated the day the form is received.

MCLE Self-Study Test

To download the test form and instructions for this Self-Study MCLE article, visit www.contracostalawyer.org and click on the “Self-Study MCLE” link on the top, then click on the article, “The Right of Local Initiative in California.”

If you prefer to receive the test form via email, contact Anne K. Wolf at awolf@cccba.org or (925) 370-2540. Send your answers, along with payment ($30 for CCCBA members) to the address on the test form.

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7

Viewpoint Discrimination at Public and Private Universities:

An Attack on the First Amendment?

by Suzanne Boucher

Free speech. It is a fundamental right. It is the right to express your opinion, engage in debate and advocate for your rights. It is the first amendment to our Constitution and it is under attack in the most unlikely of places—public and private universities across the country. Implicit in the right to free speech is the right to have access to all viewpoints and the right to challenge speech or expression that you find offensive by exercising your own free speech rights.

Ideally, these expressions should be delivered with civility and respect– something that seems to have gotten lost in the current political landscape.

The First Amendment does not protect us from being offended or feeling uncomfortable with opposing views. This was confirmed in Matal v. Tam 582 U.S. (2017), when the United States Supreme Court struck down the so-called disparagement provision of the Lanham Act, 15 U.S.C. § 1052(a), on the basis that the law constitutes unlawful view8

JULY 2018

point discrimination. In the majority opinion Justice Alito stated that “the idea that the government may restrict speech expressing ideas that offend…strikes at the heart of the First Amendment.” Justice Kennedy, who wrote separately for four justices, stated “a law found to discriminate based on viewpoint is an egregious form of content discrimination, which is presumptively unconstitutional.”

Administrators at public universities across the country are under scrutiny for their event policies that dictate the time, location, access and security for speakers and other events. There has been a lot of debate recently as to whether these policies are administered in a consistent manner or are forms of viewpoint discrimination geared towards restricting conservative views, in violation of the First Amendment. Two conservative student groups have filed a lawsuit against U.C. Berkeley alleging that their policies are too subjective and have been selectively enforced

to limit speakers with conservative political views. U.C. Berkeley claims these restrictions are necessary for events deemed “likely to interfere with other campus functions or activities” and that they do not discriminate against speakers invited by student organizations based upon viewpoint.” U.S. District Judge Maxine Chesney in San Francisco denied U.C. Berkeley’s motion to dismiss and ruled that the lawsuit can proceed.

Citing security concerns, University of Connecticut officials limited public access to Ben Shapiro’s speech, entitled “White Privilege, Microaggressions and other Leftist Myths.” They took it one step further when the Chief Diversity Officer sent an email to the students stating: “We understand that even the thought of an individual coming to campus with the views that Mr. Shapiro expresses can be concerning and even hurtful and that’s why we wanted to make you aware as soon as we were informed.” She also offered preemp-

tive counseling services prior to the event and encouraged students to “please utilize the many campus resources available to you should you want to talk through your feelings about this issue.” Does warning students that certain speeches or opinions may trigger or upset them and offering counseling and other safe spaces to deal with the trauma of being offended rise to the level of viewpoint discrimination?

Suggesting to students that they may be harmed by the mere thought of hearing a particular speech or viewpoint, seems to go too far and is arguably a disservice to the students.

The world is not always a safe place.

Students will be confronted with opinions and views that they may not agree with every day, especially if they choose a career in the law.

Instead of using fear to discourage students from listening to alternate views, students should be encouraged to consider all viewpoints and to express their opinions and to challenge viewpoints that they disagree with in a civil and respectful manner.

The faculty at colleges have also come under attack when they express opinions that are not supported by the majority. One example, widely discussed in the press, is Amy Wax, a tenured law professor at University of Pennsylvania School of Law who has been under fire for opinions she expressed in a 2017 op-ed article she co-authored in the Philadelphia Enquirer titled “Paying the Price for the Breakdown of the Country’s Bourgeois Culture.” In response to this article, 33 of Professor Wax’s colleagues authored an open letter in the Daily Pennsylvanian. The letter acknowledges that Professor Wax has “every right to express her opinion publicly free from legal sanction thanks to the First Amendment,“ but “Wax’s right to express her opinions does not make her statements right, nor insulate her from criticism. We categorically reject Wax’s claims.”

That was it. They did not offer any facts to back up their claim that her

statements were “wrong” nor did they offer any actual criticism of her position.

Shortly after the open letter was printed, the law school dean asked Wax to take a leave of absence next year.

The dean explained that he was getting “pressure” to banish her for her unpopular views and hoped that her absence would put an end to the controversy.

Professor Wax, who has tenure, is still at the university and continues to exercise her right to free speech.

While public university’s policies must adhere to the U.S. Constitution, private colleges, such as University of Pennsylvania, are bound only by the free speech guidelines they codify in their student handbooks and are not subject to First Amendment protections. How are these policies, once adopted, enforced?

Does this attempt to silence Wax for her unpopular opinions constitute a form of viewpoint suppression?

Once a school adopts a policy for expression, should it be held to the same standards as the First Amendment? While these are not purely legal questions, they are moral and/ or philosophical questions that should be considered.

As attorneys, we recognize the value of free speech. We live in a world of dissent and our days are spent arguing over different opinions and interpretations of facts. While it is disturbing that the institutions entrusted with educating today’s youth may be limiting student’s exposure to alternative viewpoints, we should be encouraged that the Supreme Court continues to protect this fundamental right.

Suzanne N. Boucher, Esq. is a Certifed Family Law Specialist in Walnut Creek with over 25 years of experience. She is a past president of the Robert G. McGrath American Inn of Court and the Women’s Section of the Contra Costa County Bar Association.

She also serves as co-editor of this magazine.

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9

The Second Amendment:

WHAT IS IT? Firearms Advocate: Denying our fundamental, constitutional right to own firearms will not decrease the murder rate. This is a mental-health problem not a gun-ownership problem.

Firearms Restrictions Advocate: The Second Amendment may give you a right to own a handgun but it does not give you a right to purchase assault weapons.

Firearms Advocate: What is an “assault weapon”? Any weapon – including knives – can be used to “assault” and commit crimes. If you take away my right to own a weapon for protection, I guarantee that criminals will continue to own such weapons.

These hyperbolized comments continue to frame the discussion of what the Second Amendment means. Second Amendment interpretation is infused not only with Constitutional arguments but also with sociological, psychological and even economic arguments.

One’s view and interpretation of the Second Amendment tends to be shaped by all these human conditions and issues.

What, then, are the 27 words of the Second Amendment?

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Amendment. Professor The development of Constitutional analysis and interpretation of the Second Amendment is in its infancy.1

Hyden provides a

What Does It Mean?

case of District of

The seminal Supreme Court case is District of Columbia v. Heller (2008).2 It was a five to four decision with Justice Scalia writing for the majority striking down a District of Columbia law restricting residents from owning handguns.3 Scalia begins the opinion by drawing a dichotomy between the two positions: For the District of Columbia, the right to possess and carry a firearm must be in connection with militia service.

Respondent’s position was that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia.

Columbia v. Heller and

Justice Scalia parses phrases of the Second Amendment distinguishing between what he calls the “operative clause” (“. . . the right of the people to keep and bear arms . . . . “) and the “prefatory clause” (“A well regulated militia, being necessary to the security of a free state . . . . “) and concludes this Second Amendment right is a right of the people and is “exercised individually and belongs to all Americans.” In other words, the right to “keep and bear arms” is not inextricably intertwined with militia service.

The majority opinion does recognize that this Second Amendment “right was not unlimited.” This conclusion gives rise to the question: which weapons are protected by the Second Amendment? Justice Scalia answers this question by stating, Continued on page 12

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professors of law to tackle the Second

by Tim Hyden

Firearms Restriction Advocate: How many more children must die before reasonable gun restrictions are put in to place?

We asked two

primer on the pivotal

the tension it stirs on both sides of the gun debate. Professor Knipprath picks up

where Professor Hyden leaves off to explore the constitutional test for gun control under Heller and the level of scrutiny restrictions must withstand to constitute lawful restraints as opposed to those that push the boundaries of the Second Amendment.

Second Amendment Right to Self Defense and the Right to Form a Militia

by Joerg Knipprath

Ten years ago this June, the U.S. Supreme Court, per Justice Antonin Scalia, delivered its opinion in District of Columbia v. Heller. The Court found unconstitutional a law that effectively banned private possession of handguns and required long arms to be disassembled or bound by a trigger lock. The Court reasoned that the Second Amendment reflected the fundamental right of personal self-defense by use of appropriate means, including handguns. Two years later, in McDonald v. Chicago, the Court applied Heller to states and municipalities, using the Fourteenth Amendment’s Due Process clause. The Court approvingly quoted tests from other cases that rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental” and those that are “the very essence of a scheme of ordered liberty” are protected under the Fourteenth Amendment.

A key unresolved issue is the precise level of judicial scrutiny to be applied to legislative restrictions on private gun ownership. This has left the lower courts floundering and to their own devices to divine the proper test and its application to various restrictions on gun ownership. The Court’s silence recently led Justice Clarence Thomas to object in a dissent from a denial of review by certiorari that the Ninth Circuit had erroneously applied deferential “rational basis” review.

Because infringements of constitutional rights are normally subjected to “strict” scrutiny, Thomas characterized the Second Amendment as the Court’s “constitutional orphan.”

Heller’s definition of the right to possess weapons “in common use at the time” for lawful purposes is derived from a formulation in U.S. v. Miller, a 1939 challenge to the National Firearms Act. When the Second Amendment was adopted, as well as earlier, it was common practice in a muster of the militia to require free adult white males to bring their own weapons and ammunition of types that were commonly used. Weapons used for militia service were also commonly used for defense of the person or home, especially in frontier areas, against attacks by ruffians or American Indian war parties. Thus, the lawful purposes for which (appropriate) weapons might be possessed include the right of personal defense and defense of the community. Weapons for hunting and sport shooting probably are also covered.

Certain types of gun restrictions likely will be upheld. The Heller court noted that laws that keep guns out of “sensitive zones,” such as churches, schools, or government buildings are constitutional. Whether or not such openly “gun-free” zones are effective is a matter of policy, not constitutional law. Similarly, laws that prohibit gun ownership by ex-felons or mentally ill people are unobjectionable under Heller. Penalty enhancements that single out crimes committed with a gun are constitutional, although their use as other than symbolism is unclear. A crime victim is unlikely to feel less violated, or a neighborhood less threatened, if the crime is committed with a knife than with a gun.

Continued on page 14

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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The Second Amendment: What is It? Continued from page 10

“the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short barreled shotguns.” This leaves open the door for state and federal restrictions on types of weapons, barrel lengths, magazine capacities, etc. The constitutionality of these restrictions will be tested in future Supreme Court cases.

Justice Stephens’ dissent implies Justice Scalia engages in disingenuous sophistry. Justice Scalia’s gymnastic attempt to get around the “well regulated militia” clause by relegating it to a “preface” dilutes the meaning of the clause thereby making it easier to ignore.

Notably, Justice Scalia discusses at some length historical references to

tyrannical governments controlling the population and suppressing political opponents by simply “taking away the people’s arms.”

At the time James Madison drafted the Second Amendment, the political philosophy of John Locke held sway with many of the founders of the Constitution. More specifically, John Locke espoused the political philosophy that all citizens retain a supreme power of saving themselves from tyrannical legislators, “whenever they shall be so foolish or so wicked as to lay and carry on designs against [the Citizenry’s] liberties . . . . “.4 Furthermore, Locke allowed the possibility of the citizens’ legitimate resistance against their government, or revolution.

Justice Scalia writes that during the states ratification debates, there was a sincere “fear that the federal government would disarm the people in order to impose rule through a standing army.” The implication here, is that, following

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Locke’s philosophy, should the citizens of the United States deem their government tyrannical, those citizens have a legal, constitutional and perhaps a moral right to overthrow it which would probably require the use of privately-held firearms.

The question is left: by whose standards is the government considered “tyrannical”?

Given the five to four decision and the fact the Supreme Court had for decades held the Second Amendment allowed states to pass reasonable firearm restriction laws, and the rather ambiguous verbiage of the Second Amendment itself, it is not difficult to infer a politicization of the decision. This further exacerbates the tension between firearmrestriction advocates and firearm advocates.

Does the Second Amendment Stand for Something Other Than The Right to Own Firearms?

The Second Amendment has become a metaphor for the rather nebulous and subjective concept of freedom. Owning firearms has come to represent the freedom to choose. The freedom to participate in a society over which we, as citizens, should have control. Take away those freedoms and our political system, democracy, and society is no longer buttressed by these theories of individual participation and control.

On the other hand, the Second Amendment for firearm restriction proponents represents the tyranny of the minority over the majority whereby a minority of individuals represented by a large organization (The National Rifle Association) overrules the will of the majority to restrict gun ownership.

The Second Amendment has taken on a life of its own and represents to both sides something more than

it is. The debate has taken on philosophical meaning beyond the 27 words of the Amendment itself.

Perhaps Nietzsche was correct when he stated his provocative aphorism: “there are no facts, only interpretations.”

1. Albeit, the first Supreme Court Second Amendment case was decided in 1876 holding the right to keep and bear arms was an “unincorporated” right, and only Congress was barred from restricting the Second Amendment, not the States.

United States v. Cruikshank, 92 U.S. 542.

2. District of Columbia v. Heller, 545 U.S. 570 (2008). The holding was made applicable to the states in McDonald v. City of Chicago 561 U.S. 742 (2010).

3. The District of Columbia Firearm Control Regulation also required all firearms to be kept “unloaded and disassembled or bound by a trigger lock”.

4. Locke, John; The First Treatise, Sec. 149.

Tim Hyden is a Partner with HydenZakheim, LLP in San Ramon and an adjunct Professor of Law at the John F. Kennedy School of Law.

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Second Amendment Right

Continued from page 11 Restrictions on the sale of guns to persons under 21 are constitutionally problematic. The minimum age at which persons were deemed part of the militia and expected to know how to use the weapons was between 16 and 18; federal law today puts the age at 17. It is an ancient and long-adhered-to principle of republican government that capacity for political participation and capacity to share defense of the community are closely tied, with the right to the former coming after the duty of the latter.

Reasonable permit laws, background checks, and training requirements are constitutional. The Court noted that Mr. Heller did not challenge the constitutionality of the permit law, provided it was applied in a non-discriminatory fashion.

Under First Amendment jurisprudence, permit laws that leave the

licensor too much discretion and are not defined by neutral factors unrelated to protected speech content are unconstitutional. Likewise, permit laws, such as in California and Massachusetts, that leave undefined or vaguely defined discretion in the hands of local law enforcement to deny gun permits raise serious issues. History serves a warning.

Laws that discriminated against Blacks in the post-Civil War South on their face or by application were denounced repeatedly in Congressional debates over the adoption of early civil rights laws and the Fourteenth Amendment. Such discriminatory laws were subsequently expanded to target poorer Whites, as well. Among such laws at times were confiscations, vague permit laws, record-keeping requirements, special taxes, and laws against certain types of weapons (such as cheaper “Saturday Night Specials”). The danger today is that ill-defined police discretion will be used against ordinary citizens, but will not deprive politicians of

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armed police escorts or the personal right to own weapons and will not deprive celebrities and the wealthy of armed bodyguards.

Background checks combined with brief waiting periods may be constitutional. Lengthy across-theboard waiting periods to “cool off” are problematic, despite the Ninth Circuit’s approval of California’s law in 2016. The Supreme Court might consider by analogy its jurisprudence regarding the burden of such waiting periods in abortion cases.

Other gun restrictions target types of weapons. With severe restrictions on acquisition of automatic weapons already in place, legislators now seek to ban certain semiautomatic weapons classified as “assault rifles.” A federal law of that type expired in 2004. A lower court has upheld such a state law, but there has been no Supreme Court decision. Were the Court to address the constitutionality of such laws, a rigorous application of Heller likely would doom them. There is massive confusion among the public and politicians as to the types of weapons involved. Semi-automatic weapons are those that fire one shot per finger-pull, with a new round chambered through the process of firing. They are ubiquitous and come in many forms--pistols, rifles, and shotguns. “Assault rifles” banned under such laws, such as AR-15 platforms (the “AR” does not stand for “assault rifle”), generally have merely cosmetic differences from semi-automatic rifles of similar or greater lethality that are not covered. A ban on all semiautomatic firearms, or even just rifles, would appear to violate the Heller test for “weapons commonly used for lawful purposest. Limiting only some because they “look scary” and mimic “military style” (they are not functionally military weapons) would not seem to meet even the intermediate scrutiny test

that Heller demands as a minimum.

Indeed, such rifles are used in only a comparatively small number of homicides, considerably less often than hands and feet.

A more recent suggestion has been to restrict ammunition sales. Leaving aside the difficulty of policing that and preventing criminals from getting ammunition, the constitutional issues would be the same as with restricting gun ownership.

As the Court wrote in Miller, the possession of firearms also implies the possession of ammunition. One doubts that the Court would protect the right to terminate a pregnancy by abortion, yet turn a blind eye to laws that restrict access to implements necessary for the procedure, or protect the freedom of the press to publish, but permit severe restrictions on the right to acquire printing presses, computers, etc.

Other laws seek to restrict the capacity of magazines. Again leaving aside the efficacy of such laws, since 3 times 10 equals 1 times 30, at some point application of Heller would look at common use.

One standard might be the magazine capacity police departments consider necessary for their officers’ self-defense. While bans of high-capacity magazines have been upheld by some lower courts, even those courts rejected restrictions that prohibited 10-cartridge magazines.

Justice Scalia tied his Second Amendment analysis in Heller more broadly to the natural right of selfdefense. Therein lies the problem for those who would severely curtail the right to own guns. Difficult as it might be procedurally to repeal the Second Amendment, as retired Justice John Paul Stevens recently suggested, the real hurdle is the natural human drive to survive. The police have neither the ability nor the constitutional duty to protect an individual from the depredations of others.

Drastic restrictions on gun ownership, drastically enforced, will reduce currently lawful private possession of firearms to some extent, and might even make it more difficult for criminals to obtain firearms.

However, experience has

shown repeatedly that prohibition of an article does not keep it out of the hands of those most likely to abuse it, particularly when it is a useful tool in the pursuit of criminal objectives. Perhaps a better tactic, therefore, would be for the authorities to enforce more consistently the many constitutionally unobjectionable restrictions on gun ownership and use already enacted.

Professor Joerg Knipprath is a professor of Constitutional Law at Southwestern Law School. His most recent research centers on the effect of judicial review on the evolution of constitutional law. He is regularly interviewed by news sources and writes and speaks on issues of Constitutional Law and Business Law.

More novel proposals in jurisdictions deemed hostile to gun ownership, such as New York and California, include pressuring financial institutions to prohibit use of credit cards for gun purchases and to restrict access to financing for gun manufacturers or sellers, as well as to require gun owners to purchase insurance while also preventing insurance companies from offering such insurance. The constitutionality of such programs, if state governments are involved, has not yet been tested.

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FEATURED FICTION STORIES FROM THE BRAY BUILDING In prior accounts of cases from the Bray Courts Building, Judge Carlton confronted horrendous crimes. Now he finds a virtue long absent in the criminal court system.

Reconciliation

By Justice James Marchiano (ret.)

“I hope you burn in hell!” were often the bitter words Judge Raymond Carlton heard from victims’ families in Department 47, at sentencing hearings in murder trials. Anger and a thirst for vengeance were understandable, visceral responses to crimes that acutely touched family members. But Judge Carlton learned one case was different, as he adjusted his bifocals and read the letter from the Department of Corrections, seeking his input. It was a case that had started 34 years before in a maternity ward and returned to Department 47 16 years later after a negotiated disposition -Carlton’s sole case of reconciliation.

Mexican immigrants Rosa De la Cruz and Maria Contreras gave birth to sons five hours apart at Antioch’s Delta Memorial Hospital where they became friends through sharing the same pains and joys of childbirth in adjoining rooms. It turned out they both attended Holy Rosary Church and lived within half a mile of each other. Their friendship ripened through a shared Head Start program that their two sons attended, and later through elementary school in downtown Antioch.

Roberto De la Cruz and Edwardo Contreras excelled in baseball and soccer, and played together on advanced traveling teams. Their mothers attended all of their games, rooting only as proud mothers could.

But during junior high school Roberto and Edward journeyed down separate paths, Roberto continuing to play sports and Edwardo hanging out with skateboarders and young, would-be rappers. The mothers occasionally saw one another at church services and some school events.

Facebook messages assured a huge turnout, well beyond the number of actual invitees. The numbers swelled and the party spilled out of the house to a large, wooded front yard. Edwardo knew some of the partiers from his days at Antioch High, read about the event on Facebook, and coaxed five of his friends to crash the party.

During high school, Roberto played on the varsity soccer team and was part of the jock group at recesses and on weekends, while Edwardo lagged behind in his school work, was scholastically ineligible for sports, and eventually was transferred to the continuation high program in Antioch. Despite prodding from his mother, Edwardo left high school to earn money as a stocker at Costco. Edwardo spent his free time at night and on weekends with his rapper buddies, plugged into hip-hop and smoking weed.

Roberto was named to the league’s all-star team in his senior year and earned a scholarship to the University of Idaho to play soccer, the first in his family to go to college.

After a few beers, angry exchanges, and some pushing and shoving with some guests, the host ordered Edwardo and the five other interlopers to leave. Roberto, lightheaded from several bottles of Dos Equis, stood by, supporting the host and hurled insults at Edwardo.

A threatening crowd gathered to back up Roberto. Edwardo’s friends began taunting in Spanish, pushed back a bit, and then swaggered back to their car to leave. Edwardo piled into the middle of the back seat.

In a show of bravado, they turned the speaker volume high and laid rubber by the driveway as they signaled their noisy departure.

Graduation night for both families would be horrific and life-altering. It started when Roberto celebrated his diploma and scholarship at a party at a friend’s house where beer and weed were plentiful and adolescent testosterone high.

The parents of the teenage host were away. Twitter, Instagram, and

But they did not leave. With windows rolled down, the car made a sudden U-turn and ominously circled back by the front yard while the occupants yelled out taunting slurs at the partiers: “puta,” “cabron!” They circled around a second time, again yelling louder obscenities and honking the horn like tormenting banshees.

Continued on page 18

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Reconciliation Continued from page 17 As Roberto hid behind a redwood tree to throw a rock at the car, someone suddenly handed him a revolver, and others urged him to shoot at the car. Like a dark shadow, Roberto waited behind the tree and impulsively discharged the gun toward the car as it passed by, sending a bullet through the middle of the back window and into the head of Edwardo Contreras, killing him instantly. The terrified youths in the car screamed and sped off too late to the emergency room at Delta Memorial Hospital. Roberto fled to his home.

A disturbed neighbor had already called the Antioch police to complain about the raucous party.

A police officer arrived minutes after the shooting, was trying to disperse the crowd, and check the ages of the milling crowd, when he received a radio call about a young man dead on arrival at Delta Memorial Hospital. The yard scene was suddenly a crime scene. Multiple police units descended on the property, and witnesses were questioned. Yellow tape sealed off the area like long strips for a shroud.

The case was quickly solved as frightened witnesses described what happened and who the shooter was. The gun was found in nearby bushes. The lead detective obtained a Ramey Warrant for a house arrest and at 3:30 am went to the modest De la Cruz home where Rosa answered the loud knock, burst into tears when the officers explained why they were there, and called a scared Roberto from his bedroom. Roberto tried to explain it was an accident, was arrested and Mirandized to make his statements admissible at trial. Because he had recently turned eighteen yearsold, he was booked into the adult Martinez Detention Facility.

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The funeral mass for Edwardo was gut-wrenching for the devastated Contreras family and friends.

Edwardo was an only child. Unbeknownst to those attending the service, a quietly sobbing Rosa De la Cruz knelt in a dark corner of the last pew, praying for mercy and compassion for everyone involved and trying to make some sense out of a senseless act. She left the church by a back door before anyone else.

Veteran Public Defender Joyce Sawyer was assigned to represent Roberto De la Cruz, whose life was in tatters -- a lost college scholarship, a disgrace to his family, a killer of someone who once had been a good friend. He was charged with first-degree murder, based on murdering Edwardo while lying in wait and implied malice because of the manner in which he fired the revolver. A sentencing enhancement for use of a gun was also alleged.

Sawyer realized the problematic case was fraught with pitfalls. There was no evidence of her client’s blood/alcohol level to argue intoxication to reduce the nature of the crime. She planned to use an expert to hypothetically explain the effect of several beers in a short time on one unaccustomed to alcohol. But eyewitnesses described De la Cruz as appearing sufficiently sober at the time of the shooting. And words of provocation in this instance were insufficient to reduce the homicide to manslaughter. She grappled with the difficult defense the death was an accident, that Roberto pulled the trigger without any specific intent of shooting anyone. Joyce Sawyer stared down a deep crevasse where the downside was a first-degree murder conviction resulting in at least twenty-eight years in state prison.

After a preliminary hearing, the case was assigned for trial to Judge Raymond Carlton in Department 47, where he had presided over many murder cases. Joyce Sawyer

appeared frequently before Carlton, knew his sense of fairness, and the respect with which the District Attorney’s office held him. She met with Roberto and his mother to discuss the pros and cons of negotiating a disposition of the case and candidly outlined the risks. She carefully explained her trial strategy which could subject Roberto to rigorous cross-examination if he testified to explain why the shooting was an accident. The prosecutor was a no-holds-barred, vigorous advocate, eager to take on Sawyer’s scared, unsophisticated client.

Joyce Sawyer devised one last attempt to save a young client, who had promise and no prior criminal record, from a lengthy sentence.

On Friday before trial was scheduled to commence, she scheduled a settlement conference with Judge Carlton. Although it was unusual to have the trial judge handle such discussions, the prosecutor did not object, knowing Judge Carlton could be trusted. The Contreras family waited in the empty courtroom, while a prayerful Mrs. De la Cruz remained in the hall area. The defendant was placed in a holding cell near the courtroom where Joyce Sawyer could confer with him.

Joyce Sawyer sought a manslaughter sentence because the facts arguably could fit such an outcome, resulting in a determinate, fixed sentence that would allow the defendant to be released on a known date, instead of the unpredictability of an indeterminate sentence posed by a first or second degree murder conviction. The penal code mandated six years for the middle term for manslaughter and an additional three years enhancement for using a gun.

The confident prosecutor countered with how the defendant’s lying in wait and the manner in which he fired the gun at an occupied car fit neatly into the jury instructions for first-degree murder, resulting in an

indeterminate term of life with a minimum of 28 years before possibility of parole and the likelihood of serving much longer. The conservative state parole board, which would exercise its discretion as to when the defendant would actually be released, often caused a defendant to serve well beyond 28 years.

To bring finality to the case, the prosecutor wanted the defendant to waive his right to an appeal of any issue, including any constitutional issue.

The battle lines were drawn. Judge Carlton met separately with Joyce Sawyer and told her the case seemed dire from what had been outlined by counsel. He knew the District Attorney would never agree to a plea of manslaughter, and Joyce’s client ran the real risk of a first-degree murder conviction. Jurors in Contra Costa County usually followed the court’s jury instructions regarding degrees of murder. A deeply concerned

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Sawyer explained in most cases the parole board had been inflexibly keeping prisoners with indeterminate sentences many years past the minimum time after parole was first considered, whether a first-degree or second-degree murder conviction, sometimes treating them as similar because a life had been taken.

Judge Carlton thought for a moment and proposed a second-degree murder plea and offered to put on the record his firm recommendation to the Department of Corrections the defendant be released at the earliest time possible if he behaved well, availed himself of counseling, exhibited signs of sincere remorse, and obtained an employable job skill. In other words, he had to “program well,” using the jargon of the parole board. He told Sawyer to discuss his proposal with her client and his mother, and if they agreed, he would encourage the prosecutor to accept the deal. Judge Carlton also expected some visible sign of The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.

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remorse from Roberto at sentencing.

While Joyce Sawyer discussed Judge Carlton’s proposal with her client, the judge met with the prosecutor to broker a second-degree murder plea with a waiver of appellate rights to bring closure to the case. He emphasized the youthful defendant had no history of criminal behavior. After some discussion, the prosecutor contacted his office and obtained permission to accept the proposal.

He discussed the matter with the Contreras family. Mrs. Contreras, still grieving, agreed to accept whatever the prosecutor recommended.

A heavy heart weighed upon her.

Mrs. De la Cruz prayed silently as she and her son discussed his fate with a counseling Joyce Sawyer.

If Roberto behaved well in prison and if the parole board heeded the judge’s admonition, he could be released in about sixteen years, including credit for time served and good behavior credits. It seemed the best outcome that could be achieved under the circumstances. A deal was struck.

Everyone met in the courtroom.

The court reporter took down the waiver of defendant’s rights, including the right to appeal any issue, his acknowledgment his plea was knowing and voluntary, with no promises made beyond what was on the record. The charging information was amended to allege second-degree murder. Defendant’s plea was taken. The judge made findings as to the voluntariness of the plea. Sentence was imposed, and the judge put on the record his strong recommendation the defendant be released on parole immediately after he satisfied his second-degree murder sentence if he behaved as detailed in chambers to Joyce Sawyer.

Then the judge asked the defendant if he wanted to say anything.

Continued on page 20

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Reconciliation Continued from page 19 Roberto De la Cruz turned and faced the Contreras family, as his mother had told him to do, and apologized profusely for what he had done to them and asked for forgiveness. The eyes of the two heart-broken mothers met. They slowly walked toward each other, embraced tightly, and wept on each other’s shoulders. Both realized their lives had been shattered, but living had to go on. Judge Carlton knew from his study of Latin that the word “compassion” came from a Latin root, meaning to “suffer with or together,” a condition both grieving mothers had been experiencing. It was a moment of reconciliation unlike anything Judge Carlton had ever seen in his Department 47.

Somehow vengeance had given way to forgiveness.

For sixteen years Mrs. De la Cruz faithfully visited her son twice a

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month at various state prisons to make sure he was behaving as promised. At his first parole hearing, his conduct and education evaluations were exemplary. He earned goodtime behavior credits that reduced his time in prison. He also had learned welding skills. A job at a mechanic’s shop was waiting for Roberto in Antioch. The District Attorney contacted Mrs. Contreras to inquire if she objected to her son’s killer being granted parole.

She did not. The police chief in Antioch did not object to Roberto’s release back into the community.

The Department of Corrections sent a letter to Judge Carlton for his opinion concerning the defendant’s release.

The judge had his clerk copy the sentencing transcript, which he enclosed with his reply: if the defen-

dant had performed as was put on the record at time of sentencing, the intent of all concerned was defendant should now be granted parole.

So Roberto De la Cruz began working in Antioch as a bench welder, and Judge Carlton learned reconciliation arises out of justice that promotes a fundamental change of heart and mind.

Justice James Marchiano (Ret.) was a trial lawyer until appointed to the Superior Court of Contra Costa County in 1988, where he served for ten years, primarily as a civil and criminal trial judge. In 1998, he was appointed to the California Court of Appeal, First District, Division One, where he served as a Presiding Justice, for 15 years. This story is part of Stories from the Bray Building series of fictionalized court cases based on real cases that can be found at www.cccba.org/attorney/ cclawyer-articles/.

Results of Food From the Bar The 27th Annual Food From The Bar fundraiser for the Food Bank of Contra Costa and Solano was another success, bringing in over $54,000. Twenty-six law firms participated in the event that included Comedy Night and a competitive food drive among the firms.

Congratulations and thank you to the winners: 1-5 Employees:

Law Offices of Suzanne Boucher

6-10 Employees:

Bramson, Plutzik, Mahler & Birkhaeuser LLP

11-20 Employees: Brown, Gee & Wenger LLP 21-50 Employees: Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci 51+ Employees:

Archer Norris

Comedy Night at Back Forty Texas BBQ in Pleasant Hill was a highlight. Hosted by Justice James Marchiano (Ret.), the show on May 16 featured Will Durst. More than 20 generous sponsors donated to support the event.

Over the years, the Bar Association has collected almost $1.3 million and 56 tons of food for the Food Bank. A special thank you to our sponsors; we could not have done this without your support!

BenefactorS

Contra Costa County Bar Association PATRONS Archer Norris Gizzi Reep Foley McNamara, Ney, Beatty, Slattery, Borges & Ambacher Newmeyer & Dillon CONTRIBUTORS 3D-Forensic Aiken Welch Court Reporters Aptus Court Reporting Law Office of Suzanne Boucher Brown, Gee & Wenger Buchman Provine Brothers Smith LLP Certified Reporting Services Paul Eisner, Attorney at Law Express Network Ferber Law First Legal Flicker, Kerin, Kruger & Bissada, LLP Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci Legal Document Server, Inc. Miller Starr Regalia Nationwide Legal Quivx

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Congratulations Judge

On May 4, the Honorable Virginia M. George was inducted as a judge in the Contra Costa County Superior Court. Friends and family came out to congratulate her. Judge George had been an active member of the CCCBA, serving on the board from 2004 to 2009, as a leader of the Estate Planning & Probate Section, board member for the ADR Section and as a guest editor of Contra Costa Lawyer magazine.

Congratulations Judge George!

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Virginia George

CCCBA All Section Summer Mixer

On June 14, the Barrister’s Section hosted its Annual All Section Summer Mixer at Sauced in Walnut Creek.

Ariel Brownell Lee at the check-in table.

Law students Carla Ocodhain, Amrieka Takhar, Nate Dondi and Kate Mignani

Thank you to our generous Sponsors: Data Safe and Judicate West Above, Hon. Wade Rhyne and Tori Rhyne with Hon. Ignazio Ruvolo (Ret.) Jeremy Seymour, Kyle Junginger and Joanna Funke.

Magda Lopez with Tonde Smith of Data Safe, one of the sponsors of the event.

Malcolm Sher with AlVaughn Rogers of CASA, one of the pro bono organizaations represented at the event.

Shannon Stone and Matt Malone

Andrew Contopoulos, Emily Nashban, Mona Nia

Jeff Wilson and Qiana Washington

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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FEATURE

The California Supreme

In The Wake of Humphrey

Court on its own motion

by Chris Sansoe

23, 2018 of the Humphrey case on the constitutional

Marsy’s Law On November 30, 1983, the small community of Point Dume (Malibu) was devastated by the murder of 21-year-old Marsalee (Marsy) Nicholas. Marsy was a student at UC Santa Barbara who planned to become a teacher. The murderer was her 28-year-old ex-boyfriend, Kerry Conley.

One week after her murder, her mother entered a grocery store and was confronted by Conley. Unbeknownst to her, Conley had been released on bail. Also unknown to her, was that law enforcement had no duty to inform victims, or their families, of criminal offenders’ release from custody.

On April 15, 1985, Conley, was convicted of second degree murder.

He was sentenced to 17 years-tolife in prison, where he died in December 2007.

On November 4, 2008, California voters enacted the California Victims’ Bill of Rights, also known as “Marsy’s Law” found in the California Constitution Article 1, Section 28. The act amended the California Constitution by creating 17 legal rights for victims’ and their families in the court system. These rights include the express right to “have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.” The rights of Article 1 Section 28 are enforceable under subsection (c) by the victim, their representative, their attorney, or the prosecuting attorney.

In deciding Humphrey, the First District Court of Appeal held that if the superior court determines that a defendant is unable to afford the bail amount then the court may only set bail in that amount upon a determination by clear and convincing evidence that no less restrictive alternatives guarantee a defendant’s appearance.

questions explored by our

The only exception, in non-capital cases, is if the defendant is ineligible for bail under Article 1 Section 12(b) of the California Constitution, or if the prosecution establishes by clear and convincing evidence that defendant poses a danger to the public, or the victims of the case1. Humphrey allows for preventative detention when “no less restrictive nonfinancial conditions would be sufficient to protect the victim and community.”

process and equal protection

The First Appellate District Court acknowledged that their ruling was ripe with conflict:

safety;

“We are not blind to the prac-

tical problems our ruling may present. The timeliness within which bail determinations must be made are short, and judicial officers and pretrial service agencies are already burdened by limited resources.2” The First District Court of Appeal provided no guidance on how to address these practical problems. Further the Court declined Continued on page 26

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ordered review on May

authors: (1) Whether the Court of Appeal erred in holding that constitutional principles of due

require consideration of a criminal defendant’s ability to pay in setting or reviewing the amount of monetary bail; (2) Must or even may a trial court consider public and victim

(3) Under what circumstances bail may be denied in noncapital cases under the California Constitution including under Marsy’s Law. In re Humphrey, S247278 (A152056; 19 Cal.Ap. 5th 1006).

FEATURE

The Humphrey Decision: Justice or Pandora’s Box

by Dan Horowitz and Tom Kensok On April 28, 2016, Keith Green, an aspiring chef and father of two young girls, disappeared. Just prior to his disappearance, Green met his estranged girlfriend, Tiffany Li, to discuss child custody. The next day, Green’s phone was located in Golden Gate Park. His body was found two weeks later. He had died slowly from a single gunshot to the neck.

Li, her Norteño-affiliated boyfriend and his body builder buddy were arrested and charged with Green’s murder. The San Mateo court set Li’s bail at $35 million and within days, Tiffany secured her release by posting $70 million in property posted by family and friends as bail collateral.

1275(c) requires that before a court reduces bail below that level “the court shall make a finding of unusual circumstances and shall set forth those facts in the record.”

In Mr. Humphrey’s case, the court was “merciful” because it cut the bail almost in half. But in reality, simply because there was probable cause to arrest him, Mr. Humphrey had already started serving his jail sentence.

A year later, a far different fate awaited lifelong San Francisco resident, Kenneth Humphrey. Prosecutors accused Humphrey of following an elderly neighbor into his residential hotel room and stealing $5 and a bottle of cologne. Public Defender Paul Myslin argued that his client, a retired shipyard laborer, had lived crime free for over 14 years and should be released to a residential addiction treatment center.

The court disagreed and set bail at $350,000. For the indigent Mr. Humphrey, this was tantamount to no bail at all.

Article I, Section 28 section (f)(3) of the California Constitution requires that the court consider “the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.

Public safety and the safety of the victim shall be the primary consideration.” But public safety was not the basis for Mr. Humphrey’s detention, a lack of funds was the sole barrier to his release to a needed addiction program. In court and in its habeas corpus petition, the San Francisco Public Defender’s office argued that a bond set without consideration of Mr. Humphrey’s ability to pay violated the 14th Amendment’s guarantees of equal protection and due process.

Penal Code section 1269b (c) requires “the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail.” The San Francisco court’s bail schedule set $600,000 for a case such as Mr. Humphrey’s. Penal Code section

This argument already had strong judicial support. In 2016, Chief Justice Tani Cantil-Sakauye told the State Legislature that it cannot continue to ignore “the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor.” (Chief Justice,

State of the Judiciary Address, Mar. 8, 2016 as cited in Humphrey at 1013-14). Despite the Chief Justice’s urging, the Legislature took no action, and the issue received little media attention until the 1st DCA granted Mr. Humphrey’s habeas petition.

Justice Kline wrote the opinion and included an extensive review of the historic right to pretrial release under both state and federal constitutional law. He cited California Constitution Article I, Section 12 stating that this section “was intended to abrogate the common law rule that bail was a matter of judicial discretion by conferring an absolute right to bail except in a narrow class of cases.” (citations omitted) (Humphrey at 1022) Justice Kline cited federal circuit and Supreme Court decisions for the point that “a defendant may not be imprisoned solely because he or she is unable to make a payment that would allow a wealthier defendant to avoid imprisonment...”

(Humphrey at 1025) The First District Court of Appeals ordered Superior Court Judge Joseph M. Quinn to reassess bail by “inquiring into and making findings regarding petitioner’s ability to pay” as well as to assess alternatives to money bail. If petitioner’s financial resources would be insufficient to post bail such that the order would result in his pretrial detention, the order directed the Superior Court to make “findings necesContinued on page 27

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

25

In the Wake of Humphrey Continued from page 22

to resolve any possible tension between section 28 [Marsy’s Law] and Article 1 section 12.

Clear and Convincing Evidence of a Danger The Humphrey Court relied heavily on federal authority and the only guidance offered by the Court in this area was discussion of the U.S. Supreme Court case of States v. Salerno (1987) 481 U.S. 739 (Salerno), which addressed the federal Bail Reform Act of 1984.

While Humphrey discussed Salerno, the Humphrey Court did not hold that an evidentiary hearing was required to establish by clear and convincing evidence that the defendant presented a danger.

As a result, the response of superior courts has been inconsistent. Some courts continued to allow the proffering of information, so long as both sides were permitted to do so.

Other courts allowed introduction of police reports, probation reports, and rap sheets.

However, some courts sustained hearsay objections and effectively required victims to appear in court in order to be heard under Marsy’s Law. The victim would then take the stand, be sworn as a witness and subject to cross-examination

– within days of arraignment and prior to preliminary hearing. Such victims would then return to court days later for preliminary hearing in order to present the same testimony. Contra Costa saw this occur in felony cases involving vehicle theft, residential burglary, domestic violence and stalking.

This occurred, despite more than one hundred years of legal precedent holding that courts conducting bail/detention hearings are required to assume that the charges are true3 and that the presumption of innocence “has no application to a determination of the rights of a pretrial detainee” prior to trial4. This inconsistent response has persisted for months after Humphrey.

Evidentiary Hearings are Not Required While the Humphrey Court relied heavily on federal authority for its decision, federal authority supports the position that victims and/or witnesses need not testify at a bail hearing. The proffering of information by attorneys as officers of the court remains appropriate.

This is because “detention hearings are an informal proceeding, and the evidence presented is not governed by the Federal Rules of Evidence5.” The government may proceed in a detention hearing by way of proffer6. It is rational to conduct detention hearings by

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proffer because they are “neither a discovery device for the defense nor a trial on the merits7.” The process due to an accused should only be that which is proportionate to the purpose of the proceedings8. “That purpose includes neither a reprise of all the evidence presented before the grand jury9, nor the right to confront non-testifying government witnesses10.” And “[a]A right to require the government to produce its witnesses against an accused would complicate the hearing to a degree out of proportion to the liberty interest at stake – viz. the interest in remaining free until trial, for what is by statute a period of limited duration11.”

On April 17, 2018, Contra Costa County addressed this concern in the Habeas Corpus Petition of In re Edgar Daniel Tapia-Rojas (Docket #5-180598-5). In Tapia-Rojas, a bail hearing was held after arraignment. Over defense counsel’s objection both sides were permitted to proceed by proffer. On Habeas review, the Court found that review of police reports is specifically permitted pursuant to Penal Code section 1204.5(a), and citing to US v.

Aubuhamra12.

In the Future Now that the California Supreme Court has elected to review the Humphrey decision on its own and will expressly resolve the tension identified between article I, section 12, subdivisions (b) and (c) and article I, section 28, subdivision (f) (3) of the California Constitution.

Humphrey is not binding pending review but exists as persuasive authority13. By its failure to provide a clear and workable rule as to pretrial bail hearings, Humphrey results in obvious practical problems to the detriment of the rights of crime victims.

Any opinion made in this article is that of the author and not attribContinued on page 29

26

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The Humphrey Decision, Justice or Pandora’s Box Continued from page 25

sary for a valid order of detention.”

(Humphrey at 1048) The arbitrary nature of the current bail system was highlighted when, on August 25, 2017, just three weeks after Mr. Humphrey filed his petition, the same Hon. Joseph M. Quinn, granted release to accused child predator Jose Olivares-Parada on his own recognizance. Parada was accused of sending pornography to, and arranging a meeting with a minor.

There are unwritten priorities that govern the bail process. Prosecutors usually favor pretrial incarceration because an incarcerated defendant will not commit additional crimes pending case resolution.

The difficulty is balancing public protection with core concepts of “innocent until proven guilty,”the fundamental right to bail under Article I, section 12 of the California Constitution and the Eighth Amendment’s proscription against excessive bail.

Justice Kline framed the balance this way: “[The liberty interest of a presumptively innocent arrestee rises to the level of a fundamental constitutional right, the right to bail cannot be abridged except through a judicial process that safeguards the due process rights of the defendant and results in a finding that no less restrictive condition or combination of conditions can adequately assure the arrestee’s appearance in court and/or protect public safety, thereby demonstrating a compelling state interest warranting abridgment of an arrestee’s liberty prior to trial.”

Humphrey at 1026) Other considerations may be in play. In his opinion,

Justice Kline noted that pretrial confinement may “...undermine his “ability to assist in preparation of his defense” Humphrey at 1032 quoting Gerstein v. Pugh (1975) 420 U.S. 103, 114) From a defendant’s point of view, without bail, custody begins at arrest and often ends with a plea.

The public defenders and courts are overburdened. This means that pretrial custody time can exceed the time that would be imposed for the core offense.

This makes pretrial incarceration a powerful tool to promote guilty pleas. In many cases, credit for time served becomes the resolution.

Prosecutors extract a price for this.

The plea may include acceptance of a strike which will greatly enhance a future conviction.

If Humphrey is upheld, many of these issues will have to be addressed in a political context. In Contra Costa County, as well as in other counties, the plans being developed pursuant to the Community Corrections Partnership as part of AB 109 realignment of sentencing laws is working to fill this gap. There is a pretrial services working group that began addressing these issues prior to the Humphrey decision. Whether this group alone or in concert with the County Supervisors or Legislature will be left to address the issues is the next chapter in this unfolding saga.

Daniel Horowitz is a certified specialist in criminal law and has represented criminal and civil in over 200 jury trials. His clients have ranged from high-profile criminals like the founder of the “Family Affiliated Irish Mafia” and celebrity clients (in civil cases) such as author Terry McMillan and radio show host Michael Savage. Mr. Horowitz is regularly a legal commentator both locally on in the national television networks.

Tom Kensok served for 30 years in the Contra Costa District Attorney’s Office before entering private practice. His practice is a mix of civil and criminal litigation.

Kensok and Horowitz practice in Lafayette where they team with three other attorneys in a trial oriented practice.

Thinking of

Conservatorships? think

Matt Toth as in:

Pedder, hesseltine, Walker & Toth, LLP oldest partnership in Contra Costa County (since 1955)

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CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

27

Family law Training SerieS The Basics (2018)

when:

6 sessions: wednesdays, 5:30 – 7:30 pm September 5, 12, 19, 26, October 3 and 10, 2018

where:

John F. Kennedy University 100 ellinwood way, Pleasant hill

Fee:

Partipants agree to accept two moderate means cases within one year; or

mCle CreDiT:

available; To be announced

$150 for all sessions; or $30 per session Please contact: Barbara arsedo, contra costa county Bar association, (925) 370-2544 | barsedo@cccba.org

local Judicial Officers and highly experienced family law attorneys will present: Overview OF DiSSOlUTiOn PrOCeSS anD geTTing STarTeD: client interviews; overall case management; and big picture overview of family law practice (including causes of actions, initial pleadings and procedure). wOrKing wiTh lOw-inCOme ClienTS anD DOmeSTiC viOlenCe SUrvivOrS: basics of domestic violence; barriers and challenges facing low income clients; general attorney-client relation ship-setting expectations, communication, etc. hearingS anD DOmeSTiC viOlenCe reSTraining OrDerS: DVPa and other motion pleadings; procedure; and hearing practice.

ChilD anD SPOUSal SUPPOrT, aTTOrney’S FeeS: pleadings; Department of child Support Services (DcSS); hearing practice; and computer support program calculations.

PrOPerTy iSSUeS: characterization, Discovery, and Distribution: identifying, distributing and dividing community and separate assets and debts; credits/reimbursements; experts; Disclosures; and discovery.

ChilDren’S iSSUeS/CUSTODy: procedural and substantive issues (best interest standard, Fc§3044); pleadings; court Process (Family court Services, evaluations) geTTing iT DOne/JUDgmenTS: various paths to final Judgment (default, uncontested and contested trials); and preparing final Judgments 2018 Family law Seminar SerieS - The BaSicS Sponsored by: contra costa county Bar association

28

JULY 2018

In the Wake of Humphrey Continued from page 26

utable to the Contra Costa County District Attorney’s office.

Chris Sansoe is a Deputy District Attorney in Contra Costa County. He has been a prosecutor for six years, worked in a variety of units, and is currently assigned to the Family Violence Unit where he prosecutes Domestic Violence and Stalking. He was raised in Concord and is alumni of De La Salle HS, Chico State, and McGeorge School of Law.

5. (United States v. Duncan (1988) 897 F.Supp.

688, 690.)

10. United States v. Accetturo, 783 F.2d 382, 388-89 (3d Cir. 1986)

6. (United States v. Smith (1996 D.C. Cir.) 79 F.3d 1209.

11. Smith, supra, at p. 1210.

3. (Ex parte Duncan (1879) 53 Cal. 410, 411; Ex parte Horiuchi (1930) 105 Cal.App. 714, 715; Ex parte Ruef (1908) 7 Cal.App. 750, 752.)

13. See Cal. Rule of Court 8.1115.

8. (Ibid.)

9. United States v. Suppa, 799 F.2d 115, 119 (3d Cir. 1986)

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

1. If the Court were to make such a finding then the appropriate bail would be “no bail” as their ability to pay is no longer relevant.

2. In Re Humphrey (2018) 19 cal.App 5th 1006 at 1048.

12. (2d Cir. 2004) 389 F.3d 309

7. Smith, supra, at p. 1210.

n

Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

925.942.5100 • fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 30 years

4. (In re York (1995) 9 Cal.4th 1133, 1148; quoting Bell v. Wolfish (1979) 441 U.S. 520, 533.)

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

29

We gratefully acknowledge our

2018-2019 SUSTAINING LAW FIRMS

Firms with 30+ attorneys: Archer n Norris Miller Starr Regalia

Firms with 20-29 attorneys: Bowles & Verna LLP Littler Mendelson P.C. McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP

Firms with 15-19 attorneys: Buchman Provine Brothers Smith LLP Clapp Moroney Vucinich Beeman Scheley Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci

Firms with 5-14 attorneys: Barr & Young Attorneys

Gillin, Jacobson, Ellis,Larsen & Lucey

Bramson, Plutzik, Mahler & Birkhaeuser LLP

Greenan Peffer Sallander & Lally LLP

Brown, Gee & Wenger LLP Craddick, Candland & Conti Doyle Quane Freeman Family Law Group Edrington, Schirmer & Murphy Ferber Law APC Galloway, Lucchese, Everson & Picchi

30

JULY 2018

Hartog Baer Hand APC Kilpatrick Townsend & Stockton Livingston Law Firm P.C. Morrill Law Firm Whiting, Fallon, Ross & Abel LLP

Welcome New Members!

Patti Abramson Jorge Aguilar Justin Aguilera Danya Alhafidh Susan Alker Micaela Alvarez Edwin Antolin Elizabeth Arellano Alexander Aronov Leslie Barnes Marks Gabrielle Bass Tanya Paige Bearce-Beery Gregory Beattie Katelyn Benage Jordana Better Scott Bloom Thomas Bloxham Christine Bogosian Anne Bonfiglio Douglas Borchert Eltahir Boshara Hazel Bradshaw Beverly Bueno Lilia Bulgucheva Nadine Burg Cinder Cancilla Anjuli Cargain Quiana Cash Keith Casto Edward Chang Ina Chang William Charley Katie Chase Helen Chen Samphors Chhun Christopher Cimino Pete Clancy) Lauren Coleman Collin Cook Jessica Cook Linda Covington Thomas Crosby Sirajo Dasin Morrietta Davis David Deal Maya DeVerteuil Joy Antonette Diaz

Leslie Dickson Erika Doherty John Douglas Kathryn Doyle Nancy Droege Paul Epstein Erin Everett Bejan Fanibanda Renee Feldman Lisa Flanagan Tomas Flores Brian Fredkin Dave Fried Andres Garcia David Goldstein Evan Gologorsky Te’Reisha Graves Morgan Hansen Jeremiah Harvey Matthew Herrera Bobbi Herrington Jennifer Hilton Kevin Holt Karen Jaenike Briana Jones Danielle Jones Kyle Jones Lois Kadosh Alan Kagawa Sunita Kapoor Ani Keledjian Alison Kennedy Thomas Kensok Preet Khangura Jaime Kissinger Sharlene Koonce Adam Koss Natalie Kuzma Timothy Langley Heather Lee Stephanie Leroux Ji Lim Gema Lopez-Canelo Merri Lopez-Keifer Lisa Lopez-O’Bara H. Christian L’Orange Jessica Lordan

Shannon Mallory Elizabeth Marroquin Andrew Matera Rebecca Luz Mayberg John McDonnell, Jr. Jennifer McGuire Jessica Melton Camille Milder Jorge Montiel J Christian Moore Juliana Morgan-Trostle Sally Noma Ember Oparowski Loriann Owens Sherna Perez Karly Peterson Justin Proctor Thomas Reed, Jr. Anthony Risucci Esther Kelly Rush Richard Bennett Salles Kirsten Sansoe Cullen Schlievert Alistair Shaw Mark Shaw Jennifer Spalding Brandon Spivack Laura Steinbeck Peter Sumulong Jessica Takano Nicole Takemoto Robert Tam Christopher Terril Saron Tesfai Ronald Tran Eric Tuy Jennifer Wallis Dominic Watkins Ethan Weisinger Elizabeth Weiss William Whelan Nicholas Woodbridge Jennylee Wright Daniel Xuli Laurie Yoon Jackie Zaneri

Welcome Aboard to these CCCBA members who’ve joined since November 2017.

We hope you take advantage of the CCCBA and its opportunity for:

1. Professional Development and Networking 2. Community Service 3. Continuing Legal Education 4. Lawyer Referral & Information Service 5. Publications and Mobile App 6. Special discounts from our Member-Only Benefit Program For information on any of these member benefits, please visit our website at www.cccba.org.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

31

CCCBA Goes to the Ballpark Toronto Blue Jays v. Oakland A’s Tuesday, July 31 5:30 pm - 9:30 pm Members and Non-Members: $50/ per person, includes: • A catered taillgate • Ballpark-appropriate libations • Lower Level Box Seat • Free Parking!

Make your reservations online now at www.cccba.org/attorney/calendar

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32

JULY 2018

2018 Member Information Series

The CCCBA’s 2018 Member Information Series features experts in short- and long-term financial and life planning in four informative presentations throughout the summer.

Fee for each presentation: $15 for CCCBA members $20 for non-members $10 for Barristers, Law Student and Legal Support members To Register online visit www.cccba.org/attorney/calendar or contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org.

1. Maximizing Your Social Security Benefits

2. Student Loan Debt Repayment Strategies

Tuesday, June 19 | Noon - 1:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 650, Concord | Lunch will be provided

Thursday, July 12 | 6:00 pm - 7:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 650, Concord | Dinner will be provided

Most of us are paying into Social Security but know little about how to utilize our benefits, which can be worth over $1 million for a couple retiring today. The most commonly used strategy of starting benefits at age 62 may not be optimal. Yet, misperceptions about the program often lead people to make that choice.

Student Debt Now: What do I do?

Student Debt Soon: How to make it a good idea!

IBR, REPAYE? Consolidation? Forgiveness? Refinance?

Come learn strategies around: – What repayment program is right for me?

– Purchase a home or attack the debt?

– The impact of skipping retirement contributions from year to year – What are the most efficient ways to save money for the future?

– How do I protect myself and family along the way?

Learn to avoid mistakes, to maximize your benefits and optimize your timing. Find out about the three streams of Social Security benefits.

Presented by: John Burns, FSA, CFP®, RICP® Principal Michelle Soto, CFP®, CDFA™

Presented by: Jimmy Diehl, MBA,CFBS® and Wesley Yamada

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3. The A, B, C’s and D of Turning 65

4. The World of Care Management and Home Care in the New Millennium

Wednesday, July 25 | Noon - 1:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 650, Concord | Lunch will be provided Get familiar with the alphabet soup of turning 65 and how to plan for the transition to Medicare and a Medicare supplement. Key points include Medicare Part A and B, eligibility for a Medicare supplement, types of supplements, prescription drug plans, timelines, open-enrollment, travel limitations, options for spouses under age 65 and tips related to transitioning. Examples will show options for remaining on a company-provided insurance plan or moving to Medicare and a supplement. A basic overview of longterm care insurance will be included.

Tuesday, August 8 | Noon - 1:30 pm | CCCBA Conference Rm., 2300 Clayton Rd., Suite 650, Concord | Lunch will be provided Aging is part of life! Whether you are caring for a loved one or looking at successful ways to age in place, join us to discuss options! We will discuss how advance planning before you are faced with a difficult situation can benefit all. Bring your questions, concerns and stories.

Presented by: Robin Sanow, R.N. Care Manager

Presented by:

Colleen Callahan CLU, CASL, LUTCF Colleen Callahan Insurance Services 101 Gregory Lane, Suite 32, Pleasant Hill, CA 94523 T 925.363.5433

Senior Alternatives Care Management & Home Care Services, Inc. 230 Grand Ave., Suite 100, Oakland T 888-451-4290

Advertiser Index

California’s Wage Equality Law Continued from page 9

Acuna Regli. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Morrill Law Firm. . . . . . . . . . . . . . . . . . . . . . . 13

ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . 29

Perry Novak Wealth Management. . . . . . . . . . . 2

Barr & Young Attorneys. . . . . . . . . . . . . . . . . . 20

Pedder, Hesseltine, Walker & Toth, LLP. 13, 14, 27

Law Ofices of Oliver W. Bray . . . . . . . . . . . . . 15

Candice Stoddard. . . . . . . . . . . . . . . . . . . . . . 29

Diablo Valley Reporting Service. . . . . . . . . . . . 40

Lisa West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Robert B. Jacobs . . . . . . . . . . . . . . . . . . . . . . 12

Michael Young. . . . . . . . . . . . . . . . . . . . . . . . . 19

Landmark Valuation. . . . . . . . . . . . . . . . . . . . . . 9

Youngman Ericsson Scott. . . . . . . . . . . . . . . . . 26

Hubert Lenczowski. . . . . . . . . . . . . . . . . . . . . 27

Zandonella Reporting Service . . . . . . . . . . . . . 16

Mitchell & Mitchell Insurance. . . . . . . . . . . . . . 32

Is your ad on this list? Contact Carole Lucido for information on how you can reach our influential audience at (925) 370-2542 or clucido@cccba.org.

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34

JULY 2018

The June Issue of Contra Costa Lawyer Thank you to Roger Brothers, Guest Editor

– Here’s What You Missed Business Succession Planning for Professional Firms Roger Brothers, Guest Editor

Feature Articles: The Top Three Options for Law Firm Succession Planning,

by Alay Yajnik The Surprising Importance of Succession as a Team Sport,

by John O’Dea Business Succession Planning Opportunities under the New Tax Act,

by Ryan Lockhart Insurance Considerations for Transitioning Attorneys,

by Michael Crist Top Ten Succession Planning Considerations and Issues for Professionals, by Roger Brothers Writing a Plan for Your Computer System, by Roy Brown

Spotlight: The Senior Lawyers Task Force, by Peter Mankin

Columns: President’s Message: Board Success Comes from Planning, by James Wu Inside: Planning for Your Transition from the Practice of Law, by Roger Brothers Coffee Talk: If you weren’t practicing law, what would you be doing?

News & Updates: Did You Know: Member Information Series, by Nicole Mills Turning Lemons into Lemon-AID, Valerie Fenchel

Find it online at www.contracostalawyer.cccba.org

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

35

Calendar

Upcoming Events | Overview July 10 | Women’s Section August 8 | CCCBA - Member Information Program Women’s Power Lunch

more details on page 37

July 12 | CCCBA Minority Bar Coalition - Summer Mixer more details on page 37

July 12 | CCCBA - Member Information Program Student Loan Debt Repayment Strategies more details on pages 33 and 37

July 19 | CCCBA Happy Hour Gathering in Lafayette more details on page 37

July 25| CCCBA - Member Information Program The A, B, C’s and D of Turning 65 more details on pages 33 and 37

July 31 | CCCBA CCCBA Goes to the Ball Park

more details on pages 32 and 38

The World of Care Management and Home Care in the New Millennium more details on pages 33 and 38

August 23 | CCCBA Contra Costa County Judges Night more details on pages 7 and 38

September 11 | CCCBA Women’s Section Happy Hour more details on pages 16 and 38

September 12 | CCCBA Diversity Networking Event with Minority Bar Associations more details on pages 16 and 38

September 27 | CCCBA 2018 BAR FUND Benefit

more details on pages 38 and 39 The Contra Costa County Bar Association certifies that the MCLE activities listed on pages 36-38 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

Nathan Pastor and Joe Morrill at the All Section Summer Mixer in June.

36

JULY 2018

Kent Parr

July 10 | Women’s Section

July 12 | CCCBA

Women’s Power Lunch

Minority Bar Coalition

– Summer Mixer

Think LinkedIn but over lunch. This is an opportunity to meet and build professional relationships. Everyone is welcome.

Time: 11:30 am – 1:00 pm Location: Tender Greens 1352 Locust St., Walnut Creek RSVP: Please email the section at cccbawomessection@gmail.com More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Join co-sponsoring organizations of the Minority Bar Coalition for barbeque, heavy appetizers and drinks.

Time: 6:00 pm – 9:00 pm Location: Everett & Jones BBQ, 126 Broadway, Oakland Cost: Free for CCCBA members and members of co-sponsoring organizations RSVP: Online via bit.ly/2xXJv1K More Info: Contact minoritybarcoalition2@ gmail.com

July 12 | CCCBA - Member

Information Series

Student Loan Debt Repayment Strategies Speakers: Jimmy Diehl & Wes Yamada — The Furstner Group Student Debt Now: What do I do?

Student Debt Soon: Make it a good idea!

Come learn strategies around: • What repayment program is right for me?

• Purchase a home or attack the debt?

• The impact of skipping retirement contributions from year to year. And more.

Time: 6:00 pm – 7:30 pm Location: CCCBA Bldg. Conference Room, 2300 Clayton Rd., Suite 650, Concord Cost: $10 Barristers, Law Student and Legal Support Section members, $15 for CCCBA members, $20 non-members Register: Online at www.cccba.org/attorney/ calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

July 19 | CCCBA

July 25 | CCCBA – Member

July 31 | CCCBA

CCCBA Happy Hour Gathering

The A, B, C’s and D of Turning 65

Don’t expect anything formal like name tags or check-in tables. Join us for a casual, no host event, where CCCBA Board Members and Section Leaders gather together with CCCBA members in a relaxed, happy hour setting to socialize. Come and have fun and network with your fellow CCCBA members.

Feel free to bring a friend or two... non-legal types always welcome! A gathering of CCCBA is hard to miss.

Speaker: Colleen Callahan - CLU,CASL, LUTCF

CCCBA Goes to the Ball Park 2018 Toronto Blue Jays vs. Oakland A’s

Time: 4:30 pm – 7:00 pm Location: The Cooperage, 32 Lafayette Circle, Lafayette More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Information Series

Get familiar with the alphabet soup of turning 65 and how to plan for the transition to Medicare and a Medicare supplement. Key points include Medicare Part A and B, eligibility for a Medicare supplement, types of supplements, prescription drug plans, timelines, open-enrollment, travel limitations, and more.

Time: Noon – 1:30 pm Location: CCCBA Bldg. Conference Room, 2300 Clayton Rd., Suite 650, Concord Cost: $10 Barristers, Law Student and Legal Support Section members, $15 for CCCBA members, $20 non-members Register: Online at www.cccba.org/attorney/ calendar

Get yourself on the roster! Our Oakland A’s versus the Toronto Blue Jays. Game time: 7:05 pm. Lower level box seat, a delicious catered tailgate and ballpark-appropriate libations included. As a signing bonus - it is FREE PARKING TUESDAY! Stay on base and look for our specific tailgate parking lot location and start-time details.

Time: 5:30 pm – 9:30 pm Location: Oakland Coliseum, 7000 Coliseum Way, Oakland Cost: $50 members and non-members Register: Online at www.cccba.org/attorney/ calendar by July 20.

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org See page 32.

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

37

August 8 | CCCBA - Member

Information Series

The World of Care Management and Home Care in the New Millennium Speakers: Robin Sanow – R.N. Care Manager - Senior Alternatives Home Care & Care Management Aging is part of life! Whether you are caring for a loved one or looking at successful ways to age in place, join us to discuss options!

We will discuss how advance planning before you are faced with a difficult situation can benefit all. Bring your questions, concerns and stories.

Contra Costa County Judges Night Join the Civil, Criminal, Family Law, Juvenile and Traffic Court Judges of the Contra Costa County Superior Court and your CCCBA friends for an informal mixer.

Get to know our new judges! Catch up with old friends – many CCC Superior Court judges were formerly CCCBA board members, section leaders and committee chairs. This event is open to all CCCBA members and guests.

September 11 | Women’s Section

Women’s Section Happy Hour What is a Women’s Section Happy Hour?

Think LinkedIn but over drinks. The Women’s Section Happy Hour is an opportunity to meet and build professional relationships.

Your RSVP is only to give us a general headcount. If you find, at the last minute, that you’re free and haven’t emailed, please come!

Time: 5:00 pm - 7:00 pm

Thank you to sponsors: ADR Services | Aiken Welch Court Reporters

Location: MoMo’s, 1444 N. California Blvd., Walnut Creek

Time: Noon - 1:30 pm

Time: 5:00 pm - 7:30 pm

Location: CCCBA Conference Rm., 2300 Clayton Rd., Suite 650, Concord

Location: Martinez Event Center 524 Main St., Martinez

RSVP: Please email the section at cccbawomenssection@gmail.com

Cost: $10 Barristers, Law Student and Legal Support Section members, $15 for CCCBA members, $20 non-members

RSVP: Online at www.cccba.org/attorney/ calendar

Register: Online at www.cccba.org/attorney/ calendar More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org See page 7.

September 12 | CCCBA

September 27 | CCCBA

November 16 | CCCBA

Diversity Networking Event with Minority Bar Associations

2018 BAR FUND Benefit

Save the Date! MCLE Spectacular

For the past 30 years, Contra Costa County Bar Association’s BAR FUND has been proudly raising awareness of the need for pro bono legal services and assistance for low income members of our community.

Each year, CCCBA members come together to learn about and support a worthy group.

This year we will be fundraising for two worthy organizations – The Contra Costa County Public Law Library and the Richard E. Arnason Court Scholarship Fund.

BREAKFAST KICKOFF Speaker: Leondra Kruger, California Supreme Court Justice

Sponsorship opportunities available.

Morning & Afternoon Breakout sessions TBA

Time: 5:15 pm – 7:30 pm

SPONSORS: Event Benefactor: JAMS

Come learn more about the different minority bar associations in the Bay Area, network and build new connections! Representatives from different organizations will speak about their organizations, upcoming events and networking opportunities.

Join the CCCBA and a variety of Minority Bar Coalition organizations for free heavy appetizers and drinks. This event is open to all CCCBA members and guests.

Time: 5:30 pm – 7:00 pm Location: Brown, Gee & Wenger, LLP, 200 Pringle Ave., Suite 400, Walnut Creek RSVP: Online at www.cccba.org/attorney/ calendar

38

August 23 | CCCBA

Location: Lafayette Veterans Memorial Center, 2780 Mt. Diablo Blvd, Lafayette

LUNCHEON KEYNOTE Speaker: David Kelly, Golden State Warriors General Counsel & Vice President Afternoon PLENARY Speakers: Honorable Judge Jill Fannin CCC Superior Court Presiding Judge 2018 Honorable Judge Barry Baskin CCC Superior Court Presiding Judge 2019

Session Sponsor: Thomson Reuters

Cost: $85 per person

Event Patron: ADR Services, Inc.

More Info: Contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org

Register: Online at www.cccba.org/attorney/ calendar

Event Partners: Certified Reporting Services The Furstner Group | JFKU College of Law

See page 16.

More Info: Contact Theresa Hurley at (925) 370-2548 or thurley@cccba.org

Location: Walnut Creek Marriott Hotel

JULY 2018

Sponsorship Info: Contact Anne K. Wolff at (925) 370-2540 or awolf@cccba.org

Bar Fund Benefit in support of

Photo Courtesy of Commissioner Lowell Richards

With Grateful Appreciation

to our Sponsors* Platinum Archer Norris Hartog, Baer & Hand, APC

Gold Acuna Regli Buchman Provine Brothers Smith, LLP Casper Meadows Schwartz & Cook

Silver Bramson, Plutzik, Mahler & Birkhaeuser LLP Budde Law Group Ferber Law Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci Robert Half Legal JAMS Littler Mendelson McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP Miller Starr Regalia Mullin Law Firm Whiting Fallon Ross & Abel LLP *Sponsorships are still available. Contact Theresa Hurley at (925) 370-2548 or thurley@cccba.org

in support of

Contra Costa County Public Law Library and

Richard E. Arnason Court Scholarship Program September 27, 2018 5:30 pm - 8:00 pm

Tickets: $85 at https://bit.ly/2yp6dA1

Lafayette Veteran’s Memorial Center 3780 Mt. Diablo Blvd., Lafayette Tickets are available now!

About the Bar Fund: Since 1988, CCCBA has sponsored its BAR FUND Benefit to raise funds and consciousness about the need for pro bono legal services for low income members of our community.

Deposition Reporting in Contra Costa County since 1986

Trusted with the Bay Area’s most complex cases, Diablo Valley Reporting Services has been part of the legal landscape for more than 30 years.

Contra Costa County attorneys have come to rely on DVRS as a firm that is large enough to handle the most challenging cases, but small enough to provide the utmost in personal and professional service.

• • • • • •

DIABLO VALLEY REPORTING SERVICES

Proud to Partner with Some of the Area’s Best Certified Shorthand Reporters Leading Technology Personal Service and Delivery Deposition Suites and Conference Rooms Available Centrally Located in Downtown Walnut Creek, near BART A Loyal Supporter of the Contra Costa County Bar Association for Three Decades

2121 N. California Blvd., Suite 290, Walnut Creek, CA 94596 • dvrs2121@yahoo.com

925.930.7388