THE MARIN LAWYER An Official Publication of the Marin County Bar Association
THE MARIN LAWYER December 2019 Editor Robert Rosborough Guest Editor Michael Chaput Editorial Producer Kiersten Ross
2019 Officers Charles Dresow, President Susan Feder, President Elect Robert Rosborough, Secretary J. Timothy Nardell, Treasurer Thomas Brown, Past President David Feingold, 5 Year Past President Board of Directors 2019 Directors Scott Buell Anna Pletcher 2020 Directors Marie Barnes Gregory Brockbank Andres Perez Nestor Schnasse 2021 Directors Habib Bentaleb Michael Chaput Ahtossa Fullerton Sarah LÊger G. Kelley Reid Executive Director Mee Mee Wong Communications Kiersten Ross Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org Š 2019. All Rights Reserved.
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CONTENTS P5
Editor’s Introduction: Change is Coming to the Marin Lawyer
Robert Rosborough
P8
President’s Message: Gratitude
Charles Dresow
P9
Iguana Trust? Ferret Trust? Parrot Trust? Are Pet Trusts a Thing & Do You Need One?
Carrie Ann Colton, Esq.
P11
Member Profile: Judge Verna Adams, Celebrating 20 Years on the Bench
The Marin Lawyer
P15
Rub-a-dub-dub, Marin Yacht Club
Edmond McGill
P17
New Tax on Litigation Settlements, No Deduction for Legal Fees
Robert W. Wood
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Upcoming Events
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CONTENTS P25
Nonprofit Profile: WildCare⎯Helping People and Wildlife Coexist
The Marin Lawyer
P27
MCLE Fair Recap: A Successful MCLE Fair⎯Keynote Speaker Dale Minami Receives Standing Ovation Mee Mee Wong
P28
An Overview of the 2019 Sections Plus Meet the 2020 Section Chairs
The Marin Lawyer
P33
Brockbank Political Report: Marin’s November Race Results, a Preview of the Local Marin Races on March 3rd, and Yet Another Update on the Leading Democratic Presidential Candidates Greg Brockbank
P39
New Members
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EDITOR’S INTRODUCTION ROBERT ROSBOROUGH
Change is Coming to the Marin Lawyer
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Change is the law of life.”
- John F. Kennedy Happy Holidays! It’s hard to believe another MCBA holiday party has come and gone. Time sometimes passes swiftly and before you know it, your kids are far older than you ever imagined, you barely recognize that person in the mirror and the Legislature has completely rewritten the statute you’ve spent the last ten years interpreting. Is each of those changes good? Bad? Does it have to be one or the other?
This issue of the Marin Lawyer is the final monthly issue. Starting next year, the Marin Lawyer will be published quarterly: in March, June, September and December. All of the issues will be our magazinestyle digital issues. Long ago, the Marin Lawyer was one of the few ways that MCBA could communicate with its members. These days, many of us probably feel that there are a few too many ways of communicating. The Marin Lawyer is no longer the only way to learn about MCBA events, to be noti-
fied of changes to the local rules of court, or to hear who got smashed at the CalCPA Mixer. It can still do all those things (well, two out of three, anyway) but it does not take an entire issue to do them. Between quarterly issues, MCBA will still communicate with members. You’ll receive via email the same event reminders you’re now getting. Other content will simply shift to email, such as a monthly President’s Message. We’ll also send recaps of events to you not long after they’ve happened
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rather than save them for the Marin Lawyer. We might even send around articles of particular topical interest when a legal topic is in the news. And all of those things will continue to be available on MCBA’s website. The goal with the quarterly issues is to bring you particularly useful and interesting articles. Rather than a single guest editor, a team will put together each issue on a theme we hope you’ll find helpful with your practice or stimulating on current legal issues—or both! Unlike with our first few digital issues, we will not recycle articles from the archives. As always, we welcome your input. And we encourage you to share your knowledge and wisdom by writing for the Marin Lawyer. Speaking of sharing, several folks have done that for this issue. First, a thank you to our guest editor: Mike Chaput. He has rounded up a good mix of articles. Some of you will remember the events that Edmond McGill recounts in his entertaining story of the “Ruba-dub-dub Marin Yacht Club.” Hint: it involves an escape and a trial (well, two trials, actually).
consider when setting up a trust. “Trust fund kid” could have a whole new meaning (think “goat”). Be sure to check out our profile of Judge Verna Adams, who’s celebrating 20 years on the Bench. And learn what 40,000 volunteer hours does for WildCare, a beloved Marin nonprofit that makes an enormous difference in helping people and wildlife coexist.
THANK YOU TO OUR 2019 MCBA SPONSORS Silver
I wish everyone a wonderful holiday season and a joyous New Year. I’ll see you back here in March. View this article online at Marinbar.org Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adultfamily conflict such as disagreement over caring for an aging parent and HOA disputes. He maintains an estate planning and general advisory and transactional law practice focusing on personal and small business issues. Rob also teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher. EMAIL
And litigators take note, especially plaintiff lawyers: Robert Wood details changes wrought by the Trump tax law to the treatment of legal settlements. In many cases, it will mean that plaintiffs have to pay taxes on their legal fees. And did you know that trusts for pets are a thing? Carrie Ann Colton outlines what pet lovers need to THE MARIN LAWYER An Official Publication of the Marin County Bar Association
Interested in sponsorship? Contact Mee Mee Wong at mwong@marinbar.org
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PRESIDENT’S MESSAGE CHARLES DRESOW
Gratitude
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hank you to the members of the Marin County Bar Association for allowing me the privilege of serving as your President. Susan Feder will take over the ceremonial gavel and will have a great year. Our Association continues to grow and thrive, with new members from diverse backgrounds bringing vibrancy to the organization. No doubt, there will be challenges in the future much as there have been in the past and I am confident we are well-positioned to face them. One reason for that confidence is the extraordinary work of our executive director, Mee Mee Wong. I would like to thank her for all of her efforts running our association seamlessly and effectively. She dedicates an enormous amount of time to make sure that our membership is well served and her work ensures the success of our Association. The entire MCBA staff deserves our gratitude for their hard work. Kiersten Ross as Communications Director and Denise Belli, our membership and events administrator, both do an amazing job. I would like to thank our departing board members—immediate Past President Thomas Brown, Director Anna Pletcher, and 5-
year Past President David Feingold—for their service to MCBA. Their wisdom and presence on our board will be missed. And of course, I would like to thank our remaining board members for their continued service to the Association, especially Rob Rosborough for overseeing the Marin Lawyer. Many others volunteer their time to make our Association the great organization that it is. I would like to thank our many section leaders and committee members, who do so much of the Association’s work. And a big thank you to the fee arbitrators who heard fee disputes, our Modest Means mediators, and the lawyers who donated their hours to Lawyers in the Library. Their commitment improves not only the vibrancy of our Association, but access to justice for many individuals in Marin. Finally, I would like to acknowledge our wonderful sponsors. Without them we could not hold programs, put on events, or do any number of the other things that make our association thrive. Please join me in giving enormous thanks to the following sponsors:
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
Platinum Homa Rassouli, Retirement Funding Solutions Silver Bank of Marin Marin Bail Bonds Judicate West Williams & Gumbiner LLP Bronze American Reporting Services LLC Cal-Pacific Reporting, Inc. Foley & Lardner LLP Leadership Circle Charlie Dresow Robert Epstein Coblentz Patch Duffy & Bass LLP Susan Feder Mediation Freitas Law Firm Richards, Watson & Gershon Monty White LLP Once again, thank you to all that have made my year as president a smooth and enjoyable experience. Happy Holidays and Happy New Year to all. View this article online at Marinbar.org Charles Dresow is a partner at Ragghianti Freitas LLP and is the MCBA President for 2019. His practice focuses on representing those accused of crimes. EMAIL | WEBSITE
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FAIR PETHOUSING TRUSTS CARRIE ANN COLTON, ESQ.
Iguana Trust? Ferret Trust? Parrot Trust? Are Pet Trusts a Thing & Do You Need One?
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e are no longer dog or cat owners: we are dog or cat parents! Long gone are the days of doghouses in the distant backyard. Our pets live inside with us, in extravagant surroundings, lavished with toys, ensembles for all seasons, and their own Christmas stockings hanging on the mantle. They have salon days, grocery shop with us, attend soccer games, and are now an integral part of our family. Historically in California, the law treated pets no differently than any other personal property. The beloved Labradoodle was just like the china, Wagoneer, or Tahoe vacation home. At best, it might be gifted to someone, maybe along with money to be used toward care. Then came…the animal rights movement. Around the 1990s, states began to enact laws that made it easier for people to leave assets for the care of their pets, California included. So, how does this work? In the past, though you could designate a person in your will to care for your pet, probating a will is often extremely time consuming, making a will an impractical vehicle to provide care for your pets as they need immediate attention upon your passing.
Furthermore, even if you were fortunate enough to have a family member or friend who would informally agree to care for your pet, they would be under no legal obligation to do so. Can a pet be a beneficiary of a trust? Even now, pets are still considered to be property and therefore cannot be named as a beneficiary.
person who will monitor and safeguard the trust’s finances and ensure your pet is cared for in the manner you designate in your trust. You want this to be a person who is devoted and agrees to meet these responsibilities for the remainder of your pet’s life. It is always wise to also designate a successor trustee in the event the original
What’s a modern-day pet parent to do? Create a pet trust!
one becomes unable to meet the obligations.
California Probate Code sections 15211 and 15212 allow for the creation of a pet trust for the duration of your pet’s lifetime. Setting up a pet trust involves several decisions:
2) Determine how you will fund the trust. First, calculate the amount of resources you believe your pet will need (including, of course, the luxuries you may want for your pet) for the duration of its lifetime. These items may include food, toys, collars, crates, waste bags,
1) Identify a trustee. This is the
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beds, veterinary care, boarding funds for when your caregiver is unavailable, grooming, pet daycare, final arrangements, etc. Next, virtually any asset you own may be used to fund your pet trust. Depending upon the set-up of your pet trust, you may open a bank account in the trust name, or simply name the pet trust as a full or partial beneficiary of real estate sale proceeds, an annuity, a retirement fund, life insurance policy, etc. 3) Identify a caregiver. Ideally, you want to select someone who will take care of your pet as you would have and provide the best home. Friends, relatives, dog park buddies are all great choices, but there are also organizations that are willing to assume these responsibilities. Again, it is wise to appoint a successor. 4) Identify a remainder beneficiary. The pet trust will last for the remainder of your pet’s life. Assuming the trust doesn’t run out of money, leaving Fido to the mercy of the kindness of the caregiver you selected, you will need to designate what happens to funds remaining in the pet trust upon your pet’s passing. Many folks specify charities or family members and friends. You want to avoid naming the trustee or caregiver as this creates a conflict of interest and motive to spend the least amount possible for the care of your pet so they get the leftovers. What in the world could go wrong? Be careful to specifically
caretaker salary, and meals of hand-fed crab cakes and steamed vegetables with chicken. Florida millionaire Gail Posner’s Chihuahua, Conchita, reportedly luxuriated with a fulltime staff, diamond studded Cartier collars, and spa treatments. I’ve even seen a house left for a caretaker to live in to provide care for the pet and maintain the comfort of the original family home to “reduce the stress experienced by the pet at the owner’s passing.” Remember, if you will a pet and identify your pet: in some insome funds to a friend or family sane instances, a caretaker has member, they may feel obligatbeen found to have taken care ed to take care of your pet for of Sweet Willie the pot-bellied the remainder of its life. If you pig for years and years…and create a pet trust, the trustee years! They find a and caretaker are legally obli“replacement” animal and begated to care for your furry, cause they are being paid a stipend so long as they care for the scaly, or feathery best friend. animal, they put a new animal in View this article online at Marinbar.org place of the one who passed to keep up the ruse. Be very deCarrie Ann Colton is a long scriptive of your animal, lest a -time attorney in Novato series of Sweet Willies proliferwho specializes in pet ates. Also, make sure you suffitrusts, people trusts, and all things labor and emciently fund your trust. If the ployment law related. And trust ceases to have funds, your yes, she does have a pet pet may suffer substandard trust for Mr. Max the kitty, as well as a care or be ditched all together. trust for her two children. Final Fun Facts: Leona Helmsley, real estate mogul, bequeathed $12 million to Trouble, her Maltese puppy, $12 million more than she left her grandchildren. Though a court reduced the award to $2 million (and gave some to her grandchildren in case you were wondering), Trouble still lived an opulent lifestyle with expenses that included $100,000 annually for security, $60,000 for a
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
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HUMAN MEMBER RIGHTSPROFILE COMMISSION THE MARIN LAWYER
Judge Verna Adams, Celebrating 20 Years on the Bench
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he Marin Lawyer recently sat down with the Hon. Verna Adams, Marin County Superior Court Judge. Where did you grow up and what was that like? I grew up in South Bend, Indiana, a town of about 100,000 people, 100 miles from Chicago. It was my good fortune to come of age in small(ish) town middle America in the late 50s and 60s. Many of my childhood friends remain very close to me. Who were your influences? First of all, my parents. Because they were youngsters during the Great Depression, my mother was not able to graduate from high school, and my father could not finish college. They made sure that their five children (I am the youngest) would have opportunities that they did not have. Another huge influence was my high school Latin teacher, Miss Kaczmarek, who was erudite and demanding. She believed in me and insisted that I live up to her high expectations, personally and academically. How did you find your way into the law as a career? I’m not sure, but I knew from an early age that I wanted to be a
professional. By freshman year in high school I had figured out that I wanted to be an attorney. Where did you go to college and law school? I earned my bachelor’s degree at Wellesley College in Wellesley, Massachusetts. My first year of law school was at Columbia University, in New York City, and then I transferred to, and graduated from, Stanford Law School. A brief history of what led to your career...where did you start? Jobs you took? What were the challenges? What were pivotal moments? After law school, I spent one year as an associate attorney with a boutique tax firm in San Francisco. I didn’t like it. I read an article in the San Francisco Chronicle about an all women’s law firm in San Rafael—quite an oddity in the 1970s—so I sent them my resume.
I was offered an associate position, working for Ann Diamond and Beverly Savitt, doing family law in Marin County. Eventually, I became a partner in the firm. I worked with Judge Savitt until her appointment to the bench in 1982, and thereafter
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
with Barbara Dornan until shortly before my appointment in 1999. When did you become a judge and were you ready? 1999. Yes. What are your strengths and what are your weaknesses? I work hard, and the more complicated the case, the better I like it. I think I could be more patient. Judge Boren once told me a prayer that seemed apt for me: “God, please give me patience, and give it to me right now.” What are your proudest moments? Instead of proud moments, I will tell you some of the happiest moments in my life:
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• • • • • •
Learning how to ride a horse Being named valedictorian of my high school class The day I graduated from law school The day my daughter was born Opening day of the Legal Self -Help Center of Marin Going on safari in Botswana with my husband, John
man who had been a criminal defendant in my courtroom. He was facing three strikes sentencing, but I had given him a last chance at avoiding prison. He said to me: “Thank you, Judge Adams. You saved my life.” He is now a contributing member of our community.
What would you do differently if you could?
nal case. Some of the lowlights of that trial and its aftermath were: • • •
I was sent a voodoo doll by a supporter of the defendant The defendant’s attorney called me a w----e, on the record in front of the jury The defendant’s supporters initiated recall petitions against me and Judges Boren, Duryee and Dufficy.
That was quite an initiation, but I believe I am a better judge as a result of that experience.
I’m not sure. Things have worked out well so far. Sometimes I wonder if I might have benefitted from taking a break between college and law school, joining the Peace Corps or something like that.
Where does the next twenty years see Judge Adams?
Would you share something wonderful about your service on the Bench?
What's been most difficult in your career as a judge or as an attorney?
There are so many. Some years ago when I was out and about in the community, I encountered a
When I had been on the bench for less than a year, I was assigned a very challenging crimi-
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
I know what I am going to do today and I am pretty sure about tomorrow. I have found that it is not a good idea (for me, anyway) to “get ahead of my skis” by speculating about the distant future. View this article online at Marinbar.org
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Visit MCBA or email volunteer@marinbar.org to learn more and to get involved.
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Images: commons.wikimedia.org/wiki/File:San_Quentin_State_Prison.jpg, www.newspapers.com/clip/23500921/the_san_francisco_examiner/ THE MARIN LAWYER An Official Publication of the Marin County Bar Association
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THEPRISON CIVIL RIGHTS ESCAPE ACT EDMOND MCGILL
Rub-a-dub-dub, Marin Yacht Club This article was originally published in the Marin Independent Journal on November 18, 2018 and is reprinted with kind permission.
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orrest Tucker, the principal character in what Robert Redford announced in the summer of 2018 was his final film, The Old Man and the Gun, was a reluctant resident of Marin County forty years ago. Tucker, unlike so many of us in this beautiful county, was not happy to be here. He didn’t like his small cell at San Quentin Prison so he and two other convicts made a plan to relocate. The three convicts pilfered materials from the warehouse next to the bayside loading dock at San Quentin and, from a design
made by Tucker, fabricated parts for a boat. At the end of each prison workday, the convicts hid the finished boat parts in the warehouse until, at last, all of the parts were complete. The day was chosen and the boat’s prefabricated parts were hastily but skillfully assembled by the convicts. All that remained was to christen the craft before launching. A stencil was made, some paint was found and emblazoned on the craft’s bow were the words “Rub-adub-dub, Marin Yacht Club”. With great stealth, the boat was carried from the warehouse and launched into the chilly waters of the San Francisco Bay. Fran-
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
tic rowing brought the boat within view of Guard Tower Three where an officer considered calling the Coast Guard to render aid to a pleasure craft that appeared to be in trouble. As the convict sailors maneuvered towards the shore, other correctional officers offered aid. “Thanks,” called out convict John Waller who was in the water pulling the boat towards the shore. Looking at his bare wrist, Waller shouted to the helpful officers, “It’s okay, my Timex is still ticking.” The convict sailors beached the boat, scattered to the winds and, when the evening count was made at the “Bastille by the
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Bay�, the number was down by three. Before long, the boat, the stencil, the cans of spray paint were all found. The helpful correctional officers who hailed the craft from the shoreline and from Tower Number 3 were interviewed. Later there would be stern reviews concerning the supervision of convicts working at the warehouse. In the years just before the Ruba-dub-dub Escape as it came to be known, Marin County had experienced bloody San Quentin escape attempts that left correctional officers, convicts and even a respected Marin County judge dead. But here was something different, not a bloody attempt, but rather, a non-violent, ingenious and, to all but the Warden, a hilarious successful escape. After some time at liberty, Waller and McGirk, but not Tucker, were captured and brought to trial in the Marin County Superior
Court for the crime of prison escape, a crime, for which it is said, there is no defense.
about the wonders of a system of justice that is not so inflexible to be without a good sense of humor. There ought to be a movie.
Those called to jury service were unusually eager to serve and, after the case was present- View this article online at Marinbar.org ed to twelve good citizens of our county, the jury just could Edmond McGill practices not reach a verdict. The jurors business law and civil litigation in Marin County, could not unanimously decide where he has practiced for that Waller and McKirk had re45 years. He represented ally escaped from the prison. John Waller in the two jury The case was tried a second trials for the San Quentin time and for a second time escape that occurred in 1979. EMAIL | WEBSITE twelve citizens could not reach a verdict. Once again, it was a hung jury and a mistrial. The District Attorney decided not to try the case a third time. The case was dismissed and the convicts returned to San Quentin to finish their original sentences. Reasonable minds might wonder how the Rub-a-dub-dub sailors escaped conviction of a crime for which there is no defense. Reflecting on this might tell us a bit about ourselves and
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TAX LAW ROBERT W. WOOD
New Tax on Litigation Settlements, No Deduction for Legal Fees This article was originally published in the March 5, 2018 issue of Tax Notes and is reprinted here with permission.
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any plaintiffs will now be taxed on their gross recoveries, with no deduction for attorney fees. This bears repeating. Many plaintiffs who settle for $100,000 will be taxed on $100,000, even if they pay $40,000 or more to their lawyers. In bigger recoveries, the tax situation can become dire. This stark reality not only will affect plaintiffs and their lawyers, but may also affect defendants, who may have to pay more to resolve cases. Tax cuts are supposed to be good. Yet as everyone knows, there was both pain and pleasure in the big year-end tax law (Tax Cuts and Jobs Act, P.L. 115 -97). For example, there is pain in the $10,000 cap on deducting state and local taxes. It is roiling high-tax states, and causing some residents to flee for notax states like Texas, Nevada, or Florida. Some states are proposing a workaround “donation” or are filing lawsuits to block the law. A less obvious group hurt by the tax law is plaintiffs in lawsuits. For many plaintiffs, the results
of the tax bill are surprisingly bad. By extension, it may affect their lawyers, too, including case resolution and lawyers’ wallets. The biggest hit to many plaintiffs will be the new tax treatment of attorney fees.
I. It’s All Gross Income Part of the problem triggered by the sweeping tax reform bill is historical. In 2005 in Banks,i the U.S. Supreme Court held that plaintiffs in contingent fee cases must generally recognize gross income equal to 100 percent of their recoveries. That means plaintiffs must figure out a way to deduct their 40 percent (or other) fee.
Months before Banks, Congress enacted an above-the-line deduction for employment claims and some whistleblower claims. An above-the-line deduction is almost like not having the income in the first place. It subtracts the qualifying fees before
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you reach page 2 of the tax return. Under the new GOP tax law, plaintiffs in employment cases will remain unaffected, unless their case involves sexual harassment, because the above-the -line deduction for legal fees remains in the law. This generally ensures that employment claim plaintiffs are taxed on their net recoveries, not their gross. But there are nagging problems even for employment plaintiffs. For example, a plaintiff’s abovethe-line deduction for fees in employment and qualifying whistleblower cases cannot exceed the income the plaintiff received from the litigation in the same tax year. As long as all the legal fees are paid in the same tax year as the recovery (as in a typical contingent fee case), that might not be an issue. However, what if the plaintiff has been paying legal fees hourly over several years? There are possible workarounds, but none are foolproof. Some plaintiffs can end up unable to deduct their legal fees even in employment cases. Also, only employment (and some types of whistleblower) claims qualify for the above-the 17
-line deduction. There has always been concern that the IRS could limit deductions for legal fees by attributing them to particular claims. Will the IRS start allocating legal fees between employment claims and other claims? That danger seems enhanced now. Moreover, plaintiffs in employment claims must now contend with the so-called Harvey Weinstein provision for sexual harassment claims and releases. Amazingly, it can disallow all settlement and legal fee deductions, potentially even plaintiffs’ deductions. II. Affected Plaintiffs If you are not an employment plaintiff (or one of a few types of whistleblowers) and your claim did not involve your trade or business, you may not be able to deduct legal fees above the line. Until now, that meant deducting your legal fees below the line. A below-the-line (or miscellaneous itemized) deduction was more limited, but it was still a deduction. It faced three limits: (1) Only fees greater than 2 percent of your adjusted gross income could be deducted, so there was a haircut on the first part of your fees; (2) depending on income, you could be subject to a phaseout of deductions; and (3) your legal fees were not deductible for purposes of the alternative minimum tax. Now there is no below-the-line deduction for legal fees for tax years 2018 through 2025. If you are not an
employment plaintiff or qualified whistleblower, and you cannot find a way to position your claim as a trade or business expense or to capitalize your fees into the tax basis of a damaged asset, you get no deduction. Period. That means you are taxed on 100 percent of your recovery.
Examples of when you’ll be affected as a plaintiff include recoveries from: 1. a website for invasion of privacy or defamation; 2. a stock broker or financial adviser for bad investment advice, unless you can capitalize your fees; 3. your ex-spouse for anything concerning your divorce or children; 4. a neighbor for trespassing, encroachment, or anything else; 5. the police for wrongful arrest or imprisonment; 6. anyone for intentional infliction of emotional distress; 7. your insurance company for bad faith; 8. your tax adviser for bad tax advice; 9. your lawyer for legal malpractice; and 10. a truck driver who injures you, if you recover punitive damages. The list of lawsuits in which this will be a problem is almost endless. Conversely, the list of cas-
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
es in which you should not face this double tax is much shorter: 1. Your recovery is 100 percent tax free, for example, in a pure physical injury case with no interest and no punitive damages. If the recovery is fully excludable from your income, you cannot deduct attorney fees, but you don’t need to. 2. Your employment recovery qualifies for the above-theline deduction (but watch out if it involves a sexual harassment claim). 3. Your recovery is in a federal False Claims Act case or IRS whistleblower case, qualifying for the above-the-line deduction. 4. Your recovery relates to your trade or business, and you can deduct your legal fees as a business expense. 5. Your recovery comes via a class action, in which the lawyers are paid separately under court order. Eliminating miscellaneous itemized deductions means that many plaintiffs (outside employment and some whistleblower cases) will have no legal fee deduction at all. Plaintiffs in many types of litigation will feel the full force of paying taxes on their gross recoveries, with no deduction for their fees. III. SEC Whistleblowers SEC whistleblowers also did not fare well under the new law, at least initially. An amendment 18
had proposed giving them an above-the-line deduction for legal fees. That would match the treatment IRS whistleblowers and Federal False Claims Act whistleblowers enjoy. But the amendment for SEC claimants was not included in the final tax law passed at Christmas. However, the massive budget bill just passed in February of 2018 came to the rescue. It allows an above-the-line deduction of legal fees for whistleblower recoveries under section 21F of the Securities Exchange Act of 1934 (15 U.S.C. 78u-6), recoveries under state false claims acts, and those under section 23 of the Commodity Exchange Act (7 U.S.C. 26).ii The new provision is effective for recoveries after December 31, 2017.
IV. Sexual Harassment The new law includes the Weinstein tax. The idea is to deny tax deductions for settlement payments in sexual harassment or abuse cases if there is a nondisclosure agreement. Notably, this no-deduction rule applies to the lawyers’ fees as well as the settlement payments. Of course, most legal settlement agreements have some type of confidentiality or nondisclosure provision. And many employment cases have a mixture of facts and claims and a comprehensive settlement agreement. That means lawyers will worry about whether this no-deduction rule will apply. If it applies, it may apply with a vengeance. Even legal fees paid
by the plaintiff in a confidential sexual harassment settlement could be covered. The new provision was added into section 162, which addresses business expenses. The Congressional Research Service’s official summary of the legislation says that the provision prohibits a tax deduction for trade or business expenses in some sexual harassment and sexual abuse cases.iii Arguably, Congress’s intent was only to limit the defendant’s trade or business deduction for settlement payments and related legal fees. Nevertheless, the language actually enacted into the tax code is much broader. It provides that “no deduction shall be allowed under this chapter.” “This chapter” appears to include every section of the of the tax code between section
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1 and section 1400Z-2, covering most sections a taxpayer uses for calculating taxes each year. It therefore could also disallow the above-the-line deduction for a plaintiff’s employment and qualifying whistleblower claims. Small allocations to the sexual harassment portion of settlement agreements might be one answer to preserve the availability of deductions for the other claims.iv However, it is unclear whether the IRS would respect them. V. What to Do Now For many types of cases involving significant recoveries and attorney fees, the lack of deductions for attorney fees may seem downright confiscatory. Plaintiffs and their lawyers are unlikely to take the situation lying down. Here are potential ideas for addressing the new rules.
A. Separately Paid Lawyer Fees Some defendants will agree to pay lawyer and client separately. Do two checks obviate the income to the plaintiff? According to Banks, not hardly. The Form 1099 regulations may not help. They generally require defendants to issue a Form 1099 to the plaintiff for the full amount of a settlement, even if part of the money is paid to the plaintiff’s lawyer. However, some taxpayers may still claim reporting positions on these facts.
B. Business Expenses
C. Capital Gain Recoveries
One possible way of deducting legal fees could be a business expense deduction. Businesses did well in the tax bill, and business expense deductions remain unaffected (other than the Weinstein provision). But are your activities such that you are really in business, and is the lawsuit related to that business?
One other possibility for legal fee deductions is capital recoveries. If your recovery is capital gain, you arguably can capitalize your legal fees and offset them. You might regard the legal fees as capitalized or as a selling expense to produce the income. But at least you should not have to pay tax on your attorney fees. Perversely, the new nodeduction rule for attorney fees may encourage some plaintiffs to claim that their recoveries are capital gain, just to “deduct” their attorney fees.
Alternatively, could your lawsuit itself be viewed as a business? A plaintiff filing his first Schedule C as a proprietor for a lawsuit recovery probably won’t look convincing. Before the above-the-line deduction for employment claims was enacted in 2004, some plaintiffs argued that their lawsuits amounted to business ventures so they could deduct legal fees. Plaintiffs usually lost these tax cases. After all, just suing your employer doesn’t seem like a business. It might be regarded as investment or incomeproducing activity (which used to give rise to a below-the-line deduction), but not a business. And remember, under tax reform, investment expenses — whether legal fees or otherwise — do not qualify for a tax deduction. However, a plaintiff doing business as a proprietor and regularly filing Schedule C might claim a deduction there for legal fees regarding the trade or business.v It seems inevitable that there’ll be more arguments based on Schedule C from plaintiffs in the future.
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VI. Exceptions to Banks
There will be new efforts to explore the exceptions to the Supreme Court’s 2005 holding in Banks. The Supreme Court laid down the general rule that plaintiffs have gross income on contingent legal fees. But general rules have exceptions, and the Court alluded to situations in which this 100 percent gross income rule might not apply. A. Injunctive Relief Legal fees for injunctive relief may not be income to the client. The bounds of this exception are unclear, but it may offer a way out on some facts. If there is a big damage award with small injunctive relief, will that take all the lawyer’s fees from the client’s tax return? That seems unlikely. B. Court-Awarded Fees Court-awarded fees may 20
provide relief, depending on how the award is made and the nature of the fee agreement. Suppose a lawyer and client sign a 40 percent contingent fee agreement. It provides that the lawyer is also entitled to any court-awarded fees. A verdict for the plaintiff yields $500,000, split 60/40. The client has $500,000 in income and cannot deduct the $200,000 paid to her lawyer. However, if the court separately awards another $300,000 to the lawyer alone, that should not have to go on the plaintiff’s tax return. What if the court sets aside the fee agreement, and separately awards all fees to the lawyer? Does such a court order mean the IRS should not be able to tax the plaintiff on the fees? It is unclear, but the IRS has an incentive to scrutinize such attempts. C. Statutory Attorney Fees Statutory fees are another potential battleground. If a statute provides for attorney fees, can this be income to the lawyer only, bypassing the client? Perhaps in some cases, although contingent fee agreements may have to be customized in particular ways. The relationship between lawyer and client is that of principal and agent. It may take considerable effort to distance a plaintiff from the fees his lawyer is due. D. Lawyer-Client Partnerships How about a partnership of a lawyer and client? Partnerships
fared well in the tax reform bill. Moreover, the tax theory of a lawyer-client joint venture (which is just another name for a partnership) was around long before the Supreme Court decided the Banks case in 2005. Despite numerous amicus briefs, the Supreme Court expressly declined to address it. If a fee agreement says it is a 60/40 partnership, can’t that partnership report 60/40? The lawyer contributes legal acumen and services. The client contributes the legal claims. Legal purists will note the ethical rules that suggest this cannot be a true partnership because lawyers are generally not supposed to be partners with their clients.
Yet tax law is unique and sometimes is at odds with other areas of law. Couldn’t a lawyer-client partnership agreement state that it is a partnership to the maximum extent permitted by law? At the least, it is unclear that ethics rules will control the
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tax treatment of the arrangement.
To be sure, key factors in how such partnerships would fare with the IRS would be optics and consistency. Partnership nomenclature and formalities would matter. A partnership tax return with Schedules K-1 to lawyer and client might be hard for the IRS to ignore. At the very least, lawyer-client partnerships deserve to be resuscitated. There are surely some in the works at this very moment. VII. Conclusion For many types of cases involving significant recoveries and attorney fees, the lack of tax deductions for legal fees may be catastrophic. We should expect plaintiffs to more aggressively try to avoid receiving gross income on their legal fees in the first place. For plaintiffs who are stuck with the gross income, we should expect some to go to new lengths to try to deduct or 21
offset the fees. Some of these efforts may be sophisticated and well thought out. Others may be clumsy, if not downright desperate. But few plaintiffs receiving a $100,000 recovery will think it is fair to pay taxes on the full amount if legal fees have consumed a third or more of their recovery. Multiply the figures into bigger numbers, and the situation will be worse. Add a higher contingent fee percentage and high case costs, and the situation will be worse still. Contingent fee lawyers may be sympathetic and may try to help plaintiffs where they can. All in all, settlement time for legal disputes may become more stressful in this troubling new tax world. Tax time will be, too.
i
Commissioner v. Banks, 543 U.S. 426 (2005). ii See section 62(a)(21). iii Congressional Research Service, “The 2017 Tax Revision (P.L. 115-97): Comparison to 2017 Tax Law,” CRS R45092 (Feb. 6, 2018). iv See Robert W. Wood, “Taxing Sexual Harassment Settlements and Legal Fees in a New Era,” Tax Notes, Jan. 22, 2018, p. 545. v See Alexander v. Commissioner, 72 F.3d. 938 (1st Cir. 1995). This article was originally published in the March 5, 2018 issue of Tax Notes and is reprinted here with permission. View this article online at Marinbar.org Robert W. Wood practices law with Wood LLP and is the author of Taxation of Damage Awards and Settlement Payments, Qualified Settlement Funds and Section 468B, and Legal Guide to Independent Contractor Status, all available at www.TaxInstitute.com. This discussion is not intended as legal advice. EMAIL | WEBSITE
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UPCOMING EVENTS UPCOMING EVENTS WED | DEC 11 | 5:30-7:30P GENERAL: Annual MCBA Holiday Party Free to MCBA Members INFO & REGISTRATION >
WED | JAN 22 | 11:30-1:30P GENERAL MEETING : MCBA Member Luncheon Congressman Jared Huffman Buffet Lunch | 1 CLE General REGISTRATION COMING SOON
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Images: instagram.com/wildcarebayarea/
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THE NONPROFIT CIVIL RIGHTS PROFILE ACT THE MARIN LAWYER
WildCare: Helping People and Wildlife Coexist
T
he wildfires of recent years have introduced many of us to the term, “Wildland-Urban Interface,” the rapidly expanding border where human habitation meets the wilderness. Fire is not the only thing humans are encountering more of: people and wildlife increasingly find themselves calling the same places home, leading to risks for both humans and animals. Ample open spaces mean that human-wildlife encounters are common in Marin. Wildcare’s mission is to make sure that all species can coexist. Wildcare was formed from the 1994 merger of two respected Marin wildlife organizations: the Terwilliger Nature Education Center and the California Center for Wildlife. It pursues its mission through a twopronged approach that reflects the goals of each of its ancestors: education and rehabilitation. It saves wildlife injured or orphaned through natural or human causes and teaches students young and old the essential interconnection among species. Each year, WildCare’s Wildlife Hospital treats as many as 4,000 ill, injured or orphaned wild animals, consisting of more than 200 different species of mammals, birds, reptiles and amphibians. Its educational pro-
grams reach more than 35,000 Bay Area children and adults and its volunteer staff answer thousands of calls on its “Living with Wildlife Hotline.” (415.456.SAVE) According to WildCare’s Alison Hermance, by educating the public, “We’re in a position to help prevent people from injuring animals.” For example, you may not know that the transition off of daylight savings is a dangerous time for wildlife because human activity extends further into darkness and is more likely to encounter nocturnal animals. Or you may not know not to trim trees in the spring, as that is when and where many baby animals are nesting. Conveying information such as this allows WildCare to address the underlying causes of wildlife injury and not just treat the symptoms in its hospital. According to Hermance, “It’s one of our big advocacy messages – we can proactively make a difference!” WildCare’s work to create a more sustainable ecosystem for us all is made possible by volunteers who give approximately 40,000 hours of their time each year treating and teaching. Volunteers have also been known to donate pro bono legal assistance from time to time! None of WildCare’s more than three-
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million-dollar budget comes from the government—it comes entirely from individual donations, memberships and private nonprofit foundations. WildCare is open to the public seven days a week from 9:00 AM to 5:00 PM. In addition to attending on-site events, such as its “Summer Happy Hour,” the public can sign up for its Family Adventures Program – a free, bilingual series of hikes throughout Marin County. WildCare is a 501(c)(3) nonprofit organization and you can learn more about its wildlife care and education programs, volunteer opportunities or how to donate on its website. As the green and blue on our globe continue to disappear, it is critical for humans to maintain a sense of their place on it. WildCare believes that only by understanding the place of each other living thing – and helping to preserve it – can we find a future for us all. View this article online at Marinbar.org
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12th Annual MCLE FAIR
Sponsor: Budish Insurance Hon. Kathryn M. Werdegar (Ret.) , Keynote Speaker Dale Minami, Judge Beverly Wood
Sponsor: Resolution Remedies
Sponsor: Homa Rassouli
Co-Host: MCLPA
Sponsor: West Coast Reporters
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Keynote Luncheon
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MCLE FAIR RECAP MEE MEE WONG
A Successful MCLE Fair: Keynote Speaker Dale Minami Receives Standing Ovation
O
ver 90 people attended the MCLE Fair to fulfill their specialty credit requirements before the February 1, 2020 deadline. It was the 12th year the Marin County Bar Association and Marin County Women Lawyers put on this popular event and the second year that the Marin County Legal Professionals Association co -sponsored and organized a second track, where many sessions were popular with attorneys as well. Comments from attendees included “great event each year,” “unbelievable keynote – the best so far,” and “so wellorganized with options.” The fair also offered attendees halfday morning or afternoon options for those whose schedules did not permit attending all day. Dale Minami, noted civil rights activist and attorney, captivated the audience with the history and inside legal story of the Korematsu case, recounting the story of the original decision and discussing how the appellate decision overturning the original conviction came about. His humble summary of his work and the parallels of Executive Order 9066 to today’s immigration actions brought many of us to reflect on our duty to defend our constitutional rights and freedoms.
We thank all the program speakers for their excellent contributions and our sponsors for underwriting this event. SPEAKERS •
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Judge Verna Adams, Judge Beth Jordan and Judge Beverly Wood | Addressing Bias in the Legal Profession David Nahmais and Lindsay Nako Impact Fund | Recent Developments in LGBTQ Discrimination Law Richard Carlton | Coping Skills for the Legal Professional: Avoiding Burnout and Anxiety Keynote Luncheon Speaker Dale Minami | The Long Shadow of Korematsu vs. U.S.: Stop Repeating History Carol Langford | Ethics and Compliance: Wary Traps to Avoid | New Rules of Professional Conduct Matthew White | Ethical Settlement Negotiations Charles Dresow | Lawyers as Leaders, Lawyers in Literature
ger and Corporal Rob Cleland San Rafael Police Dept | Active Shooter Preparedness •
Barbara Monty and Shelley Kramer | Preparing for Mediation – New Evidence Code Requirements
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John Becker Fort Docs | What a Mess – There are Documents Everywhere
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Holly E. Rickett | Drone Law: A Brief History, Overview and Current Status of the Law
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Terrie Gillett | Notary Update – Tips for Avoiding Lawsuits, Apostilles and AB 199
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Phillip Snell | The Legacy of the San Geronimo Golf Course Revelations and Applications of Land Use Law.
MCLE FAIR SPONSORS • • • • •
Budish Insurance Homa Rassouli - Reverse Mortgage Specialist One Legal Resolution Remedies West Coast Reporters Inc.
View this article online at Marinbar.org
Sergeant Todd Berrin-
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JUVENILE SECTIONS DEPENDENCY THE MARIN LAWYER
An Overview of the 2019 Sections Plus Meet the 2020 Section Chairs MCBA offers Sections in 12 legal practice areas. Each section conducts ongoing activities, produces specific programs, and provides continuing legal education (CLE) and offers networking opportunities tailored to its members.
MCBA would like to express its gratitude to the 2019 section chairpersons. Their dedication helped section members keep abreast of developments in their practice areas, earn CLE credits and connect with their fellow practitioners.
Section membership is open to all MCBA members. Add your section(s) when you join or renew your membership.
Check out program highlights for 2019 and meet the 2020 Section Chairs.
ADR (ALTERNATIVE DISPUTE RESOLUTION) 2019 Chair: Scott Buell Program Highlights: Lawyers As Changemakers: The Global Integrative Law Movement This section is seeking new co-chairs. Please contact Mee Mee Wong if you are interested in leading this section. 2020 Chair – OPEN BARRISTERS | YOUNG PROFESSIONALS Program Highlights: Co-hosted with ALMA and Diversity Section: Social with Marin County Superior Court Judges 2020 Co-Chair: Daniel A. Rossi
2020 Co-Chair: Michelle Christovich
www.martinorossi.com
www.keeginharrison.com
daniel@martinorossi.com
mchristovich@keeginharrison.com
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JUVENILE SECTIONS DEPENDENCY THE MARIN LAWYER
BUSINESS 2019 Co-Chairs: Michael Chaput and Edmond McGill (interim) Program Highlights: Offshore Incorporation, Offshore Trusts and Offshore Residency
2020 Co-Chair: Michael Chaput
2020 Co-Chair: Robert Blum
www.chaputlaw.com
www.bobblummediation.com
michael@chaputlaw.com
bob@bobblummediation.com
CONSTRUCTION LAW 2019 Co-Chairs: B. Scott Douglass and Matt Haulk Program Highlights: Recent Developments in Construction Case Law; Contractor Licensing Laws in California; Roundtable Discussion on New Construction Caselaw 2020 Co-Chair: B. Scott Douglass
2020 Co-Chair: Matt Haulk
www.dlglaws.com
www.rflawllp.com
scott@dlglaws.com
mhaulk@rflawllp.com
CRIMINAL LAW 2019 Chair: David Brown Program Highlights: Co-Sponsored with ADI: Cellphone Forensics: Applications in Discovery and Investigations 2020 Chair: David Brown dbmarindefender@gmail.com
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JUVENILE SECTIONS DEPENDENCY THE MARIN LAWYER
DIVERSITY Program Highlights: Co-Sponsored with ALMA and Barristers Section: Social with Marin County Superior Court Judges; Co-Sponsored with SFTLA: Women Referring Women Social 2020 Co-Chair: Lauren Jones
2020 Co-Chair: Thomas Weathers
www.kdvlaw.com
www.thomasweatherslaw.com
ljones@kdvlaw.com
tom@thomasweatherslaw.com
EMPLOYMENT & LABOR LAW 2019 Co-Chairs: Nancy McCarthy and Kelly Savage Day Program Highlights: What’s New in Employment Laws for 2019 and Highlights of 2018; Litigating an Employment Case - The Path to Trial; Cyber Security and Data Privacy⎯How Do Employers Deal With It, What Liability Arises? New Developments in LGBTQ Employment Discrimination Law; The Top 10 Ethics Rule Changes That May Affect Your Practice 2020 Co-Chair: Nancy McCarthy
2020 Co-Chair: Kelly Savage Day
maczord@aol.com
www.savageday.com kelly.savageday@savageday.com
FAMILY LAW 2019 Co-Chairs: John Brekhus and John Cuerva Program Highlights: A View from the Bench; Pension Division Malpractice and QDROs; DissoMaster and the Tax Cuts and Jobs Acts; Practice Tips from the Family Law Clerks and Staff 2020 Co-Chair: John Brekhus
2020 Co-Chair: John Cuerva
jbrekhus@marinattorney.net
www.allinghamcuerva.com john@allinghamcuerva.com
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JUVENILE SECTIONS DEPENDENCY THE MARIN LAWYER
INTELLECTUAL PROPERTY 2019 Co-Chairs: Phil Green and Steve Nielsen
2020 Co-Chair: Phil Green
2020 Co-Chair: Steve Nielsen
www.greenandgreen.com
www.nielsenpatents.com
phil@greenandgreen.com
steve@nielsenpatents.com
PROBATE & ESTATE PLANNING 2019 Co-Chairs: Timothy Barteau and Valerie Kushel Section CLE credit now includes State Bar Probate and Estate Specialty Credit Program Highlights: Testamentary Capacity Standards: From Drafting Through Trial; Using Housing Wealth to Improve Financial Outcomes in Retirement; Anticipating and Addressing the Dilemma Posed by a “Fading” Trustee; Tax Issues When Settling a Trust or Estate Dispute; Meeting with the Court; The Trustee’s Tale: What Corporate Fiduciaries Wish Drafting Attorneys Would Consider and Discuss with Their Clients; Trustee Unchained: Decanting Has Come to California; Creating a Special Needs Trust That Incorporates a Plan; Hidden Truths About Advance Healthcare Directives⎯What You Never Learned In Law School 2020 Co-Chair: Timothy Barteau
2020 Co-Chair: Valerie Kushel
www.rflawllp.com
www.vgklaw.com
tbarteau@rflawllp.com
valerie@vgklaw.com
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JUVENILE SECTIONS DEPENDENCY THE MARIN LAWYER
REAL PROPERTY 2019 Co-Chairs: Len Rifkind and Derek Weller Program Highlights: Using Housing Wealth to Improve Financial Outcomes in Retirement; Significant Developments in CA Real Property Law; Real Property Claims: An Underwriter’s Perspective; What All Real Estate Transaction and Litigation Attorneys Must Understand About Joint Ventures; Coming to Where You Live – Statewide Rent Control 2020 Co-Chair: Len Rifkind
2020 Co-Chair: Derek Weller
www.rifkindlawgroup.com
www.derekwellerlaw.com
len@rifkindlawgroup.com
derek@derekwellerlaw.com
TAX LAW 2019 Chair: Joseph Manuel 2020 Chair: Joseph Manuel www.jdmanlaw.com
josephdm@jdmanlaw.com
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View this article online at Marinbar.org
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THEHUMAN BROCKBANK RIGHTS POLITICAL COMMISSION REPORT GREG BROCKBANK
Marin’s November Race Results, a Preview of the Local Marin Races on March 3rd, and Yet Another Update on the Leading Democratic Presidential Candidates LAST MONTH’S ELECTION RESULTS You may recall that last month marked the last regularly scheduled odd-numbered year local elections in Marin (and other places as well); all of those elections have now moved to evennumbered years. In fact, all of them had already moved except for four cities that were given a little more time. Of those four cities, there was no election on the ballot in Larkspur, since only two candidates (Scott Candell and Gabriel Paulson), both new, filed to run for two seats, with both incumbents stepping down. Of the other three, two (Fairfax and San Anselmo) had “traditional” at-large elections for two seats each. The third, Novato, had Marin’s first-ever district elections — three of them — all of which were contested and on the ballot. San Rafael will join Novato next year as the second city with district elections. FAIRFAX With one incumbent stepping down, that left Renee Goddard
Apparently that sentiment won the day for Hellman, along with a last-minute get-out-the-vote drive. SAN ANSELMO
as the only incumbent running and hence a frontrunner. The other frontrunner was Cindy Swift — both were endorsed early by the only two countywide political endorsing groups: the Marin Democratic Party (technically, the Democratic Central Committee of Marin, or DCCM), and the Marin Women’s PAC (MWPAC). Not surprisingly, Goddard finished first by a healthy margin. Swift had an equally strong second-place finish on election night, but over the course of the next few weeks, her lead shrank and disappeared to the ultimate winner, Stephanie Hellman. That surprised many, as Hellman was not as experienced or well-connected in town, except perhaps with Frank Egger, the 40-year councilmember who has since run for and won other offices, but for some years now has fought what he considers to be excessive housing in Fairfax.
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As in Fairfax, we had one incumbent stepping down, and the remaining one, Ford Greene, running for a fourth four-year term. Also running were Steve Burdo, who lost his first two attempts at this office six and two years ago; Tom King, making his second try; and new candidate Kim Pipkin. Despite having lost twice before, Burdo seemed like the frontrunner from the outset, and in fact he received every group endorsement offered (quite unusual), including being the only candidate endorsed by the Marin IJ, and indeed he came in as the top vote-getter by a comfortable margin. Incumbent Ford Greene was expected to win as well, as a hard-working and efficient canvasser, and generally mainstream Democrat who has many devoted fans in town. He did win, but he came in well behind Burdo, and almost lost at the end of the counting to newcomer Pipkin, who was endorsed by the MWPAC 33
(Greene was endorsed by neither the DCCM or the MWPAC). Greene’s detractors note that he litigated against the town some years ago (he is an attorney himself and says he was defending himself against an attempt to drive him from his home) and has gotten into verbal altercations with the thencity manager and more recently with Pipkin immediately after a candidates forum this fall. NOVATO Here, two incumbents stepped down (one a few months ago), so there were two open seats, including in District 1, where well-endorsed and well-funded Susan Wernick handily beat Jim Petray, who someone said seemed like he was running to be the city’s CPA. In District 3, incumbent (and current Mayor) Eric Lucan, is now a wellrespected veteran and mainstream Democrat about to begin his third term. Despite still being in his 30s and still ambitious, he won handily over Kevin Morrison, who ran citywide two years ago, and this time was even more of a bombthrower, distributing copies of his call for Lucan to step down because the city was a mess, financially and otherwise, and only he had the answers; the voters disagreed. Finally in District 5, another open seat, Amy Peele prevailed (again, with the two big group endorsements, plus those of many political insiders, and plenty of funding) over local realtor and HOA President Marie Hoch, as well as Melissa Galliani, who
dropped out about halfway through the race. A LOOK AT MARIN’S LOCAL ELECTIONS ON THE MARCH BALLOT The even-numbered-year “primary” election (still called that despite our relatively new “top-two” system taking away some of the meaning of the word ”primary”) was once again moved up in an attempt to give California some clout in selecting the presidential nominees. This time the early date is March 3rd, immediately after the traditional first four states (Iowa, New Hampshire, South Carolina, and Nevada) have their caucuses and primaries in February, and when we will be joined by a large number of other states also on March 3rd — thus dubbing that date as next year’s Super Tuesday. In addition to the highest office being on the ballot, there will also be the “lowest” offices: the county central committees for the political parties, including the DCCM, even though they are rarely on the ballot, and voters have rarely heard of most of the names on it, and rarely do any of the candidates ever campaign in any meaningful way. These races are an exception to the top-two system, and only the voters registered in a particular party may vote for the candidates in those races. The other partisan races (House of Representative in Congress, and State Assembly in the Legislature) operate under the top-two system, and Jared Huffman and
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Marc Levine will be re-elected to their two offices, after running in both March and November, regardless of party and primary victory margin, likely again without any serious challengers. Although most of the local nonpartisan races have always been in the general elections in the fall, and will continue to be (with an even larger number of them starting this fall), there have always been, and still are, a few in the primary election, with a few more added this year as they were forced to move (either to the primary or general elections). Among the races that have always been on this ballot, the most important offices are the county supervisor races (three this time). Other races include several town councils (with two added this year for the first time) and two sanitary districts. COUNTY SUPERVISOR RACES
In District 2 (Ross Valley and Southern San Rafael), incumbent Katie Rice is running for re -election to a third full term, after being appointed almost a decade ago to fill out the term of her now-deceased former boss, Hal Brown. She was an excellent supervisorial aide, but no one knew how good a supervisor she’d be (very good indeed, as it turned out), or how good a candidate, and that question was answered again four years ago, when she handily beat a current city councilmember and a former city councilmember, while avoiding 34
a runoff, which most thought she’d be unable to do. No challengers filed against her at the deadline of 5:00 December 6th, so she gets another term without having to campaign for the next few months, which incumbents always hope for, but which really is a disservice to the voters, the body on which they serve, and to democracy, as well as to the candidate themselves, to be deprived of a campaign, even if it does save them a little time. In District 3 (Southern Marin, including Mill Valley, Tiburon, Belvedere, and Sausalito), Kate Sears is retiring after about a decade, and like Rice, after starting with filling out the term of her deceased predecessor, Charles McGlashan. Sears is tough and smart (a former deputy attorney general in the antitrust division), and four years ago handily beat a challenger in a race expected to be close, but it turned out not to be as close as anticipated. The only strong candidate so far to succeed her (although there may be other last-minute challengers before
the mid-December deadline) is three-term Mill Valley Councilwoman Stephanie MoultonPeters, who is such an overwhelming frontrunner (endorsed by Sears and everyone else) that she might as well be an incumbent already. Other (no-chance) late-filing candidates includes Bill Bailey (no ballot statement = not a serious candidate), and octogenarian Jack Kenney. In District 4 (West Marin, Greenbrae Boardwalk, the Canal District of San Rafael, and outlying pieces of Novato and Mill Valley), incumbent Dennis Rodoni is running for a second term, after succeeding the retiring long-time Supervisor Steve Kinsey. Despite controversies — which always seem to dog the West Marin Supervisor, including, this time, the San Geronimo golf course — Rodoni looks in fine shape to win another term, as his only challenger is latefiling Alex Easton Brown, who has run for several offices unsuccessfully in recent years. CITY COUNCIL RACES
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Ross has traditionally held its council elections in evennumbered-year primaries, and the tradition continues this time. Two of the three incumbents whose seats are up — Elizabeth Brekhus and Beach Kuhl — have taken out papers to run for re-election with no word from the city clerk on the third — Peter Russell. There are also two new candidates who have pulled papers —Ken Fineman and Mary McFadden — a race there looks very likely even if the third incumbent doesn’t run. Tiburon is holding a special election for a single two-year seat to fill out the term of a recently resigned councilmember. Three candidates who have pulled papers are Jack Ryan, Daniel Amir, and Kathleen Defever. Mill Valley, newly in this evennumbered year, will hold two elections: 1) its usual election for three four-year seats, with one vacancy due to Stephanie Moulton-Peters running for county supervisor instead of
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re-election, and 2) for a single two-year term to replace a recently resigned councilmember. Incumbent Sashi McEntee and new candidates Urban Carmel and Max Perrey are running for the regular seats, and incumbent Jim Wickham is running for the two-year seat. Corte Madera, also new to this election, will hold its nowregular election for two regular seats, with neither incumbent running, and new candidatesFred Casissa and Charles Lee running. SANITARY DISTRICTS There are two with scheduled elections: a large one (Ross Valley), and a small one (Almonte), with incumbents Mary Sylla and Doug Kelley running for reelection in the former, and incumbents Lewis Kious and Anne Lahaderne running in the latter. THE LEADING DEMOCRATIC PRESIDENTIAL CANDIDATES I’ve written about (mostly) these same top-five candidates for nearly a year now, every other month, although I’ll be moving to every third month (March, June, September, and December) next year. Although there are always new things to write about them, and new polls to reflect on, it’s amazing that so little has changed thus far. For example, the top three remain the same, although Joe Biden has gone from solid frontrunner to increasingly fragile front-runner, trailing Bernie
Sanders and Elizabeth Warren in some states in some polls, and in fundraising (especially cash on hand, which translates to fewer ads than he’d like). Warren seems to have passed Sanders for the #2 position, and some say she’s #1, passing Biden in some national polls, and is clearly on the rise, whereas Biden sometimes seems to be in decline. Pete Buttigieg rose fairly quickly to #5 in the spring, after a surge that surprised many because he’s ”only” a small-town mayor, still in his 30s, and gay (both a selling point, and perhaps a liability, depending on one’s perspective), but then stalled out in polling some months ago, until recently. He’s currently in another surge, this one taking him to #4 at worst, and some polls show him nearing or overtaking the top three, including one poll a few weeks ago that showed him winning Iowa.
The debates have been extremely valuable in allowing voters to get to know these and other candidates better (although the viewership has gone from about 24 million to about a third of that). Candidates who have been in at least a few of them and are still stuck in the low single digits in national and various early-stage state polls (and who usually lag badly in fundraising as well) can now say they gave it their best shot, but didn’t get the traction necessary to see a path to victory. Many of them have dropped out already. Surprisingly, it hasn’t
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stopped several new candidates from jumping into the race recently, including Tom Steyer (a few months ago), former Massachusetts Governor Deval Patrick and former New York City Mayor Michael Bloomberg in November. In the case of most of these late entries, they should have jumped in much sooner, as too many of the key consultants and staffers are already committed to other candidates, and in most cases they won’t have the advantage of appearing in several debates over several months, and thus won’t even meet the polling requirements to be in any of the remaining few. Nor will most of them be likely to raise the needed funds (in a few months, instead of in a year), with the exception of billionaires Steyer and Bloomberg, who can self-fund. Steyer has been accused of funding more ads than the other candidates can afford, thus raising his polling numbers enough to “buy” his way onto the debate stage, according to some commentators and other candidates. Bloomberg has just announced that he won’t accept any contributions at all, and will be 100% selffunded, which means he won’t meet the donor number requirements to participate in any DNC-sanctioned future debates. He’s also skipping the first four states’ elections. It’s hard to imagine any of them getting much, if any, traction, since talented candidates with better resumes have gotten little or no traction after cam-
paigning for nearly a year, in some cases, including appearances in many or all of the debates. But Bloomberg could outspend everyone else several times over, and could appeal to moderates (especially if Biden continues to falter), and at the very least could take away enough votes from Biden to fatally weaken him, whether or not Bloomberg himself gets the nomination, or even close to it. Many people think either Warren or Sanders should drop out and support the other, since their progressive platforms are so similar, but of course neither one wants to drop out as long as they are both consistently in the top three, as they have been, and both see a viable path to the nomination (and victory in November). If we had rankedchoice voting (also known as “instant runoff”), I believe an election this month amongst the top three would result in Warren and Sanders coming in first and second, in whatever order, with Biden coming in third. Remember that only candidates with 15% or more of the votes will get any delegates at all in any given state, and most of the candidates are nowhere near that threshold, and will never get any delegates, even if they stay in long enough to compete in the first four states, then maybe Super Tuesday, and maybe beyond. Only the top three consistently rank high enough now in the key first four states to reasonably expect any delegates from those February contests, with the possible excep-
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
tion of Buttigieg winning some delegates in Iowa (although only in Iowa, and not the other three), which won’t give him much momentum going into Super Tuesday and beyond. I believe the delegates will be split up evenly enough from the first four states that there will be no frontrunner going into Super Tuesday and beyond. Just as with Barack Obama and Hillary Clinton in 2008, and with Hillary Clinton and Bernie Sanders in 2016, this primary season may well last all winter and spring, with the result uncertain until the very end. It’s hard to imagine Biden getting much stronger at this point, although if a half dozen of the other verygood-but-not-top-tier candidates eventually drop out and all support Biden, that could give him a boost. Although polls vary, sometimes dramatically, from one poll to the next, and sometimes one month to the next, the last polls I saw aggregating and averaging the first four states’ polling amongst the top four candidates (from mid-November) show Biden at 26.2%, Sanders at 20.6%, and Warren at 19.2%, with Buttigieg barely qualifying for delegates in Iowa only (although rising in New Hampshire), and Sanders and Warren just under the 15% threshold in South Carolina. Those numbers can and will change, perhaps each week, but it seems likely that the top three will remain clustered very close together in polling numbers and delegate counts, so that no one has more 37
momentum going into Super Tuesday than any other. I don’t know that any of them will have a decided advantage on Super Tuesday but we’ll have a clearer picture in late February or early March, about the time of my next column. Note: The views expressed in this article are opinions of the author and are not intended to reflect those of MCBA nor is this column an endorsement of any candidate.
View this article online at Marinbar.org Greg Brockbank is a 30plus-year attorney and civic and political activist, having served for 22 years on the College of Marin Board of Trustees and then on the San Rafael City Council. He is the senior member and immediate past chair of the Marin Democratic Party governing board and has attended 30 state Democratic conventions. For over 20 years, he has provided numerous groups with detailed lists of the contact info for all candidates for Marin’s local offices, and appears as a commentator and election-night co-host on public access television. EMAIL | WEBSITE
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