Thursday, July 2, 2020

Thomas P. Kelly, Jr. (1936-2020).

My dad recently passed away. Below is an obituary I wrote for him for the Sonoma County Bar Association Journal, appearing in the Summer 2020 volume.  


Thomas P. Kelly, Jr. passed away February 24, 2020. A native Texan, he worked his way through the University of Texas as a brakeman on the Southern Pacific Railroad, earning business and law degrees, and developing a lifelong love of Longhorn football. He served in the Air Force as a JAG in Vietnam, and then worked in San Francisco as a railroad lawyer. Ambitiously, in the late 1960’s, he moved to Santa Rosa with his fiancĂ© Joyce knowing no-one. He joined Anderson & McDonald (now the Abbey firm), where he would be a partner for thirty years, before running his own practice for twenty more.

There were many ways people came to know Tom. He was a lector at St. Eugene’s Cathedral, and a Contracts and Corporations professor at the Empire Law School, where he was one of the founding faculty. Tom was a devoted counselor for the Eritrean community, many of whom considered him one of their own. A strong advocate for Sonoma County business, he particularly championed the construction industry. Charity was always a part of his life, especially on behalf of parochial schools and the Law Enforcement Chaplaincy.

The Kelly Family, ~1980. Tom & Joyce, with, L-R, Tom III, Heather, and John.
Tom and his wife Joyce were a study in contrasts. He was the dark haired Catholic Republican Texan, she the blonde Protestant Democratic Englishwoman. Perhaps such a pairing could only have occurred in San Francisco in the 60’s, where they had worked together and fallen in love. Their marriage, at his passing three months shy of their 50th anniversary, produced three children, Heather, Tom III and John, all of whom followed him into the profession.

For Tom, law practice was like basketball. He had honed that skill as a short, thin, awkward teenager in San Antonio. He shot 10,000 free throws then, developing an outstanding jumper, and earning a spot on his high school team. Decades later, arriving home to his kids playing hoops, he would call for the ball, and shoot from an impossible distance. Invariably, he hit. Was it skill? Was it luck? Was it both? Did it matter?

His day was generally conducted like clockwork. Even on the weekends, he could be found at his desk at the office at 9 A.M., answering his telephone with a curt “law office,” without any other salutation. His memory was fantastic (at one time he was jokingly referred to as the master of the obscure statute), but his organizational skills were slightly less so. Possessed of a hearty laugh, intelligence was the coin of his realm, and education his marker of achievement. A bit long winded, his conversations always seemed to turn to railroads, where his face would light up like a child delighted with a train set on Christmas.

Tom (UT-Law) with daughter Heather (U-Chicago Law), ~1992.

Tom was tough to your face, and praised you behind your back. Imperious in the courtroom, he was humble with clients. A reservist for thirty years, retiring as a Colonel, his Air Force support staff were continually bemused by the contrast. In jest, they got him the license plate “HMBLTOM.” He placed it on his Porsche with pride. Sometimes called a “grumpy Matlock” (despite being a civil not criminal practitioner), the gruff exterior concealed a deeply religious respect for the value of every human life. A military officer and student of the history of warfare, the core of his spiritual values was still betrayed by his longtime computer password, “peacenow.”
His weakness was Rocky Road ice cream, and while no gourmet, he could cook fantastic San Antonio- style enchiladas and pretty good Chicken and Walnuts. He loved his wife’s Joyce’s garden, although lamenting his own brown thumbs. An outdoorsman when young (missed Eagle Scout by a whisker), he nevertheless refused to ski, claiming to have broken his leg on the bunny slope at Squaw. Stern in confrontation over values in court, he melted in the presence of children, almost always accurately guessing their age (with an extra year for good measure). He would strike up conversations with them, never talking down. Instead, he always made them feel “big.” He had been the littlest one himself once, of course.

Tom & Grandkids, L-R Clara, Miles, Allegra, Siena & Ruby, 2019.
But it was law practice to which he gave his first, best, and ultimately final measure of devotion. For him, practicing law was fun. It was the best single thing you could do. He couldn’t see why anyone would do anything else. Growing up with him, cross-examination could come at any time, and his “ah-ha!” at his kids’ admissions against interest revealed the twinkle in the eye of a man in his element. Perhaps the greatest tribute to him is the large number of his students at the Empire College of Law who spoke of his dynamism as a professor. So many went on to fulfill the values he held dear, and he remembered nearly all of them. Although he perhaps had not always let them know how impressed he had been with their work, he made sure his family knew. The continuing impact of those students is the best tribute he probably could have imagined to the spirit of the profession he was so delighted himself to have practiced.

 Thomas P. Kelly, Jr. was 83 years old.


 John Kelly (Berkeley Law ‘02) is a member of the SCBA Board, and chair of its Business and IP Law section. He is President of the Sonoma Valley Unified School District Board of Trustees and a partner in Kelly, Carlstrom & Associates in Santa Rosa.

Tuesday, June 16, 2020

The Life Pressed Out.

George Floyd was murdered May 25th, aged 46. Suffocated by a Minneapolis police officer over the course of 8 minutes and 46 seconds, his death has rightfully become a rallying moment for Black Lives Matter. Many (but not all) are astonished that three police officers stood watch as he was asphyxiated. Protests against police brutality and police killings of black people, and broader issues such as racial profiling, and racial inequality in the United States criminal justice system, continue with cause. 

"The Life Pressed Out"
Obituary, George Floyd
The Economist, June 4, 2020
In this kaleidoscope of horror, though, one fact in particular stunned and shocked me. For George Floyd knew Derek Chauvin, the police officer that killed him. They were coworkers.  Both were employed by the El Nuevo Rodeo club, a Latinx music venue in Minneapolis. George was known in the workplace for his calm manner, big smile, and physical presence. Chauvin, who had done the job for 17 years, was described by Ann Wroe of the Economist as "an off-duty white police officer with jittery eyes, who would reach for his pepper spray as soon as a fight broke out and fire it over everyone."  More than mere corruption, worse than the principal-agent problem, did Chauvin strike to settle a grudge, believing in protection from the Thin Blue Line

The use of government authority and power for personal ends is the genesis of so much that is disquieting about the past two decades of American public life. But the events of May 25th must not recur.  An officer sworn to protect the public "dragged [George] aside, threw him to the ground helpless and then, for almost nine minutes, knelt on his neck, pressing, pressing as [George] cried out for his mother and his breath and his life. [George] possibly never knew that this was the same white guy with jittery eyes who had worked El Nuevo Rodeo, the one so ready with the pepper spray to keep the blacks in line." 

But we know. And we can act. But it requires the efforts of all. As former President Obama noted, "the elected officials who matter most in reforming police departments and the criminal justice system work at the state and local levels[.] Review your use of force policies with members of your community and commit to report on planned reforms[.] Change America and make it live up to its highest ideals."

One of the 13 guiding principles of the Black Lives Matter movement is a commitment to restorative justice, a vehicle for decarceration in the United States. In criminal cases, victims can testify about the crime's impact upon their lives, receive answers to questions about the incident, and participate in holding the offender accountable. Meanwhile, offenders can tell their story of why the crime occurred and how it has affected their lives. It's not a panacea, and real limitations exist in the context of domestic violence and racism. But it many cases, the conflict in the community calms.  
Sonoma Valley Equity & Inclusion Task Force, 2016
Report available at
As Sonoma Valley Unified's Equity & Inclusion Task Force pointed out in 2018, "recent best practice for discipline in schools has included a movement toward incorporating restorative justice practices. Restorative justice has been shown to be an effective alternative to punitive responses to wrongdoing. Inspired by indigenous traditions, it brings together persons harmed with persons responsible for harm in a safe and respectful space, promoting dialogue, accountability, and a stronger sense of community." The Task Force noted some past attempts by SVUSD to implement restorative justice practices.  "However none of these attempts resulted in across-the-board implementation of the practice. While there has been some training for staff, without full implementation of the practice that includes appropriate allocation of staff, policy development, and training, change has not occurred."

It's time for full implementation. Restorative justice practices, such as the one utilized by the Los Angeles School District, show significant decreases in suspensions. The LAUSD posted a 92 percent decrease in the number of days lost to suspensions as a result of its restorative justice program. As our Task Force noted, "[t]hese statistics are especially relevant to this [D]istrict that has a disproportionately high level of low [socio-economic status] students who are suspended and/or expelled.”

We have the power in our Valley to make this change, and democratic self-governance starts with each one of us participating in bringing about a better shared future.  The way has been shown and the report of the Task Force is ready for implementation. Let’s make it happen. After all, it’s the least we can do to honor George Floyd's life. 

Sunday, May 10, 2020

@AmExperiencePBS @RobertKenner-- the 1918 Pandemic.

The 1918 flu pandemic ("America's Forgotten Pandemic") has not so much passed out of our memory as it has instead been nearly consciously pushed from it. As the Economist has reported, for example, its own archives indicate that its editors "obeyed the wartime censors and avoided discussion of the disease in its leaders or editorials."  The pandemic was widely forgotten in public memory and ignored history books.
"Influenza 1918"

However, there was and is excellent scholarship on the issue. Perhaps the most brief and succinct entry into the subject is PBS' excellent 1998 episode of the American Experience.  While produced 22 years ago, nearly every element of current events is present in the 51-minute episode.  I caution parents, it is difficult for children.  The teacher's guide to the episode asks questions that in retrospect are heartbreaking -- "Looking back at the flu epidemic, what do students think should have been done to try to control the disease’s spread? Why do they think these actions were not taken?"

William Keepers Maxwell Jr.
image available at
Robert Kenner is the director of the episode, which utilizes a nice combination of historical film and survivor interviews to weave the story together.  Ken Chowder is the writer, and he particularly effectively employs the words of William Keepers Maxwell Jr. to illustrate and illuminate. Maxwell himself was a fiction editor at The New Yorker magazine for forty years (1936–1975), and the author six novels, including "They Came Like Swallows'' (1937) (his obit from the New York Times is here). Much of his work is about the effect of the pandemic in small-town Lincoln, Illinois, when he was ten. On the passing of his mother, Maxwell would say:

"It happened too suddenly, with no warning, and we none of us could believe it or bear it ... the beautiful, imaginative, protected world of my childhood swept away ... the effect of my mother's death was that I realized, for the first time and forever, that we were not safe, we were not beyond harm. My father did what he could, he kept us together as a family but, from that time on there was a sadness, which had not existed before, a deep down sadness that never quite went away because, I knew people aren't safe and nobody's safe —terrible things could happen — to anybody."
While the pandemic itself was poorly documented, the crisis played a role in changing many minds on the role of government.  Hearkening back to the Economist, the newspaper notes that the paper's editorial line on government intervention changed after the pandemic. Previously, the editors had opposed efforts at education and public sewers. That changed rather abruptly.  Instead, they began advocating for more involvement to improve public health. That included calls for “decent conditions of work, fair pay and good housing.” Perhaps most interestingly, the paper began to promote “education” as a method that should be used to prevent the spread of disease in the future. A lot for thought in this, about how much we once knew, and perhaps had forgotten.

Tuesday, May 5, 2020

@TheEconomist on a hybrid #VirtualParliament.

"Back to Abnormal"
Bagehot, The Economist, April 25, 2020
available at
This past week the Economist's Bagehot columnist wrote about the implementation of what are Zoom meetings for the United Kingdom's House of Commons, and some of the practical consequences. Adrian Wooldridge writes the column at this time. It is named after Walter Bagehot, a former editor of the Economist and author of "The English Constitution" (one of the books I kept from undergrad). He's also known for his rule for central bankers in a panic from "Lombard Street ("lend freely and at a penalty rate"). Both have been very practical of late, given COVID-19.

I wonder how we will regard the hybrid approach described herein in a few years.  While change has come for everyone, not least the "Mother of Parliaments" (churches were closed in the UK this year for Easter for the first time since apparently 1218), the piece makes clear the essential work that elected officials must do to support newspapers in their efforts to scrutinize the government. In the UK it is essentially only MPs that possess the combination of three critical tools -- they may ask written questions that the relevant ministers are obliged to answer, they have detailed knowledge of their own local constituencies, and they have the ability to speak on behalf of the voters.

Perhaps the "hybrid" we should be watching is not online versus in person meetings of Parliament. Instead it may be that recognizing that government accountability in the United Kingdom increasingly depends upon cooperative joint scrutiny by MPs and the press. Perhaps it would be best to call this the era of the dual hybrid Parliament ...