THE MARIN LAWYER An Official Publication of the Marin County Bar Association 2 THE MARIN LAWYER September 2022 Supervising Editor Robert Rosborough Editor Ann Munene Guest Editors Tom McInerney, Wanden Treanor, David Winnett 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. DavidAlexanderStearnsS.VahdatL.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 info@marinbar.org1314 www.MarinBar.org © 2022 All Rights Reserved.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 3 CONTENTS 4 | Editor’s Introduction: The Law and Its Impacts ANN MUNENE 7 | President’s Message: Constitutions ROBERT ROSBOROUGH 13 | Questions About The Dobbs Decision SHELLEY KRAMER AND WANDEN TREANOR 16 | Legal Consequences of the January 6 Capitol Riot TOM MCINERNEY 20 | Judges’s Corner: The Interdisciplinary Settlement Conference: Improving Outcomes for Children in Custody Disputes THE HONORABLE SHEILA SHAH LICHTBLAU 25 | Nonprofit Profile: Canal Alliance — Immigration Legal Services as the Foundation for Improving Lives THE MARIN LAWYER 28 | Event Recap: DOBBS, DOBBS, DOBBS MATT WHITE 31 | Medi-Cal Asset Limit Changes from $2,000 to $130,000: How This May Affect Your MiddleClass Clients PATRICIA TOBIN 40 | Community Profile: Meet Laura McMahon: A True Servant of Justice and the New Executive Director of Legal Aid of Marin JESSICA KARNER 47 | Event Recap: Lifetime Achievement Award Dinner Honoring Gary T. Ragghianti MEE MEE WONG 51 | Brockbank Political Report: Marin's November 8th Election: A Long List of Contested Races GREG BROCKBANK 58 | Upcoming Events 60 | New Members
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
As succinctly stated by Shelly Kramer and Wanden Treanor in their article Questions
About the Dobbs Decision, “In itself, Dobbs does not ban abortion, but it opens the door for states to do so.” You will not want to miss their discussion of the effects of this ruling on women and privacy rights in general. Matthew White recaps Professor Rory Little’s annual SCOTUS update from MCBA July general membership meeting. Professor Little aptly titled this year’s presentation, U.S. Supreme Court Ruling in Unprecedented Times but joked that it could have been called Dobbs, Dobbs, Dobbs. He discussed each of the opinions in Dobbs and addressed other key SCOTUS activity such as the Court’s expansion of the Second Amendment, the role of the free exercise clause, the shadow docket, and this Court’s unprecedented approach to overturning precedent. As always, Professor Little gave an interesting and informative presentation for which we are especially grateful this time around since he graced us with his presence during his sabButbatical.not every newsworthy event has been about Dobbs. The events of January 6th at the U.S. Capitol continue to reverberate through society and our legal system. In Legal Consequences of the January 6 Capitol Riot, Tom McInerney addresses the legal effects not just via the criminal justice system but also from an employment law perspective. As we have all watched the hearings, sometimes with our jaws dropped, and heard some big names implicated, this is an article worth
To say the least, we are living in interesting and even more accurately, historic times. The law is at the root, or at least the center, of many current events where its impacts continue to unfold day by day. You would have to live in a hole not to know the holding in the Supreme Court’s recent Dobbs v. Jackson World Health Organization decision. The full implications of this ruling remain to be seen but its impacts have already been dramatic.
The Law and Its Impacts Munene
Ann
PRESIDENT’SEDITORMESSAGE’SINTRODUCTION
. Pat not only gives a valuable primer on Medi Cal law, she discusses how changing asset limits for eligibility for Medi Cal benefits can be relevant to practitioners with middle class clients in many areas of the law, from estate planning to elder care, family law and even personal injury. We are fortunate to have Judge Sheila Shah Lichtblau author this issue’s Judge’s Corner, where she provides us with a fresh perspective on the role of The Interdisciplinary Settlement Conference: Improving Outcomes for Children in Custody Disputes. She discusses the origins, workings, and success of the ISC program in custody disputes and perhaps surprisingly to practitioners in other areas, points out the key role mental health professionals play in dispute resolution. You will also not want to miss our other regular features. Jessica Karner, President of the Board of Legal Aid of Marin, enables us to Meet Laura McMahon: A True Servant of Justice and the New Executive Director of Legal Aid of Marin. With a title like that, you definitely want to read Jessica’s captivating conversation with Laura to find out how LAM’s amazing work will continue under Laura’s leadership and hear LAM’s vision for growing and moving forward. In 2020, MCBA awarded its Lifetime Achievement Award to Gary Ragghianti. COVID had plans other than a festive dinner, but we were finally able to hold a festive celebration to honor Gary in June. Be sure not to miss the photos from this great event. Read the latest on the outstanding Canal Alliance to learn how critical immigration legal services are to improving lives in the Latino community, how its services benefit our entire community, and how you can get involved. And if you are looking for information on the many local Marin races in November’s election, look no further than Greg Brockbank’s Political Report. A big thank-you to all our guest editors, Wanden Treanor, David Winnett, and Tom McInerney, for their hard work on this issue. Finally, it cannot be overstated that although Rob Rosborough is not at the so called “helm” of The Marin Lawyer as he seamlessly manages his role as MCBA president, he is still very much involved in the background in putting together this magazine for our community’s benefit. Thanks, Rob! View this article at Marinbar.org Ann practices in the areas of workers’ compensation and public employee retirement law. She is a graduate of the University of California, Hastings College of the Law with a concentration in Civil Litigation and Dispute Resolution. She earned a dual undergraduate degree in Legal Studies and Psychology with a minor in Rhetoric from the University of California at Berkeley. While in law school, Ann clerked for United States District Judge Jeffrey S. White in the Northern District of California. Ann also served as a law clerk at the Equal Employment Opportunity Commission, the Legal Aid Society Employment Law Center’s disability rights program and LAS ELC’s workers’ rights clinic. She also won CALI awards as the Top Student in her Trial Advocacy I class and Legal Externship Program. EMAIL | WEBSITE
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 5 Healthcare law has been another hot-button area, and Patricia Tobin addresses some positive developments in her thorough article, Medi Cal Asset Limit Changes from $2,000 to $130,000: How This May Affect Your Middle Class Clients
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ROBERT ROSBOROUGH
Constitutions
PRESIDENT’SPRESIDENTMESSAGE’S MESSAGE
Two or so years ago, eighty percent of Chileans voted to draft a new constitution. The ultimate draft contained 388 articles, many of them specifying new fundamental rights of Chile’s citizens. Many of those rights
I have been thinking about constitutions more than usual lately. I wish I could say learning rather than thinking but my life and my practice do not center on constitutional law and making time to do more than my usual broadly keeping up with the term’s major U.S. Supreme Court decisions isn’t easy. But Chile’s referendum on a new constitution got me thinking even more about the nature of constitutions. They serve an array of functions, from creating (or more commonly, enshrining) a form of government, to establishing the rights and obligations of citizens and government. Any lawyer knows that even a single-subject contract of short duration has little chance of addressing every eventuality that could matter to its signatories. How does a constitution meant to last indefinitely and set forth something as fundamental and broad as the rights and obligations of citizens and government address the future? No matter how brilliantly it addresses the present, it must contain, or at least inspire, some ongoing mechanism in which citizens are willing to place their faith for defining those rights and obligations in light of the inevitable change that will come.
Certainlypretation.compared with the rejected Chilean constitution, the U.S. Constitution mostly enumerates rights more abstractly. Its opening sentence cites purposes that could hardly be more abstract: Justice, Tranquility, and Liberty. Only towards the end of Article I, where it restricts governmental rights (no ex post facto laws, for example), does it begin to confer somewhat more concrete rights on citizens. Even the Bill of Rights defines them in broad terms, where virtually any application in a particular instance requires judging the parameters of the right. It would be roughly two decades from ratification before it was clear that it would be the judiciary that would, to paraphrase Justice Marshall, say what those rights are. Since that time, the U.S. Supreme Court has made many decisions derided by one part of the political spectrum or another. Disagreements over approaches to interpreting the law have always been with us. I tend to be more moderate in my views as to when society is facing a historic crisis but the Supreme Court seems to be working hard to create a crisis of legitimacy that could very well lead to changes in how it operates. What has bothered me for many years is the Court’s conservative wing’s hypocrisy. Much of our era of the Court has centered on a debate about the role of the individual justice's views in decision making. For decades, the
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 8 were concrete entitlements rather than abstract principles. Those entitlements would be hard for anyone to object to as desirable for the citizens of any country, such as education or housing or medical care. Enshrining them as rights in a civil society raises a host of challenging questions, from the economic resources required to the allocation of those resources to defining the borders where rights collide as they inevitably do. How would the constitution’s environmental guarantees affect the resources needed for housing? Chile’s proposed constitution contained little guidance about their scope now or in the future. Such enormous uncertainty required enormous faith in whatever mechanism would be the arbiter of these rights. While many Chileans did oppose some of the rights in the proposal, over half of those who had voted to draft a new constitution ended up voting against it (voters rejected it 62 to 38%). Even for many supporters of the proposed rights, it was too much to ask to trust the uncertain future arbiters of those rights. It is not easy writing a document of principles citizens will agree to be bound by for years to come. 19 years is an often-cited figure for the average length of life of a constitution since the French Revolution (from a study by the founders of the Comparative Constitution Project, which maintains an excellent website for researching constitutions). The U.S. Constitution is thus quite an outlier in its longevity. As much as its success is rightly attributed to the brilliance (and persistence) of the drafters and the government structure they created, another key to its longevity has been the reception of its inter-
Remember “states rights”? Conservative justices have found states to have rights far more often when it leads to a conservative outcome. The apotheosis of the hypocrisy arrived with Dobbs, where the fig leaf of originalism does not conceal but actually accentuates values based decision making that is so far from “interpreting” the law that the majority surpasses anything it accused the liberal wing of doing. While readers who oppose abortion may be unlikely to agree with me, I think they should be equally disturbed by the smoke and mirrors of Dobbs. Before getting to the incoherence of originalism, it is worth noting the irony that a doctrine that purports to be a method to remove a judge’s own values and views from decision making is itself the creation of a political movement with the express purpose of installing judges with conservative so called “family values.” The values came first, with originalism a way of implementing them. It is the outgrowth of a political movement intent on preserving a way of life that mostly exists in nostalgic imagination. Dobbs took originalism to a new extreme of permitting only rights rooted in historic tradition. Even if it were easy to agree on that historic tradition (see my next point), originalism simply assumes wisdom in basing rights on history. Somehow the certainty of those historical values is better than the danger of values that might not be shared by everyone besides the justices making decisions. Particularly in the case of abortion, why would we look to the wisdom and values of the same past that prohibited women from voting, allowed men to rape their wives and indeed treat them as barely one step above property? This is just as much of a values choice as considering contemporary values, which conservatives reduce to the idea that a justice will inject only her own values and be incapable of considering society’s at large. Ah…. But even looking to the past entails choices, as Justice Alito’s attempt at being a historian in Dobbs demonstrates. What part of history are we to look to? Alito dismisses the availability of abortion until the time of “quickening” when our Constitution was drafted and for several decades thereafter by essentially saying the states could have criminalized it if they had wanted to. Which means they didn’t want to, doesn’t it? (Why do justices assume they are qualified to be historians but not, for example, mathematicians? A little work at the latter would have enabled them to declare standards for partisan gerrymandering they rejected in Rucho v. Common Cause.) Many others can offer a more learned and thorough critique of Dobbs than I (although I could go on for some time), and I am doing what I said I was reluctant to do in my July president’s message adding yet one more
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Court’s conservatives have managed to paint the liberal wing as “activist” judges, imposing their personal views instead of “interpreting” the law. Such is the power of projection that many people are convinced this is accurate.
• Support efforts to assist those in need in states that restrict or eliminate access to abortion by making travel to other states easier, whether with donations of travel funds or working to change laws (such as employment laws) that might further
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 10 critique. But in that message, I also asked what we could do about Dobbs and not just what we could say about it. I do have a few suggestions, and instead of going on for some time, I will say just a few more short things about Dobbs. One is to point out that Alito appears to be as disdainful of science as many others these days, which is distressing in a Supreme Court justice. More worrisome is that the majority is so in thrall to originalism that the actual consequences of their decision are completely irrelevant. In examining whether to overturn the precedents of Roe and Casey, the majority dismissed as speculative women’s reliance interests on those decisions and never even examined the dangers overturning them would create for women. Sadly, these dangers became immediately apparent as case after case made the news of women being denied critical medical treatment because they carried unviable but not “dead” fetuses. Finally, at least as far as criticizing Dobbs, a completely (well, maybe not completely) extra legal speculation: Does anyone for even a moment believe that if men bore children that abortion would be illegal? Men would never put up with such an intrusion on their autonomy. For that and many other reasons, it is hard to believe that this decision is about a moral view of fetal life rather than subjugation of Apparently,women. many women agree with me. Some people are surprised that abortion is not the partisan issue they thought it was, as many Republican districts are voting in favor of abortion rights or candidates who favor them. Voter registration post Dobbs has skewed heavily towards women, including Republican women. Many extreme laws are taking effect and producing backlashes as legislators discover they reflect the views of a small minority of Americans. Of course, political developments favorable for abortion rights do not excuse Dobbs, which is causing a lot of suffering.
• Support pro-choice candidates for office, whether with money or action, in whatever state you can make a difference in, particularly your home state if you grew up in another state that needs help;
• Work with the medical profession to develop treatment protocols that enable medical professionals to do their jobs properly while at least minimizing the risk of prosecution;
• Support efforts at the federal level to establish rights to reproductive freedom;
What to do? Those who favor abortion rights will likely have an easier time taking action than those more concerned with the operation of the Supreme Court. A few general ideas followed by ways to get involved with others locally:
Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher.
THE 11 impede access; • Get involved with the International Action Network for Gender Equity & Law (IANGEL) by: Working on an innovative project for volunteer lawyers to teach teens about their reproductive rights; Sharing valuable information in a resource guide for reproductive justice; Joining BASF’s new Legal Alliance for Reproductive Rights to secure pro bono legal assistance to address challenges in the post-Roe world; Advocating for increased funding for international programs for reproductive rights; Attending IANGEL’s 9th Anniversary Gala, Anger to Action, on October 20, which MCBA is proud to support. See the invitation in this issue of the Marin Lawyer or to register or sponsor, and to find out more about IANGEL’s work, visit iangel.org. I welcome further ideas about responding to Dobbs, as well as ideas (and opinions) about the Supreme Court and the judiciary generally, and any programs (including debates) MCBA might put on addressing these issues. View this article at Marinbar.org
EMAIL | WEBSITE
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Questions About The Dobbs Decision
SHELLEY KRAMER AND WANDEN TREANOR
PRESIDENT’SABORTIONMESSAGE RIGHTS
The Constitution’s Language Is it surprising that the four thousand word document drafted by fifty five men in 1787 does not mention abortion? Speaking for “We The People,” the Constitution never mentions women, or babies. Its language speaks not of the rights of men, but of people, persons, and citizens, including natural born citizens—not the unborn. The Fourth Amendment guarantees the right to be se-
Their signs say, “Choose Motherhood.” But what if you don’t choose motherhood? Or Plannedfatherhood?parenthood is a great concept, every child healthy and wanted. But what if the plan fails, or people fail to plan? Is the penalty really a life sentence? With its decision in Dobbs v. Jackson Women ’s Health Organization, 2022 WL 2276808 (2022), the Supreme Court ended federal constitutional protection for abortion, overturning a fifty year old right to privacy precedent. Writing for the new majority, Justice Alito declared that his Court will only recognize rights that are expressly declared, such rooted in historical tradition.” Younger women now will enjoy less bodily autonomy than their mothers. In itself, Dobbs does not ban abortion, but it opens the door for states to do so.
The Effect on Women
Why are women angry right now? Apart from the draft, what bodily freedom has ever been taken from men? No other personal liberty has been taken from a law abiding American by the Supreme Court since the disgraced Dred Scott decision in 1857 which led to a civil war. Dobbs’ dissenting Justices Breyer, Kagan and Sotomayor noted, “Countless women will now make different decisions about careers, education, relationships….Other women will carry pregnancies to term, with all the costs and risks of harm that involves. For millions of women, Roe and Casey have been critical in giving them control of their bodies and their lives.” States are moving quickly: abortion may soon be banned in up to 26 states. Oklahoma bans abortion entirely, and Texas bans abortion at approximately six weeks of pregnancy, through citizen enforced, bounty hunter private prosecutions. These laws are invariably rationalized by asserting that “personhood” is the same as life, and life begins at conception. Anti Roe politicians are already working toward a nationwide ban at six weeks, ensuring that, just when a woman is realizing she might be pregnant, it is already too late and that abortion could be limited even in the sixteen states and Washington DC that have state constitutional or statutory protections ensuring access. What to Do What can be done? People seeking abortions can go to abortionfinder.org to look for options. But as demand grows, women from states that ban abortion may face overwhelmed systems and limited alternatives. They may have to pay cash for care outside their health plans or may decide to carry unintended or dangerous pregnancies to term.
“person” to include the unborn. The Fourteenth Amendment grants the rights of citizenship to all persons born in the United States, and ensures all persons equal protection of the law, as well as life, liberty and the pursuit of happiness. Justice Alito considers the abortion question unique, because it involves a “potential life” separate from the woman. The Constitution does not grant these rights to zygotes, embryos, fetuses or "potential life" in the womb. Being born matters. Privacy Rights Generally Justice Clarence Thomas concurred in the Dobbs decision and names Griswold v Connecticut (birth control) and Obergefell (same sex marriage) as other right to privacy cases that he considered radical, outside historical tradition, and therefore ripe for review and reversal. Curiously, Justice Thomas failed to mention Loving v. Virginia, 388 U.S. 1 (1967), which overturned Virginia’s bans on interracial marriage on equal protection and due process grounds, lest his marriage to Ginni be called into question. Was not the purpose of the Supreme Court to protect individuals against the tyranny of the majority?
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“The arc of history … bends toward justice.” This frontal attack on personal and medical liberty will not succeed, even if it takes another 50-year fight. View this article at Marinbar.org
Funding to help with each of these options is needed. Many states with restrictive abortion laws are already trying to ban interstate travel to have an abortion and ban Amazon or the USPS from delivering the morning after pill or other medicines. These laws need to be opposed or if enacted, challenged under the Commerce Clause. The President can authorize abortions on federal lands, outside state jurisdiction. Congress needs to overturn the Hyde amendment, which restricts the use of federal healthcare funds for abortion, and expand Title X, which funds reproductive care. Congress can expand HIPAA protections, pass the Equal Rights Amendment, and support the programs and taxes that will directly help the women and children affected by this ruling.
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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.
Shelley Kramer is Senior Counsel in Tyson & Mendes’ Northern California office. With over 35 years of legal experience, in and out of the courtroom, Ms. Kramer specializes in catastrophic injury and personal injury litigation. WEBSITE Wanden Treanor practiced common interest development law and estate planning and trust administration for over 30 years. She is a past MCBA President and currently serves on the MCBA Board of Directors as the Five Year Past President.
CAPITOL RIOT Legal Consequences of the January 6 Capitol Riot
TOM MCINERNEY
January 6, 2021, has been described as the worst attack on the U.S. Capitol since the War of 1812. The attack on the Electoral College proceedings by a riled up group of thousands of supporters of Donald Trump was a dark day for our democracy. It also put in legal jeopardy a long list of those present at the Capitol that day, as well as those who instigated the mob action, including Donald Trump and many of his political advisors.
Photo Credit: Tyler Merbler from USA, CC BY 2.0 via Wikimedia Commons
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Criminal Law Implications While much of the focus of the press coverage surrounding the January 6 events and the January 6 Congressional Committee hearings has focused on Donald Trump and the planning surrounding the events of that day, as of early August 2022, at least 889 citizens have been charged with crimes, both in federal and superior court in Washington D.C., as a result of their participation in the riot and 347 federally charged rioters have entered guilty pleas. Many of those participating in the attack on the U.S. Capitol were charged with violating 18 U.S.C. sections 1752(a)(1) and (2), which make it a crime for anyone who:
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 17 (1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so; (2) knowingly and with intent to impede or disrupt the orderly conduct of Government business or official functions, engage in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions … or attempts or conspires to do so. A “restricted building” includes a posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service, including the Vice President, is or will be temporarily visiting, or any building or grounds so restricted in conjunction with an event designated as a special event of national Othersignificance.federalcharges that have been brought include disorderly conduct in the Capitol Building, and “Parading, Demonstrating, or Picketing in the Capitol Buildings,” which is a violation of 40 U.S.C. section 5104(e)(2)(G). The most severe charge brought against any of the Capitol rioters to date is “seditious conspiracy.” Among those charged with this offense are the leader of the American far right anti government militia the Oath Keepers, Elmer Stewart Rhodes, and 10 Variousassociates.felonycharges
were brought against Guy Reffitt, a recruiter for the rightwing Three Percent movement in Texas. The first jury trial for any Capitol rioter resulted in Reffitt’s conviction in March on five felony charges, including counts for obstruction of Congress, interfering with law enforcement, carrying a firearm to a riot, and threatening his teenage son who turned him in. Prosecutors asked the judge to sentence him to 15 years in prison. U.S. District Court Judge Dabney Friedrich, a Trump appointee, condemned Reffitt’s conduct, saying in a nearly six hour hearing on August 1, 2022, that Reffitt’s views espousing political violence were “absurd,” “delusional,” and “way outside of the mainstream,” although he sentenced him to 87 months, or roughly half the time sought by prosecutors.
Employment Law Implications
Many of the rioters also faced employment ramifications. The CEO of an Illinois based data analytics firm who was arrested during the riot, Bradley Rukstales, was terminated from his position in January 2021 after he acknowledged his arrest in a social media post. His employer, Cogensia, issued a statement after his arrest stating, “This decision was made because Rukstales' actions were inconsistent with the core values of Cogensia. Cogensia condemns what occurred at the U.S. Capitol on Wednesday, and we intend to continue to embrace the values of integrity, diversity and transparency in our business operations, and expect
The short answer is yes, assuming the decision is not motivated by the political content of the activity at issue. In California, Labor Code sections 1101 and 1102 protect employees against discharge for political activities, although neither provision protects employees who engage in unlawful activity, whether or not that unlawful activity happens to be politically motivated.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 18 all employees to embrace those values as well.” Many of those arrested, including a lawyer in Texas, a teacher in Pennsylvania, and a real estate broker in Chicago, have lost their jobs due to their own social media posts. (One participant even wore his Maryland company’s ID badge to the riot.) Many of these posts do not incite violence but merely admit attendance. The president of the Richmond, Virginia Food Truck Association resigned after he posted on his personal Facebook page, “What a day … I made to [sic] the front doors of the capital [sic] took a few flash bangs but missed the pepper spray and rubber bullets.” At least one fired employee is proceeding with an action (in federal court in Southern California) against her former employer. Can your employer fire you for participating in political protests that lead to violence?
Among other things, section 1101 precludes an employer from making or enforcing any rule or policy that prevents an employee from “engaging or participating in politics” or from “[c]ontrolling or directing” the “political activities or affiliations of employees.” Its sister statute, section 1102, provides that, “[no] employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” [Editor's Note: Presumably the Legislature did not truly intend to exempt female employers from this restriction but maybe an Originalist argument might be successful here too!]
In Couch v. Morgan Stanley & Co. (9th Cir. 2016) 656 F. App’x 841, the Ninth Circuit reviewed the two California appellate decisions regarding an employer’s motivation for firing an employee where the employee’s political activity is at issue, finding that liability under Labor Codes section 1101 and 1102 is triggered only when an employer fires an employee based on a political motive. Terminating an employee pursuant to a politically neutral practice or policy against employee’s participation in unlawful conduct, such as storming or damaging a government building, should not trigger these Labor Code protections. Moreover, the California Supreme Court has expressly stated that in sections 1101 and 1102 “there is no intimation or implication of any intent to protect any individual or group advocating the overthrow of the government by force or violence. On the contrary, the words ‘politics’ and ‘political’ imply orderly conduct of government, not revolution.” (Lockheed Aircraft Corp. v.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 19 Superior Court of Los Angeles County (1946) 28 Cal.2d 481, 485.) While some have argued that condemning the violent and deadly riot at the Capitol necessarily reflects a political bias, this is not so. One hardly needs to disagree with protesters’ policy positions in order to condemn violently interfering with the conduct of elections. Indeed, Senate Minority Leader Mitch McConnell, hardly a leftist, described the January 6 events as a “failed insurrection” and those at the Capitol an “unhinged crowd” aiming to prevent Congress from certifying the election by the use of “thugs, mobs, or threats.” (Mitch McConnell’s statement to the Senate on the storming of the Capitol, (Jan. 6, 2021) as published in U.S. News & World Report, (Jan. 6, 2021).) GOP House Minority Leader Kevin McCarthy, also hardly a liberal Democrat, similarly condemned those at the Capitol on January 6 and characterized them as “mob rioters.” (Nick Niedzwiadek, McCarthy Says Trump ‘bears responsibility’ for Capitol riot, (Jan. 13, 2021) Politico.) In other words, criticism of the rioters who invaded the Capitol on January 6 was bipartisan and would not necessarily reflect a political bias or motivation. While the full story surrounding the January 6 insurrection at the U.S. Capitol has yet to be written, suffice it to say that many of our citizens, and not just those at the top of our political structure at the time, will face legal jeopardy for years to come. These events also underscore the legal impact for employees who engage in violent and unlawful activity outside of their day-to-day work. View this article at Marinbar.org
Thomas (“Tom”) McInerney has extensive employment litigation experience in complex litigation matters, with an emphasis on class actions, multi plaintiff cases, and trade secret and other complex business disputes. He has tried to verdict several cases in both state and federal courts, and represents clients in a wide range of fields, including technology, financial services, insurance, construction, energy/utility, healthcare, transportation and logistics, and personal services. Tom is on the Board of Directors of the Marin County Bar Association. EMAIL | WEBSITE
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Disagreements over where parents should exchange their child. Quibbles over how many minutes a parent can speak to their child while in the other parent’s custody. Arguments over where the children should go to school, how they should do their homework, and their after school activities. Parenting is hard enough. When parents become involved in protracted and high conflict custody disputes, these disagreements intensify parenting challenges and place significant stress on the children.
The Role of Mediation
Family law courts have recognized the limitations of the adversarial legal system to resolve ongoing parenting disputes. Over the past few decades, many states have implemented specific dispute resolution processes to resolve them. In California, Family Code section 3160 mandates that each superior court make a mediator available to try to reduce acrimony that may exist between the parties and effect a settlement on the issue of visitation. Here in the Family Law Division of Marin Superior Court, Family Court Services meets with parents for mediation and where appropriate, it issues recommendations to the Court. The Legal Self-Help Center has also assisted parents with mediation during law and motion proceedings.
Interdisciplinary
PRESIDENT’S JUDGEMESSAGE’SCORNER
HON.
Litigating Parenting Decisions
The Settlement Conference: Improving Outcomes for Children in Custody Disputes SHEILA SHAH LICHTBLAU
Separated parents turn to the court when they are unable to resolve their conflicts. Courts must make custody, visitation and parenting decisions that are in the best interests of the child. However, litigating parents have vastly different views of what is in the best interest of their child. Without a better conflict resolution framework for the parents, some high conflict parents repeatedly return to court. Not only is this approach costly, it often leaves parents dissatisfied because litigation may end one dispute, but it does not resolve the underlying problems between the parents.
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Notwithstanding the excellent services provided by Family Court Services and the Legal Self-Help Center, the Family Law Division has recognized that in some high conflict situations, the parties might also benefit from an interdisciplinary approach. In 2007, multiple high stakes providers, including Stephen Sulmeyer, J.D., Ph.D., met with Judge Verna Adams to create and implement an additional and novel reconciliation service: the Interdisciplinary Settlement Conference (ISC). The ISC program is distinctive in that it harnesses the skills of a mental health professional well versed in family disputes and an independent family law attorney who specializes in custody and visitation matters. These volunteer panelists are joined by a family law judge. With this integrated team, the ISC panelists are able to offer a complementary set of skills to address the unique challenges associated with parenting disputes. By addressing the parties’ legal and psychological issues, the ISC panelists are better equipped to assist the parties with diffusing their hostility such that they can focus on the needs of their children in a more open manner. The ISC program recognizes that the parenting disputes are not just a legal event but rather an emotional process which requires a holistic approach.
Integrative Mediation
An ISC settlement conference is voluntary and is typically triggered in high conflict cases where the parties have a pending custody or visitation related motion. Often, the ISC is scheduled upon the request of a party prior to the court’s decision. If both parties agree, the court schedules the online conference with an ISC panel using Zoom technology. Although settlement conferences are scheduled for three hours, the ISC volunteers are often able to meet for longer periods or to schedule a second session, where appropriate. If the parties reach resolution, the court typically places the settlement terms on the record, or as part of a minute order. While it is unusual to include a mental health provider in a settlement conference, in family law disputes, the mental health provider plays an invaluable role in high conflict matters. As an outsider to the adversarial process, the mental health provider can provide emotional support to the parties and help them focus on the emotional needs of the children. The provider can help reframe disputes and assist the parties shift from trying to “win” to better understanding the needs of their children as separate from their own needs. As an expert in the field of psychological dynamics of people going through divorce or separation, the provider plays a critical role in educating parents about how to best navigate their disputes. The use of a mental health provider complements the role of the volunteer attorney who assists in helping the parties reach settlement.
A History of Success Since its inception, the Marin ISC program has been largely successful. Statistics gathered from 2008 through 2019 demonstrate
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 22 that more than 75% of the cases settled. Although some of these settlements were temporary, in many cases, following the ISC, the parties began using therapeutic tools, such as co parent counseling, to assist with better communication as a means to resolve disLitigationputes. is ultimately an expensive and frustrating way to resolve custody disputes. By bringing together skilled, volunteer practitioners with expertise in mental health issues surrounding divorce and custody issues, along with volunteer attorneys and a supportive court, the ISC model has demonstrated better outcomes with lower costs, less emotional stress, and more support for the parents and the children than is possible with traditional litigation. Here, at the Unified Family Court, we are grateful for our volunteer panelists who have helped to make this program a success.
View this article at Marinbar.org Judge Sheila Shah Lichtblau was elected to the bench in 2016 with her term starting in January 2017. She earned her bachelor's degree from the University of California, Berkeley and her law degree from Hastings College of Law.
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THE MARIN LAWYER An Official Publication of the Marin County Bar Association 23 Interested in sponsorship? Contact Mee Mee Wong Thank You to the 2022 MCBA Program Sponsors PLATINUMSILVERBRONZEGOLD
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 24
Photo Credit: Courtesy of the Canal Alliance
The Marin Lawyer last checked in with Canal Alliance during the first year of the pandemic when we asked several of Marin’s major nonprofits how the pandemic was changing how they operate. We thought it was time for a more comprehensive update from Canal Alliance and so we asked its CEO, Omar Carrera, to share his thoughts on key aspects of its Forwork.readers not familiar with Canal Alliance, its mission is to break the generational cycle of poverty for Latino immigrants and their families by offering immigration legal services, education and career programs, and social services to help them overcome barriers to their success.
The Marin Lawyer: Why is providing immigration services for the Latino community in Marin vital? Omar Carrera: Data shows that having legal status or at least a work permit is a major step to achieving economic stability. Our Immigration Legal Services (“ILS”) department is the only low or no cost provider of immigration services in Marin. By helping community members achieve legal status in the United States, we are helping to remove some of the legal barriers and systemic inequities that are stacked against Latino immigrants in our community.
The Marin Lawyer
Omar Carrera: While the legal needs of ILS clients remain the same, COVID has amplified the social issues and inequities that the Latino immigrant community already struggled with. COVID forced our ILS department to develop hybrid in person and remote operations, and I am very proud of our success in maintaining pre COVID capacity and quality of service throughout the pandemic. From a client standpoint, the hybrid model has proven to have both benefits and challenges.
NONPROFIT
PROFILE
Omar Carrera, CEO Canal Alliance
The Marin Lawyer: COVID changed both your clients' needs and how you provide services. How have both of those continued to change as the pandemic has evolved?
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 25
Canal Alliance: Immigration Legal Services as the Foundation for Improving Lives
Omar Carrera: Just before the pandemic, in 2019, we provided 966 consultations and had 413 open legal cases. During the worst part of the pandemic from March 2020 to 2021, we provided 854 consultations and had 505 open cases. For the most part, capacity remained steady throughout the pandemic. These numbers really show how remarkable ILS has been in maintaining services in the midst of crisis.
The Marin Lawyer: How many clients did Canal Alliance serve for legal support before and during the pandemic?
Omar Carrera: The increase in opening new legal cases during the pandemic is in part due to a large increase in demand from youth who qualify for humanitarian relief after fleeing their home countries. While we still receive many requests for general immigration legal consultations, U visas and other forms of adult affirmative Humanitarian Visa application assistance, we have experienced a great influx of immigrant children in the community who qualify for Affirmative Asylum and Special Immigration Juvenile Status. In fact, there is a higher per capita number of these young people arriving in Marin County than in any other county in the Bay Area. Thankfully, this influx coincided with the launch of our Opportunities for Youth program. With funding from the State of California, this program allows us to collaborate with staff on our social services team to provide many newly arrived immigrants with comprehensive case management services.
For example, the move to phone consultations and case management gives clients more flexibility in scheduling appointments, resulting in less time off from work or school. On the other hand, the switch to remote consultations and fewer in-person client interactions has been tough for many clients and has shed more light on the need to increase efforts to close the digital divide.
The Marin Lawyer: You have partnered with Legal Aid of Marin, MCBA and BASF. How successful have these partnerships been? How are you improving these and other alliances and what programs are in the works?
Omar Carrera: In the past, these partnerships were usually focused on providing workshops for naturalization and DACA. We had high levels of turnout at these events and, as a result, many members of our community
Omar Carrera: Our ILS department currently employs 12 full time staff. This includes four attorneys, three paralegals, our operations and outreach team, and one law school graduate/clerk. Based on demand in the community for services like ours, there's an overwhelming need for growth. If we had the funding available, we would absolutely enjoy the opportunity to increase our legal services capacity in naturalization assistance and other Humanitarian Visa support.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 26
The Marin Lawyer: What are the most requested services?
The Marin Lawyer: Speaking of staff, how many do you have and where do you have a need for more?
Omar Carrera: The most pressing issue facing our ILS department is capacity. While we are very proud of the quality of service that we are able to provide our clients, there is much greater need for services than we are able to provide and we often must refer many members of the community to outside organizations or to private attorneys. Additional and sustainable funding would allow us to hire more staff and increase capacity. ILS is also always looking for opportunities to expand its capacity internally and to develop relationships with low bono or pro bono organizations and attorneys in Marin County.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 27 now have their work permits and citizenship. Due to COVID and other ethical considerations, we have moved away from the workshop approach in favor of individualized legal representation. In our current partnership with Legal Aid of Marin, we are working to create a new model for pro bono engagement. We hope that this new model will provide an avenue for members of MCBA and BASF to provide more pro bono support to our clients. In the meantime, Legal Aid of Marin continues to support the Latino immigrant community by offering free in person legal consultations for employment and housing issues every Tuesday morning, during our free weekly food pantry. It is also worth mentioning our legal team's partnership with Family and Children's Law Center. FACLC does amazing work, and our partnership with them has been crucial to navigating the Family Court process for our Special Immigrant Juvenile Status clients.
The Marin Lawyer: What are the most pressing issues facing Canal Alliance in delivering legal services to your clients?
The Marin Lawyer: Are there other services that you are currently not providing that you would like to provide?
Omar Carrera: In addition to expanding our capacity to assist with more naturalization, U Visa and SIJS cases, we would also like to start offering assistance with family petitions and green card renewals again. We've had success in offering both of these services in the past, but due to limited capacity, we had to shift the majority of our efforts and focus on the representation of community members eligible for citizenship and Humanitarian Visas. View this article at Marinbar.org
Omar Carrera: For members who are flourishing in their practice and might be short on time, we welcome their financial support so that we may continue to employ the full time staff necessary to continue this important work. For those who have the time but lack Spanish language proficiency, I encourage MCBA members to reach out to us. Having a roster of interested attorneys would greatly support our ability to design pro bono programs with our partners at LAM and FACLC, and may also prove helpful in the event that we decide to host workshops in the future.
The Marin Lawyer: For our members who do not speak Spanish, how can they help?
THE MARIN LAWYER An Official Publication of the Marin County Bar Association SCOTUS UPDATE
Concurrences in Dobbs
MATT WHITE It’s all about Dobbs.
Dobbs, Dobbs, Dobbs
So reported Professor Rory Little at the MCBA general membership meeting on July 7. Before introducing Professor Little, President Rosborough welcomed over 70 members to our first in person regular membership meeting since the pandemic began, prompting an enthusiastic round of applause. As he has done for years, Professor Little then took to the podium, wrapping this year’s SCOTUS term with his insightful and humorous observations, commentary, and predictions.
Overturning Roe v. Wade. Dobbs v. Jackson Women’s Health Organization, of course, was the U.S. Supreme Court case announced in June, by a 6-3 vote, that overturned Roe v. Wade. The decision declared that there is no federal constitutional right to abortion. Prof. Little explained the majority and concurring opinions. The majority opinion held that Roe had been wrongly decided from the start, stating that substantive due process, required of the states via the 14th Amendment, does not apply to a shifting sense of “liberty.” Rather, the court said, one must examine history to determine what the states meant when they adopted the amendment. Based on the majority’s examination of that history, the adopters did not consider abortion to be covered as an essential liberty.
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Justice Alito, who wrote for the majority, took pains to state that the decision invalidated only abortion rights and should not be read to imply anything about other liberty (Asinterests.anaside, Prof. Little noted that the Founders, in establishing a new nation under a new Constitution, were hardly bound by history or tradition.)
Chief Justice Roberts, now only nominally the leader of the court, would have upheld the Mississippi law at issue in Dobbs as consistent with Roe and its successor, Casey, without actually overruling those cases.
Respect for Precedent?
Speaking of precedent, Prof. Little who clerked for Supreme Court Justice Stevens and writes for SCOTUSblog pointed out that the present court is far more likely than usual to overrule or ignore precedent. He says that entire terms typically go by without a precedent being overruled, but this term there have been at least three overruled. The current court is also much more willing to use the “shadow docket,” in which it makes decisions without full briefing or argument: the court issued a total of eight such rulings during the combined presidential terms of George W. Bush and Barack Obama, but 40 of them under Donald Trump. In the past, “shadow docket” cases had no precedential value, but this term the court has cited several of these rulings in later decisions.
Freedom of Religion Trumps the Establishment Clause. In response to audience questions, Prof. Little discussed religion cases, in which the court now seems to favor the First Amendment’s “freedom of religion” clause over its prohibition on government establishment of religion. One issue that may be revisited, he suggested, is the burden of proving a true belief. In the past, in conscientious objector and other religion cases, the court assumed sincere faith, even if the litigant’s beliefs were not aligned with those of their religious leaders. Prof. Little surmised that this will change when litigants start claiming religious beliefs that (for example) require abortion in states where it is illegal, or seek to lead Satanist prayer on the 50 yard line of a high
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 29 and strives now to be seen as a peacemaking, decent person. In his concurrence, he took pains to point out that Dobbs will not have the dramatic effect some predict; for example, states would not be able to ban residents from going elsewhere for abortions because of the constitutional right to travel. But, Prof. Little added, there is no explicit constitutional right to travel; it comes from the same sense of substantive due process, or “essential liberty,” upon which the former right to abortion was premised.
Justice Thomas, now the senior member of the court, effectively called out Alito on Dobbs’ effect on other liberty interests, opining in his own concurrence that there is no such thing as “substantive due process” under the 14th Amendment; in fact, he considers that an oxymoron. On this basis, he would overrule all precedent that established constitutional rights based on an essential liberty unless expressly identified in the Constitution, including rights to contraception, same sex marriage, and private sexual conduct. Prof. Little noted that most commenters on the majority opinion do not see a logical basis in its reasoning that would distinguish abortion from these other liberty interests.
Come back next year!
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 30 school football field. “Easiest Job in the World.” Prof. Little touched on a number of other subjects, including gun rights (Kavanaugh and Barrett suggested a governmental right to some regulation), West Virginia v. EPA (not as dire as the headlines imply) and the court’s workload (only about 58 signed and fully briefed decisions, the lowest since the Civil War). On that subject, he noted that Supreme Court justices have the easiest job in the world: responsibility for six or seven decisions each, four law clerks each, briefing by the best lawyers in the country, and summers off.
The court’s October 2022 term promises to be just as newsworthy, and we hope Prof. Little returns next year for more explanation and insight.
View this article at Marinbar.org
• Clients with family members who need nursing home care;
Assembly Bill No. 133, signed by Governor Newsom on July 27, 2021, and codified in part as section 14005.62 of the Welfare and Institutions Code, made major changes to Medi Cal (also called the California Medical Assistance Program1), California’s version of Medicaid, which provides medical care to low-income residents. These changes also have implications for middle class clients, especially:
• Estate planning clients who may be considering special needs trusts for their family members;
PRESIDENT’S MESSAGEMEDICAL
• Family law clients who are considering support for disabled children or spouses; and • Personal injury clients who will receive a settlement and need to preserve their Medi Cal coverage.
The most significant change is the increase in the California Medi-Cal asset limit, which increased from $2,000 to $130,000 for single recipients who are disabled or over age 65, effective July 1, 2022. Additional increased limits will apply to families and to couples who need long term care services for one
ABspouse.133 also revised eligibility rules, eliminating immigration status as 2022,asconsiderationaofMay1,forapplicants who are over age 50 and otherwise eligible for Medi-Cal. (This article will focus only on the asset limits changes. For practical information and rules concerning immigration status, see the July 22, 2021, All County Welfare Directors Letter no. 21 13(pdf).)
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 31
How This May Affect Your Middle-Class Clients PATRICIA TOBIN
Understanding the Two Major Types of Medi-Cal MAGI Medi Cal mostly covers people aged 19 to 64 and is used by low income families. (Other Medi Cal programs comprehensively cover children.) MAGI Medi Cal is the expanded Medi-Cal program Obamacare created as of Jan 1, 2014. California is one of 26 states that elected to take the essentially free federal money that allowed the expansion of Medi Cal to cover low income, non disabled working people.
Non-MAGI Medi-Cal covers people over age Medi-Cal Asset Limit Changes from $2,000 to $130,000:
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 32 65 and disabled people of any age, and is generally the focus of attorneys who serve elderly clients, disabled children, injured plaintiffs or their family members.
MAGI Medi Cal For MAGI Medi Cal, financial eligibility is determined solely by income counted under a formula that modifies the IRS Adjusted Gross Income calculation, hence MAGI for “Modified Adjusted Gross Income.” Assets are simply not considered or evaluated. Generally, in 2022, a single individual may have an annual income of up to $18,755, and a family of four may have an annual income of up to $38,295. These income limits represent approximately 138% of the Federal Poverty Level income, which is revised annually2 . If one’s income exceeds the limit, an applicant cannot qualify for MAGI Medi Cal, but may instead qualify for a subsidized Covered California (Obamacare) private insurance plan, which would require payment of some out-of-pocket costs, such as (subsidized) copays, deductibles and premiums. Covered California publishes a chart each year showing income limits based on family size for different plans. 2022’s chart is reproduced below:
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 33
As noted above, Non MAGI Medi Cal covers residents over age 65 and the disabled. AB 133 means that anyone applying for the dozens of different categories within the Non MAGI Medi Cal program will no longer be limited by the $2,000 asset limit that existed in California from approximately 1985 through June 30, 2022. Instead, the asset limit for single individuals will generally be $130,000. For households of two to ten persons, the limit is increased by $65,000 for each additional household member.
Understanding the General Eligibility Rules for Long-Term Care Medi-Cal
Non-MAGI Medi-Cal
It is anticipated that as of January 1, 2024, there will be no asset limit at all for most categories of Medi Cal. Once the applicant meets the Status rule (and Assets rule while there continues to be one), then their income will be considered. AB 133 changed only the rules regarding assets and did not affect the income rules.
Non-MAGI Income Rules
Non MAGI Medi Cal also has its own set of income rules, which are very complex and somewhat arbitrary. While these rules are the same as before AB 133, an extremely abbreviated overview may be helpful. These rules require recipients to pay a “Share of Cost” if their income is over a specified threshold. There are essentially four categories: 1. Community Medi Cal: the recipient pays no share of cost if their income is under $1564 per month for a single person and $2106 per month for a couple (in 2022).
2. Community Medi Cal with a high Share of Cost: if income is over the limits in paragraph 1, recipients must pay much of their income as a “Share of Cost.” Medi-Cal allows single adult recipients to keep $600
Qualifying for long term care under Medi Cal is a separate determination from qualifying for Medi Cal generally. An applicant must first qualify on “Status,” which consists of looking at residency, age, disability, and citizenship or legal immigration status. As a result of AB 133, if an applicant is over age 50, the final factor—citizenship or legal immigration status is no longer considered. If an applicant is determined to have acceptable Status, they are then evaluated to see if they qualify by having assets below the limit after several categories of assets are excluded. The definitions of these excluded categories (“exempt,” “unavailable,” and “uncounted”) remain the same as before AB 133 and include, for example, a home; IRAs “in pay status,” which Medi Cal defines as making periodic payments of interest or principal, essentially an RMD; a car; household furnishings; and numerous other exceptions. (Cal. Code Regs., tit. 22, §§ 50425 50489.9.) These uncounted assets are in addition to the allowance for “countable” assets. The permissible allowance for countable assets, which are generally cash or investments, is the key change: as of July 1, 2022, a single individual may own up to $130,000.
More Non-MAGI Asset Rules Returning to asset rules for Non-MAGI recipients, AB 133 also changed the more complex rules that apply when a recipient is expected to be in a nursing home or other medical institution for 30 days or longer in order to allow the non institutionalized or “caregiver” spouse (or Registered Domestic Partner) to keep more of the couples’ assets.
AB 133 increases the asset limit from the combined (i.e., for both spouses) 2022 limit of $139,400 to $267,4003. This level is expected to increase slightly each year. If the California Medi-Cal plan is approved by the governing federal agency (the Centers for Medicare & Medicaid Services or “CMS”), then, as of January 1, 2024, there will be no asset limit for most Non MAGI applicants, which would be consistent with current rules for MAGI Medi Cal (because MAGI Medi Cal does not take assets into consideration).
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 34 per month (referred to as “maintenance need”), couples $750, and couples over 65 $934; after you get to keep the small specified amounts, the rest of your income is subject to Share of Cost and depending upon what medical costs you have, the rest of your income may partially or entirely go to paying your Share of Cost.
Finally, where one spouse needs Medi Cal covered home care services under a special and limited waivered program (with wait lists and additional restrictions), the same rules as where one spouse is in a nursing home will
AB 133 also increases the asset limits for married couples and Registered Domestic Partners in other circumstances. Once again, these asset limits are expected to be removed entirely on January 1, 2024 if CMS approves California’s Medi Cal plan.
3. For a single person in a nursing home, all monthly “countable” income except for $35 (yes, only $35, essentially just pocket change) and certain deductions will be subject to paying your Share of Cost.
For couples where neither spouse or partner is in a nursing home, the first recipient keeps up to $130,000 and the second recipient can keep $65,000 for a total of $195,000, compared with the previous combined limit of $3,000. The DHCS guidelines for implementing AB 133 do not address when both spouses are in a nursing home.
4. For a married couple in a nursing home, the first $3,435 per month of income is disregarded and then the remaining monthly income is subject to Share of Cost, subject, however, to certain exceptions.
5. As already alluded to, the complete income rules entail a plethora of additional complications, from the types of income counted to consideration of out-ofpocket medical costs; the foregoing summary is intended only as a broad overview and any individual’s or family’s circumstances will require a detailed analysis.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 35 apply, and in 2022, the spouses can keep a total of $267,400, compared with the limit before July 1, 2022, of $139,400.
• One never knows who may be permanently or temporarily incapacitated, so it is important that everyone on the care team have their own affairs in order, including Durable Powers of Attorney for Finances and Health.
• For clients where a family member has assets in excess of an eligibility limit, a cost effective choice to protect such excess funds may be to consider putting them in a pooled special needs trust or, with sufficient assets, an individual special needs trust.
• While structured settlement annuity payments paid outside of a special needs trust will generally affect benefits, staggered lump sums that could be spent before the next payment in order to remain under an asset limit may now be an option, as long as the staggered amounts are sufficiently restricted until distribution so that they meet the Medi-Cal requirement for “unavailability.”
Considerations for Estate Planners
• A key tool for all families, but especially for clients who may need long term care, is an effective Durable Power of Attorney for Finances to allow access to information about finances, and to access accounts to pay for care, or to spend down or manage funds to qualify for Medi Cal.
• For clients of any age who were disabled prior to age 26, one could even consider funding an ABLE account to protect eligibility for Medi Cal. ABLE accounts are similar to tax-favored 529 accounts. A disabled person can have a dedicated ABLE account, which does not count against most public benefits. “Donors,” including the disabled person, can contribute up to $16,000 annually (in 2022), and the disabled owner of the ABLE account can contribute wages of up to $12,880 (in 2022) annually to increase this reserve fund.4 Asset transfers, if made with capacity and consent, of up to $130,000 can be made without penalty in order to meet the Medi Cal limit. Transfers of more than $130,000 may be subject to penalties.5
Considerations for Personal Injury Recoveries
• Successful personal injury plaintiffs who have net recoveries of less than $130,000 may not need a special needs trust to preserve Medi-Cal, depending of course on existing assets, although protective financial management might still be prudent.
• AB 133 created less onerous Medi Cal rules for plaintiffs who are over age 50 and lack verifiable immigration status, increasing the chances these plaintiffs may be able to preserve their recovery and Medi Cal eligibility. But other Medi Cal rules such as residency status and income
• Current Medi-Cal coverage in California exceeds the services provided by Medicare. It provides more psychiatric care, more case management services, access to vision and dental care, and more social services as expanded Medi-Cal programs are put into place. While Medi Cal services are more comprehensive, Medicare generally offers wider access to providers.
• Once again, the increased asset limit for Medi Cal does not apply to other public benefits, and in fact, can be a problem if the Medi-Cal recipient is receiving benefits from other programs. Furthermore, if anyone is part of a household or family that receives benefits such as Section 8, Cal Works (i.e., child welfare benefits), food stamps, or other benefits that may be calculated based on household income and assets, holding assets which are permissible under the increased Medi-Cal asset allowance can affect the benefits of the other
• As also noted elsewhere, the increased asset limits apply only to Medi Cal. SSI still has a $2,000 limit, making Medi-Cal’s increased limit likely not to be of benefit to a plaintiff who needs to preserve access to the $1,040 per month income (as of 2022) from SSI.
• But if a younger spouse is or may be disabled, timing the Social Security Disability application for benefits and the end dates of work will be important in order to meet the “currently insured” requirements to obtain Social Security Disability.6 Spouses who are certified as disabled can get Medicare after 24 months of Social Security disability payments, but during that 24 month period, and any period prior to
• Children in this group will also be eligible for Medicare after receiving 24 months of Social Security benefits.
• The asset limit changes place a new emphasis in divorce settlements on providing more assets and less income to the supported spouse, since periodic payments of spousal or child support may affect Medi Cal eligibility or the extent of its services. Medi-Cal might be appropriate in a variety of situations that may not be obvious, a few of which are noted below.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 36 still must be considered.
• Customary calculation of meeting the 10 years of marriage rule in order to qualify for divorced spousal Social Security benefits may benefit an aged and divorced spouse, but that spouse may still benefit from having eligibility for Medi Cal, because a non disabled spouse still has to wait until age 65 to get Medicare.
Considerationshouseholders.forFamilyLaw
Attorneys • Disabled children who are receiving or will receive benefits from Social Security based on a parent’s work record are the key demographic who can benefit from the impending total elimination of Medi Cal’s asset limits because they will probably not need SSI after the parent dies.
• If a client’s need is coverage for someone’s in-patient long-term care (for example, for dementia), keep in mind that assisted living, with limited exceptions, will not be covered by Medi Cal. If a patient is declining in a way where it is anticipated they will eventually need inpatient, custodial nursing home care, which is covered by Medi Cal, in some cases it may be appropriate for the patient to reside in assisted living to “spend down” assets to become Medi Cal eligible.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 37 a final approval of benefits, the spouse might benefit from access to Medi Cal.
• Medi Cal’s increased eligibility applies only in California; if there is any chance a Medi Cal recipient might move out of state, alternatives may be needed.
• The new asset limits are for Medi Cal only; if a client receives other public benefits, such as SSI or Section 8 housing, increased assets may still disqualify them from benefits or affect the benefits.
• In all cases, every Social Security plan must consider if either spouse is subject to the Government Pension Offset or the Windfall Elimination Provision. 7
• For Medi Cal eligibility, don’t assume actions taken pursuant to tax or probate law will not affect eligibility. For example, an annual gift of $16,000 exempt from reporting under the lifetime estate and gift tax rules is reportable for Medi Cal purposes and could affect the recipient's Medi Cal benefits.
• The new asset limits are a boon for Medi Cal eligibility but you must still consider the income and “Share of Cost” rules in planning eligibility.
• Program rules change all the time—be prepared for possible changes.
• When working with a client to protect their or a family member’s public benefits, the first step is to get copies of the actual notices that describe the benefits. Don’t rely on anyone’s memory or verbal information the names of the benefits are all so similar and there are so many different programs even under the same broad rubric (such as Section 8) that it is easy to be confused. The notices generally come in November, December, or January and clients need to know that it is important to keep them.
2 The rule that calculates the modified adjusted gross income (MAGI) means that those modifications to the IRS Adjusted Gross Income are applied to determine what income counts, to distinguish when income is counted as an asset and when it is counted as income, what income may be excluded and what nontaxable income may be included.
• And finally, keep Estate Recovery California’s right to reimbursement from a recipient’s probate estate for its expenses under Medi Cal in mind for any Medi Cal plan.8
Key Considerations for All Attorneys Working with the New Medi Cal Asset Limits
1 California Code of Regulations, Title 22, Social Security; Division 3, Health Care Services; Subdivision 1, California Medical Assistance Program, section 5000 et seq.
so
4 More
5 See
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 38
lnx/0300301110 and https://secure.ssa.gov/apps10/poms.nsf/lnx/0300301120, and on claims for workers under age 31,
6 For information on “Currently Insured” status and disability claims,
7 SSA’s guidance on the Windfall Elimination Provision and Windfall Elimination Provision Fact
A
Law Office of Patricia Tobin. Patricia Tobin is a Certified Specialist in Elder Law and a Certified Specialist in Estate, Trust & Probate Law. detailed analysis of calculating the MAGI is beyond the scope of this article. All County Welfare Directors Letter December 23, 2021 ACL 21 34(pdf) for this chart and further explanation: information about ABLE can be found at the ABLE National Resource Center’s website. You can alcompare state plans on its website. All County Letter March 14, 2022, 22 05 (pdf) for information about transfers after July 1, 2022. see https://secure.ssa.gov/POMS.NSF/ see https://secure.ssa.gov/apps10/poms.nsf/lnx/0300301140. Sheet (pdf); (pdf). this article at Marinbar.org
Accounts
and guidance on the Government Pension Offset
3 See
8 DHCS’ Estate Recovery rules. View
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THE MARIN LAWYER An Official Publication of the Marin County Bar Association 39
Laura McMahon, LAM Executive Director
An Introduction First, a very brief bio: Laura served as a staff attorney and pro bono & training coordinator for FreeState Justice in Maryland, and an assistant public defender in Maryland before coming to work for Legal Aid of Marin. During law school, Laura completed over 700 clinical hours in legal services, focusing on housing, consumer, and low income tax matters. In other words, Laura has spent their career helping marginalized and lowincome communities by increasing access to legal services, both as an advocate and in a management capacity.
Laura first joined Legal Aid of Marin over a year ago as our pro bono manager. We were lucky enough to convince them to move across the country after having lived on the East Coast for 35 years. Laura quickly excelled not only in that position but also in taking on other key organizational responsibilities. Their skills in organizational management, relationship building, grant writing, and programmatic planning have been key to LAM's success over the last year, and the way they put those skills into action helped establish Laura as a key leader at LAM. When we set out to hire a new executive director earlier this year, we were thrilled that Laura was interested in the position, and our search confirmed that they were the best person to lead LAM into the future. The thing that most strikes me about them as a leader is their true servant nature. Laura's focus is consistently on how to best serve any organization they are part of on being of the greatest use. That kind of servant leadership is humble and inspiring, and it's incredibly valuable to any organization lucky enough to have it. I had the chance to interview Laura and want to let their words do most of the talking:
Meet Laura McMahon: A True Servant of Justice and the New Executive Director of Legal Aid of Marin Jessica Karner
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 40 COMMUNITY PROFILE
A Conversation
Karner: What experience most drew you to public service?
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 41
Karner: How did your work at FreeState Justice working on behalf of LGBTQ+ Marylanders inform your understanding of justice, and were there any parallels in what you learned about justice serving as an assistant Public Defender? McMahon: During my time working at FreeState Justice, I saw how systems of oppression were created to target specific marginalized communities within the LGBTQ community, specifically black transgender women and youth. While tremendous steps toward equality came to pass during my tenure (same sex marriage legislation, removal of transition related health care coverage restrictions, and banning conversion therapy), I routinely worked with clients who did not experience equality because they were discriminated against or treated differently in almost every space they occupied. I learned that equality was not a universal experience by the entire LGBTQ community and that the intersections of race and class must fundamentally inform the movement for LGBTQ equality. Similarly, the systemic injustice I witnessed while working as a public defender overwhelmingly impacted my black clients. While all of my clients qualified for our services because of their income level, I noticed that my white clients tended to experience more “just” outcomes. In both positions, I learned that advocacy on behalf of any community must center racial justice as a pathway to collective liberation. I am so grateful for the opportunities I’ve had to embed racial justice into my practice as an advocate and Karner:ally. What has been your most rewarding experience so far working at LAM, and what
McMahon: Growing up, I led a life of relative privilege, and I was taught that I had a duty to use that privilege to be of service to others. One formative lesson for me was when Father Gregory Boyle, Executive Director of Homeboy Industries, spoke to my prep school class about helping formerly gang involved and previously incarcerated people rebuild their lives. I volunteered at Homeboy Industries’ tattoo removal clinic between my sophomore and junior year of college, and that's when I discovered that my calling in life was to find a career where my primary focus was on helping marginalized communities. I remember reflecting on that during a conversation with my father, also an attorney, who said, “Wherever people are being helped, lawyers are always there.” My commitment to social justice and public service merged with an interest in becoming an attorney. I attended UDC Law, a public interest law school committed to educating attorneys to promote justice, and emerged with a deep understanding of the power lawyers have to help others by increasing access to and equity in legal representation. My work as a public interest attorney has convinced me that I am living my highest purpose.
McMahon: In many ways, we are already addressing systemic racism in our work, since many of our clients are members of minority communities who have been historically or are currently marginalized by systemic racism in their economic, educational, and housing opportunities. Additionally, Marin has a legacy of racial covenants that is seen and felt in neighborhoods like the Canal and Marin City, where most of our clients live, work, and gather. LAM has a role in both demanding racial justice on an individual client basis and in the Marin community at large. In terms of other forms of bias and oppression, LAM serves hundreds of immigrants without legal status each year, and we see how anti immigrant bias and oppression informs the legal matters they come to us with. Bringing economic justice to immigrant workers is a powerful way to be allies in the fight against anti immigrant bias, especially in the area of employment law. We also see how poverty creates a cycle of oppression that makes life so difficult to navigate. Our Community Court program is in its tenth year of targeting poverty in a holistic and revolutionary way, by eliminating fines and fees associated with citations that overwhelmingly impact people experiencing economic instability. In sum, LAM is fighting systems of oppression on a case by case basis, and we recognize our duty to stand up against racism, bias, and oppression in every space we occupy.
Karner: Does LAM have a role to play in addressing systemic racism? In other types of systematic bias or oppression?
Karner: What is your vision for LAM in the future?
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 42 made you interested in leading LAM as our executive director?
McMahon: LAM is an organization brimming with capacity to narrow the justice gap in Marin, and that has everything to do with our team. The most rewarding experience I have had so far working at LAM is witnessing my colleagues, our board, and our supporters united in the singular purpose of demanding fairness and equal justice for our clients. Whether the task is collaborating on a grant proposal to expand our services, programmatic planning of service priorities, or designing pro bono clinics, I have seen the tireless determination that both our team and the community that supports us have to band together in service to the Marin comImunity.wasdrawn to serving as LAM’s Executive Director because it presents a unique opportunity to empower a group of advocates who are, in turn, empowering the community we serve. While I had wonderful experiences in direct legal services and pro bono services delivery, I saw the executive director role as a chance to make a positive impact from within that can ripple out to positively impact the communities we serve. I am humbled to have this chance to build on LAM’s legacy and advance our mission further.
McMahon: I am an adventurer at heart. I love exploring new places, especially on a whim. I attend at least one concert per month, but usually more. Music has a constant presence in my life, whether I am working, driving, or spending time with my cat, Henry. I also enjoy cooking for people I love and trying all kinds of food. I believe in the power of mindfulness, so I strive to meditate daily. Lastly, I am an avid collector of crystals and raw minerals.
Karner: How are you liking living in California?
A foundational starting point is LAM’s historical commitment to providing no cost civil legal services to marginalized Marin communities for more than 60 years. Currently, we prioritize providing no cost civil legal services in the areas of homelessness prevention, workers’ rights, a county wide anti poverty initiative through our Community Court program, and access to pro bono legal services in partnership with law firms and members of the private bar. Additionally, we engage in policy advocacy at the county, state and local levels, along with consistent outreach and education in partnership with community based organizations across Marin. As we look ahead, LAM will focus on our Strategic Plan, finalized and approved by our board of directors in January 2021. It established a robust decision making framework for expansion into new or expanded service areas including elder law and perhaps family law. It also set out our Theory of Change the different ways we can and will work to bring about change in our community along with specific processes to continually assess and respond to community needs and opportunities as they arise. Our trajectory is grounded in our primary purpose to provide direct legal services, education, and advocacy, and is informed by a deep commitment to community lawyering. I look forward to utilizing our Strategic Plan to guide us as we expand to meet the overwhelming demand for civil legal services in Marin County; as that demand continues to grow, our plan makes clear our duty to grow with it.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 43
McMahon: Envisioning our future requires us to look to our past, see where we are now, and carefully evaluate where we are headed.
Karner: What do you like to do when you're not working?
McMahon: What strikes me about living in California is our unfettered access to intense natural beauty. When I went to Muir Overlook for the first time, I shed tears of joy because I had never seen anything close to that view on the east coast. Don’t get me wrong, living in New York, Massachusetts, Maine, D.C., and, most recently, Baltimore, helped me appreciate the beauty of the East Coast. But I can confidently say that living in California, and soon in Marin County, is the life for me. Between the redwoods, ocean, terrain, and superior burritos, I can’t imagine living anywhere else but here.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 44 An Invitation
I hope this conversation helped you get to know Laura a bit. You can see why we are so thrilled to have them as the new executive director of Legal Aid of Marin. Perhaps you had a chance to meet Laura in person at the 9th Annual Jam for Justice on September 7th. If not, please drop them a note to welcome them to their new leadership position in our Marin legal community. Laura's email is LMcMahon@legalaidmarin.org.
View this article at Marinbar.org Legal Aid of Marin Staff. Photo Credit: www.legalaidmarin.org
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 45
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 46
One of the early casualties of the pandemic was MCBA’s dinner honoring the third recipient of the MCBA Lifetime Achievement Award, Gary T. Ragghianti. It would take two and a half years, lots of work by MCBA staff, and plenty of Gary’s patience before we were able to safely gather with over 200 thoroughly vaccinated guests at Deer Park Villa in Fairfax to honor Gary. MCBA’s Lifetime Achievement Award honors those with long and distinguished legal and public service careers who have had a profound positive impact on Marin County and our Bar Association. MCBA bestowed this award for only the third time to just such a person in Gary Ragghianti. Over his more than 50 years of practice, Gary established an outstanding reputation for professional excellence and integrity with a unique sense of style, the latter illustrated when one of Gary’s partners, Riley Hurd, brought Gary’s pink feather boa to his award speech. MCBA was honored to present its Lifetime Achievement Award to acknowledge Gary’s illustrious career as a former prosecutor, city attorney for San Rafael, Tiburon and Belvedere, and Marin Bar Association president, as well as the founder of a prestigious law firm indelibly intertwined with Marin’s history, where he is a successful litigator and mediator and provider of pro bono legal services to many charitable organizations, including one of the night’s table sponsors, the Dominican Sisters of San Rafael. He follows prior recipients retired Judge Michael Dufficy and beloved Judge Richard Breiner, both also past MCBA presidents. You can learn more about Gary’s accomplishments in MCBA’s announcement of the award. The evening began with canapés and cocktails under patio lights strung among the Sequoia sempervirens. Guests were jubilant to gather once again in person, reconnect with friends and colleagues, and share laughter and good cheer. MCBA President Robert Rosborough welcomed everyone and quickly handed off the microphone to Mistress of Ceremonies Judge Verna Adams. Guests were soon treated to the extraordinary filmmaking talents of Judge Paul Haakenson, who directed, produced, filmed, and edited several videos honoring Gary with a welcome dose of humor. The program then included poignant recollections and tributes from Gary’s son Matthew Ragghianti, Ragghianti Freitas partners Charles Dresow and Riley Hurd, and friend Diane Glischinski. The honoree closed the evening by thanking
Gary T. Ragghianti MEE WONG
Lifetime Achievement Award Dinner Honoring
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 47
EVENT RECAP
MEE
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 48
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 49
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 50 Reach a high profile targeted audience of legal professionals in Marin County. We have ad packages available for all budgets. Website Advertising Digital ProgramMagazineSponsor ADVERTISE WITH MCBA everyone who attended and made the event so special for him and remarked on a long legal career that led to many deep and long lasting friendships. MCBA would like to thank our major sponsors of the event: • Dennis & Susan Gilardi, Reception Sponsor • Litchfield Foundation, Venue Sponsor • Resolution Remedies, Wine Sponsor • The Freitas Foundation, Friends of Honoree • Ragghianti Freitas, Friends of Honoree And our table sponsors: • Dominican Sisters of San Rafael • Heritage Bank of Commerce • Ragghianti Family • Sternberger ADR Solutions Be sure to check out the many wonderful photos of the event! View this article at Marinbar.org
Marin's 8th Election: A Long List of Contested Races GREG BROCKBANK
CITY COUNCIL RACES
As recently as the night before what is referred to as the incumbent filing deadline (even though non-incumbents have the same deadline unless they plan to run only if there is an open seat), I would have predicted fewer contested races than usual. But with a flurry of last day filings, plus more during the additional five filing days for non incumbents, we actually ended up with contests in every city council race except one. This translates to a total of 41 candidates— 15 incumbents and 26 new candidates .
POLITICAL UPDATE
In most cities with more than one seat open, the races are like musical chairs, with all candidates competing for all seats cumulatively, with the top vote getters for the number of seats available declared winners. In cities with district elections, two or more candidates compete for one specific district seat, which may or may not have an incumbent running for reelection. This year, if all incumbents filed for reelection in a particular race, that race’s filing closed August 12. If not, election rules require that race’s filing to be held open for an additional five days for new (non incumbent) candidates to file. The theory is that some candidates may not have wanted to run against an incumbent but would run for an open seat.
BELVEDERE: Only appointed incumbent Peter Mark filed for reelection to a regular four year seat, and will be joined in the race for two seats by Richard Snyder, Jane Cooper, and Brian Davis. Only Mark and Snyder made the wise choice to include optional ballot statements, which usually cost a few hundred dollars, but are over a thousand dollars for countywide races. Belvedere also has a two-year seat up, matching appointed
Marin has 11 cities, and two of them (Mill Valley and Ross) held their city council elections in June, leaving nine cities with potential elections. Usually about two-thirds of the races are contested, while the remaining candidates get a “free ride” because there aren’t more candidates than there are seats.
November
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.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 51
Shaw is the “famous” long time medical marijuana businesswoman and could well win based on her name recognition and general high support for her business. Cindy Swift has been on the Town Planning Commission for some years and was beaten by Hellman four years ago, but Swift has run twice now and could well win this time. Blash is a sustainability activist, and I don’t know anything about the final candidate.
NOVATO is one of two cities that has gone to district city council elections in recent years (San Rafael is the other), and there are contested races in two of the three districts up this year. District 2 does not have an incumbent running for reelection, but new candidates Rachel Farac and Andy Podshadley are running, both with ballot statements. In the 4th district, longtime incumbent Pat Eklund is running for reelection, but is being challenged by Chris Carpiniello and Nicole Gardner, again all with ballot statements.
FAIRFAX will see only incumbent, Stephanie Hellman, running for reelection, joined by new candidates Lynnette Shaw, Cindy Swift, Holly Baade, and Lisel Blash in the race for two seats, and all five have ballot statements.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 52 incumbent Sally Wilkinson against new candidate Carolyn Lund, with only Wilkinson including a ballot statement.
CORTE MADERA: Eli Beckman was the only incumbent who filed. He’ll be joined in the race for three seats by Robert Lucarini, Pat Ravasio, James Andrews, and Rosa Thomas, all five of whom have ballot statements.
Eklund is a friend, more conservative than most Democrats, and often frustrates her colleagues (and residents) with process issues, but she’s smart and has three decades’ experience on the council, and a loyal following among voters. Novato’s 5th district has the only uncontested city council race in Marin: appointed incumbent Mark Millberg was unopposed to complete the rest of the term.
SAN ANSELMO has both incumbents, Steve Burdo and Ford Greene, running for reelection for the two (of five) seats up this year, but they are being challenged by new candidates Tarrell Kullaway and Guy Meyer, all with ballot statements. Two years ago, three incumbents ran for reelection, and one of them was beaten by a challenger, and it could happen again this year, although I’d sure hope it would be the quirky Greene (who’s had numerous well publicized battles with the city and his colleagues), rather than Burdo, who’s a good friend and superb councilman.
SAN RAFAEL’s 2nd district will have appointed incumbent Eli Hill running for reelection, challenged by Gerrod Herndon, with Herndon lacking a ballot statement. In the 3rd district, incumbent Maribeth Bushey is being challenged by Jonathan Frieman, both with ballot statements. This could be a
LARKSPUR features incumbents Kevin Haroff and Catherine Way running for reelection, competing against new candidates Jay Holland and Kevin Carroll for three seats; only Holland lacks a ballot statement.
Immediately upon the close of filing last month, all candidates in contested races were bombarded with emails, questionnaires, and invitations to candidates’ forums, the first two (and most important) of which are put on by the Marin Democratic Party (DCCM) (Democrats only) and the Marin
SAUSALITO’s only incumbent running for reelection is Jill Hoffman, but recent former councilwoman Joan Cox is running, along with new candidates Timothy McCloud and Jeffrey Chase, all with ballot statements, for a total of two seats.
TIBURON features all three incumbents running for reelection: Alice Fredericks, Jack Ryan, and Jon Welner. But they are being challenged by Isaac Nikfar, and all have ballot statements. Fredericks is a decades-long institution on the council, but the other two have joined more recently, and one always wonders what motivates a challenger in any given race to challenge one or more incumInbents.San Anselmo, Tiburon, and one each of Novato’s and San Rafael’s one seat districts, I call the new candidates “challengers” because they are running against all the incumbents in that race, which is a different kind of race than running for an open seat. Candidates may not challenge one or two incumbents running in the same race (or serving on that body but not up for reelection that year) as assertively if there is an open seat they feel is easier to win. But of course they’re all trying to demonstrate that they’re the best qualified, will be the best official, and their views are shared most broadly. But while some criticism of incumbents is common even from new candidates running for an open seat, it’s usually much stronger if a candidate is running against all the incumbents, and they have to beat one, where the odds may well be against that.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 53 premier race this fall, as the quirky Frieman ran a number of independent expenditure campaigns a decade or more ago (for various races, including this one, and including mine 15 years ago) to demonstrate the evils and dangers of independent expenditures, and why we need publicly financed elections instead. He succeeded at least as to the former, as the public indeed disliked the mailers and considered them mostly “hit pieces.” (He then started calling them “comparison pieces.”) But he probably hadn’t bargained on the fact that many voters also became turned off to him in the process.
No doubt you have noticed my comments about who has a ballot statement, which I point out because ballot statements are almost a prerequisite to being a serious candidate, which is why most candidates have them, although it’s still too early to know which new candidates will actually turn out to be “serious.” Sometimes incumbents apparently get complacent and overconfident, which is not surprising because incumbents usually win, but sometimes they lose, as happened two years ago in San Anselmo and Fairfax (and also on the College of Marin board and the County Board of Education).
MILL VALLEY has no incumbents running for reelection, but has five new candidates for two seats: Carol Morganstern, Sharon Nakatani, George Rosenfield, Yunhee Yoo, and
SAN RAFAEL, with relatively new districts, will have Area 2 appointed incumbent Lucia Dow challenged by Lisa Longnecker, and in Area 4, appointed incumbent Carolina Martin challenged by Faye Bourret. I met Bourret at a local public event the other day, and she seems like a nice elderly lady (no kids in the schools, which is unusual), and apparently has over a hundred yard signs throughout the new district (eastern San Rafael), which is remarkable this early. It turns out she’s with the Marin Republican Women’s Federation, has an extensive network of volunteers who accompany her to events, and subscribes to too many Republican philosophies that scare Democrats to win. This is especially true against an appointed incumbent who has a professional campaign consultant, and who could potentially cash in on donations given her opponent’s political party, even in nonpartisan races like all of these are.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 54 Women’s Political Action Committee (MWPAC) (only if candidates agree with their threshold issues, which nearly always means Democrats), both of which hold their (public) endorsement forums in early September. If you get those two endorsements, you’ll very likely win, and if not, well…it’s a lot less likely. One of them requires a 60% vote, and both groups usually have only about two to three dozen people voting, and sometimes they endorse fewer people than there are seats available either because some candidates weren’t interested, weren’t qualified, or weren’t liked well enough by the voters before or during their participation in the foSCHOOLrum.
BOARD RACES
Of the 18 school districts in Marin (with 27 possible races up for election) and 50 seats, there will be 10 contested races on the ballot for 19 seats with 35 candidates, including incumbents and new candidates.
The MARIN COUNTY BOARD OF EDUCATION has long had district seats, and although challenges to the many longtime incumbents are rare, two years ago one was defeated, as just noted above. This year, two of the three seats up are contested, with incumbent Curtis Robinson being challenged by Lori Dali, and appointed incumbent Phillip Wyatt being challenged by Li Delpan.
NOVATO has two uncontested races in relatively new districts, including one with an incumbent and one a new candidate. The one contested race has no incumbent running, but has two new candidates: Tief Jensen and Abbey Picus.
TAMALPAIS UNION has two of the three incumbents running for reelection in the three seats up Cynthia Roenisch and Kevin Saavedra. Of the four new challengers, one is a trustee from the Mill Valley district (Emily Uhlhorn) and the other three are Renee Marcelle, Barbara McVeigh, and Damian Morgan.
SPECIAL DISTRICT RACES
This is the largest of the three categories (compared to city councils and school boards), with Community Services Districts (CSDs), Fire Protection Districts (FPDs), Public Utilities Districts (PUD), and Water Districts making up the bulks of special districts but there are others. These districts tend to have a lower turnover and fewer challengers than city councils and school boards. Incumbents often stay in office for two or three decades, are rarely opposed on the ballot, and are usually replaced by one candidate when they retire, so they’re rarely even on the ballot (and are usually pretty low key when they are). Nonetheless, a few of the districts routinely attract controversy and it’s notable that in this election, some of the biggest, most controversial offices have incumbents unchallenged, even in districts that have nearly always had challengers, and have just split into divisions (the equivalent of district elections) to make running easier, theoretically, for new Butchallengers.youwouldn’t know that by looking at this year’s uncontested races for all three College of Marin incumbents in their new separate districts, and similarly all three Marin Healthcare District seats, two of which
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 55 Natalie Katz.
ROSS VALLEY has incumbent Ryan O’Neil facing new candidates Valerie Hood and Chris Landles Cobb, both with ballot statements, in a race for two seats.
LARKSPUR-CORTE MADERA has a race for a vacant two year seat between Beth Blair and Emily Charley, the latter of whom is an MCBA board member terming out this year.
SHORELINE has two incumbents, Timothy Kehoe and Heidi Koenig, facing challenger Buddy Faure in a race for two seats in Area 1. BOLINAS-STINSON has incumbents Nathan Siedman and Arianne Dar facing two new candidates, Doug Lee and Jacob Tonski, in a race for three seats. Once again, most of the candidates are probably unknown to most voters, unless the voter is very active in that school district. But based on experience in office and campaigning, the incumbents are likely to win (unless one or more has developed a bad reputation, which I haven’t heard to be the case with the current ones), unless they lose because they foolishly neglected to include a candidate’s ballot statement (“Statement of Qualifications”) in the sample ballot, which quite a few did indeed neglect: incumbents Sherry Wangenheim in Reed, Ryan O’Neil in Ross Valley, Tim Kehoe in Shoreline, and Arianne Dar in Bolinas, and new candidates Damian Morgan in Tamalpais Union, Lisa Longnecker in San Rafael, and Buddy Faure in Shoreline.
REED has two incumbents, Sherry Wangenheim and Afsaneh Zolfaghari, facing new challengers Shelby Tsai and Sarah BuckGerber for the two seats of the incumbents.
BEL MARIN KEYES COMMUNITY SERVICES DISTRICT: Incumbents Vince Lattanzio and Daniel Retz are being challenged by Steven Nash. Interestingly, Retz chose not to pay for a ballot statement.
NOVATO SANITARY DISTRICT, Div. 2: Two new candidates are running for this “vacant” (i.e., no incumbent) seat in a newly districted sanitary district: Dennis Bentley and Gary Butler, both with ballot statements.
SOUTHERN MARIN FIRE PROTECTION DISTRICT: The four incumbents, Kurt Chun, Christine DeBerry, Peter Fleming, and Thomas Perazzo, all with ballot statements, are being challenged by Lisa Wells, Sandra Bushmaker, and Amber Isakson, with only Isakson having a ballot statement. Special Districts generally are more maledominated than school boards or city councils, and maybe FPDs in particular, but this board already has several women on it, and it is interesting that all three of the challengers are women.
TIBURON FIRE PROTECTION DISTRICT: Incumbent Cheryl Woodford and appointed incumbents Richard Jones and Emmett O’Donnell (the latter a former councilman and mayor) are being challenged by Brette Daniels and John Hamilton, all with ballot statements, for three seats.
MESA PARK RECREATION DISTRICT: In this relatively new district in West Marin, incumbent Alex Razma is running for reelection, along with three new candidates, Walter Tom, Mark Lucanic, and J. Maalis, for three seats, and none of them have ballot statements. Strangely, none of them even have ballot designations, where you can list your profession I would think most candidates would at least want to do that.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 56 have incumbents seeking reelection. Although the percentage of contested races on the ballot among the special districts may be small compared to city councils and school boards, there are still more contested races than usual, including two CSDs, two FPDs, one SD, two PUDs, and all three (of five) divisions up for election this year of the more-controversial-than-usual-this-year Marin Municipal Water District (MMWD).
BOLINAS COMMUNITY PUBLIC UTILITY
MUIR BEACH COMMUNITY SERVICES DISTRICT: Incumbents Leighton Hills, Steven Shaffer, and appointed incumbent Christine Murray are being challenged by Pamela Swarts. Only Murray has a ballot statement but this may be one of the few districts in which democracy is so “pure,” (because the district is so small), that a ballot statement is unnecessary: a few years ago, the district had a public forum that over half the voters attended, so maybe a higher percentage of people know something about the candidates anyway.
DISTRICT: Incumbents Jack Siedman and Grace Godino are facing new candidates Genie McNaughton and Andrew Green for three seats, but of the four, only McNaughton has a ballot statement.
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MARIN MUNICIPAL WATER DISTRICT (MMWD), Div. I: These races have long been conducted by district (referred to as “divisions”) and have often been controversial. In fact, every decade or so it seems like challengers wage ferocious battles and oust incumbents, and this could be one of those years. In this race, longtime incumbent Jack Gibson, the senior member of the board (and an attorney, who has also run and lost races for Assembly and for judge), faces challenger Matthew Samson. MMWD, Div. III: Incumbent Larry Bragman is facing two challengers for his seat: Jack Kenney and Ranjiv Khush. Bragman was elected eight years ago after serving as a popular long-time Fairfax councilman, but he still seems youngish, and also practices law, and is considered a strong environmentalist and strong campaigner. It seems unfair to me that if the consensus has long been to have a two-year water supply as a hedge against drought, and you want to change that to two to three or even four years (which we can do, at considerable expense), to blame the current MMWD board members for following what’s long been the consensus.
MMWD, Div. IV: This open seat has two new candidates competing for it: Shana Katzman and Jed Smith. 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.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association 58 WED | SEP 7 | 6:00 9:00P LEGAL AID OF MARIN Jam for Justice Fundraiser INFO & REGISTRATION > TUE | SEP 13 | 12:00 1:00P LABOR AND EMPLOYMENT LAW EEOC Charges & Litigation: Strategies and INFOConsiderations®ISTRATION > TUE | SEP 20 | 12:00-1:00P FAMILY LAW Bonus Support Orders: Problems and Solutions INFO & REGISTRATION > WED | SEP 28 | 12:00 1:00P SEPTEMBER GENERAL MEETING Practice Management Series: Legal Trends What's Hot & What's Not INFO & REGISTRATION > SAT | OCT 1, 8, 15, 22, 29 | 8:00 5:30P MEDIATION CERTIFICATE TRAINING Widely Acclaimed Intensive 40 hour Training INFO & REGISTRATION > WED | OCT 19 | 12:00 1:00P ANNUAL JUDGES' LUNCHEON Presiding Judge James Chou and the Marin Superior Court Judges INFO & REGISTRATION > OCT 19-21 | OCT 26-28 MEDIATION TRAINING Steven Rosenberg Mediation Training INFO & REGISTRATION > WED | OCT 26 | 12:00-1:00P REAL PROPERTY Insiders Guide to Municipal Law Hearings INFO & REGISTRATION > Visit marinbar.org/events/calendar for our most up-to-date event information. UPCOMING EVENTS
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THE MARIN LAWYER An Official Publication of the Marin County Bar Association 60 Jeffrey Buck Attorney Membership Susan Gibbs Gibbs Law Attorney Membership Alexander Johnson Kugelman Law, P.C. Attorney Membership Rebecca Johnson Affiliate Non-Attorney Member Richard MacFarlane Attorney Membership Anh Nguyen Attorney Membership Kris Paden Wills & Trusts Attorney Affiliate Attorney Michelle Valverde Garcilazo Affiliate Student Contact us at membership@marinbar.org to request your digital membership badge NEW MEMBERS MCBA MEMBERSHIP Networking & Community Learning & Education Volunteer & Leadership ProfessionalOpportunitiesCredibility
Probate and Estate Planning Section ep.mcba@groupvine.com Mentor Group mentorgrp.mcba@groupvine.com
Family Law Section familylaw.mcba@groupvine.com Intellectual Property Section ip.mcba@groupvine.com Litigation Section litigation.mcba@groupvine.com
MCBA Members can join the listservs by clicking HERE. Signing up with your name and email address adds you to the MCBA wide listserv. You can then check the boxes to be added to listservs for your specific practice areas. Because the listservs are opt in, MCBA must approve each signup before you can send or receive emails. Once you have been approved, use the following email addresses to email the listservs for your practice area(s):
Probate Litigation Section probatelit.mcba@groupvine.com Real Property Section realproperty.mcba@groupvine.com Tax Law Section tax.mcba@groupvine.com
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Business Law Section business.mcba@groupvine.com
MCBA Member Listserv for Practice Areas
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Construction Law Section construction.mcba@groupvine.com
All MCBA mcba@groupvine.com ADR Section adr.mcba@groupvine.com
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ANNOUNCEMENT
At any time before October 1st of each calendar year, any Attorney Member may be nominated for any office to be filled, if such Member possesses the qualifications required in the Bylaws, by nomination in writing signed by at least ten Attorney Members of the Association and presented to the Secretary. Click here for application. Click here for more information on Board Director duties or contact Mee Mee Wong at mwong@marinbar.org.
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MCBA Board Nominations Board of Directors 3 year term 2023 2026
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