Oct 23

Berkeley Candidates Paid For By Chicago Money

The Realtor Building in Chicago -- funding Berkeley candidates

The Realtor Building in Chicago — where almost $100,000 in money for certain Berkeley city candidates is coming from

Follow the money!  That’s the basic rule for understanding what’s what and who’s who in the election business.  It’s as true in a little town like Berkeley (my home town) as on the national stage.  Here, four of the candidates on our City Council ballot are beneficiaries of so-called Independent Expenditures by the National Association of Realtors (NAR).  This body, which says on its website that it’s “widely considered one of the most effective advocacy organizations in the country,” has spent a total of $92,485.79 to influence the Berkeley election as of October 14, spread as follows:

  • Laurie Capitelli for Mayor          $60,381.64
  • Darryl Moore, District 2                  9,011.76
  • Stephen Murphy, District 5          13,018.26
  • Susan Wengraf, District 6            10,074.13

The National Association of Realtors is headquartered in the Realtor Building, 430 North Michigan Street, Chicago (see photo, above).  What possible interest could the NAR have in the local election in a little burg like Berkeley?  Well, Berkeley is not unique.  NAR intervenes with its money in hundreds, if not thousands of municipal elections. It even sponsors a political party, the Realtor®Party.  There’s a couple of specific issues and one broad basic principle that are dear to NAR’s heart.

The real estate transfer tax.  It’s a key element of the Berkeley city budget.  NAR hates real estate transfer taxes and would like to see them abolished, or reduced, or at least not increased.  Increasing the real estate transfer tax would be a positive step toward increasing the supply of affordable housing, which Berkeley desperately needs

Highways v. public transit.  With a string of new luxury housing developments going up in Berkeley, traffic congestion is going to get worse, not better.  NAR believes in building more roads and highways for cars, “versus transit and other modes.”  Affluent people don’t ride public transit.  Get it?

NAR is opposed to any programs that “benefit the many by taxing the few.” Its own words. However, NAR has no objection to programs that benefit the few by taxing the many.  NAR’s money, coming all the way from Chicago, is a boost for candidates who share that philosophy. They may talk progressive, but money talks also, and the money says otherwise.

These numbers come from the Berkeley city website.


Oct 01

A Trump of Our Own

rottenapple-customGiven the monstrous possibility of a Trump victory nationally, it may seem petty to worry about the decline of public ethics in this little town of Berkeley. But the local air has carried the stink of corruption for a while now. The city council majority has rubberstamped a string of high rise luxury housing projects, about the last thing this city needs.  A former city planning official, Mark Rhoades, sold his contacts and insider knowledge to the out-of-town developers pushing these projects. The City Council majority is eating out of his hands.

Now there’s a candidate for city council in the district where I live whose ethics are, if anything, even lower. His name is Stephen Murphy.  Stephen Murphy is dishonest, a hypocrite, incompetent, frivolous, truculent, unprofessional, incapable of showing remorse, and careless of taxpayer resources.  That’s not my personal opinion, it’s part of the written opinion of the California Court of Appeals.  How’s that?

Murphy, a lawyer, represented one side in a divorce case where the other side was old and ill.  If the matter was delayed long enough, the other party might die. According to the affected family, who also live in this same district of Berkeley, Murphy deliberately dragged on the litigation. One of Murphy’s delaying tactics was to prosecute an appeal even though the time limit for filing an appeal had already passed.

Murphy was able to get away with this normally dead-end maneuver (for a while) because the clerk of the family law court in Oakland had not kept a copy of the proof of service for the court decision that Murphy was appealing from.  Murphy had actually received the decision. But the crucial fax cover sheet which was proof of service on him, and started the appeal clock ticking, was not in the court file that was sent up to the Court of Appeals.  Unaware that the appeal was filed past the deadline, the judges of the Court of Appeals worked up the case and were preparing to render a decision when the other side hired a lawyer specializing in appeals. This lawyer smelled a rat and asked Murphy to please provide him with a copy of the missing proof of service.  The court clerk who had neglected to keep a copy also asked Murphy the same thing.

Normally this kind of request from one lawyer to another, or from a court clerk, is routinely granted as a matter of professional courtesy.  I practiced law for 29 years and there must have been a dozen times when I or an opposing lawyer exchanged courtesy copies of papers that we couldn’t locate in our own files.  But Murphy got on a high horse with the requesting lawyer and said he had no duty to send him a copy of the paper.  And Murphy got cute with the court clerk, refusing to send the clerk a copy of the paper because allegedly personal and confidential notes had been handwritten on it.

That’s already chicanery.  But if Murphy had backed off and provided the missing paper at that stage of the proceedings, the appeal would have been thrown out of court.  There’s no excuses for filing a late appeal.  You snooze, you lose.  So, like Trump when he’s caught in a trap, Murphy doubled down.  He filed papers with the Court of Appeals in which he evaded the whole timing issue, launched personal attacks and threats against the other lawyer, and with slippery words lied to the Court of Appeals that the proof of service had never been served on him.  Even when the missing paper finally surfaced and he was caught red-handed he made threadbare excuses and showed no remorse.

In ordinary business or social life, that kind of behavior gets a person a reputation as a crook and a pathological liar.  In the Court of Appeals, after bending over backwards to give Murphy every benefit of the doubt, the judges had this to say:

“What is especially disturbing to us is Murphy’s steadfast refusal to acknowledge his breach of his duty to provide us with a document bearing on our jurisdiction and to express any remorse for that breach.”

“Murphy aggressively and with remarkable temerity threatened [opposing counsel] with sanctions.”

Murphy’s “response to us ‘was both truculent and dismissive.'”

Murphy “repeated his personal attacks” on opposing counsel.

Murphy “demonstrated no recognition whatsoever of the gravity of his misconduct.”

Murphy “met our concerns with nothing but petulance and disregard.” 

The “degree of objective frivolousness is very high …. ‘no competent attorney could conceivably believe in good faith’ the appeal was timely.” 

Murphy displayed “steadfast refusal to recognize his conduct as blameworthy.” 

Murphy’s conduct displayed “‘dishonesty and lack of remorse.'”

This conduct “has also harmed others….Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court’s attention…. In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court’s time and resources. … In this time of limited budgets and strained judicial resources, this court can ill afford to devote its attention to an appeal it has no power at all to hear.”  

For this conduct, the Court of Appeals fined Murphy $8,500 to be paid to the court, plus a portion of the opposing party’s costs and attorney fees to be determined by the court below.  The $8,500 is one of the highest monetary sanctions ever imposed by the Court of Appeals.  Only two out of a thousand appellate cases ever result in the imposition of monetary sanctions in any amount.

As a lawyer, I find Murphy’s conduct appalling.  I have been up against a number of lawyers at various times who have been rude, dishonest, and cut a corner or two.  But I’ve never seen or heard of anybody who tried to defraud the Court of Appeals by hiding the court paper that would kill his case. That’s a truly Trumpian level of chutzpah.

The Court of Appeals filed its opinion containing the above remarks on November 30, 2012, not even four years ago.   This is not ancient history.  When the East Bay Times first broke this story on Sept. 16 (this year), Murphy told an interviewer, “I’ve licked my wounds and moved on … I learned from my mistakes and moved on.”  Murphy’s concern with his own wounds isn’t paired with a shred of concern for the wounds he inflicted on others.  He refers to “my mistakes” but without specifying whether his mistake was doing the fraud or being caught.  Like a true narcissist, he doesn’t apologize or try to make amends.  He just “moves on,”  like Trump “moved on” from his birther fraud.

Stephen Murphy is now trying to “move on” to the Berkeley City Council. The family who were devastated by Murphy’s conduct have launched a website, http://www.stephenmurphy2016.org, expressing their opposition to his candidacy.  Referring to the Court of Appeals decision, they write:

The ruling reflects poorly on Mr. Murphy’s character, integrity, attitude toward the use of public resources, and fitness for office.

It is for these reasons that our family, as Berkeley District 5 voters, cannot stomach the prospect of Stephen Murphy representing us on the Berkeley City Council.  If he has any sense of decency, he will withdraw from the race.

To that sentiment, which I second, I want to add my disappointment with the elected officials who have endorsed this rotten apple, with the employer who has put him in a position of administrative responsibility, and with the City Council member who appointed him to a city commission.  A woman candidate with this stain on her record would be torn to shreds.  But Stephen Murphy seems to wear teflon.  His campaign chest is loaded with developer money. From the big developer point of view, a man who would try to defraud the Court of Appeals — a man of big chutzpah, small brain, and no ethics — is perfect for the Berkeley City Council.


Sep 26

Words That Matter

jessewilliamsI rarely watch television. It took a friend in Norway, of all places, to alert me to Jesse Williams’ great speech this past June at the BET awards in Los Angeles. Hats off to Mr. Williams.  All that rubbing with celebs in tinseltown hasn’t dulled his edge.

Here, in case you also missed it, is the YouTube of his speech, followed by the transcript.  Williams is also active with QuestionBridge, a multimedia website on the Black male experience, and with the Advancement Project, a civil rights nonprofit.  He’s @iJesseWilliams on Twitter.

Transcript link

Aug 22

A Science Fiction Writer Looks at the Future


Author Kim Stanley Robinson

Science Fiction Author Kim Stanley Robinson (Mars Trilogy) has an article in the current Scientific American issue devoted to “the future.”  After discussing the various strategies that forecasters use to construct visions of the worlds ahead, he ventures his own prediction.

“The inequality of our economic system, the destruction of our biosphere’s ability to support us, the possibility of sixth great mass extinction event in Earth’s history being caused by us — all this will be well known to everyone alive. The necessity to change our technological and social systems to avoid catastrophe and create a just and sustainable world for all will be evident.  And because necessity is the mother of invention, we will invent.  The crux of the change will be in the laws we agree to live by, including the laws that define our economic system.  Capitalism as we practice it now is the Chelyabinsk-65 plutonium plant of contemporary technologies: dirty, brutal, destructive, stupid. It isn’t capable of solving the problems we’re faced with and is indeed the name of the problem itself.  So we will modify capitalism, law by law, until it is changed into a sustainable system.”

(Emphasis mine.)  Robinson sees also the alternative, namely that

“we will screw up, fight one another, cause a mass extinction event, go nearly extinct ourselves and emerge blinking out of holes in the ground decades later, post-traumatic and brain-damaged as a civilization.”

But he think’s it’s more likely

“that our intelligence and desire to do good for our children will see us through to the invention of a civilization in a stable relationship to the biosphere.  After which I predict things will get even more interesting.”


Aug 20

What to do about drunk lawyers

That lawyers have a drinking problem hardly comes as a shock.  Just go to Netflix and pull down any movie or TV serial about lawyers.  In the entertainment world, the expression “drunk lawyer” is almost as redundant as “lying politician” or “cheating husband.” So it wasn’t a stop-press moment when Patrick Krill told an audience of California State Bar overseers yesterday that his research showed rates of alcohol problems among lawyers at least twice as high as in the general population.  Not only alcohol, but also mental health issues and drug use runs higher in the legal profession.

Krill’s findings generally confirmed the numbers from the last study of this kind, done thirty years ago.  The neon finding in Krill’s work — something totally unexpected and counterintuitive — was that the highest rates of problem drinking, drugging, and depression/anxiety/stress are found among the younger lawyers.  No age bracket is immune, but the hotbed of the epidemic lies in the entry level, the junior ranks.  Moreover, Krill suggested, many new Bar admittees bring the problem with them. The monkey climbed on their backs already in law school.  Or before.

Studies of this kind trade in correlations, and correlations are not causation.  In the discussion after Krill’s talk, some felt that the State Bar might have an obligation to warn entrants that the law is a dangerous profession.  This on the theory that lawyer work is more stressful, more likely to drive you to drink, than any other.  But it may also be the case that young people who already drink, drug, and stress above average feel an attraction to the law because they see it as an environment where that’s cool.

Krill, as a professional researcher, didn’t take a position on that.  Correlation is not causation.  But as a licensed drug and alcohol counselor (his other hat) he pointed out that the private firms where most young lawyers start out typically have an alcohol-positive internal culture.  The firms put out alcohol at every social function. This subculture promotes drinking as the solution to every psychological and social issue.  No wonder that problems develop.

Krill’s audience included practically all the heavy hitters in the State Bar administration concerned with drunken lawyers. The panel, held in the San Francisco office of the State Bar on Howard Street, ran with a video linkup to a similar meeting at the Los Angeles office.  It included the administration and clinical staff of the Lawyer Assistance Program (LAP), the statutory twelve-member Oversight Committee of the LAP, members of the LAP Evaluation Committee, and representatives of the State Bar discipline programs, the Office of Trial Counsel, and the State Bar Court.

The occasion for the meeting was the release of a consultants’ report on State Bar operations generally, with a chapter on the Lawyer Assistance Program.  The LAP specifically addresses lawyers with alcohol, drug, and mental health problems.  The consultants’ report was not flattering.  It found that 76 per cent of the lawyers who enrolled in the LAP withdrew before completing the program.  Only eleven per cent finished.  Current enrollment is 136 lawyers.  Approximately 15 lawyers per year complete the program, just three more than the membership of the Oversight Committee.

California has about 250,000 active lawyers.  Taking Krill’s research as yardstick, at least 20 per cent of these have alcohol problems.  That would be upwards of 50,000 lawyers needing help.  WTF?  How is it possible that the LAP is enrolling about two tenths of one per cent of its client base?  And that the numbers who complete its program make up about one tenth of that two tenths of one per cent?

Given this perspective, it’s perhaps no surprise that the consultants recommended that the position of the Director of the LAP, who makes a Grade 55 salary ($105-155K), “should be eliminated or re-purposed.”  What’s more surprising is that the consultants refrained from recommending that the whole LAP effort be scrapped and rebuilt. To be sure, the recovery of even a single lawyer is cause for celebration.

How can the California State Bar do a better job helping drunk/drugged/stressed out lawyers and protecting the public?  Given Krill’s findings that the center of gravity of the issue lies with the younger cohort, the first question that needs asking is whether the LAP has been doing a good job marketing itself to the millennial age bracket.

The answer, judging by the contributors to yesterday’s panel, is a loud negative.  According to one veteran speaker, the LAP has long been in a “symbiotic relationship” with The Other Bar (TOB).  TOB is an affiliate of Alcoholics Anonymous and its support groups rely on AA’s twelve steps.  This approach was formulated 80 years ago.  It tells people they’re powerless over alcohol, that their addiction is a result of defects in their character, and that they have to surrender to a higher power to find recovery.  Every American court of appeals that has considered the twelve step program has declared it religious in nature.  See, e.g. Hazle v. Crofoot (Ninth Circuit 2013) 727 F.3d 983.

The “symbiotic relationship” between the LAP and TOB has meant, among other things, that practically 100 per cent of the Mandatory Continuing Legal Education presentations on Substance Abuse, which lawyers are required to attend to  keep their licenses current, feature speakers from TOB who present the twelve step program as the only path and the LAP as the doorway.  The speakers may wrap it in gauze, but the religious core of the appeal isn’t lost on lawyers, who are not dumb.

These religious appeals are pitched to an audience of millennials who are the least religious generation in American history. For the first time since records have been kept, those who answer “none” to questions about their religion outnumber those of every religious denomination.  Pitching the twelve steps to young lawyers is like pushing rotary telephones to smartphone users.  The white-haired veterans who run TOB and who have somehow wrapped themselves symbiotically around the LAP just don’t get it.  Twelve step programs are fine for some people — whatever works — but promoting this as The Solution for Everybody is guaranteed to lead to microscopic attraction and retention numbers.  Lawyers who reject this path aren’t in denial.  It’s the advocates who are in denial.

The symbiosis between LAP and the twelve-step group may be costly to the State Bar in more ways than miniscule participation and completion rates.  The Ninth Circuit federal court of appeals meets barely ten blocks from the Bar’s Howard Street office.  In its Hazle v. Crofoot decision, this court expressed sharp annoyance with state agencies (the Department of Corrections, in this case) who still did not understand that twelve step programs are religious in nature, and that conditioning any state benefit or penalty on participation in such programs violates the Establishment Clause.  That case settled for close to two million dollars. Unless the LAP-TOB symbiosis is broken, it’s only a matter of time before a LAP participant files a suit similar to Hazle v. Crofoot.  What an embarrassment to the State Bar that will be.  I mean, the State Bar is supposed to know the law, isn’t it?

There are other problems with the LAP, discussed in the consultants’ report.  But the key problem is that the LAP has allowed its brand image to be captured by a twelve-step group.  Such groups can do fine work in individual cases. But they were never intended as a universal solution, and their core appeal is radically out of sync with the younger generation.  And, if Krill’s study is correct, that’s where the heavy end of the problem lies, where help is most urgently needed.

Read the section of the consultants’ report on the California State Bar concerned with the LAP

Read Patrick Krill’s research publication on the prevalence of alcohol/drug/mental health problems in the legal profession

P.S.  Another interesting finding in Krill’s study is that the highest prevalence of drinking problems is among lawyers working in Bar Administration and Lawyer Assistance Programs.  Probed about this finding, Krill underlined that the figures are solid and that they represent current drinking practices, not past drinking by persons now in recovery.  Although the numbers are too small to allow statistical inference (N=55), they definitely raise eyebrows.  Krill declined to speculate about causes or remedies.



Aug 12

Which way for “Our Revolution”?

Bernie_Sanders_Facts_Debate_11232_8009 (Small)in a couple of weeks, Bernie Sanders will lay out specifics of his vision for “Our Revolution.”  He has been clear that his campaign for progressive social change did not end with the Philadelphia convention and will not end with the November elections.  He has not been clear about how that is to happen.  “Our Revolution” at the moment is a foggy concept.

Tom Gallagher, whose pre-convention articles I’ve reposted here several times, published a thoughtful analysis a few days ago in which he contrasted the American two-party system with the parliamentary systems common in European democracies.  If we ignored the party labels and looked at the core policies, he said, we would have five major parties in the U.S.  Namely, a Social-Democratic left party led by Sanders, a “Liberal” left-centrist party led by Clinton, a right-populist party led by Trump, and two conservative parties led by Cruz and Kasich, respectively.

You might quarrel with the labels on the right side.  There’s an emerging right-centrist bloc of moderate Republicans of the Bloomberg stripe, who are currently with Clinton.  And the lines between the Trump faction and other right-wing blocs are blurred and shifting.  But on the left side, Gallagher’s inventory looks solid.  While the “Liberal” Clinton party (the term is borrowed from the British spectrum) is the largest, Sanders’ Social-Democratic group is the second largest overall.  Sanders took roughly forty-five per cent of all elected delegates in a primary system that was heavily slanted against him.  He got more than twelve million votes.  He raised more than 228 million dollars.  Sanders’ successes defy historic precedents.

Given this new political reality, I can’t follow Gallagher’s conclusion that “Our Revolution” ought to set as its goal to remain within and to try to capture the Democratic Party.  “We want to control the messy Democratic Party,” he writes. I have agreed with Gallagher that Sanders, after serving in the Senate for sixteen years as an independent, was smart to enter the Democratic Party for the primary.  But in my view, what was brilliant before Philadelphia is less so in the aftermath.

Let me be clear.  I agree with Sanders’ endorsement of Clinton for November.  At least as a general umbrella guideline, subject to exception in states where the Clinton-Trump race is not at all close. The attacks on this endorsement strike me as at best reckless and at worst as paid for by Trump.  This is the time for a kind of popular front or democratic coalition against Trump.

But an electoral endorsement or coalition is a very different thing than a merger of parties. Remaining within and trying to control the Democratic Party, as Gallagher advocates, amounts to merging the Sanders revolution with the Democratic establishment.  The millions of people who grew enthusiastic about the ideas in the Sanders campaign will have no party flag to rally around.  The Democratic Party flag will remain at best an ambiguous, and in many ways a repellent standard.  Nothing beyond a string of Bernie Sanders email messages will identify progressive candidates down-ballot in races all over the country.  Building political allegiances requires, among other things, clear imagery for the public to identify with.  The strategy of trying to capture the Democratic Party from within situates the battle in the closed rooms where internecine conflicts take place, out of the public eye, and in a short time a mass of partisans becomes confused, demoralized, and passive.

With a single sketchy, passing historical reference, Gallagher dismisses the chances of a third party.  But Gallagher does not even begin to look at the history or the current chances of progressive moles trying to take over the Democratic Party. Assume that Clinton is elected. She will command unlimited financial resources and a cornucopia of patronage goodies to distribute to her party loyalists. Debbie Wasserman-Schultz will be on steroids. Clinton will have the option to boot the Sandernistas out or to keep them on leash inside the party kennels, and she can do either at any time.  Trying to take over the party of a sitting president, as Gallagher ought to know, is a borderline delirious notion.

Of course, if Clinton is defeated, the picture changes.  Sanders will be able to say, “we told you so,” drawing on the array of polls during the primary showing Clinton as the weaker candidate against Trump.  In the resulting chaos, a well-organized and disciplined Sanders faction might well make major gains toward party control.  But the money men that run the Democratic Party (like the Republican) will never give up ownership of the party label, and the Sanders bloc will have to break out, or be kicked out, before the dust settles.

My voice is not the only one urging Sanders (while continuing to endorse Clinton for November) to launch a progressive third party.  No less a pragmatic voice than Robert Reich, the former Secretary of Labor, wrote in the July 10 issue of The Nation:

The next move for Bernie Sanders’s political revolution is to set up a third party (shall we call it the New Progressive Party?), whose primary goal should be to get big money out of politics. Nothing else worth doing is possible unless we reclaim our democracy, and we can’t do that through our current Democratic or Republican parties, both of which are beholden to big money.

Reich thinks the launch of the new party should be delayed until after November 8.  Perhaps, but a serious ramp-up toward the launch, with the goal clearly in mind, needn’t wait.  I would argue that Sanders has already waited too long; that the moment to announce the project was in his endorsement speech in Philadelphia.  But better late than never.

Jul 20

Swedish translation published

IMG_20160720_113653 (Mobile)A Swedish translation of my book Empowering Your Sober Self has been published by LifeRing Sweden, www.lifering.se.  The translation was prepared by Project LifeRing run by Skyddsvärnet, a nonprofit social development organization, with funding from the Heritage Fund.  Sophia Olsson, project manager for Project LifeRing, acted as editor and Inger Bodal of City Text is the translator.  The title in Swedish, Viljan att Sluta, means Desire to Quit.  A Swedish translation of Recovery by Choice, the workbook, is in preparation.

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