Tuesday, June 7, 2016

Fact Checker: Sorry, Donald Trump, the 'Mexican' judge was just following the law

By Michelle Ye Hee Lee | The Washington Post

"He Judge Gonzalo Curiel is giving us very unfair rulings, rulings that people can't even believe. This case should have ended years ago on summary judgment. The best lawyers -- I have spoken to so many lawyers -- they said, this is not a case. This is a case that should have ended." 

--Donald Trump, interview on CNN's "State of the Union," June 5, 2016

"I have had terrible rulings forever. I had a judge previous to him Curiel, and it would have been a very quick case. This is a case I should have won on summary judgment."

--Trump, interview on CBS's "Face the Nation," June 5, 2016

Trump has been blasting U.S. District Court Judge Gonzalo Curiel for having an "inherent conflict of interest," because of his Mexican heritage and Trump's plan to build a wall along the U.S.-Mexico border. Curiel, who is presiding over two of three lawsuits against Trump and Trump University, was born in Indiana to parents who emigrated from Mexico. But the presumptive Republican presidential nominee continues to rail against the judge for biased, negative and unfair rulings.

In particular, Trump points in a tweet to Curiel's use of a procedural move -- a summary judgment -- as evidence: "I should have easily won the Trump University case on summary judgement but have a judge, Gonzalo Curiel, who is totally biased against me."

Whether Curiel is biased is a matter of opinion, not one we can fact-check. But we took a look at what exactly a summary judgment is, and whether the judge's decision was anything out of the ordinary, as Trump suggests. As usual, Trump's campaign did not respond to our request for comment.

The Facts

Trump University marketed its seminars and mentorship packages that cost up to $35,000 as opportunities for "students" to learn tricks of the real estate trade from mentors and instructors said to be "hand-picked" by Trump.

Both cases before Curiel are class-action lawsuits from former students, claiming fraud and demanding their money back. One lawsuit was filed in 2010 by students in California, Florida and New York, and the other in 2013 by a plaintiff who alleged he was misled and upsold to pay for an $35,000 upgrade.

Trump is named as a defendant in both lawsuits, and has filed for a motion for summary judgment in both. Last year, Curiel ruled on the motion in the 2010 lawsuit. The motion in the 2013 lawsuit is pending a court hearing next month, as noted in this explainer by the Popehat blog.

A "summary judgment" is a procedural move that allows a judge to dismiss a case before going to trial. If summary judgment is granted, that means the judge found there's "no genuine dispute of material fact" that requires a full trial. So all the judge is deciding is whether the two sides agree or disagree on facts -- a pretty low bar.

When a judge grants a summary judgment, it's usually for a narrow and straight-forward issue, said Kevin Johnson, dean of the University of California, Davis School of Law.

For example, a judge may grant it if someone is suing a defendant who has immunity from that specific lawsuit. Or a judge may grant it if someone was bringing an asbestos lawsuit against a manufacturer -- but the manufacturer wasn't making any products during the time that person claims they were injured.

"In any kind of complex factual case, it's very hard to get summary judgment," Johnson said. "The Supreme Court has made it clear that only in certain, limited cases, will summary judgment be granted. . . . We have a Constitution that requires civil cases to be submitted to a jury if there's enough fact and dispute - and that's a pretty important right to most people."

Trump says this case "should have ended years ago on summary judgment." But historically, fewer than 10 percent of total cases in six key federal district courts between 1975 and 2000 were resolved as a result of such a motion, according to a December 2007 study on summary judgment practices by researchers at the Federal Judicial Center.

Further, out of the total number of federal cases during that time, summary judgments were granted in part or in full for less than 15 percent of all cases. In cases where there was such a motion, summary judgments were fully granted less than 40 percent of the time.

"These findings offer solid evidence that summary judgment is a weak filter designed to resolve only the most lopsided of cases where no reasonable jury could find for the other side," said David Freeman Engstrom, Stanford University law professor and expert in civil procedure. "Unless the case is a slam dunk for one side or the other, summary judgment is not appropriate."

Curiel actually granted partial summary judgment for Trump, in the 44-page ruling published November 2015. The former students made an array of claims in the 2010 lawsuit, including one requesting an injunction against Trump and Trump University from selling the same services so that the same thing can't happen again in the future.

But Trump asked for a summary judgment, since Trump University stopped enrolling students after July 2010 and isn't selling the same seminars or mentorships anymore. Curiel granted Trump the summary judgment and dismissed that claim.

For other claims, Curiel dismissed Trump's request for a summary judgment because he found a genuine factual dispute. For example, the former students claimed that Trump and Trump University used deceptive practices and misrepresentation in advertisements, thereby violating consumer protection and business laws in California, Florida and New York. One of the "core" misrepresentations Trump made, they claimed, was that they would be taught by real estate experts who were "hand-selected" by Trump.

Trump asked the judge to throw out that claim by granting him summary judgment, saying he never personally misrepresented the program to those individual students. But the students disagreed, showing advertisements featuring Trump's statements such as, "You'll learn inside secrets from me" and from hand-picked instructors. Plus, ads were reviewed and approved by Trump himself.

So Curiel denied Trump's motion -- since the two sides disagreed on the basic facts -- and allowed it to go to a jury trial. The two sides now have to argue before a jury with their case.

The Pinocchio test

Once again, Trump greatly stretches the facts. We can't fact-check whether or not Curiel has a bias against Trump; that's Trump's opinion. But what is clear is that Curiel made a straight-forward legal judgment as to whether two sides agreed or disagreed on facts, and whether or not they should be presented to a jury.

Further, Trump says the case should've been ended with a summary judgment, but fewer than 10 percent of federal court cases in key districts between 1975 and 2000 were resolved in that way. Judges make this decision for narrow circumstances, to filter for cases that shouldn't be taken to a jury. Trump also overlooks that Curiel, in his November 2015 ruling, did grant him partial summary judgment.
Trump can disagree with the judge's decision all he wants, but Curiel didn't really have a choice: the students provided evidence that could dispute Trump's reason for requesting a summary judgment. So Curiel had to do his job -- and let the case go forward to a jury.

The Fact Checker's rating: Four Pinocchios

http://www.syracuse.com/opinion/index.ssf/2016/06/fact_checker_sorry_donald_trump_the_mexican_judge_was_just_following_the_law.html#incart_river_mobile_home

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