The Donald

Just as our historic and contentious 2016 presidential election draws nigh, so does the federal class action fraud trial against Republican nominee Donald Trump. On Wednesday, November 9th, our nation will have a president-elect that either: a) is a defendant in a federal class action fraud trial scheduled to commence later this month, or b) is the subject of an on-again-off-again FBI investigation for mishandling classified documents. As we head to the polls on Tuesday, take your pick.

The case against Trump and his, er, University was filed back in 2010. The class action plaintiffs in the suit, filed in the Southern District of California, summarize the nature of their action as follows:

Trump University markets itself as a University driven by the mission to "train, educate and mentor entrepreneurs on achieving financial independence through real estate investing." It is anything but. In fact, rather than serving its students as a university or college, Trump University is more like an infomercial, selling non-accredited products, such as sales workshops, luring customers in with the name and reputation of its founder and Chairman, billionaire land mogul Donald J. Trump. Trump and his so-called University promise "mentorships", urging customers that it's the "next best thing" to being Donald Trump's next "Apprentice". But as class members quickly find out, all Trump University provides is empty promises. The primary lesson Trump University teaches its students is how to spend more money buying more Trump seminars.

Over the past six-years, the high-powered lawyers on both sides of the litigation have conducted tortuous methodical discovery, leading to nearly 600 docket entries and a much adjourned trial date now scheduled for November 28, 2016.

How does a class action case get to be six-years old in federal court without going to trial? Old school aggressive lawyering.

For their part, Trump's New York City law firm, O’Melveny & Myers, has deployed its usual strategy for their famous client: delay, adjourn, and continuously file aggressive motions and counter motions to sand down the plaintiff until there is nothing left to try, or the plaintiffs' money runs out.

By all indications, however, this strategy will not be effective in getting yet another trial adjournment in this class action fraud suit. Judge Gonzalo Curiel has indicated that the trial will proceed, regardless of the election results.

Thus, if Trump wins the election, we here at the Law Blogger wonder, will president-elect Trump attend his own fraud trial? At that point, we predict that he will not be bothered by such an irritating appointment. 

On the other hand, like Hillary Clinton's Weiner-tainted email fiasco- it is a mess of Trump's own making that will not go away, regardless of the heights to which he ascends. If it does not settle, the trial likely will grind-on in 2017, as scheduled, with the Donald in absentia.

A raft of pretrial motions were filed by Trump's lawyers on Monday, including newly disclosed exhibits and witnesses. Plaintiffs filed a motion to strike all undisclosed witnesses and exhibits.

One week from today -two days post-election- Judge Curiel will decide both sides' pretrial motions. Also, he is expected to endorse the firm trial date of November 28th. We'll see about all that.

Plaintiffs, as a class, have the burden to establish that Trump violated a series of California consumer protection laws, and committed negligent misrepresentation, false promise, and fraud relative to the real estate seminars. While most folks would be skeptical about parting with more than $35k for something masquerading as a trumped-up "University", the trial will be about the classification and meaning of the word "University".

Words and classifications do have meanings and consequences. Just ask Secretary Clinton about the meaning of the word "classified".

In dealing with this fine American mess, perhaps Judge Curiel will take a corpus linguistic approach to the series of opinions and orders he is about to unleash.

Post-Election Post-Script.
Just as fast as he is walking back much of his campaign rhetoric -to the chagrin of his more fervent supporters- President-Elect Trump also finds himself doing things in court that he detests and that he derides other businessmen and lawyers for doing: settling a lawsuit.

Trump has agreed to pay $25 million to settle cases against his now infamous Trump University. Twenty one million will go to about 7000 class action members and $4 million goes to the New York Attorney General for violating state education laws.

So Mr. Scorched-Earth Litigator becomes Mr. Settlement. Now there is talk that Trump is considering settlement in many of the other 75+ civil lawsuits filed against him; no one knows the exact number of suits.

Thus Trump joins the good company of Theodore Roosevelt, Harry Truman, John F. Kennedy, and William Jefferson Clinton: Presidents who were sworn-in with the baggage of a lawsuit. All but Clinton settled their respective suits. Clinton's went all the way to the SCOTUS which held in Clinton v Jones that a sitting president is not immune from civil litigation. Who could forget Clinton's bottled rage when he appeared for his 4-hour deposition in the Paula Jones case.

At a minimum, the remaining cases are going cost Trump millions. We shall see if any of the cases has the traction to evade settlement and force a sitting president into a civil trial. That would be a first.

Post #565

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We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

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According to Bryant Walker Smith, a fellow at Stanford's Center for the Internet and Society, automated vehicles have been "just 20-years away" since the 1930s.  Lately, however, data giant, Google, and some of the OEMs have started taking the concept seriously.

So serious, in fact, that automated vehicles are now out there folks. 

This has led Mr. Smith to publish a comprehensive study on the legalities of automated vehicles.  Smith concludes that, although automated vehicles are "probably" legal from the national regulatory prespective of the National Highway Traffic Safety Administration, state laws will "complicate" the transition to automated vehicles.

Why automated vehicles anyway?  Many motorists enjoy, at least to some extent, the driving process.  Smith's answers are: safety and saved lives.  If done correctly, there are also long-term cost savings embedded into the notion of automated vehicles; savings of fuel and time.

Smith's comprehensive study takes a detailed look at the three states [California, of course, Florida, and Nevada] that already have included "automated vehicle" provisions in their motor vehicle codes.  The study even includes a comprehensive model bill for progressive state legislators to consider.  Apparently, New Jersey, Arizona, Hawaii (?), Oklahoma, and the District of Colombia all have bills under active consideration.

One legal issue that comes to our simple mind over here at the Law Blogger is the actus reus [i.e. intentional bad act] requirement that a criminal law must contain to pass constitutional muster.  While we do understand the philosophy behind the "implied consent" concept underpinning many provisions of a motor vehicle code, we are compelled to ask, can a human be cited for acts undertaken by a machine?

This could be a small town lawyer's dream.  Imagine the cornucopia of defenses available for any potential automated motor vehicle code.  And if the legislatures go the "strict liability" route, the deep thinking consitutional lawyers will be well-fed.

Also, we cannot forget the product liability inquiry of who is responsible when [not if] something goes wrong, and someone is injured or killed.  Automated vehicles, if they proliferate, will produce a brand new branch of products liability tort law.

It will be interesting to see how far these fancy cars get along the respective legislative highways of the fifty states.  One thing is for sure: the process has begun.

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With so many folks, er, "medicating" themselves with prescription pot, you just had to see this one coming: the collision between medical marijuana and the family courts.

A California appeals court has ruled that a medical marijuana using father of a toddler is no longer required to exercise his parenting time under supervision.  The lower court found that father's use of pot placed the child at risk of "serious physical harm or illness".

The family had long been on the radar of Los Angeles County's Department of Children and Family Services.  During their investigation, DCFS interviewed father, a cement mason, who admitted to using medical marijuana for his pain and arthritis, but also stated that he never used marijuana around his toddler son.

DCFS authorized a case in the LA County family court alleging that father's legal use of marijuana rendered him occasionally incapable of  providing care for his then 18-month old child; the family court  agreed.

But not the California Court of Appeals, which held that the DCFS presented a mere scintilla of evidence, relying on inferences that amounted to speculation and conjecture regarding the correlation between the safety of the child and father's pot use.  Further, the intermediate appellate court found that DCFS failed to provide any evidence that father was unable to care for his son due to substance abuse.

The Court of Appeals' opinion is legally significant as it makes a distinction between substance use and abuse, defining the latter pursuant to the DSM-IV-TR, which defines substance abuse as:

[a] maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household); (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use); (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct); and (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights). (See DSM-IV-TR, at p. 199.)

In the California case, the DCFS simply did not make this showing.  In fact, the appeals court noted that the opposite was the case; the father was gainfully employed, had a legitimate reason to use pot, and controlled his use, keeping the substance and his use of it away from his child.

We here at the Law Blogger wonder how long it will take before such a case percolates through the court system here in Michigan, resulting in a  published and thus binding decision.  We have had the occasion to represent parents accused by the other parent of using medical marijuana during their parenting time to the detriment of the children.

In Michigan, the medical marijuana act provides some guidance in this regard:

A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated

This is a drama-laden issue to be sure.  Stay tuned for guaranteed future developments.

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Even as Connecticut became the 17th state to legalize marijuana for medicinal purposes last week, the DEA continues to bring the heat on some of the more visible pot crusaders across the country.  The latest to be busted is Richard Lee of Oaksterdam University fame in Oakland, California.

Despite assurances from the U.S. Department of Justice early in the Obama administration that enforcement of the federal Controlled Substances Act would not be a law-enforcement priority, in April the DEA capped a mounting campaign to arrest dispensary owners across California, Colorado, and Montana.  Many dispensary owners claim to have received letters from the DEA threatening criminal prosecution if the businesses do not cease and desist.

What has changed since the Ogden memo of October 2009, when Obama's DOJ signaled it would leave marijuana enforcement to the states?

One explanation is that when it came to dispensing marijuana, medicinally or otherwise, some folks started to make money; big money.  This led to the DOJ's so-called Cole memo last spring, which sought to "clarify" the previous memorandum, and which provided a mandate to U.S. Attorneys to vigorously prosecute marijuana distributors and to "follow-the-money".

Strong voices in the pot lobby are crying foul, suggesting that operators within the DOJ [particularly in California and Colorado] are acting on their own, ignoring the official White House script on this issue.  For their part, some of the medical marijuana states are seeking an end to this chaos; bi-partisan legislators from five of those states signed an open letter to President Obama requesting that the DEA not interfere with their respective medical marijuana laws.

Well folks, because this is a presidential election year, don't look for the Chief to weigh in decisively on this one anytime soon.  For a glimpse into the mind of the voting public, you can peruse the 100+ comments to an article in the Economist on this subject.  Some excellent points on both sides of the issue are made in the forum.

No wonder Mr. Lee is calling it quits out in California at Oaksterdam; he obviously doesn't want to do a dime in the federal penitentiary as all this gets sorted out.  We here at the Law Blogger will, of course, keep you posted; we've been tracking this issue since 2008.

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Albany, New York.  Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo.  When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009.  The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS.  Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters.  A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement.  His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation.  The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

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Photo Credit: LA Times

In a hotly contested 5-4 plurality decision that will surely go down as one of the more controversial cases of this decade, SCOTUS affirmed the 9th Circuit Court of Appeals in ordering the release of more than 45,000 California felons.  The decision will precipitate the largest release of prisoners in American history.

Brown v Plata began it's marathon crawl through the federal court system in 1990, when a case was filed challenging the poor status of mental health treatment in the California prisons.  Then in 2001, a companion case challenging the medical care of prisoners was initiated.

These consolidated cases have everything, from a procedural standpoint.  For example, a "special master" first was appointed by the federal court to make findings about the prison conditions.  The State of California stipulated to violations of the Eighth Amendment's prohibition of cruel and unusual punishment and agreed to remedy the problem by reducing overcrowding in the prisons.  Next, when remedial measures fell short, or did not occur, the court appointed a receiver to oversee the California Department of Corrections.

The cases were even assigned to a special three-judge panel to oversee the CDC's progress; or lack thereof.

Justice Anthony Kennedy wrote the majority's opinion, finding that prison conditions had gone too far for too long.  The opinion provides a few slices of life in the CDC like sharing a toilet with 55 of your good buddies, or doing your entire four-year bit in a sweaty gymnasium. 

The always-conservative Justice Antonin Scalia opined that the majority's decision was "absurd", noting that SCOTUS routinely overruled 9th Circuit decisions that called for the release of individual prisoners.  Justice Scalia sees grave problems that will come home to roost from the Plata ruling.

In a separate dissent, Chief Justice John Roberts wrote that the majority's decision conflicts with a federal law which prohibits judges from releasing prisoners.

The one thing SCOTUS gave the State of California was time.  California has busied itself with transferring thousands of state prisoners to county jails across the state.  This will not amelioriate the entire problem, however, and some of California's "happy-go-lucky" [Scalia's characterization] felons will wind up on the streets.

This High Court decision brings into focus the inherent tension between our individual freedoms and enforcement of the laws.  There is a constant tension between the two concepts.  Sometimes, that tension cycles to the breaking point like in California, where too many law breakers are stuffed into concrete boxes that are ready to explode.

In Michigan, although we are far behind California in maxing-out our prison capacity, we have an awful lot of population encased in concrete and barbed wire.  In fact, we have the opposite problem.  Due to budget cuts, we have at least one brand new facility, in Lake County, sitting empty due to lack of funding.

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In 1998, the Michigan Department of Corrections opened the Michigan Youth Correctional Facility in Baldwin, Michigan; right smack in the middle of the Manistee National Forest in Lake County.  The facility, known as the “punk prison”, closed in 2005 and was subsequently sold to GEO Group, Inc., a Texas-based conglomerate.

Lake County has suffered unemployment as high as 20% as a direct result of mothballing the youth facility.  The situation is about to change, however, due to California’s chronic prison overcrowding.

This blog has been tracking the landmark prison overcrowding case recently argued before the SCOTUS.  In a proactive effort to alleviate the situation, California recently contracted with the GEO Group to house more than 2500 inmates in the newly-renovated facility.  

California’s contract with GEO is worth a reported 60-million per year to the private detention management services company.  The contract begins in 2011 and runs through 2014.  Given California’s fiscal woes, you have to wonder how they can afford it.

Nevertheless, Lake County Michigan is ready to absorb the collateral benefits associated with accepting thousands of Californian felons, expecting to add as many as 500 jobs to the local economy.

This development hammers home the idea that in our democratic society, the constant tension between law and freedom results in a massive resource allocation for prisons, jails and law enforcement apparatus.

So when you are driving Up North this summer along M-37, just remember not to pick-up any hitchhikers.

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California's Proposition 19 lost by a vote of 56% to 44%.  If successful, the proposed law would have been the first in the country to legalize the recreational use of marijuana.

In Arizona, the medical marijuana proposition was too close to call as of Thursday, with the nays leading by less than one half of one percentage point.  That contest will most likely be called sometime today; looks like Arizonans will reject medicinal marijuana after all.

In California, the pot initiative lost because too few voters under age 26 turned out and moderate voters rejected the initiative.  Recent violence with Mexican drug gangs in both California and Arizona did not help either initiative.

Mixed messages float around the issue here in Michigan.  Recently, a huge pot-expo scheduled for the Pontiac Silverdome, billed as the largest pot-party in the world, was canceled at the last minute.

All this raises the questions: do we really need to legalize pot?  Is ours a pot-smoking nation?  Does marijuana have genuine palliative properties?

One of the major problems of perception with medical marijuana laws is that folks are simply going through the administrative steps to get "medically" certified to use pot, but are smoking on a recreational basis.

No good comes of a law that sets requirements that are perceived as a farce.  It would perhaps be better to legalize marijuana outright, then regulate its production, sale, and distribution.

California was really looking forward to billions in pot-derived state revenue.  Here in Michigan, there is confusion about who can legally grow pot and how it should be grown and distributed to "patients".  In Arizona, the question is too close to call 3-days after the mid-term elections.

Yeah, right.  Good luck with all that...

UPDATE:  A month after the election, it seems the "mainstream" media outlets are adopting the position asserted in the above blog post; medical marijuana certificates are being acquired to insulate recreational users from criminal charges rather than for legitimate palliative purposes.  Here's an article on this point from Nolan Finley in the Detroit News.


UPDATE on the UPDATE: Here's a great article from the Traverse City Record Eagle on this subject which details the case that most likely will go to the Michigan Supreme Court to test the viability and scope of the Michigan Medical Marijuana Act.

MORE UPDATES:  Now, the feds, via the DEA, have subpoenaed the Michigan Department of Community Health (the state agency in charge of administering the MMA) for all records relating to seven individuals under investigation by the DEA.  Read more here.

EVEN MORE UPDATES:  Now, Holland is getting in on the act, asserting it's attempt to "regulate" the MMA.  Here's the link.

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