The Marin Lawyer June 2022 by Marin County Bar Association

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

THE MARIN LAWYER June 2022 Supervising Editor Robert Rosborough Editor Emily Charley Guest Editors Ahtossa Fullerton, Valerie Kushel, Mary Sackett Creative Director Kiersten Ross 2022 Officers President Robert S. Rosborough President Elect Ahtossa P. Fullerton Secretary Kristine Fowler Cirby Treasurer Scott Buell Past President J. Timothy Nardell 5 Year Past President Wanden P. Treanor Board of Directors 2022 Directors Emily M. Charley R. Christopher Locke Ann W. Munene Karthik S. Raju 2023 Directors Chelsea E. Heaney Valerie G. Kushel Thomas M. McCallister Thomas (Tom) M. McInerney Mary M. Sackett 2024 Directors Neusha N. Ghaedi Jeffrey G. Knowles Mary A. Stearns Alexander S. Vahdat David L. Winnett 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 © 2022 All Rights Reserved.

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

CONTENTS 4 | Editor’s Introduction: Positive Changes We Can See EMILY CHARLEY

28 | MCBA Profile: Executive Director Mee Mee Wong VALERIE KUSHEL

6 | President’s Message: Coping ROBERT ROSBOROUGH

30 | Brockbank Political Report: A Closer Look at the June 7th Primary Races for Marin and Statewide Offices GREG BROCKBANK

10 | Clean Slate Program MARY SACKETT ET AL. 13 | Judge’s Corner: Progress on the Court’s New Case Management System HON. JAMES T. CHOU 16 | Where Do We Go From Here? SERGIO RUDIN AND ELI FLUSHMAN 19 | Three Key Issues in Digital Health Contracts MORVAREED SALEHPOUR

38 | Webinar Recap: Criminal Justice Reform Local Impacts MORGAN H. DALY 41 | Lawyers in the Library Needs (Virtual) Lawyers in the Library LAWRENCE STRICK 45 | Upcoming Events 47 | New Members

22 | Estate of Wall JAKE WALKER 25 | Nonprofit Profile: Bloom - Clothing the People of Marin, and Now Even More MARY SACKETT

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

PRESIDENT’S MESSAGE EDITOR’S INTRODUCTION Positive Changes We Can See EMILY CHARLEY

While this is not the first issue of the Marin Lawyer without MCBA President Rob Ros-

laboration Among Marin Criminal Justice Partners, Mary Sackett and our local criminal

borough at the helm, I still must echo Kris Cirby’s introductory comments from the last

justice luminaries discuss the program’s aim of removing some of the barriers criminal

quarterly edition: this is a lot of work! I did not fully appreciate how much Rob was do-

convictions have on those looking for a fresh start.

ing, and second (third and fourth) Kris’s thanks to Rob. And I’d like to thank my guest editors: Mary Sackett, Valerie Kushel, and Ahtossa Fullerton.

This issue also ensures we are kept up to date on new cases. Turn to Sergio Rudin and Eli Flushman’s Where Do We Go From

But it is interesting work. And during a time when there is much over which to despair, I

Here? for an explanation of the Ninth Circuit’s recent case, Where Do We Go Berkeley et al. v. California Department of Transporta-

enjoyed learning of the positive changes we can see and make here at home. As a remind-

tion, regarding clearing homeless encampments in the context of ADA regulations.

er that even the smallest act can have a meaningful impact in our community, Larry Strick invites each of us to volunteer in Lawyers in the Library Needs (Virtual) Lawyers in the Library. But why stop with donating a little time? MCBA Board Director Mary Sackett describes how the YWCA and Bloom, a non-profit that provides complimentary wardrobes to those who are transitioning to a life of self-reliance, have come together to help Marin. Shifting to criminal law, if you missed the April membership meeting, Morgan Daly thoughtfully recaps the panelists’ perspectives on the local impacts of criminal justice reform legislation. And in Clean Slate: A ColTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

For estate matters, Jake Walker discusses

Estate of Wall, highlighting the need for estate planning to navigate conflicting community property and title presumptions. No one will want to miss this issue’s Judge’s Corner, where Presiding Judge James T. Chou updates us on implementation of the Court’s new case management system. And finally, Morvareed Salehpour explores intellectual property rights and ownership, data use and rights, and cybersecurity in Three Key Issues in Digital Health Contracts. View this article at Marinbar.org Emily is a partner at Hanson Bridgett and is on the board of the Marin County Bar Association. She represents a variety of private parties and businesses, as well as public sector clients. She is an active litigator, handling

disputes in both state and federal courts, as well as in arbitration and mediation. Emily contributes significant time to pro bono legal services in her community. She sits on the board of directors of the Golden Hour Restoration Institute, a non-profit providing ecological restoration education, and frequently takes cases for the Volunteer Legal Services Program of the Bar Association of San Francisco and the Lawyers’ Committee for Civil Rights. EMAIL | WEBSITE

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PRESIDENT’S MESSAGE MESSAGE PRESIDENT’S Coping ROBERT ROSBOROUGH

The Clean Slate Program article in this issue

wrench into the machinery of our everyday

of the Marin Lawyer opens with the follow-

lives, even for those who have avoided ill-

ing lines: “The world is tough to navigate. It is

ness and death among their friends and fami-

constantly changing, confusing, and often

ly. That wrench may have done less damage

overwhelming—and having a criminal convic-

to those of us privileged enough to work

tion on your record is a complexity multipli-

from home or with more resources to cope

er.” The barriers a criminal record erects to leading a productive life are enormous and

but it has added another layer of change, uncertainty, and complexity to our lives.

many of them are detrimental not just to the individual but to society as a whole. But I

Change, uncertainty, and complexity often go hand-in-hand and most of us find them

quote these lines not to write about criminal justice but to write about how tough the

challenging, sometimes even overwhelming.

world is to navigate for everyone, especially lately. Clearly, the pandemic threw an enormous

They have intruded into our lives at a time when many of us are already unsettled by the degree to which we see them happening in society. Change, of course, is often good.

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

And many people are working hard to bring

good change to the world. Martin Luther King, Jr. popularized the idea that, “the arc of the moral universe is long but it bends towards justice,” (he was paraphrasing the Transcendentalist Unitarian Minister Theodore Parker). I agree with the sentiment but

we can’t even remember our car keys?

There is no single answer and I am interested in hearing your suggestions (really, I am). But in the meantime, here are a somewhat random ten suggestions of my own: •

for tasks you aren’t doing. Or for things

wonder if much of the (historically relatively)

you are doing to take care of yourself.

rapid change for the better that has occurred in our lifetimes has let us forget the “long”

Be kind to yourself. Don’t berate yourself

•

aspect of the arc (more apparent in Parker’s original) and that nowhere does it say pro-

Be realistic about what you can and can’t do and know that whatever the balance is

gress will be steady.

right now is not what it has to be permanently. Be realistic both with yourself and

It takes a lot of work to keep that arc bend-

with others when agreeing to something.

ing towards justice. I hardly need to name many of the forces in the world today that

•

Limit your news intake. We should all be informed about what’s happening in the

are bending it away from justice. Those forces seem especially powerful now, sometimes

world. But you are not going to stop the war in Ukraine, reverse climate change,

inspiring dismay instead of hope, paralysis

ensure fair elections, and prevent a mon-

instead of action. Pondering the big picture

keypox outbreak, at least not by yourself. But ruminating (which includes excessive

can be disheartening, to phrase it generously. Indeed, each of us individually has little con-

newsgathering) on events you cannot control generally reinforces feeling out of

trol over these forces but we should not let that discourage us from collectively acting. Over the last two years, much of our energy has gone into figuring out whether we should

control. In other words, focus on what you can control. •

Help others. Choose something that

wear a mask or attend an in-person event or what to let our unvaccinated children do or

matters to you even if it is something as enormous as climate change, as long as

how to find baby formula or…you get the idea. We are not used to dealing with such a

you feel that what you are doing is helping. Plenty of research supports the conclusion that helping others is one of the

rapidly shifting daily landscape and it is impacting how we perform in other areas of our lives, including what we have the energy and inspiration to cope with. What to do?

best ways to make yourself feel good too. And we are in a helping profession, which offers plenty of opportunity to help.

How do we keep working to bend the arc towards justice when sometimes it feels like THE MARIN LAWYER An Official Publication of the Marin County Bar Association

•

Take time for yourself. Do something just

•

for yourself without worrying about

blissing out, it’s about awareness of

whether it has any benefit for you or any-

thoughts and emotions and improving

one else beyond the act of doing it.

your ability to cope with the full range of experience. Ask me more about it since

Practice gratitude. When the world

I’m a meditation teacher.

seems bleak or something in your own life goes wrong, remind yourself what is

•

Meditate. Meditation is not just about

•

Your everyday choices matter. Bend the

good. This is not a prescription for igno-

arc towards justice wherever you can,

rance or inaction but a counterbalance.

even in the smallest things.

Stay connected with others. Adequate social support is associated with a signifi-

View this article at Marinbar.org

cant improvement in mood and even life expectancy.

Rob Rosborough is Of Counsel to Monty

Be active. Do something physical. Choic-

adult-family conflict such as disagreement

es abound and it does not take all that much. Even vacuuming is physical but I

over caring for an aging parent, and HOA

have to say would not be my first choice. Extra points for doing something in na-

ture, which has been shown to improve mood.

White LLP. He mediates disputes where an ongoing relationship is at stake, particularly

disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them

meditation skills as a certified iRest® meditation teacher. EMAIL | WEBSITE

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

CLEAN SLATE Clean Slate Program MARY SACKETT et al. Contributing Authors: Assistant District Attorney Otis Bruce Jr., Public Defender David Joseph Sutton, Probation Chief Marlon Washington, District Attorney Lori Frugoli, and Mary Sackett.

The world is tough to navigate. It is constantly changing, confusing, and often overwhelming—and having a criminal conviction on your record is a complexity multiplier. Fortunately, for those who have paid their debts to society, the County of Marin’s Clean Slate Program is aimed at removing some of the barriers for those looking for a fresh start. The criminal justice system—including the war on drugs, three-strikes legislation and many current immigration laws—have been

unequally enforced. Criminal records can be crippling, costly, and limit employment options and opportunities. Without selfsufficiency, a job and hope, recidivism increases.

The Clean Slate Program aims to remove some of the barriers by clearing a participant’s record, terminating their probation, or dismissing their conviction. The program synchronizes help from the Public Defender’s Office, the District Attorney’s Office, and the Probation Department at one place and one time. The services from the three agencies, in addition to the Department of Health and Human Services, brings assistance directly to residents in their own neighborhood. “Collaborating with our justice partners fulfills our initiative to help qualified applicants expunge and reduce their prior convictions,” added District Attorney Lori E. Frugoli. Clean Slate hosted an inaugural Marin City event in February 2022. The event linked together

Clean Slate program supporters at Civic Center include (from left) Assistant DA Otis Bruce Jr., Health and Human Services Director Benita McLarin, Probation Chief Marlon Washington, Health and Human Services Division Director D’Angelo Paillet, DA Lori Frugoli, and Public Defender David Joseph Sutton.

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

Black History Month, historically Black Marin City, 10

and Black leaders in crimi-

nal justice. Dozens showed up to take advantage of the programs. On June 1st, the Clean Slate Program was at the Multicultural Center of Marin in San Rafael. Those seeking to clean up their record brought relevant documents, including past

correspondence and Department of Justice records. Spanish translators were on hand to help with health or immigrationrelated relief as well. The Department of

Assistant District Attorney Bruce added that “Our Clean Slate Program is intentional and

Health and Human Services offered assistance with public benefits such as Medi-Cal,

in line with social justice and equity initiatives, and inspired by the County’s 2 Year In-

CalFresh food assistance, CalWORKS services, employment training, and general fi-

ternal and External Action Plan addressing the need in our county for more connections

nancial relief for families. COVID-19 vaccinations and boosters were available as well.

to the community and representation around the issues of Diversity, Equity, Inclusion, Be-

Plans are in the works to create similar events in other Marin neighborhoods where

longing, Innovation and Change. As Criminal Justice Partners and representatives of our

needs are particularly strong.

county’s departments, we are obligated to carry out this important plan and this im-

The Clean Slate program is the brainchild of Public Defender David Joseph Sutton, Assistant District Attorney Otis Bruce Jr., Proba-

portant work.” Bruce and Sutton explain how this kind of

tion Chief Marlon Washington, and D’Angelo

one-stop-shop collaboration aims to bring

Paillet, Division Director of Social Services,

county services out of the Civic Center and

Employment and Training in the Marin Health and Human Services Department.

into communities of need. Bringing government into the community to remove barriers,

“The collaboration toward resident selfsufficiency is in the best interest of the resi-

answer questions, and connect residents and services breaks down access to justice barri-

dents, the community, and the judicial system. This is a win-win.” said David Joseph

ers and is good policy.

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

View this article at Marinbar.org 11

Mary Sackett has dedicated the past 20 years to service in Marin County. She practiced law for 13 years in Marin, before transitioning to work for the Board of Supervisors. She serves on the Board of Directors for the Marin County Bar Association. Otis Bruce, Jr. currently serves as Assistant District Attorney, Marin County District Attorney's Office. He has over 30 years in government legal related work starting his career in 1988 as a volunteer legal intern with the Marin County Counsel's Office. In 1990, he pursued his public interest career goal to become a prosecutor starting as a Legal Assistant, Trial Deputy District Attorney, Supervising Deputy District Attorney and now the Assistant District Attorney. Otis served as Marin District Attorney's Office's first Community Justice Coordinator. He currently serves as Marin District Attorney's Office Social Justice, Community Outreach Liaison and Policy Coordinator, Student Internship and Career Development Coordinator and Program Director for the Victim/ Witness Services Unit. In 1995, Otis was hired as Marin County DA's Office first African American prosecutor. David Joseph Sutton has dedicated his legal career to indigent defense and social justice. His legal career began with the Marin County Public Defender’s Office during the summer of 2006 as a legal intern. He returned as a Deputy Public Defender in 2009, and David was appointed to serve as the Public Defender in September of 2021. Before returning to Marin County, David was the Los Angeles Trial Chief at the Federal Public Defender’s Office for the Central District of California. He was also a Deputy Federal Public Defender for over a decade. David has represented clients in various criminal matters, from misdemeanors to clients facing decades-long mandatory minimum prison sentences, white-collar and medical frauds, as well as the federal death penalty. David currently sits on the University of San Francisco School of Law’s Board of Governors.

Marlon Washington is the Chief Probation Officer for the County of Marin. Chief Washington has 25 years of experience in the field of adult and juvenile Probation. Chief Washington began his probation career in Contra Costa County, as a Temporary Probation Counselor. Advancing through the ranks, he has held the following positions, Probation Counselor, Adult/Juvenile Deputy Probation Officer, Institutional Supervisor I, Probation Supervisor Adult/Juvenile, Institutional Supervisor II, and Napa County Juvenile Hall Superintendent. He earned a Bachelor of Arts degree in Sociology with an Emphasis in Law and Society and a Minor in Rhetoric and Communications from the University of California, Davis. His philosophy and approach to probation aligns with restorative justice, evidenced based practices and forging community relationships. D’Angelo Paillet, MBA is the Social Services Division Director for the Employment and Training branch of Social Services for Marin County’s Health and Human Services. D’Angelo has over 20 years of experience working in the social services field. D’Angelo began his career in Marin County as a Senior Clerk and has worked his way up to Division Director of the Employment and Training Branch. D’Angelo holds a Bachelor of Art’s degree in Management with a minor in Social Action and Community Change, and a Master of Business Administration from Dominican University of California. He thrives on building community collaborations and discovery how to work with community partners. D’Angelo believes in being client focus, service oriented, and flexible. Lori E. Frugoli currently serves as the District Attorney, Marin County District Attorney's Office. She is a Marin native and was first inspired to keep Marin safe when she participated in a Law Enforcement Ride-a-Long program while attending Terra Linda High School. She was one of the first women to volunteer as a Reserve Police Officer in San Rafael where she later became a Police Officer. While at Santa Rosa she investigated arsons, fraud and embezzlement cases and served as a member of the Hostage Negotiations Team. Lori worked her way through law school while working for the Marin County Sheriff's Office. In 1990 she became a Deputy District Attorney for the County of Marin and in 2018 she was elected to serve as Marin County's District Attorney. Lori has earned many prestigious awards and recognitions including the Champion for Children award from the Jeannette Prandi Children's Center.

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PRESIDENT’S JUDGE’S MESSAGECORNER Progress on the Court’s New Case Management System HON. JAMES T. CHOU

While I know this may not seem like the most exciting topic, I’m thankful to the Marin County Bar Association and President Rob Rosborough for giving me this opportunity to update all of you about the progress we are making in implementing our new Case Management System (CMS). For the Court, this is, indeed, very exciting news. The Marin County Superior Court has been working hard to implement our new CMS. In 2018, under Presiding Judge Paul Haakenson, the Court entered into a contract with Journal Technologies to create a new, modern, state-of-the-art CMS. Thus began the months-long process necessary to create a plan with Journal for a CMS that would serve Marin County and its litigants as best we could imagine in our court system. For this project, the Court made the strategic decision to create a CMS Management Team that consists of industry professionals, experienced Court staff from our IT division, the Court Clerk’s Office and in-court clerks, and members of Court leadership. Since its inception, the CMS Management Team has been working full-time with Journal staff to implement our CMS. Our decision to create a CMS Management Team has served us well: We have been able to timely address issues as they have arisen, which has helped greatly in

reducing delays. In fact, the success of our CMS Management Team has not gone unnoticed by other courts and several have created their own CMS Management Teams. Our CMS project began with weeks of briefings, meetings, and education about the products offered and their limitations as well as of our own systems and infrastructure; talks with the County’s Department of Information Services and Technology (IST); and the inevitable negotiations about expected timelines, costs, and ultimately implementation. It also involved additional weeks reviewing, revising, and signing contracts, which committed both Journal and the Court

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

to our CMS. Along the way, the Court has

case information. Our hope is that it will

also continued to advise and work with our

make access to our Court easier and better

partners, including the District Attorney’s

than before.

Office, the Public Defender’s Office, the Probation Department, County Counsel, other County agencies, and the Marin County Bar Association. Probation Department, County Counsel, other County agencies, and the Marin County Bar Association.

The implementation process has, unfortunately, been less than perfect, to say the least. After finalizing our contracts, we blissfully moved into 2019 with great expectations about the project’s timing and we made significant progress. However, in early 2020,

The new CMS that the Court and Journal

the Court’s plans and expectations, along

agreed to implement will create a new Webbased user interface, which will provide 24-

with those of the rest of the world, ran into the effects and uncertainty of a global pan-

hour access to case files from any internet browser. It will streamline existing court pro-

demic. We have had to accept the inevitable delays from the supply chain, a change in

cesses and hopefully provide more efficient services to the public. The CMS will provide

workforce, and a monumental shift in how we all work, live, and do business. Even with-

the public with the online ability to file new cases, add documents to cases, make elec-

out the issues created by the pandemic, we have, without respite, run into numerous is-

tronic payments, as well as search and view

sues from the outset. We struggled and

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

continue to struggle with maintaining and

interact with the Court are in progress. And

supporting our antiquated database system

those improvements will be worth the wait.

and the difficult task of migrating existing data held in technologically fragile platforms to new Web-based systems. We have gone through the extremely painful process of

James T. Chou Presiding Judge Marin County Superior Court View this article at Marinbar.org

converting thousands of hardcopy case files to electronic files. We have had to train and re-train staff and judges on interim systems,

Judge James T. Chou was appointed to the

temporary stopgap measures, and transition-

bench in 2010. He earned his bachelor's de-

al platforms. Yet, even with these setbacks, we have continued to make great progress.

gree from the University of California, Berke-

ley and his law degree from the University of California, Davis. WEBSITE

We remain optimistic and hope to see our CMS up and running during my term as Presiding Judge. Barring any additional unforeseen events, we expect to implement our CMS sometime in 2023. In the interim, we have taken a significant step toward our shift to e-filing with the Court’s April launch of eDelivery. eDelivery is a portal which now gives litigants the ability to electronically deliver documents to the Court for filing. eDelivery also provides users with the ability to electronically view the filing status of eDelivered documents, receive notices regarding eDelivered filings, and download conformed copies of documents submitted through eDelivery. Information about eDelivery can be found on the Court’s website. In closing, I hope all of you take advantage of eDelivery whenever possible as I expect it

A Message From the Marin County Superior Court June 6, 2022 Please be advised that effective Monday, June 13, 2022, the Marin County Superior Court expects all in-custody defendants in criminal matters will appear in person in our courtrooms. Additionally, barring any new developments, the plan is to terminate remote proceedings in all criminal matters at midnight on June 29, 2022. Marin County Superior Court

will make your work as a practitioner more efficient. In the meantime, please be patient and know that improvements with how you THE MARIN LAWYER An Official Publication of the Marin County Bar Association

PRESIDENT’S MESSAGE HOMELESS ENCAMPMENTS Where Do We Go From Here? SERGIO RUDIN AND ELI FLUSHMAN

In the recently decided case, Where Do We Go Berkeley et al. v. California Department of

“program.” The Ninth Circuit also held that the district court abused its discretion in

Transportation, the Ninth Circuit weighed in on how a public entity, Caltrans, may clear

evaluating the harm to Caltrans and public safety and erred in balancing the equities.

homeless encampments on its property, and what is required by the Americans with Disa-

In this case, Caltrans sought to clear its prop-

bilities Act (“ADA”) when “critical safety concerns” are present (9th Circuit No. 21-16790, April 27, 2022). The Ninth Circuit determined that Caltrans’ acts to remove homeless encampments from highway rights-ofways was a “program” subject to the ADA. The Ninth Circuit then vacated the district court’s preliminary injunction, which would have delayed Caltrans from clearing encampments located near a highway exit ramp for six months, finding the delay was not a “reasonable modification” of Caltrans’

erty of an encampment. Based on its own policies, Caltrans triaged removal of encampments based on the risks posed. Under Caltrans’ policies for clearing encampments, the encampment at issue was categorized as a Level 1 encampment because it presented “a critical safety concern” based on its location adjacent to a highway exit ramp. Level 1 encampments required urgent relocation when

compared with other kinds of encampments—which allowed more time for relocation or required no relocation at all. Before clearing a Level 1 encampment, Caltrans

Photo by Levi Meir Clancy on Unsplash

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

generally provides 72-hour notice to vacate

“reasonable modification” of Caltrans’ pro-

and no notice for immediate health or safety

gram or a “fundamental alteration” that could

hazards, and then clears encampments in co-

not be required under the ADA. It found the

ordination with shelter providers.

six-month delay imposed by the district court

On June 8, 2021, Caltrans provided 72-hour notice of its intention to clear the encampment. The following day, plaintiffs sued Caltrans, claiming clearing of the encampment violated the ADA. They sought a preliminary injunction, which was granted in part, preventing Caltrans from clearing the encampment for six months. Caltrans appealed. To state a claim for a violation of Title II of the ADA, plaintiffs were required to show that: (1) they are qualified individuals with disabilities; (2) they were either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or were otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of their disabilities. The Ninth Circuit first focused on the nature of Caltrans’ “program” under the ADA. It found that Caltrans' “program” was limited to the goals set out in its policy and that Caltrans had no specific duty to provide shelter as part of its program. Caltrans’ “program” for Level 1 encampments was to provide, when possible, 72-hour notice before clearing, and coordinate with local partners (including shelters), but not to provide relocation or shelter services. Next, the Ninth Circuit considered whether the district court’s requirements imposed a

was a “fundamental alteration” of the program and the fundamental alteration had deprived Caltrans of the “expedient” clearing of Level 1 encampments. It also found that forcing Caltrans to provide alternate housing as part of its program would require Caltrans

to provide previously un-provided services, with no regard to the safety risks posed by Level 1 encampments. Because Caltrans does not provide housing as part of its “program,” the Ninth Circuit held that the district court could not make clearing Level 1 encampments dependent on timing of relocation. The Ninth Circuit also found error with the district court’s entry of a preliminary injunction based on the district court’s determination that plaintiffs had articulated a merely “plausible” claim of discrimination under Title II’s second clause. Issuance of preliminary injunctions is normally considered under a “sliding scale” approach, and the district court found the balance of hardships tipped sharply in plaintiffs’ favor, that there was a likelihood of irreparable injury, and the injunction was in the public interest; as such, the district court found that plaintiffs need only show a “serious question” on the merits. However, the Ninth Circuit stated that the entry of a preliminary injunction was not appropriate absent an examination on the merits, and further found that the district court

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

had failed to properly analyze precedent that

In summary, the ruling provides guidance as

had established that Title II’s second clause

to what public agencies' obligations are un-

regarding discrimination is meant to prohibit

der the ADA and is the first case to find that

intentional discrimination in a public entity’s

clearing public properties of encampments is

programs, which was not sufficiently alleged,

a “program” under the ADA. In addition, the

rendering plaintiffs’ claims of discrimination

ruling provides public agencies further assur-

implausible.

ance that 72-hour notice is reasonable notice

Finally, the Ninth Circuit also found fault with the district court’s consideration of the ability of Caltrans to reopen previously closed encampments to the plaintiffs in the balancing of equities. The district court had indicated that Caltrans could avoid the preliminary injunction if it would relocate camp-

before clearing encampments presenting a “critical safety concern,” and immediate removal without notice can be warranted. The

decision will stand as a case where the court has limited the rights of the unsheltered where critical competing safety concerns exist.

ers to a different Caltrans property—which itself had previously been cleared. The Ninth

View this article at Marinbar.org

Circuit held that the district court improperly factored in the ability of Caltrans to provide

Mr. Rudin and Mr. Flushman are partners at Burke, Williams, & Sorensen, LLP, and members of the firm’s Public Law Practice Group. Mr. Rudin provides city attorney and general counsel services to cities and special districts throughout California, with practice areas encompassing all aspects of municipal law, including land use and zoning, public finance, real property transactions, public utilities, telecommunications, and water. Mr. Flushman has spent the past 10 years representing public agencies throughout the Bay Area. Mr. Flushman’s primary practice areas are municipal law, land use and zoning, and code enforcement, including public nuisance litigation, and receiverships. WEBSITE

relocation, which the district court could not impose as a requirement since that would go beyond preserving the status quo.

The Marin Lawyer encourages our readers to also be our writers. If you have something you’d like to write about, get in touch with us. We also encourage our readers to be our critics. If there’s something you’d like to see (or not see) in the Marin Lawyer, let us know. If you’d like more articles on practical law firm topics, tell us. More book reviews? Let us know. All feedback is welcome.

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DIGITAL HEALTH Three Key Issues in Digital Health Contracts MORVAREED SALEHPOUR

Digital health is a growing and rapidly chang-

ness, and create a more interconnected

ing sector of the technology industry. It con-

healthcare system.

sists of a variety of technology applications such as telehealth, personalized medicine, health tracking, health information technolo-

gy, software, and software as a service solutions (“SaaS”) intended to help with patient care, and wearables. Offerings in the digital health space often involve use of emerging technologies like artificial intelligence and machine learning to assist healthcare providers in better diagnosing and treating disease. The objective is to provide more efficient care, assist patients and consumers to better manage and track their own health and well-

Pandemic-related challenges have increased the adoption of such innovative technologies by hospital systems, patients, and consumers

alike. Adoption of these technologies is accompanied by digital health contracts, which can take many forms depending on the parties involved and the particular offering at issue. In this article, we explore three of the key issues with SaaS offerings in the digital health space: (1) intellectual property rights and ownership; (2) data use and rights; and (3) cybersecurity.

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

First off, these contracts often take the form

lution, preserve intellectual property rights

of a subscription agreement between a SaaS

and retain ownership to their solution, and to

digital health vendor and a hospital system,

ensure the customer is subject to appropri-

sometimes called a Master Subscription

ate restrictions on their access and use of the

Agreement. Typically, the subscription agree-

solution such as prohibitions on reverse engi-

ments include a Service Level Agreement,

neering and creation of derivative works.

Support Policy, and Business Associate Agreement, as applicable. It can take months to negotiate as digital health vendors are working with hospital systems that have slow

moving procedures and processes for vendor onboarding, as well as in-house attorneys who may not understand the vendor technology and technology-related legal issues raised. Intellectual Property Rights and Ownership

Data Use and Rights These days it is not uncommon for vendors to use artificial intelligence/machine learning

in their offerings. Use of this technology creates its own unique issues around data, including the need for the vendor to use customer data for product improvement. However, customers often will try to prevent vendors from using customer data for product

Which form is used can be an issue. Hospital

improvement, particularly as there is personal health information (“PHI”) involved that

system customers may push to use their form as the starting point for negotiations.

triggers issues arising from the Health Insurance Portability and Accountability Act of

Vendors may consent in an attempt to close the deal, but should be aware of problems

1996 (“HIPAA”). When faced with this issue, vendors using artificial intelligence in their

with doing so. Customers’ standard vendor agreements are usually poor fits for SaaS solutions. They are often set up to for perfor-

SaaS solution should consider pushing back; artificial intelligence requires training on data in order to be adaptive and better perform

mance of services and, as a result, include provisions assigning ownership of intellectual

for customers. This self-improving functionality is often a key reason customers are pur-

property to the customer, which are inappropriate in this case as the vendor is not

chasing a subscription to an offering with artificial intelligence. To reach a resolution be-

providing software development services to the customer and is instead providing the

tween customers and vendors over such data issues, vendors can agree to not monetize

customer with only a right to access and use the vendor’s SaaS solution. As a result, the

such data and/or limit the data used for artificial intelligence training purposes to de-

vendor will need to undertake substantial revision of the customer’s vendor agreement

identified data. Vendors also need to be cognizant of the fact that data use and rights are

to include provisions to, among other things, establish the subscription model for their so-

addressed not only in the SaaS Agreement/ Master Subscription Agreement, but also in

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

the Business Associate Agreement between

dors to have cybersecurity insurance. Ven-

the parties. Terms in the Business Associate

dors should make sure that they have appro-

Agreement often conflict with the underlying

priate coverage in place as an initial matter to

SaaS Agreement/Master Subscription Agree-

avoid unnecessary delays in deal negotia-

ment so vendors should take care to review

tions.

both documents together to ensure appropriate rights for access, use, and retention of de-identified data. Cybersecurity

Vendors engaging in activities that involve creating, receiving, maintaining, or transmitting PHI from or on behalf of customers are subject to privacy and security considerations stemming from HIPAA and other applicable laws. Given the highly sensitive nature

The three issues discussed above offer only a flavor of some of the key issues that digital health vendors face. Savvy vendors will realize digital health contract negotiations are chockfull of legal and commercial pitfalls that require counsel experienced in the digital health space to help navigate the negotiations in a manner that appropriately protects proprietary intellectual property, limits liabilities, and maximizes revenue generation.

of PHI and the legal exposures under these laws, customers will often push vendors for unlimited liabilities and indemnities for items such as breach of confidentiality, breach of the Business Associate Agreement, data breach, and breach of privacy/security. Ven-

View this article at Marinbar.org Ms. Salehpour is the Managing Attorney at Salehpour Legal, a law firm specialized in working with SaaS, software, and digital health companies. EMAIL | WEBSITE

dors need to consider the value of the deal and their own insurance coverage. Offering higher secondary caps for such expanded liabilities and indemnities rather than uncapped labilities are options to consider. Customers also may push to have vendors adopt detailed security policies and procedures and to reserve security audit rights. Such provisions are overly burdensome on vendors and allow customers to exert too much control on the vendor’s business operations. As a result, vendors should consider compromise offerings like becoming SOC2-compliant and offering SOC2 reports to customers. Additionally, customers will generally require venTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

PROBATE & ESTATE Estate of Wall JAKE WALKER

Most of us have relied on a spouse’s signed,

dy never publicly claimed an interest during

delivered, and recorded quitclaim deed to

his life. Cindy testified that when she signed

conclude that the real estate is separate

the QCD, Benny assured her the deed

property. That is not necessarily so under the

“meant nothing.” She claimed she had pro-

California Appellate Court’s recent decision

vided $3,500 funds to Benny “to contribute

in Estate of Wall (2021) 68 Cal.App.5th 168.

to a future down payment” before he bought

The surprising decision is important to estate attorneys, as well as family and real property

the home.

attorneys dealing with real estate titles involving married people. Background Facts: Benny and Cindy married in 2008. Benny had two children by a prior marriage. They agreed to keep their assets separate and did not commingle. Neither was employed during the marriage. In 2010, Benny bought a home with his separate property, taking title as “a married man as his sole and separate property.” Cindy signed a quitclaim deed (“QCD”) in favor of Benny and was not a coborrower on Benny’s loan. After Benny died intestate in 2016, Cindy claimed the house was communi-

The trial court ruled the home was community property, holding Family Code section 760 (property acquired during a marriage is community property presumption) prevails over Evidence Code section 662 (form of title controls presumption). On Appeal: The appellate court explored the conflicting presumptions. It held that the community property presumption did not prevail over the form of title presumption in a post-death case, rather the property’s record title controls. However, the appellate court found that Cindy’s self-serving and uncorroborated assertions invoke the presumption of Family

ty property and thus passed 100% to her. Benny’s children asserted the QCD and established that he used separate property income to make the down payment and all mortgage payments (pension and social security). CinTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

Code section 721 (presumption of undue in-

sumption. The court limited its holding to ac-

fluence in interspousal dealings). This pre-

tions between spouses. And the In re Brace-

sumption prevailed over the title presump-

court held that the community property pre-

tion and affirmed that the home was commu-

sumption permitted the bankruptcy trustee

nity property.

to recover from both halves of an asset titled

[Note: Oddly, the case ignores Family Code section 852—a transmutation requires a writing signed by the spouse adversely affected. Apparently, the trial court found

as spousal tenants in common; there, the community property presumption prevailed over the form of title presumption to benefit third-party creditors.

Benny’s undue actions transmuted his prop-

This trend of cases provides obstacles and

erty.]

opportunities. Not only to us practitioners but also to clients and third parties. Perhaps

The Estate of Wall court extended the theories of two prior cases: In re Marriage of Valli (2014) 58 Cal.4th 1396 and In re Brace (2020) 9 Cal.5th 903. The In re Marriage of

the takeaway is that re-married spouses should consult with qualified estate planning attorneys and not die intestate.

Valli court found that an insurance policy solely in the wife’s name, paid for with com-

View this article at Marinbar.org

munity property with the husband’s consent, was community property because that pre-

James “Jake” Walker is a California State Bar

sumption supersedes the form of title pre-

Marin County for over 45 years. He is a part-

Certified Specialist in Estate Planning, Trust

and Probate Law who has practiced law in ner in DeMartini Walker & Ghaedi LLP. Mr. Walker has a master’s degree in taxation, was awarded an AV rating and was named as a Super Lawyer of Northern California. He is a long-time member, and a former Director and President, of the Marin County Estate Planning Council. WEBSITE

Connect with MCBA

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

Photo Credit: Courtesy of Bloom

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

NONPROFIT PROFILE Bloom: Clothing the People of Marin, and Now Even More Mary Sackett

“Clothes aren’t going to change the world, the women who wear them will.” – Anne Klein In this case, it’s the women, men, and children benefitting from a local nonprofit who are poised to change the world. Bloom, a vol-

unteer-based retail store in downtown San Rafael that boasts big names at affordable prices, also provides complimentary wardrobes to those who are transitioning to a life of self-reliance. And effective March 2022, Bloom officially combined with YWCA Golden Gate Silicon Valley (YWCA GGSV). Bloom and YWCA GGSV are longstanding partners, and both have rich histories in Marin County. Bloom’s mission to provide complimentary wardrobes to children, women, and men who are transitioning to a life of self‐ reliance aligns with YWCA GGSV’s strategic priorities and mission to eliminate racism and empower women. The two organiza-

profile of the YWCA and in particular its FiftyPlus program.] They’ve now expanded their Employment Program to include trainings and resources for older adults of all genders. In addition to programs for older adults, YWCA GGSV recently launched a Financial Freedom Initiative, a program that empowers survivors of domestic violence, sexual assault, and human trafficking to become intentional, self-directed, and confident about their financial future through job coaching, credit repair and financial education.

tions envision strengthening and growing their impact in Marin County through the

As for Bloom, it has been clothing Marin individuals and families for over 20 years. Its cli-

collaboration and capacity made possible by

ents are among the low income or working

this joining of forces.

poor populations who are referred by supporting social service agencies. The popula-

YWCA GGSV may sound familiar as they lead the well-known FiftyPlus Employment Program in Marin that supports economically vulnerable older women through comprehensive job training and placement services. [Editor's Note: See the Marin Lawyer's 2019

tions served includes participants who may be in substance abuse recovery programs, survivors of domestic violence, as well as others who are homeless, jobless, or suffering from economic hardship.

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

Bloom is thrilled by the possibilities this mer-

cations and all ages, and Bloom will continue

ger affords the program, staff, volunteers and

to do so as a YWCA program.

clients. The two nonprofits have long partnered together and the joining of forces only opens more doors for them to inspire opportunity and economic security to support the people of Marin and beyond. Bloom shared a couple important notes about the combining. Will Bloom’s name change?

Will Bloom’s clients be impacted? The legacy of Bloom’s mission, to provide complimentary wardrobes to children, women, and men who are transitioning to a life of self‐reliance, will continue, as the vision of this merger is to maintain and grow Bloom’s existing programming. Dressing services will

No. Bloom will keep its name, which is well known and respected within the Marin com-

continue in the same format for clients. If you need support with securing a wardrobe,

munity. Bloom will become known as: “Bloom, a program of YWCA Golden Gate

or know someone who does, please contact Bloom at: coordinator@bloommarin.org or

Silicon Valley.”

415-755-5280.

Will Bloom’s location change?

How can someone support Bloom?

No. Bloom’s location will remain the same. Bloom values its long-term retail shoppers

There are three ways to support Bloom: donate, volunteer, and shop! (See page 27 )

and the thriving Downtown San Rafael community that Bloom calls home, and will continue to open its doors every week to our wonderful clothing donators and store shoppers that help power our program. Will Bloom continue to support the same lo-

For more information about Bloom, contact info@bloommarin.org, or 415-482-6077 for Clients or 415-453-1694 for Retail. For more information about YWCA Golden Gate Silicon Valley, visit yourywca.org.

cal community?

View this article at Marinbar.org

Yes. Existing programs and services that the Marin community has come to rely on will remain the same. Will Bloom only serve women if it’s a program of YWCA? No. YWCA’s mission propels us to provide a multitude of services that meet the needs of the whole family. YWCA currently provides services to individuals of all gender identifiTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

Ways to Support Bloom DONATE Bloom gladly accepts the clothing you no longer wear and clothing your children have outgrown, and it uses your donations to help people in our community. It accepts clean and gently worn professional and casual clothing, teen’s clothing, children’s clothing, shoes, handbags, belts, scarves, jewelry, unused makeup, and toiletries. Bloom does not pick up donations. For more information and delivery times, please call 415-482-6077. For monetary gifts, please contact nkoul@yourywca.org.

VOLUNTEER Bloom has many volunteer opportunities available to fit everyone's skills and schedule, and has a fun and passionate group of volunteers. It has short-term, one-time, and ongoing volunteer roles. Inquire at volunteer@yourywca.org for more information.

SHOP Bloom is stocked daily with quality, gently-worn and brand-new clothing and accessories. Proceeds from your purchases help support its programs. Visit Monday through Saturday, 11am–5pm, at 1557 Fourth Street, San Rafael, CA, 94901.

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

PRESIDENT’S MESSAGE MCBA PROFILE Executive Director Mee Mee Wong VALERIE KUSHEL

What is your current position with the Marin County Bar Association and what are your responsibilities? Executive director, which I’ve been since 2014. I oversee the organization so that it’s

fiscally sound. MCBA is liaison to the court and we deliver informative continuing legal education. Having fun that connects members is also a priority! How did you wind up in that position? I saw the announcement for the opening and applied. I wanted to be more connected with Mee Mee Wong, MCBA Executive Director

the community where I live. I was working in San Francisco at the time and most of my

are modest. What are you most proud of in

connections were there. In San Francisco, I was the marketing director for a large law

your role as executive director of the Marin County Bar Association?

firm well known for its land use law. I was able to get the firm the accolades they de-

I think our outward presence to the commu-

serve for all their important work. I applied to that job because I wanted to work for a woman founder. Before that, I was the marketing director at Gordon & Rees for four years. I helped them grow from 15 offices to 25 offices. My first boss at Gordon & Rees was a woman – I was basically doing PR helping her with both the expansion and making sure she got exposure, which she did, such as being featured in the San Francisco Business Times.

nity is excellent. Our website is fabulous and we won awards for it. We expanded our membership. We’ve expanded our programming such as the Bay Area MCLE conference. But I don’t do this alone. I do it with the Board of Directors and the Executive Committee. It’s really a partnership. We have a very collegial bar. We have good relationships with our court and if there’s a legal need from the court, the attorneys step up. This organization doesn’t exist without the work of the lawyers.

I know from personal experience that you THE MARIN LAWYER An Official Publication of the Marin County Bar Association

What are your goals for MCBA?

prised to know about you?

I’d like to expand the membership. I want to collaborate more with the other bars to pro-

Before I worked at a law firm, my background was with medical devices. I have a

vide innovative and exciting programming. I

background in microbiology and immunology

want to continue to work with the court’s

and I have a master’s in business administra-

programs and improve Court to Bar commu-

tion from Saint Mary’s. I did global marketing

nications. I’m excited to connect younger

plans and I was on the road two weeks a

attorneys with our organization and help

month. Then I went to UCSF and was in the

them build their practices through MCBA.

department of medicine, where I was work-

What do you do when you’re not supporting the Marin County legal community? I love hiking and cooking. I have tons of cookbooks. I make a really great miso-glazed Chilean sea bass. My favorite hike is the Coastal Trail in Tennessee Valley. Where did you grow up and what was that like?

ing on the “Center of Excellence without Walls,” which funded innovative research in asthma. I have a creative side and an analytical/scientific side. What is your next adventure? I would love to do a bicycle trip through France. Or hike a short leg of the Camino de Santiago. Author’s note: Do it! View this article at Marinbar.org

I was raised in the Bay Area, in Santa Clara, but I’m from Seattle. When I was growing up, Santa Clara was all orchards. Tell us about your family. I have two daughters. Chelsea is 30 and Claire is 25 and they are the apples of my eye. They are both bilingual and have French baccalauréats. I wanted them to have cultural diversity. One is a nurse practitioner with a master’s in nursing and the other works with the Equal Justice Institute. Previously, she

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

taught English at San Quentin. My daughters are civic-minded; when they were kids, they would register voters outside of Whole Foods. They set a good example for me. What is something someone would be surTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

POLITICAL UPDATE A Closer Look at the June 7th Primary Races for Marin and Statewide Offices GREG BROCKBANK Note: The views expressed in this article are opinions of the author and are not intended to reflect those of MCBA nor is this column an endorsement of any candidate.

Primary elections are coming as I write this

article the week before election day. By the time you read this, they will likely have come and gone and you may be discovering just how wrong I was…or perhaps admiring my prescience?

yone else, he was not the second or third or even fourth choice for the majority of prima-

STATE ASSEMBLY

ry voters.

Before term limits, assembly members often

This is a rare year where we have an

served for decades, and they often started young in order to acquire clout and seniority

(unexpectedly) open seat. California’s legislative term limits are now 12 years, so the

and major committee chairmanships a dec-

scramble for Marc Levine’s seat was expected to begin next year after he won his

ade or two later. Experience, albeit shorter, candidates with the most endorsements, the

sixth and final term. He changed that timetable by announcing last fall that he would not

most mailers, the best platform, best record, best reputation, and it helps to be likeable

run for a final term this year, and instead would run for state insurance commissioner.

too.

Marin County Supervisor Damon Connolly

But voters sometimes do funny things, espe-

(also a former San Rafael City Councilman and Dixie School District Trustee) has always

still draws voters, who also tend to go for the

cially, perhaps, in Marin’s Assembly races. Voters threw out a one-term Marin assembly

been ambitious and had his eye on the State

member in 1994 in favor of a challenger who then went on to serve the then-limit of three

Assembly. In fact, he ran for this seat once before, 22 years ago (before he was even a

two-year terms. We’ve also had an assembly member I'm convinced would not have been

school trustee), but now he’s the apparent front-runner, having been an elected official

elected had we had ranked-choice voting, because although he got more votes than an-

the longest, as well as the highest-ranking one, and has raised the most money,

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

although not by much. But the race looks

views is that while she’s progressive, I don’t

closer than I might have expected a few

see that she’s significantly more progressive

months ago.

than the other three. All their views on major

Kentfield attorney and California Coastal Commissioner Sara Aminzadeh was unknown to even local political junkies until she jumped into the race. But she had apparently

issues seem very similar when you first read an article about them, although they’d probably deny that and point out their differences (and why they think they’re the best).

been making plans (and contacts) in Sacra-

So if you can’t decide who to vote for based

mento, as her endorsements from a surpris-

on policy positions, what do you look for?

ingly large number of incumbent legislators

Experience? As mentioned, Connolly has a

attest. She also has enough friends with enough money who apparently like her

significant edge in years served in public office, and in recent years, a “higher” office

enough to help her raise even more money than Connolly initially, although now he has

than the others, but the other three, again, would point out the value of their own expe-

passed her just slightly in that department. She even has some local elected officials be-

rience. Similarly with endorsements, although Connolly probably has the most local

hind her, perhaps some of whom are former supporters of Susan Adams, the incumbent

elected officials, Aminzadeh has some, and even more legislators than he does—perhaps

Supervisor Connolly beat eight years ago.

because she started more than a year ago

Former Sebastopol school trustee and organic farmer Steve Schwarz, who also founded

planning to run against Levine, while Connolly wasn’t, I’m guessing?

two nonprofit organizations, may well be a strong candidate in Sonoma County, and as the only one of the four from that county

I’m also seeing something I think is a little new, which is candidates appropriately admitting that they don't have all the answers

(which accounts for nearly half the district’s population), he could do well. But we in Mar-

(although voters often expect them to), but touting an impressive network of people

in hear almost nothing from him, and he hasn’t attended the local candidates’ forums I’ve

who can find and/or develop the answers, if they don't have them already. Of course, all

seen for this race, so I’m beginning to think he’s not an active candidate and won’t do

candidates, especially for high office, know lots of people who know lots of things, but

well.

it's pretty hard for a voter to evaluate a vague category like a network of experts,

Sausalito-Marin City School District board member Ida Times-Green seems to have attracted a few significant progressive activists to support her, but my impression of her

even if you've worked for other elected officials, as some have. Another factor to consider in various races is

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

the degree of what I call “anti-incumbent fer-

Marin County Office of Education, so a local

vor,” meaning how badly voters want to

district Superintendent is not a bad place to

throw all (or most of) the bums out. When

look for a person to fill this role.

it’s high, incumbents can be beaten, especially if they are personally unpopular and one or more challengers are appealing. In this Assembly race, Connolly probably seems like an incumbent because he’s served, sequentially, on three different publicly-elected boards, a total of 18 years, making him probably at

least the perceived frontrunner. But that can cut both ways, as some may consider him too “established politician” for their tastes.

And sure enough, John Carroll (although perhaps not widely known, but the longestserving district superintendent in Marin, of two West Marin districts) announced his candidacy even though Mary Jane Burke said she would not endorse anyone in the race. It began to look like Carroll would be unopposed, but suddenly another candidate jumped into the race — Michele Crncich

My call on this perhaps-most-important race

Hodge — who was a faculty union leader for some years in Marin, and still has strong un-

is Connolly by a more comfortable margin than some may expect after so many were

ion support, and was elected to the Mill Valley school board a year and a half ago.

impressed with Aminzadeh initially, and/or her website, endorsements, positions, envi-

In that race, Hodge raised a substantial

ronmental fervor, or whatever, despite Connolly possibly being perceived as too “establishment,” or at least too much like an incumbent in an anti-incumbent year (according to some, but I disagree). COUNTY SUPERINTENDENT OF SCHOOLS Marin has been extremely fortunate to have had Mary Jane Burke serve in this post for 28 years, always unopposed for re-election because she’s so popular and is seen as not only the primary cheerleader for public schools, but also a fearless leader who takes often unpopular but necessary positions, and

amount of money for what is usually a relatively low-key race, a signal to me that she wanted to be a player in future races. But even I was surprised when she jumped into this race, although she has the requisite credentials, because who would run against an almost-incumbent who has the endorsement of every other superintendent in Marin, not to mention the vast majority of elected school trustees and other political leadership, except perhaps for the few that Hodges has worked with and she convinced to support her. The answer, I’m guessing, is promised union

provides guidance to more than a dozen district superintendents in Marin. But she's now retiring, and even political insiders didn't

support, but that begs the question why faculty unions would support a challenger to someone so entrenched for so long, with so

know of any anointed successor within the

many endorsements, and experience much

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

closer to the job being sought than Hodge’s

sive and was quite an activist, and I was thus

recently-won school board seat. And Mary

not surprised when she won her seat. But I

Jane Burke changed her mind and endorsed

was indeed surprised to see a new school

Carroll after all, making him the overwhelm-

board member run for county supervisor, es-

ing frontrunner.

pecially against a seeming incumbent like

COUNTY SUPERVISOR – District 1 (San Rafael) This is the seat Supervisor Damon Connolly is vacating. A county supervisor seat is a

plum position, which usually attracts one or more of the district's top City Council members, but apparently not this time. Sometimes a former (e.g., Judy Arnold) or current (e.g., Katie Rice) supervisorial aide runs for their departing boss’ seat, and that has happened here with the candidacy of Mary Sackett, who has been one of Damon Connolly’s supervisorial aides for five years

now. Sackett is also a former practicing attorney, and currently sits on the Marin County Bar Association's board.

Sackett. Daly has a few impressive local endorsements from local elected officials, but her list pales compared to Sackett's, so I’d say that, especially with the IJ’s endorsement, Sackett is the strong frontrunner. But with a third candidate, George Saribalis (whose campaign seems to be limited to printed signs on public poles saying “Neighborhood Safety First”), some say his mere presence on the ballot, along with those signs, may earn him 15% or so. If Sackett fails to exceed 50%, she and Daly could well be in a runoff this fall. COUNTY SUPERVISOR – District 5 (Novato)

As a supervisorial aide, Sackett developed a

With longtime supervisor Judy Arnold retiring, one might expect several major candi-

reputation for hard, effective, steady work, and earned the endorsement not only of her

dates to run, including two or more City Council members, and perhaps other busi-

boss, but dozens of other community leaders from across the board. Much like Michele

ness or civic leaders as well. But there is exactly one serious candidate, Eric Lucan, and

Hodge running against John Carroll for county Superintendent of schools, Sackett may

three non-serious candidates, by my count.

seem like an incumbent to some, but that didn't stop Gina Daly from jumping in to run for this seat as well.

Lucan has served nine years now on the Novato City Council, including mayor three times (including currently), but he still looks

Daly, like Hodge, was elected to a school

very young. So much so and with such a straight shooter look, one could almost mis-

board seat a year and a half ago, in this case San Rafael. I recall that she was quite impres-

take him for a Mormon missionary, complete with the white shirts and skinny black ties,

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

well-coiffed dark hair, and good looks. But he

and they are usually unopposed, unless some

has been an able and effective council mem-

local attorney wants to build their practice or

ber and even countywide civic leader, so

has an inflated ego and a usually-mistaken

maybe we shouldn't be surprised he scared

notion that an incumbent can be beaten if

most others off, including Pat Eklund, who

they’re anything but a liberal Democrat

was beaten by Arnold about 20 years ago.

(which isn’t really an important criterion for

The other candidates include Kevin Morrison, who has been beaten twice for City Council (including to Lucan). He claims to be the progressive, and sometimes sounds quite knowledgeable and involved and even inspirational. But he does not seem to have much really relevant experience, or endorsements, although I think he did a good job emceeing the Earth Day celebration at the Mill Valley Community Center earlier this year. Jason Sarris, a long-time homeless man who is now in a shelter, but has been involved with the issue for years, is another candidate. He’s intelligent, thoughtful, and I’m glad he’s running, even if he has no chance of winning because he’s not raising money or communicating with enough voters. The final candidate is Colin Medalie, a Marin County Deputy Sheriff, whom you would think would be a serious candidate, but doesn’t seem to be campaigning much, and seems to be on the conservative law-and-order side of things, which might have doomed him even if he were a serious candidate. NINE ADDITIONAL COUNTYWIDE RACES ON THE BALLOT—EACH FEATURING AN UNOPPOSED CANDIDATE These races include the six Superior Court judges (usually only about three at a time),

judges). When there is a rare contest, the sitting judges circle their wagons to support the incumbent, who raises a lot of money and endorsements to send a lot of mailers

featuring a lot of people in robes and law enforcement uniforms. Most importantly, all of our judges are in fact good, and don’t deserve to be challenged, much less beaten, even though most of them were appointed by governors rather than being elected to an open seat. Due to consolidations in recent decades, we are now down to four countywide department heads who are independently elected, and the Superintendent of Schools race is one of them, and was discussed above. Another open seat, also due to retirement, was Sheriff Bob Doyle's, but his anointed successor, Jamie Scardina, didn’t draw a challenger. But by law, he must still be listed on the ballot (unlike most unopposed candidates), along with the final two elected department heads running unopposed this year for their second term: District Attorney Lori Frugoli and Assessor/Recorder/Clerk Shelly Scott. STATEWIDE OFFICES: MOSTLY DEMOCRATS RUNNING FOR RE-ELECTION, BUT A COUPLE HAVE ETHICAL PROBLEMS, AND THERE ARE A COUPLE OPEN SEATS

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

It's not likely that Democrats’ now decades-

speak as someone who held a house party

long lock on all statewide offices will be bro-

for her five years ago.

ken this year, especially given Republicans’ ever-shrinking percentage of registered voters. It could happen with a very bad Democratic candidate, and a shining star Republican, but we so rarely see even well-known and well-qualified candidates from the GOP, since they so often lose no matter what.

State Insurance Commissioner Ricardo Lara was perhaps the least known and weakest of those elected four years ago, despite loudly proclaiming his identity politics by stating bluntly he is “gay, labor, and Latino.” But the problem is he promised not to accept campaign contributions from the insurance in-

Of course, Republicans rally against the

dustry, and then he did. He also had a prob-

Democrats’ leader, Governor Gavin Newsom, but nearly all the Democrats are stick-

lem with billing taxpayers for an apartment in Sacramento while he lived in LA.

ing with him, as evidenced by the fact that he got the same percentage of votes in the re-

Presumably, that is why our own state as-

call election last year as he did when he first ran four years ago. And he presumably will get at least that number again in November, since he has no serious GOP opposition.

semblyman, Marc Levine, decided to challenge him rather than run for a sixth and final two-year Assembly term, and he has in fact been hitting Lara hard on these ethical is-

Lieutenant Governor Eleni Kounalakis has

sues. But Lara is responding in kind, as Levine has his own history of questionable eth-

remained relatively low profile (which is not unusual for this position, give or take Gray

ics, and accepting special interest campaign contributions from large Central Valley agri-

Davis, or Gavin Newsom), and she was surprisingly unknown when she was elected four years ago. But she seems to have no real

cultural and water interests, which created a sort of slush fund for him for years.

controversies, or serious challengers, although it remains to be seen if she will be the frontrunner, or even a serious candidate, for governor next time.

Attorney General Rob Bonta was appointed last year by Governor Newsom to replace Xavier Becerra, who had just been appointed to President Biden's cabinet. Bonta was seen

State Treasurer Fiona Ma is running for a

as a more liberal than average assemblyman, and now attorney general, and has thus

second term, after flirting with the idea of running instead for State Controller, since

attracted more significant opposition than one might otherwise expect, and is found in

her predecessor and mentor Betty Yee is termed out. But Ma has had some “fraternization” problems, and others com-

other races.

plain of the atmosphere in her employ, and I

Secretary of State Shirley Weber was also appointed last year by Gavin Newsom, to replace Alex Padilla, whom he had just

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

appointed to the U.S. Senate to replace Ka-

mala Harris. There seem to be no controversies surrounding Weber, who was also a veteran assembly member as well as one active in the African American caucus. She appears to be sailing to election without significant issues or opposition. I have heard her speak, and the general consensus is that she is good. In the open race for State Controller (Betty Yee is termed out), the candidate endorsed by the California Democratic Party is Malia Cohen, currently a member of the Board of Equalization and formerly a member of the San Francisco Board of Supervisors. Both Betty Yee and Fiona Ma went through the Board of Supervisors and/or the Board of Equalization on their way to state Controller or State Treasurer, so this is a well-worn path. Cohen’s main opponent is Steve Glazer, a state senator from the East Bay who is a more conservative Democrat than average and is perhaps best known for being hard on the BART unions. Ironically, Glazer is the only one from whom I have received a mailer,

rhetoric.

Former assemblywoman Sally Lieber from the South Bay is probably the frontrunner, and was endorsed by the Democratic Party. She lost a race for state Senate about a decade ago, but presumably she has not been out of the political game too long. Her main opponent is Michela Alioto-Pier, a former San Francisco supervisor (who also

lost a race for higher office and has also been out of the game a while), but her statement only lists Dianne Feinstein and Fiona Ma as endorsers. That may not be enough to overcome Lieber’s endorsements. View this article at Marinbar.org Greg Brockbank is a 30-plus-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

and I've gotten three from him. That leaves the open race for State Board of Equalization, although technically not statewide (there are four districts, each onequarter of the state), but they are constitutional officers. But in recent years, the main purpose and constitutionality of the board's mission was thrown into question, although you might not get that from the candidates’ THE MARIN LAWYER An Official Publication of the Marin County Bar Association

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

PRESIDENT’S MESSAGE WEBINAR RECAP Criminal Justice Reform: Local Impacts MORGAN H. DALY

At MCBA’s April General Membership Meeting, panelists from the three pillars of our local criminal justice system—the Bench, the District Attorney’s office, and the Public Defender’s office—each shared their perspectives on the local impacts of legislation aimed at reforming our criminal justice system. The trend toward Criminal Justice Reform in California The presentation began with an introduction summarizing the shift away from the toughon-crime policies of the 1990’s, which saw

the enactment of three-strikes and other laws that limited judicial discretion and resulted in lengthy sentences. As a result of these policies, California reached a peak incarceration rate of over 170,000 people in 2006-2007. But now, the pendulum is swinging the other way.

trauma, mental health disorder, and/or past victimization contributed to the commission of the offense. These considerations come into play in felony sentencing laws, which establish a preference for the lowest applicable prison term when such circumstances are present and direct courts to afford “great

to the Penal Code, including reforms to the

weight” to these circumstances in deciding whether to strike sentencing enhancements.

felony sentencing scheme and the expansion

(See Pen. Code, §§ 1170, 1385.)

of diversion programs.

These same considerations used to evaluate

Felony Sentencing Provides for Consideration of the Offender’s Circumstances

an offender’s circumstances in sentencing, also come into play at the other end of spec-

A common theme is greater consideration of

trum with the recent expansion of diversion programs.

Recent years have seen sweeping revisions

the circumstances of the offender: whether, for example, the defendant’s youth, past

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

Recently Enacted Diversion Programs In-

crease the Court’s Role in Diversion

nus.

Diversion has been around for many dec-

Mental Health Diversion took effect the following year, in 2018. (Pen. Code § 1001.36.)

ades. Simply put, diversion diverts low-level

It provides for diversion of both felonies and

offenders away from criminal prosecution. If

misdemeanors when a defendant’s qualifying

the accused completes the program require-

mental health disorder was a significant fac-

ments within a specified period of time, the

tor in the commission of the offense. Mental

case is dismissed. However, if the accused

Health Diversion is aided by a full-time coun-

fails to complete the program requirements,

ty employee who conducts eligibility screen-

criminal proceedings are reinstated.

ings for indigent defendants.

With the legislative expansion of diversion

Finally, Court-Initiated Misdemeanor Diver-

programs, the District Attorney is no longer the gatekeeper for eligibility. The legislative

sion, known as Judicial Diversion took effect in January 2021. (Pen. Code § 1001.95.) Ju-

intent behind AB 3234, which enacted judicial diversion, is to allow a person to avoid

dicial Diversion gives judges discretion to grant diversion, over the objection of the dis-

the lifelong collateral consequences associated with a criminal record—which can ad-

trict attorney, in all but narrow categories of misdemeanor offenses.

versely affect employment and housing—by instead funneling them into rehabilitative

The Panelists' Views

programing, which has been shown to yield better recidivism rates than merely prose-

After this background, each panelist then offered their insight and perspective:

cuting and jailing an individual. This aligns with growing research showing that lengthy sentences and other sanctions aimed primar-

Judge Paul Haakenson, who has been at the

ily at deterrence and retribution are actually counter-productive to reducing recidivism.

Attorney’s Office, cautioned that we have to remain humble and understand that we can

Examples of recently enacted diversion pro-

get things wrong. He recalled a trial where a man with a significant criminal record re-

grams are: The Military Diversion Program, known as Veterans’ Diversion (Pen. Code § 1001.80), took effect in 2017 and provides diversion for misdemeanor offenses for those suffering from trauma related to their military service. It is now managed through Veteran’s Court, headed by Judge Roy Cher-

Marin County Courthouse for 30 years, beginning with an internship with the District

ceived a sentence of 26 years to life for possession of $10 worth of cocaine as his third strike. At the time, the District Attorney’s Office had no discretion but to charge the strike and the Court had no discretion not to sentence under three strikes. Cases like this now will come before the Court for

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

resentencing under the new laws that took

three primary concerns: public safety, reha-

effect in January 2022.

bilitation, and accountability. Ahana stressed

The Court is now tasked with reviewing hundreds of petitions for judicial diversion. Judge Haakenson stressed the importance of looking at these cases to “find reasonable ways to give people a second chance…and not hamper people from getting jobs and go-

that in implementing these reforms, “we’re all on the hook for explaining to our community what we’re doing and how we’re doing it,” and touted her office’s efforts to provide transparent data and mine feedback from the community.

ing to school and having the other secondary

The robust discussion that followed in re-

consequences from a conviction that they

sponse to questions from the audience could

might learn from in other ways, such as through diversion programs.”

have gone well beyond the time allotted for the program. While the question of how

David Joseph Sutton, who recently returned

these reforms will take shape locally may take more time to answer, the commitment

to head up the Public Defender’s Office after years as a federal public defender, called the California Legislature’s reform-minded, rehabilitation-minded approach to criminal justice

and collegiality among those on the front lines of criminal justice in Marin County was beyond dispute.

refreshing. “It’s incumbent on us [the Public Defender’s Office] to shrink our caseloads by

View this article at Marinbar.org

thoughtfully implementing these reforms.” Judicial diversion has “reshaped misdemeanor practice to support clients through that process.” He described the additional services available to clients through his office and community partnerships aimed at ensuring that “they are never our clients again.” Dori Ahana, who has been in the Marin County District Attorney’s office for over 25 years, recalled that “back in the day,” prosecutors had very little discretion. Now, there are a variety of approaches available as a consequence for criminal conduct, such as diversion, specialty courts, and more nuanced levels of incarceration. In exercising this broad discretion, her office is guided by THE MARIN LAWYER An Official Publication of the Marin County Bar Association

PRESIDENT’S MESSAGE LAWYERS IN THE LIBRARY Lawyers in the Library Needs (Virtual) Lawyers in the Library LAWRENCE S. STRICK

LAWYERS IN THE LIBRARY is a collaborative program between the Marin County Bar Association and the Marin County Law Library. The program offers free 20-minute consultations each second and fourth Thursday (except November and December) from 4:30 to 6:30 p.m. The program helps fill the enormous need for providing legal information to the growing low income and senior Marin population. Since its inception, Lawyers in the Library has served well over a thousand people, and the demand for its services is constantly increasing. The program

is a great program and will make you feel

urgently needs to expand its volunteer lawyer base—Lawyers in the Library Needs You!

good about being a lawyer. Below are some of the most common questions I am asked

As a Lawyers in the Library volunteer, I have

about volunteering. If you have additional questions, please reach out to Lawyers in the

experienced the wonderful feeling of providing help to those who are struggling to navigate an issue. The problems the participants present often can be addressed by listening and pointing out a resource that they did not know existed. Those seeking legal help simply need to be heard and guided by a professional. People are genuinely thankful for your attention and your time, of which only a little is required. I encourage you to volunteer and experience Lawyers in the Library, which you can easily do using the link at the end of this article. It

Library at (415) 472-3733, or feel free to call me directly at (415) 721-1200. HOW MUCH TIME MUST I COMMIT? Each virtual session is two hours on a Thursday evening. You can log onto Zoom at 4:15 p.m., get your assignments, help a few people, and enjoy dinner on time. WHAT IF THE QUESTIONS ARE OUTSIDE MY AREA OF EXPERTISE? Don’t worry about that! Lawyers in the Library asks for volunteers in the following

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

areas of law: Family, Landlord Tenant, Gen-

HOW ABOUT LEGAL MALPRACTICE IN-

eral Civil, Employment, Estate Planning/

SURANCE?

Probate and Personal Injury. The library staff will assign you matters with your specific area of expertise in mind. Moreover, you will be provided with a list of resources for followup assistance. You can only do so much in one 20-minute session.

As a practical matter, the type of high-level advice being offered does not lend itself to claims—and we have never had a claim from the grateful community we assist—but Lawyers in the Library covers all volunteer attorneys under its own policy.

DO I HAVE A FOLLOW UP COMMIT-

View this article at Marinbar.org

MENT? No. As a volunteer attorney, you give guid-

Lawrence Strick has been a trial lawyer for 41

ance and information only. Participants sign a document acknowledging that no continu-

years, specializing in helping people obtain com-

ing attorney-client relationship is being created. If you want to assist a participant out-

EMAIL | WEBSITE

pensation for their injuries and for survivors of individuals killed by the wrongful acts of others.

side of Lawyers in the Library, both you and the participant must sign a release before that can occur. Volunteer attorneys are strongly discouraged from doing so.

Click Here to Volunteer for Lawyers in the Library Zoom Sessions

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The Marin Lawyer June 2022

Articles inside

Webinar Recap: Criminal Justice Reform Local Impacts

Lawyers in the Library Needs (Virtual Lawyers in the Library

Brockbank Political Report: A Closer Look at the June 7th Primary Races for Marin and Statewide Offices

President’s Message: Coping

Judge’s Corner: Progress on the Court’s New Case Management System

MCBA Profile: Executive Director Mee Mee Wong

Editor’s Introduction: Positive Changes We Can See

Clean Slate Program

Nonprofit Profile: Bloom - Clothing the People of Marin, and Now Even More

Estate of Wall

Where Do We Go From Here?