Lawsplainer: Is There Anything Unusual About Judge Curiel's Orders In The Trump University Case?

Where have you been?

Busy. Lawyering. Parenting. Playing Stellaris. Thus and such.

You have obligations!

You have genital warts.

Hey! Be nice. So, what's up with this crazy judge?

You'll have to be far more specific.

You know, the judge who has it in for Donald Trump.

Oh. United States District Judge Gonzalo Curiel, the federal judge that has Trump's jimmies all berustled? This guy?

The trial, they wanted it to start while I am running for President. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .

I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler.

And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us.

Yeah, that guy. Is he biased against Trump? Are his rulings outrageous or unusual?

No. I mean, I'm biased against Trump. But Judge Curiel's rulings in the case do not seem extraordinary.

What's the case about, anyway?

There are actually two relevant cases before Judge Curiel.

The first is a purported class action filed in 2010, asserting that Trump and Trump University violated California's ridiculously overbroad and malleable unfair business practices law, California's consumer protection laws, California's false advertising laws, that they breached Trump U's contracts, and that they defrauded students, among other things.

The second case is a 2013 purported class action by the same lawyers with the same purported classes of student plaintiffs asserting that Trump and Trump University violated RICO laws.

Wait a second. Don't you always say that civil RICO is bullshit?

Yes. In general, if the defendants don't have "the" in their names, civil RICO is overwrought bullshit. A purported RICO claim split into a separate complaint smells like particularly obvious bullshit. More on that later.

So why didn't Judge Curiel get rid of this at summary judgment, like Trump says?

First you've got to understand what summary judgment is. It's not "my evidence is stronger."

Here's how it works. One side files a motion attacking the complaint, or certain causes of action in the complaint, or maybe a defense, and points out to the court (usually by attaching evidence from discovery) that there is no evidence supporting the other side's position. Then the burden shifts to the other side to come forward with admissible evidence supporting their claim or defense.

So, for instance, say you sue me for copyright infringement for posting your art on Popehat. I could make a motion for summary judgment supplying my declaration that I never posted your art on Popehat. The burden would then shift to you to come forward with admissible evidence — say, a declaration from you, with screenshots — to show that there is a dispute of material fact. That means you have to offer evidence that there's a factual dispute about a fact that's meaningful to the claim at issue.

And then the judge decides who is right?

To be more precise, the judge then evaluates whether there is any evidence to support the attacked claim or defense.

The judge doesn't weigh evidence or determine credibility. If I have 20 declarations saying that your art never appeared on Popehat, and you have one declaration saying that it did, then you win the motion because there is some evidence supporting your claim. But if you can't supply admissible evidence — say, if you can only offer hearsay that someone told you they saw your art on Popehat — then I win.

So what happened here?

In the 2010 case, Donald Trump filed one motion for summary judgment and Trump University filed another.

Trump's own motion argued that he didn't make any of the alleged misrepresentations about Trump University that plaintiffs claim and therefore couldn't be held liable for them, and that the law didn't allow them the damages they demanded. Trump University argued that the law doesn't allow the plaintiffs the damages and injunctions they are asking for. The plaintiffs opposed both motions, arguing they had offered admissible evidence creating factual disputes about Trump's personal liability and Trump University's liability.

So Judge Curiel shot Trump down?

Partially, but not completely. Judge Curiel issued a very detailed 44-page order analyzing the arguments. The order has a good review of the evidence that the plaintiffs offered to support their case.

Ultimately he granted the motions in part and denied them in part. He threw out all of the demands for injunctive relief against Trump University, but kept the demands for restitution and other forms of monetary relief. He based that order on an earlier ruling limiting the class action claims. As to Donald Trump himself, Judge Curiel found that plaintiffs had offered admissible evidence creating a genuine dispute about whether Trump "hand-picked" Trump University instructors as he claimed, that they had offered enough evidence to create a dispute about whether Trump was responsible for Trump University advertisements because he reviewed them personally, and that they had offered enough evidence to create a factual dispute about whether plaintiffs relied to their detriment on false representations for which Trump could be held responsible. The court granted Trump's motion to throw out claims for injunctive relief against him.

The end result was that the demands for damages stayed alive, but demands for injunctions — which really didn't drive the case — got thrown out.

What about summary judgment in the 2013 case?

It hasn't been decided yet. Trump didn't file his Motion for Summary Judgment until April 2016 and it's not even set for hearing until July 2016.

So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump?

No.

Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn't buy it and people who oppose Trump would buy it even if the only word was "dildo." But in my judgment, Judge Curiel's partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment.

First, keep in mind Judge Curiel hasn't given plaintiffs everything they wanted — not by a long shot. The point of a class action is to get your individual plaintiffs to represent a huge class of people, so you can prove their individual cases but get damages to cover hundreds or thousands or tens of thousands of people. It's a huge force multiplier and carries the potential for ruinously gigantic damages. Judge Curiel didn't certify the class on all the claims that plaintiffs wanted. That is, as to some of their claims, he said they could only seek their own personal damages, not damages on behalf of everyone who went to Trump University. For instance, he allowed the plaintiffs to represent classes under state consumer laws, but not under state common law claims like breach of contract and fraud.

Later, on Trump's motion, Judge Curiel decertified the class in part. That means that he granted Trump's motion to take away part of their class representative status and modified how they must prove their cases. Specifically, Judge Curiel ordered that (1) the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed (which defendants generally like because it keeps plaintiffs' damages sob stories out of trial and keeps the jury from being prejudiced by big damages numbers or by evidence of how much money the defendants have); (2) rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get.

On summary judgment, he gave the plaintiffs much of what they wanted — he knocked out the demands for injunctions, but those are insignificant compared to damages. But his analysis of the evidence was pretty straightforward. Judges aren't supposed to grant summary judgment if evidence is weak. They're only supposed to grant if if there's no dispute of fact. Here, the plaintiffs offered evidence which, if believed, would show that Trump was responsible for false statements and the students relied on those statements. I don't think it's a particularly notable decision.

Does that mean you think the plaintiffs should win?

I don't have an opinion on that.

It sure sounds like Trump University made false statements and promises. But from what I've seen, the best defense (though not necessarily the one that Trump will follow) is that anyone minimally rational would have recognized that all of the Trump University sales patter was puffery, trumpery, and bullshit, the equivalent of saying your coffee shop offers the most amazing coffee in the universe. But that's a jury question on these facts. Trump's gigantic successes in the Republican primaries demonstrates that many Americans may not share my view that most of what he says is obviously not to be taken seriously. Also, the RICO claim is rather clearly overcharged nonsense, like the vast majority of civil RICO claims. Congress needs to do something about RICO so it's not used as an exclamation point any time anyone sues for fraud. Judge Curiel may yet grant summary judgment on that second case — though Trump's motion in that case is curiously narrow.

So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?

No. I don't think it does. However, to reach that conclusion, you need to actually read stuff and have a vague idea of what you're talking about, so I don't expect it to take hold, frankly.

Last 5 posts by Ken White

Comments

  1. says

    Thank you for providing an explanation of that. I had suspected that Trump's claims of bias were overblown at best, but it is good to have someone knowledgeable review and explain it. If anything, it sounds like the judge is being relatively favorable to Trump and Trump U. in this case.

    Incidentally, for people who don't want to look it up, the exact standard for summary judgment from FRCP 56(a) is: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

    Also, there is a procedure for a party to request additional time and even more discovery to acquire that admissible evidence available under FRCP 56(d). As Ken points out though, at this stage the point is to have enough evidence to create a dispute (a very low bar), rather than having the stronger evidence.

  2. says

    Couldn't a defense MSJ also say “even if plaintiff's allegations are all true, they don't add up to anything that the law recognizes as a tort”? Or is that a procedurally distinct motion to dismiss for failure to state a cause of action, perhaps with different standards?

  3. Raucous Indignation says

    "So what's up with this crazy judge?"

    That doesn't really narrow things down, does it?

  4. David says

    Couldn't a defense MSJ also say “even if plaintiff's allegations are all true, they don't add up to anything that the law recognizes as a tort”? Or is that a procedurally distinct motion to dismiss for failure to state a cause of action, perhaps with different standards?

    "My opponent has misinterpreted the law, and the conduct they're claiming is illegal actually isn't, even if we agree on the facts of that conduct" is an argument that can be made in either a motion to dismiss or a MSJ, yes. As a non-attorney lawnerd I'm not sure where the line is that separates a pure question of law that can be dealt with in a dismissal motion from one that gets held over into summary judgment.

  5. Nate077 says

    Ken, is it significant that the judge has now rescinded some parts of his order? How might it happen that documents were mistakenly included for release?

  6. Careless says

    I still can't believe that this got Orin Kerr to say Trump was like Hugo Chavez and Juan Peron

  7. Noscitur a sociis says

    In general, if the defendants don't have "the" in their names, civil RICO is overwrought bullshit.

    I don't think I substantively disagree with you, but I could not figure out what this means. Could I request clarification?

  8. Careless says

    What about the Federal Judge that ordered DOJ prosecutors to get ethics classes at Trump U?

    Uh… didn't happen?

  9. Leo Marvin says

    I still can't believe that this got Orin Kerr to say Trump was like Hugo Chavez and Juan Peron

    He didn't. David Post did. Orin said he strongly agrees with the OP. That doesn't mean he agrees with every detail. The Chavez comparison is an incidental detail.

    Regardless, I'll quote Sarcastro's reply to you in the VC thread:

    Trump wants to control a branch of government and thinks nothing of attacking, not just the merits, but the integrity of another. That does not sound alien to a certain populist Latin American strongman.

    Does that mean Trump is going to be exactly like Chavez? No, but it does mean that he shares a particular brand of paranoid entitlement with him.

  10. Careless says

    He didn't. David Post did. Orin said he strongly agrees with the OP. That doesn't mean he agrees with every detail.

    No, OK wrote "I agree wholeheartedly with David Post."
    That's not just strong agreement, that's standing behind every point he made.

  11. Dormammu says

    When you said "William Gallo," I had a flashback to "My Cousin Vinny" and his pseudonym. "Jerry Gallo? No, I meant Jerry Callo!"

  12. arity says

    a declaration from you, with screenshots

    ctrl+shift+i – though I'd hate to be the person who tries that and gets caught.

  13. Brandon says

    Given how back and forth Trump is on, well, everything, and how often he backtracks with "I never said that." among other responses, I tend to research a lot of what comes out of his mouth before I ever agree or disagree with him. That doesn't bode well for my opinion of him in any regard.

  14. Ken in Nj says

    No, OK wrote "I agree wholeheartedly with David Post."
    That's not just strong agreement, that's standing behind every point he made.

    No, it's not. Words mean things. And "wholehearted" does not mean what you seem to think it means.

  15. _Arthur says

    Pope, would you ever advise your client that it's OK to call the judge in his case various names with emphasis on his ethnic background ?

  16. Jackson Marten says

    So Ken, what are you saying is that the most terrifying RICO suit possible would involve the band "The The"?

  17. benny says

    I think it very likely that the part that has Trump so upset is that he is personally named as a defendant as having committed unlawful, fraudulent and unfair business practices in violation of California’s Unfair Competition Law, etc. Can someone expound on the legal protection Trump intended and could have expected in setting up a separate corporation (Trump University)?

    If Peyton Manning opens a restaurant and runs advertisements where he says he "personally inspects the steaks", it would seem inane to depose him and show him pictures of meat and ask if he looked at this one, that one, which is sort of what is going on in the deposition in the Cohen lawsuit.

  18. eric76 says

    Nate077 wrote: "Ken, is it significant that the judge has now rescinded some parts of his order? How might it happen that documents were mistakenly included for release?"

    From what I've seen, the only error was that the documents should have been redacted to have some personal information removed. The order resealing those documents directs the lawyers to properly redact them. I think that the documents will be unsealed again after they are properly redacted.

  19. SirWired says

    On the actual merits of the case: I'll ignore the RICO bits; as a non-lawyer, I know less about RICO law than I know about the parts of common law that could be gleaned from two elective law classes in college.

    Some of the claims can be waved away as "puffery" (Trump University will give you the tools you need to be as successful in Real Estate as The Donald himself!)

    Some of it is just The Hard Sell ("It's a Great Idea to go deep into hock on your credit cards to buy these courses! Don't you want to Invest In Your Future?" That's kind of scummy, especially if you know you are selling a $hitty product, but not illegal.)

    But things like the bit about "You'll be taught by Trump's handpicked experienced Real Estate professionals!"? While I might call "puffery" the idea that The Donald himself is giving them a grilling like he might some of his TV "apprentices", some of his instructors had no Real Estate experience at all. If I'm attending a school to learn how to fix cars, I don't want my Engine Rebuilding 201 class to be taught by somebody who was a dental hygienist last week who's never changed his/her own oil. I'm gonna be pi$$ed and want a refund of my tuition.

    That sounds actionable to me.

  20. RJ Conrod says

    You can raise legal arguments at either the motion to dismiss or summary judgment stage. The primary difference between the two is that at the MTD stage you are obligated to accept the factual allegations in the plaintiff's suit as true (unless they are contradicted by some very authoritative source, such as the contract between the parties) and basically argue only legal points, whereas at summary judgment you can present your own evidence (usually in the form of affidavits, deposition testimony excerpts, and evidentiary documents such as communications between the parties at the time of the events in dispute) and also argue your legal points. In fed court, MTDs are governed by R. 12(b)(6) and MSJs governed by R. 56.

  21. says

    Isn't Judge Curiel’s La Raza affiliation relevant enough to address? He reportedly is a member of the San Diego La Raza Lawyers Association (SDLRLA), and its mission, in pertinent part, is to: "Strongly advocate positions on judicial, economic and social issues to political leaders and state and local bar associations that impact the Latino community.” SDLRLA is affiliated with the California La Raza Lawyers Association, and its mission, in pertinent part, "is to promote the interests of the Latino communities throughout the state…”

    On the basis of La Raza’s purpose, and Judge Curiel’s membership, isn’t it arguable that the judge has a conflict of interest, and isn’t it disingenuous to opine as if Trump’s argument is based solely on the judge’s Mexican heritage?

    http://sdlrla.com/about/mission-statement/
    http://larazalawyers.net/id3.html

  22. Kent says

    @Ken in NJ,

    Hello. Verbiage pendant here.

    I think in context, the meaning of the term "wholehearted" is exactly what Careless discerns. It is unequivocal. Words do indeed mean things. If there is a difference in opinion on minor details, the term "wholehearted" would no longer accurately – let alone precisely – describe the level of agreement felt.

    Maybe Orin misspoke, but based on the words he actually used it is not possible to assert any opinion on his behalf other than complete agreement with all aspects of the statement that was endorsed. Arbitrarily claiming the guy "really" has disagreements with "minor aspects" of the statement is the exact opposite of a precise parsing of language … that's just guessing what someone might have meant beyond what the words they used can possibly convey by themselves.

  23. David Nieporent says

    If Peyton Manning opens a restaurant and runs advertisements where he says he "personally inspects the steaks", it would seem inane to depose him and show him pictures of meat and ask if he looked at this one, that one, which is sort of what is going on in the deposition in the Cohen lawsuit.

    Yes, I agree – because whether Peyton Manning inspected the steaks is unlikely to be material. But if (a) it were a football camp for your kids, and Peyton said he personally selected the instructors/coaches, or (b) if it were a restaurant and it were Gordon Ramsay (famous chef, right? Never seen his shows.) saying he personally inspected the steaks, then that's a different story. A reasonable consumer might well prefer a football camp where an NFL Hall of Famer personally selected the coaches to one in which they picked the first six guys they found at a booth at the closest Denny's (which is apparently how Trump U did it.)

  24. eric76 says

    On the basis of La Raza’s purpose, and Judge Curiel’s membership, isn’t it arguable that the judge has a conflict of interest?

    No, it's not. It's a professional organization for lawyers. Nothing about that professional organization creates a situation where a judge may be reasonably viewed as being partial.

    Look at MacDRAW INC v. THE CIT GROUP EQUIPMENT FINANCING INC:

    We merely note and re-emphasize the inappropriateness of MacDraw's challenge to Judge Chin's impartiality. As we noted in MacDraw II, it is intolerable for a litigant, without any factual basis, to suggest that a judge cannot be impartial because of his or her race and political background. Moreover, we find that, under the circumstances, Judge Chin's criticism of the performance of MacDraw's attorneys in this litigation was entirely justified and in no way indicative of bias. Finally, we note that, without any plausible basis for doing so, MacDraw's attorneys challenged the impartiality of both of the district judges before whom it appeared in this litigation.

    And Trump's tirade about the judge isn't going to create a situation where the judge becomes biased about him. See FEDERAL DEPOSIT INSURANCE CORPORATION v. SWEENEY:

    That Mrs. Sweeney has criticized the judge in public is, of course, her right. But it is not her right, by so doing, to cause the disqualification of the judge. "A party cannot force disqualification by attacking the judge and then claiming that these attacks must have caused the judge to be biased against [her]." 13A Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure 3542 at 577-78. As we have observed, there is "the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking." In re Allied-Signal, Inc., 891 F.2d 967, 970 (1st Cir.1989), cert. denied sub nom ACW Airwall, Inc. v. U.S. District Court for the District of Puerto Rico, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 744 (1990).

  25. says

    Thanks, eric76.

    The cases you cited involve political background and criticizing a judge in public, but neither issue pertains to what I'm wondering: If La Raza were to explicitly oppose Trump's immigration policy – maybe even organize an advocacy campaign aimed at defeating it – could it then be plausibly argued that the judge's affiliation with the group is a conflict of interest that warrants disqualification? Would it not be fair and relevant to ask why we should assume the judge isn't committed to La Raza's mission even though he's a member?

  26. eric76 says

    JeffNorman,

    It's important to keep in mind that the La Raza Lawyers Association is not the La Raza National Council. They aren't related at all. The La Raza Lawyers Association is a professional organization for lawyers, mostly latino, but not entirely. Other than social activities, their main activity seems to be providing scholarships to local law students. They also do a limited number of endorsements but only for local campaigns such as city attorneys. There is no sign that they would ever organize an advocacy campaign to try to defeat anything in national politics.

    As far as past activities, consider Federal Judge Leon Higginbotham. In spite of being actively involved in civil rights issues, he was not required to recuse himself in cases involving civil rights issues.

  27. Jill122 says

    The conservative press is going wild about two issues: 1) there's a link between the law firm representing the plaintiffs and Clinton — they say the firm made a contribution to CGI; 2) the judge chose the law firm.

    Frankly, I don't see a problem with these two issues separately or even jointly. How would Curiel know that the law firm made a contribution to Clinton's philanthropic organization? I'm assuming that if he did choose the law firm, that the plaintiffs have declared that they cannot afford counsel and so he chose this firm from a list of those who offer pro bono services — I didn't look up California rules to see if they are required to donate "x" hours in the courtroom.

  28. Meh says

    This is why you do not lend your name to something. This is what happened here and now Trump is trying to pretend that he was actually involved but as he pretends he was he is opening up a new of worms on the fraud.
    It never ceases to amaze me that people will go to a "school" like Trumps (which really isn't a school) because he was a celebrity.

  29. Meh says

    Pardon me.
    I meant to say,
    By Trump pretending to be involved–he is opening a new can of worms by then showing he knew of the fraud.
    For those of you know about the case, know what I'm talking about .

    Sorry Popehat.

    By the way, I enjoy your blog but if you open up, Popehat U, I ain't giving you $30 K to attend.

    LOL.

  30. Lubaf says

    Ken: Could you expand a bit on "Civil RICO cases are usually bullshit unless the defendant has a "the" in their name"? Because that sounds like an interesting point to expand upon. For example, would "The National Football League" count, or "The New York Yankees" count for the purposes of this statement?

  31. AlphaCentauri says

    In my state, judges are elected as part of political party tickets. They also run with or without the endorsement of the state bar association.

    Defendants who are Democrats can't have judges disqualified because they obtained their judicial appointments running as Republicans, much as they might like to. They also can't have their judges disqualified because their defense attorneys are bar members and the judge didn't receive an endorsement from the bar association.

    It's no different with La Raza. In fact, many such ethnic professional organizations started because minority members of professions previously were not permitted to join organizations like the ABA or AMA, not because of some ideological objection to joining.

  32. Trent says

    There is little point in this discussion. La Raza as a professional organization advocating for legal issues that affect the Latino community would never even comment on this stupid wall. It isn't a legal issue, it isn't law related and it's utterly outside their purpose. Professional organizations don't advocate outside their mandates.

    What Trump did was explicitly racist. He's basically arguing that the judge can't be impartial because he's Latino. I honestly thought that when all the white supremacist groups endorsed him that it wasn't because he was actually racist but just using the same language that Regan used to draw them in. Now I truly believe he's racist at the core and that the endorsements were very justified.

    Regardless of how the judge feels about Trump or his politics he wouldn't allow it to prejudice him. This is a guy that spent years in basically protective custody, even bunking on a military base for a while because of the threat on his life by the cartels. The man deserves respect because he's earned it and he shouldn't be accused of things there is no evidence he's done.

  33. David Nieporent says

    I'm assuming that if he did choose the law firm, that the plaintiffs have declared that they cannot afford counsel and so he chose this firm from a list of those who offer pro bono services

    No. The conservative websites pushing this line of argument are lying to people. The judge didn't choose the law firm. Robbins Geller are trial lawyers. They filed this suit just like they've filed hundreds of other class action suits, just like any lawyer files any suit. In an ordinary lawsuit, that's the end of the matter; the plaintiffs choose their lawyer, and that's that. It's between the plaintiffs and their lawyers.

    However, class actions are different; in class actions, a relative handful of plaintiffs bring a lawsuit on behalf of hundreds or thousands of other plaintiffs, who have no direct involvement in the lawsuit and no say in choosing their lawyers. Therefore, in order to protect their interests, when the case is certified as a class action the judge has to officially approve the law firm that will be representing the class. This is basically pro forma, however. The judge doesn't go out and find lawyers and hire them; he just appoints the lawyers already working on the case. Only in rare instances in which the lawyers handling the case are obviously incompetent or unethical does the judge not approve them.

  34. eric76 says

    I've seen quite a few people elsewhere claim that the resealing of some exhibits was because Judge Curiel was trying to undo the damage caused by mistakingly unsealing documents because of bias..

    However, the truth is that there were 52 documents that were unsealed. 48 of those documents were agreed to by both the plaintiff's and the defendant. The four that were objected to by the defendant were the 2009 and 2010 Playbooks, the Field Team Playbook, and the Sales Playbook.

    As I understand it, none of these four playbooks were among the exhibits that the judge resealed. The playbooks were exhibits 6, 21, 27, and 28 from the Forge Declaration. The exhibits that were resealed were exhibits 2, 25, 26, 33 from the Stragg Declaration and exhibits 14, 15, and 16 from the Forge Declaration. In other words, neither the plaintiff nor the defendant had even objected to the unsealing of any of the exhibits that were resealed. They weren't resealed as a result of being incorrectly released due to bias — they were resealed due to being released without certain personal information being redacted.

  35. morgan s warstler says

    Ken is a f*ck wit…

    Nobody cares about what plaintiff got.

    What matters is what judge did for Hillary. He should have kept all records sealed, DESPERATELY stayed away from election, to keep his reputation, and who CARES what he does with case… later?

    nobody.

    Once judge gave Hillary a gift, anything that destroys judge politically is ok. POLITICS > JUSTICE

    Once Trump is POTUS, Curiel can be as biased a Latino judge as his critics imagine. Who cares?

  36. says

    Cam2 says: "And their position on the wall is…?"

    I don't know. Do you think I somehow failed to come up with a good response to Trent's assertion that "La Raza…would never even comment on this stupid wall”?

  37. David C says

    When it comes to a case where the defendant is the presidential candidate of a major political party, you aren't going to be able to find a judge that doesn't have an opinion on the election. Additionally, when it comes to federal judges, they are all appointed by the President, and all recent Presidents have belonged to one major party or the other. If this judge is biased because you think he has an opinion on the election, then literally every single federal judge is similarly biased.

    What matters is what judge did for Hillary.

    Yeah, that obviously shows he's biased. After all, Trump donated to the same person. So clearly he's biased for Trump.

  38. eric76 says

    I may be wrong, but I think that it would be extremely unusual for a federal court to seal all the exhibits in a civil trial. Considerably fewer than 1% are entirely sealed.

    Also, remember that the Defendant (i.e. Trump) did not object to the unsealing of 48 of the exhibits. The only four exhibits objected to were on the grounds of trade secrets, but the judge found those objections to be less than persuasive.

    From IN RE: ROMAN CATHOLIC ARCHBISHOP OF PORTLAND IN OREGON, referenced by Judge Curiel in the decision unsealing the exhibits:

    At common law, there is a “strong presumption in favor of access” to information filed with a court.  Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.2006) (quoting Foltz, 331 F.3d at 1135) (internal quotation marks omitted).   To overcome the presumption, a party seeking to seal a judicial record must demonstrate not just “good cause,” but “compelling reasons,” Foltz, 331 F.3d at 1135–36, or “sufficiently important countervailing interests,” Phillips, 307 F.3d at 1212.   Generally speaking, compelling reasons exist when court records “might have become a vehicle for improper purposes,” such as to gratify private spite, promote public scandal, commit libel, or release trade secrets.  Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).

    Furthermore, from Judge Curiel's order:

    As an initial matter, the court must strongly presume the public interest in access. Kamakana, 447 F.3d at 1178. (citation omitted) But “the interest in access to court proceedings in general may be asserted more forcefully when the litigation involves matters of significant public concern. … The Ninth Circuit found that TU was a public figure for purposes of defamation law in the related Makaeff case

    In other words, the exhibits would have normally been unsealed and the fact that this is a case of immense public interest makes it even more necessary that the exhibits be unsealed.

    The notion that the judge should have kept everything secret is entirely contrary to our very ideals. This is not a dictatorship with secret trials.

  39. Andrew Hyman says

    Ken, this is my first visit to your web site, nice to be here. You said, "Trump's motion in that [RICO] case is curiously narrow." How so?

    I'm making an effort to actually understand what's going on with these Trump cases, and your blog post is helpful in that regard, but also somewhat mystifying. Hence my question above.

    Also, is it correct that the plaintiffs in the RICO case (Trump v. Cohen) are saying that Trump wouldn't have been a racketeer regarding the name of "Trump University" if he had instead named it "Trump School" or "Trump Academy"? My initial impression is that it's a bit absurd to think that the name he chose amounts to a false representation of material fact, whereas "Trump School" or "Trump Academy" would not be a false representation of material fact. As you say, "anyone minimally rational would have recognized that all of the Trump University sales patter was puffery, trumpery, and bullshit…." and that he wasn't offering a "university" in the sense of an accredited university.

    Anyway, since Judge Curiel hasn't yet decided on the summary judgment motions in the RICO case, I guess I'll have to focus on the other case to see if I think the judge has been fair or not.

    Cheers.

  40. Total says

    I don't know. Do you think I somehow failed to come up with a good response to Trent's assertion that "La Raza…would never even comment on this stupid wall”?

    You came up with an answer that did not respond to his assertion, sure.

  41. Trent says

    Shhhhh, he thinks retyping what I said and pointing at their mission statement somehow disproves me. If that's the type of response you've already gotten you don't poke the troll again.

  42. says

    Well, Trent, you certainly didn't explain why you think La Raza would "never" address Trump's immigration policy. Seems to me that immigration is among the "issues…that impact the Latino community."

  43. says

    Oh, sorry. Now I see you did claim La Raza deals with only legal issues. But that's not what the mission statement says. Besides, immigration is a legal issue.

  44. Total says

    Shhhhh, he thinks retyping what I said and pointing at their mission statement somehow disproves me. If that's the type of response you've already gotten you don't poke the troll again.

    Sorry! My bad. I see Foamy McFoamface is actually back.

  45. Trent says

    Rather than asking me to prove a negative, why don't you show where La Raza has made a public statement about Trump's stupid wall. Not immigration policy, mind you that's different, that is a legal issue. The wall has nothing at all to do with immigration policy, it's an infrastructure (would be the largest infrastructure project in US history) and enforcement proposal not a law related issue in the least.

    Professional societies do not comment on things outside their mandate. American Society of Civil Engineers (ASCE) is more likely to comment on Trump's wall than La Raza is.

  46. says

    You're the one who decided to make a silly semantic argument about the wall, and frame it as an infrastructure issue. Your belatedly-explained and illogical decision to exclude the larger issue of immigration policy has nothing to do with anything I've said, and it's not as if Trump hasn't expressed any immigration positions that don't pertain to the wall. It's all tied together. It's apparently undisputed that the judge is a member of SDLRLA, and as indicated by a link on its website, that group is affiliated with the National Council of La Raza (NCLR), which infamously focuses largely on immigration. (The link on the San Diego site is in a sidebar, where "Council" is for some reason spelled as "Counsel.")

    On SDLRLA's Community page it says: "SDLRLA’s mission is not just to advance the cause of equality, empowerment and justice for Latino attorneys but also for the Latino community in San Diego County through service and advocacy."

    SDRLA has put the words "but also for the Latino community in San Diego" in bold and italics, so they must really want to emphasize that they don't only represent the interests of lawyers.

  47. eric76 says

    It's apparently undisputed that the judge is a member of SDLRLA, and as indicated by a link on its website, that group is affiliated with the National Council of La Raza (NCLR), which infamously focuses largely on immigration.

    You mean to say that if someone posts a link on their web site, it means that they are affiliated with the group at the link? So if I put a link on my web site to the PRCA then I'm affiliated with rodeo cowboys?

    Who all is Google affiliated with?

  48. Trent says

    So rather than provide this proof you run off on rant that's full of bullshit. NCLR and the San Diego branch of La Raza, the legal group, have NOTHING in common, are not the same organization, are not affiliated and are in no way tied to each other. You are apparently of the mind that just because they both include the words La Raza that they are the same group or somehow affiliated.

    La Raza has not commented on Trumps stupid wall and they are NOT going to. You want to prove me wrong, show me where La Raza the legal professional society has commented publicly on the wall. It's not a fucking legal issue and it's outside their mandate. Maybe you've never been a member of a professional society and just don't understand that or your a douchebag.

  49. says

    You mean to say that if someone posts a link on their web site, it means that they are affiliated with the group at the link? So if I put a link on my web site to the PRCA then I'm affiliated with rodeo cowboys?

    Who all is Google affiliated with?

    Another semantic argument. I'm pretty sure a select group of links doesn't indicate disavowal. I invite you to substitute whatever word you think is more apt than "affiliated," and I doubt it will undercut my point, which is not that linking to NCLR meets the legal standard to disqualify the judge. It's that Trump's concern is rational. I was also rebutting the contention that SDLRLA is devoted exclusively to supporting the professional interests of lawyers.

  50. says

    Supreme Court Justice Sonia Sotomayor: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life…Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging…Personal experiences affect the facts that judges choose to see.”

  51. Total says

    Supreme Court Justice Sonia Sotomayor: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life…Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging…Personal experiences affect the facts that judges choose to see.”

    So you're really not going to provide that link, are you?

  52. Trent says

    A Sotomayer quote does not substantiate the public statements of La Raza the legal professional society. Keep trying, maybe you should reconsult the echo chamber to get some reinforcement that clearly that quote speaks for every single Lantino lawyer.

  53. Gus says

    There is no discussion of this judge's certification of a class where only a portion of the class was defrauded on the 'hand picked' issue and only a portion of the class was defrauded on the fully accredited issue (the only 2 remaining issues in the matter). Also the judicial code of conduct dictates this judge recuse himself due to the appearance of possible bias. It is absurd to posit that belonging to a group expressly intent upon harming an individual's business interests does not caste the appearance of bias on a judge specifically ruling on the business interests of that individual.

  54. Total says

    Also the judicial code of conduct dictates this judge recuse himself due to the appearance of possible bias

    You didn't actually read the post, did you?

  55. Chaarlie Burrow says

    How does Trump explain away the several adverse rulings of Judge Curiel that were issued before Trump announced, a year ago, that he was building a wall? See timeline: http://zhlaw.com/cases/trump-university/

    Obviously, rulings issued prior to his wall announcement could not have been influenced by his announcement.

  56. Charlie Burrow says

    Trump conflict of interest criteria: 1) "he's Mexican" 2) "I'm building a wall"

    Did Trump cook up his race-based conflict of interest theory prior to his wall announcement?

    Given Trump's evident anger with the judge, now, and given that the judge had issued several adverse rulings against him prior to his wall announcement, isn't it likely he was angry back then, too? Isn't it then likely that his inflammatory comments about Mexicans, and his drastic anti-immigration proposals, were meant to satisfy Criterion #2 of his conflict of interest theory? Isn't it likely his recent doubling down on his noxious statements about the judge was meant to enhance the idea that the judge had every reason to be prejudiced against him?

  57. Charlie Burrow says

    Trump's confession: "The judge hates me because I hate him. But he didn't know I hated him until last year when I said I'm building a wall. Meanwhile he'd already ruled against me four or five times. Boy was I steamed. How do I get rid of this guy? So I talked to my lawyers and they said snowball's chance in hell. So I decided to go public and run for president, figuring my only chance is angering up the people until the judge is run out of office."

  58. James says

    This higher education focused website had an interesting take on the issue: The article is not a defense of Trump but rather an attack on the academically accepted (and taught) idea Trump employed.

    "Anyone who has worked in academe for a measure of time has to wonder at the shock and ire of these critics. What's the big deal? We have heard the premise of Trump's gripe repeated so many times that it has become a standard part of the stagecraft of public and private debate. No concept has undergone more dismantling in the last half century than objectivity. And no criticism against objectivity has had greater popular impact than the one that says judgment is inevitably swayed by racial/ethnic/gender/sexual factors."

    https://www.insidehighered.com/views/2016/06/14/trumps-comments-about-judge-curiel-and-critical-theory-essay

  59. Total says

    The article is not a defense of Trump but rather an attack on the academically accepted (and taught) idea Trump employed

    Two things:

    1. Mark Bauerlein, the author of the article, is a ninny.

    2. The idea that Trump was self-consciously calling on critical race theory to make his comments is ludicrious.

    3. (okay, three things). Critical race theory does not say that "I'm from [insert random group here], I'm going to get all those folks who hate us," it says that everyone's formative experiences include ones shaped by race and that we should be aware of it.

    4. (okay, four things). If Trump was really channelling critical race theory, I assume that all the critical race theorists have risen to his defense, right?

Trackbacks

  1. […] It would appear that Trump is aware that he is really cocking this up quite badly. As of this writing, Trump has not tweeted all day, which has to be killing him inside. What he has done, is put out a statement on the Judge Curiel controversy, in which he attempts a gymnastic act of pretend-contrition, blending the passive voice with further carping that he's been treated unfairly in the Trump University case. (Which he hasn't, by the way.) […]