Leniency to judges investigated for crimes: #DelawareCountyFamilyCourtJudgeGaryRosaTheCoward shines in denying brother-of-a-judge protection from #JudgeFrankLabuda

I wrote previously on this blog, here and here, about the criminal investigation against Sullivan County (NY) Judge Frank Labuda who was accused by his own brother Peter Labuda of running the brother over on the judge's all-terrain vehicle (ATV) causing Peter Labuda grave injuries (broken ribs).

The incident reportedly happened on September 25, 2017, reportedly in front of witnesses.

Yet, the judge was not indicted yet - and I doubt that he ever will be - because he is a judge.

If anybody else would have trespassed on Peter Labuda's property over his objection, and then "accidentally" run him over in his ATV causing broken bones, he would have been in jail by now and indicted for a trespass and a felony assault.

But, not so when the alleged assaulter is a County judge.

The local state police refused to conduct a field sobriety test or force Labuda into a chemical (blood) test, through a warrant if necessary.

The local prosecutor recused, turning the case over to the New York State Attorney General (who, by law, is also acting as the judge's own attorney in civil rights proceedings - Public Officers Law Section 17).

The New York State Attorney General reportedly attended the trial in Family Court, in the Family Offense (Family Court Act Article 8) petition that Peter Labuda filed in Family Court, obviously upset that the criminal investigation of his brother-judge gets nowhere.

Yet, as impatient as Peter Labuda was to get justice against his brother, he may have shot himself in the foot by having filed the Family Offense petition.

First, one of the most cowardly of judges, Gary Rosa, was assigned to the case.  Rosa would not rule in a way that would amount to a political misstep at any time, that has been already proven time and again.

Second, there is no jury trial in Family Court, so Gary Rosa was the only factfinder in the case.

To expect that Gary Rosa would have rendered anything than a politically motivated decision in this politically charged case where, extraordinarily, NYS Attorney General's office was present during a Family Court trial, was obviously futile.

Here is the decision of Judge Gary Rosa, made on March 8, 2017 dismissing Peter Labuda's family offense petition against his brother.  I will review it in detail below.

Third, the decision of Gary Rosa most likely will have the so-called "collateral estoppel" effect upon criminal proceedings.  If a judge could not find even by preponderance of the evidence that Judge Labuda did anything entitling his brother to an order of protection, then, most likely, there will be no indictment at all, as the prosecution will argue that there is no way to hold Judge Labuda to a higher standard.

So, how did Judge Rosa arrive to his extraordinary findings that the petition needs to be dismissed because both Peter Labuda who had the audacity to prohibit his brother-judge to trespass and ride his ATV on Peter Labuda's property and was "accidentally" run over for it on the ATV, and judge Frank Labuda whose alcohol level at the time of the "accident" the state police refused to check, a 71-year-old man (Peter Labuda) and a 69-year-old man (Frank Labuda) were simply acting as "arrogant adolescents", nothing more?

Let's look.

First, Judge Rosa confirms injuries that Peter Labuda did suffer - broken ribs and broken "fibula" bone requiring 48 hours of hospitalization:

Rosa then confirms that there was a conflict between the brothers prior to the incident of September 25, 2016 when Judge Frank Labuda refused to talk to his brother Peter Labuda in a coffee shop in town for a supposedly unknown reason.

Then, on September 25, 2016, Peter Labuda forbid Frank Labuda to ride his ATV on Peter Labuda's property.

Frank Labuda, claiming he has a "right of way" - which Judge Rosa confirms was not established at trial by documentary evidence (there was no right of way in the deed for Frank Labuda to cross over Peter Labuda's property) trespassed on Peter Labuda's property over objection of Peter Labuda.

Of course, Judge Rosa avoids at all costs to call that conduct a "trespass", because trespass is both a tort and a criminal offense, and especially a trespass that resulted in serious injuries to the objecting landowner.

Surprisingly, Rosa reflected in his decision the "investigation" by the police that was obviously meant to produce as little incriminating evidence against Judge Labuda and give Judge Labuda as many loopholes to break criminal charges against him as possible.

  Here is how these discrepancies look in a table format, with comments, for clearer view of why Peter Labuda was concerned about lack of impartiality in the investigation:

	Police interview of Peter Labuda	Police interview of Judge Frank Labuda	Consequences of interview techniques
How many people interviewed	3	2	See below
Did Chief of Police participate in the interview? Y/N	Y	N	Absence of Chief Blake Muthig at the interview of Judge Labuda shows that the emphasis was put on the interview of the victim, and not of the judge, and that the complaint against the judge was not taken seriously; also Chief Muthig may have distanced from the investigation of judge Labuda because Chief Muthig obviously knew the judge personally and relied on the judge in the past and in the future to sign warrants presented by Chief Muthig to the judge – under such circumstances Sullivan County police should have recused from the entire investigation instantly and allowed a neutral investigator to handle the investigation from the very beginning.
Who specifically interviewed	Chief Blake Muthig Lieutenant Pratti Detective Sergeant Peter Ramos	Lieutenant Pratti Detective Sergeant Peter Ramos	See above
Place of interview	Hospital	Judge’s own home	Peter Labuda was hospitalized for only 48 hours, and may have been in pain and discomfort when interviewed by the police for 1.5 hours; the police obviously could have waited for Peter Labuda to come home before being interviewed, but did not do that, while Judge Labuda was given the deference of having being interviewed in the comfort of his own home.
The length of the interview	1.5 hours	0.5 hour	It is obvious that the interview of the victim was more detailed and vigorous (aggressive) than the interview of the alleged offender (judge), showing potential bias of the investigators in favor of the alleged offender/judge.
Was the interview video or audio recorded? Y/N	Y	N	Not audiotaping or videotaping the interview gave Judge Labuda, but not his brother, an opportunity to impeach police officers testifying about the contents of his statement to the police
Who wrote the statement?	Detective Ramos	The subject of the interview, alleged offender/judge
Miranda warnings reflected in written statement? Y/N	Y	N	Not recording Miranda warnings gave Judge Frank Labuda an opening in the future potential criminal proceedings to claim that his statement was involuntary and in violation of his Miranda rights, and allowed Judge Labuda, but not his brother, a chance to deny contents of certain statements and that he made statements under coercion

And here is where the lying-to-fix-the-case starts:

Since the Sheriff's office obviously knew Judge Labuda personally and depended on his good graces in signing search and arrest warrants for the police - and thus absolve them of monetary individual liability for potential civil rights violations involved in such searches - his entire office was disqualified from handling the investigation.

When an investigator is partial and should be disqualified, investigator's "discretion" no longer is a valid argument, and investigator's use of "discretion" no longer applies.

Yet, Rosa continued to pretend that "the decision to test or not test respondent for the presence of alcohol lies within the discretion of the sheriff's office".

Rosa uses the fact that Judge Labuda was on private property (while not saying that he was trespassing on his brother's property over his brother's direct and clear objection) in Judge Labuda's favor, that he was not on public highway.  That does not eliminate the necessity and the right of the police to compel the alleged suspect of a vehicular assault, through a judicial warrant, if necessary, submission to a chemical test to verify what role, if anything, alcohol or illegal drugs may have played in incident.

That was not done, and this interesting use of "discretion", which Rosa admitted was "in deference" of the criminal suspects status of a judge, should have been used as bias and interpreted against judge Labuda and against credibility of police witnesses - but obviously, it wasn't by Judge Rosa.

Rosa's decision also reflects that Judge Labuda was upset that his brother's daughter (Judge Labuda's own niece) and his brother's girlfriend (an attorney) notified local newspapers of the incident.  That shows two things:

• first, that the judge, more than anything, is upset about publicity surrounding the case.  He obviously would not care one bit presiding over a criminal case where the local police would publicize the case and thus potentially jeopardize rights of any other criminal defendant to a fair trial and an untainted jury pool.  When it concerned Judge Labuda personally, the perspective changed, and he complained about it - a complaint that even the chicken Gary Rosa considered as irrelevant to the proceedings. 
• Second, but implicating his brother's girlfriend (an attorney) in his complaint, judge Labuda potentially threatened her and her law license, in a not so subtle way.  I will continue to monitor this female attorney's fate for some time to see if she would suffer any repercussions after this incident, after daring to complain about the judge, sue the judge in Family Court for Family offense petition, and notify local newspapers about the judge's misconduct.

Then, Gary Rosa engaged in analysis of underlying criminal statutes that, if violated (under the more lighter preponderance-of-the-evidence standard in Family Court proceedings) would have entitled Peter Labuda to the only remedy a Family offense petition in New York Family Courts would afford him - a permanent order of protection against his brother-judge Frank Labuda.

Gary Rosa analyzed potential violation by Judge Frank Labuda of 10 criminal statutes:

Judge Rosa engages in an interesting analysis of whether judge's brother had exceedingly long arms (literally) to be able to reach out and grab the throttle cable in order to trigger the ATV upon which Judge Labuda was sitting to get of hand brake and in full gear.

Here is the overview of all criminal statutes violations of which Judge Rosa refused to find against judge Frank Labuda:

NN	Name of statute	Section of the Penal Law	Elements of crimes in relevant subsections of Penal Law	Designation: Violation, misdemeanor or felony, and Maximum jail/prison term, if any	Resolution by Judge Rosa	Comments
1	Harassment in the 1st Degree	Penal Law 240.25	A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.	B misdemeanor, 6 months in the local County jail	A single event does not constitute a course of conduct	There were two events, not one – Judge Labuda first allegedly “nicked” his brother on the way up his property, and then ran him over on the way down.  That would satisfy PL 240.25.
2	Harassment in the 2nd degree	Penal law 240.26	Subsection 1: He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same - See more at:	A violation, up to 15 days in the local County jail	Rosa did not analyze application of this statute, but refused to believe that Judge Labuda acted with intent to harm his brother – without an explanation of such a finding	PL 240.26(1) was clearly satisfied, had Gary Rosa believed petitioner and his witnesses
3	Assault in the 2nd degree	Penal Law120.05	1.  With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or 2. With intent to cause physical injury to another person, he causes such  injury to such  person or to a third person by means of a deadly weapon or a dangerous instrument; or 4.  He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or 6. In the course of and in furtherance of the commission or attempted commission of a felony,  other than a felony defined in article one hundred thirty  which requires  corroboration for conviction,  or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of  the  participants.	Class D felony, 4 to 7 years in state prison, automatic disbarment without a hearing on collateral estoppel grounds for attorney Frank Labuda if found against him	Same as above
4	Assault in the 3rd degree	Penal Law 120.00(1)	1.  With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or	Class A misdemeanor, up to 1 year in the local county jail	Same as above
5	Assault in the 3rd degree	Penal Law 120.00(2)	2. He recklessly causes physical injury to another person	Same as above	Same as above + Rosa ruled that Judge Labuda’s behavior was not reckless “under the circumstances”, without an explanation for such finding
6	Assault in the 3rd degree	Penal Law 120.00(3)	With criminal negligence, he causes  physical injury to  another person by means of a deadly weapon or a dangerous instrument	Same as above	Rosa refused to recognize judge Labuda’s criminal negligence in running over his brother, causing broken bones, and refused to recognize that Judge Labuda was drunk for “lack of evidence”	Here is where police Chief’s refusal to run alcohol tests on Judge Labuda helped the judge
7	Menacing in the 3rd degree	Penal Law 120.15	A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place  another person in fear  of death, imminent serious physical injury or physical injury.	Class B misdemeanor punishable by up to 6 months in local county jail	Rosa downplayed the judge’s brother’s fear by claiming that, had he been in fear of injury, he would not have stood in front of a running ATV	It is quite plausible for the petitioner to consider running over him by an ATV to be a death threat for the future, especially given the judge’s power and the extreme deference/bias of the police in investigation against the judge, but Rosa refused to acknowledge such a possibility
8	Menacing in the 2nd degree	Penal Law 120.14(1).	He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm	Class A misdemeanor punishable by a year in local county jail	Same as above	Same as above
9	Reckless endangerment in the 2nd degree	PL 120.20	A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial  risk of serious physical injury to another person.	Class A misdemeanor punishable by up to a year in the local county jail	Rosa rejected, without an explanation, that Judge Labuda’s behavior was reckless “under the circumstances”.	There was no plausible explanation other than that judge Labuda intentionally took the ATV off gear (and that he was drunk), as to why an otherwise mechanically sound ATV would go beserk, get off hand brake and do that that mechanical mishap would happen exactly at the time when Judge Labuda’s brother with whom Judge Labuda was in a raging conflict, was standing in front of him
10	Reckless endangerment in the 1st degree	PL 120.25	A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in  conduct which creates a grave risk of death to another person.	A class D felony punishable by 4 to 7 years in state prison and automatic disbarment for attorneys	Judge Rosa, having found that there was no reckless endangerment, did not go further to analyze whether judge Labuda acted with depraved indifference to human life	Same as above

I can see how judge Labuda's brother - and the public - may feel about the "verdict" of Judge Rosa facing a 71-year-old victim of a potentially drunk (the evidence was obviously intentionally not obtained - not through chemical tests, not through field tests and not through audio or video recorded interview right after the incident which could have shown whether the judge appeared to be under the influence of alcohol).

There is a lot of arrogance in this case, but that arrogance was definitely not of the victim.

There was arrogance of a judge who ran onto his brother's land over his prohibition, because he felt that, as a judge and local king, he is above the law and nobody can tell him what to do.

There was arrogance of the local police who refused to follow their own rules of investigation when a judge was accused of crimes that caused grievous injuries to his brother, refused to collect evidence that the judge was potentially drunk (audio, video, field sobriety tests or chemical tests), and grilled the victim 3 times longer than the judge.

And, there was a tremendous arrogance on behalf of Judge Gary Rosa who lectured to the injured elderly man upon whose property his brother-judge first trespassed and then injured him on his own property, that his stance of confronting his brother for trespassing was actually an act of "arrogance", "childishness" and not "acting his age".

The gall of Judge Gary Rosa blaming the victim for his grievous injuries clearly caused by the trespasser judge is mind-boggling.
So, what now?


I still believe that the case should be submitted to a grand jury, and that the New York State Attorney General, as a counsel representing Judge Labuda under Public Officers Law 17, should recuse, and a special prosecutor be appointed, from out of state if necessary.

The dismissal hinged on the findings of a single fact-finder, himself a judge and thus extremely deferential to his own "brother"-judge:

• Rosa found that there was one "event" for purposes of "course of conduct" regarding the harassment charge; the grand jury and the trial jury may find otherwise;
• Rosa found that he could not find that Judge Labuda intentionally ran over his brother; the grant jury and the trial jury may find otherwise;
• Rosa found that he does not find "reckless endangerment" or even "criminal negligence" "under the circumstances" - without an explanation as to why, and under extremely suspicious circumstances; the grand jury and the trial jury may find otherwise;
• Rosa found that there was "no evidence" presented that Judge Labuda was drunk; as much as the police made sure that no field sobriety tests were made, no breathalyzer or blood tests were made, and no audio or video-interview of judge Labuda right after the "incident" was conducted, documenting how he looked, the grand jury and the trial jury, relying on circumstantial evidence and witness testimony, can still find otherwise.

Whether this case will be submitted to the grand jury is a big question. 

If it isn't, if the NYS Attorney General decides that his own biased opinion as to whether to charge or not to charge his own client with a crime, and the "deferential" (biased) opinion of Judge Rosa may substitute for the decision of 23 grand jurors to charge or not to charge, and of 12 trial jurors to convict or not to convict Judge Labuda under the circumstances - the public will see a loud and clear message that Judge Labuda, and any other judges in New York state, are above the law if they commit even a violent crime against an elderly person that resulted in grievous injuries which will, probably, never heal completely considering the victim's age.

If Judge Labuda is not charged, will he now emerge as a victor from his paid administrative leave, and will continue to preside over criminal proceedings that he himself escaped because of his judicial status, teaching criminal defendants, their attorneys and the public what the real rule of law is like in the State of New York?

Or, will Labuda be quietly wisked into some kind of early resignation or retirement?

In any event - what a circus "adjudication" by Judge Gary Rosa was.

In what amounts should judges be bribed so that the public would be confident in their integrity and impartiality? The State of Wisconsin version

In 2009, the U.S. Supreme Court has decided a case, Caperton v A.T. Massey Coal, Inc. where it ruled that financial contributions to judicial election campaigns that are followed by the judge's swing vote in favor of the contributor may raise to constitutionally intolerable appearance of impropriety, see background of the case here.

Caperton did not set a "bright line rule" as to how much money should be paid to a judge in election campaign to make his decisions in favor of contributor questionable.

Recently, political satirist John Oliver mocked the process of financial contributions to judicial campaigns, and claimed that financial contributions by parties and attorneys to judges are questionable in any amounts - which is a reasonable view that I share (I do not share John Oliver's views regarding Alabama Chief Judge Roy Moore who refused to obey federal court decision and the U.S. Supreme Court precedent on gay marriage claiming that it is against the U.S. Constitution, see my blog on that subject here).

Enter 50 retired (note that) judges from Wisconsin who somehow considered that they have standing to question Wisconsin rules of judicial recusal and filed a petition to Wisconsin Supreme Court (not to Wisconsin Legislature) to change rules of recusal of judges.

Wisconsin has an interesting history of reacting to Caperton.

After Caperton was decided in 2009 by the U.S. Supreme Court, Wisconsin refused to follow that rule and pronounced, by a judicial decision, that financial contributions to judicial election campaigns in ANY amounts will NOT be considered as a stand-alone mandatory reason for judicial recusal, and Wisconsin Supreme Court ruled in 2015 that candidates to elective office (including judges) are free to coordinate their efforts in judicial election campaign with any advocacy groups, and that those advocacy groups can spend any amounts of money without triggering mandatory disqualification for the elected official from cases relating to the advocacy group or its causes.

Moreover, in 2015, as the retired judges point out in their petition, the Wisconsin State Legislature increased 20 times limits on campaign contributions to elected public officials as compared to limits in place in 2010.

So, what do the retired judges propose?

A very simple thing called "a bright line rule".

They propose to set a rule NOT requiring mandatory disqualification of judges from cases of financial contributors to their judicial campaign (whether the contributor was a party or an attorney of record in a certain case), if the contribution was up to the following amounts:

This request raises interesting questions, especially that judges ask to establish this "bright line rule" in order "to insure the public's confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system":

So, according to the retired judges' proposal, the following amounts of BRIBES to Wisconsin judges not only do not undermine, but actually ensure "the public's confidence in the ultimate fairness and integrity of the entire Wisconsin judicial system":

• a bribe of up to $10,000 - if given to a candidate for the highest state court;
• a bribe of up to $2,500 - if given to a candidate to the intermediate appellate court;
• a bribe of up to $1,000 - if given to the judge of a trial-level court of general jurisdiction; and
• a bribe of up to $500 - if given to a judge of a municipal court

Of course, the question is - why such a gradation is even proposed?

Why not the same amount to judges of all levels?

Why it costs more to get elected to a higher level of the judiciary and why, the higher the level of the judiciary, the more in bribes they should be allowed to accept under the guise of "campaign contributions" without a requirement of disqualification from cases of contributors?

This petition clearly shows how much judges in the State of Wisconsin (and in the United States in general) are disconnected from reality and from critical self-review - they openly and seriously consider that restricting bribes to a judge by amounts somehow will insure and enhance the public's confidence in the integrity of the bribed judges, even when the rule clearly implies that the only "rule of law" the judiciary acknowledges is the following rule:

"the higher the court - the higher the stakes - the higher the price of a judge making the decision".

It is also interesting that the Wisconsin Supreme Court has taken the case off the calendar (no, did not dismiss it for lack of standing, as it should have done) because another "advocacy group" that claims that a "no-limits" approach (that exists now) is just what the public (and, of course, the judiciary) needs sent an e-mail to the court and claimed that the petition is nonsense, and that the rule should be presented for review and comment by the public.

I wonder where the public of the State of Wisconsin is in all of that.

I see where the Legislature (overwhelmed by attorneys regulated by the judiciary) is - in the pockets of judicial lobbying groups.

But I wonder where the public is - does the public really consider that legitimizing bribes to judges by setting legitimate sliding scale of bribes for judges - the higher the judge, the higher the "allowed" bribe - will help enhance and ensure their confidence in integrity of the state judiciary?

Moreover, I wonder about the legislative process in the State of Wisconsin - how come that questions of such astounding, fundamental importance as establishing constitutional access to justice, to an impartial judicial review, is a matter of a petition of a group of people without standing to make such a petition, and a matter of a court case for several parties, instead of a legislative enactment?

The schizophrenic dissent of the 9th Circuit re Trump's executive order - continuing to call for public respect of judges' dishonorable actions will only breed more public contempt of the judiciary

On March 6, 2017 President Trump issued his new Executive Order on immigration.

At that point, a lawsuit against his first executive order filed by the State of Hawaii on February 3, 2017 was pending in federal court.

On March 7, 2017 President Trump's administration has filed in the U.S Court of Appeals for the 9th Circuit a motion to withdraw its interlocutory (from an intermediate decision) appeal of the temporary restraining order imposed by federal district judge Robart, on consent with Appellants.

On the same day, March 7, 2017, the State of Hawaii filed a motion to amend their complaint to now challenge President Trump's 2nd Executive Order - see docket of that case, Docket No. 58.

On March 8, 2017 the unopposed motion on consent of opponents, to withdraw President Trump's interlocutory appeal was granted, and the case was closed, as reflected on Pacer.gov.

On the same date, March 8, 2017, federal district court granted the motion to amend, making the State of Hawaii "the first state challenging President Trump's 2nd Executive order in court".  See docket of the case, docket No. 59.

By the way, consider the waste of public funds on that case, where in just a month an a half since the case was first filed on February 3, 2017, 222 docket entries were made in a federal district court case, more than an average federal court case would generate in several years.

On the same date, March 8, 2017, the State of Hawaii filed a motion for a temporary restraining order of the new executive order of President Trump, and the judge, Derrick Watson, scheduled a hearing on that motion for March 15, 2017, one day before the new executive order would come into effect.

After that, interesting things started to happen in the 9th Circuit where the appellate case was dismissed, jurisdiction of the court stopped, and all prior decisions on the dismissed appeal were rendered moot and void by the dismissal on March 8, 2017.

On March 15, 2017 the 9th Circuit denied an en banc application in the already dismissed appeal.

Of course, that application died a week prior because of the dismissal of the appeal, but lack of jurisdiction never stopped a judge willing to get some limelight for themselves, and especially a judge of the 9th Circuit.

On the same date, March 15, 2017 - I am not sure which was first and which was second, because the 9th Circuit decision to deny review of the already mooted decision in the dismissed appeal does not have a time-stamp - Judge Derrick Watson of the U.S. District Court for the District of Hawaii, a judge who accepts externships from the Hawaii State University School of Law (and, there is a question whether Hawaii State law students worked on his 46-page order in favor of their school) granted a temporary restraining order to the State of Hawaii.

So, it appears that not only the 9th Circuit revived jurisdiction in an already dead case in order to make the mooted, and dead, 3-judge decision of the 9th Circuit, appear alive and "precedential", but that it did it to pitch some support for the lower court judge who, same as the 9th Circuit, has connections to the Hawaii University Law School, a party in the lawsuit.

Judge Derrick Watson in the district court, of course, relied upon the decision of the 9th Circuit which, on the date of Judge Watson's decision (March 15, 2017) was void for a week - since the appeal in which it was made as an intermediate matter, was dismissed on consent of court on March 8, 2017.

The international law firm Hogan Lovells (with headquarters in London, Great Britain, reportedly, an 11th largest law firm in the world by revenues as of 2013) that represents the state of Hawaii in that case, at taxpayers expense, and that have drummed up that humongous docket of 222 entries within 1.5 months, is already drumming up business by advertising their "success" in blocking President Trump's travel ban on their website:

At the very same time the State of Hawaii stalls my Freedom of Information request by making it prohibitively expensive to get information as to who paid and how much was paid for vacationing, wining and dining of U.S. Supreme Court justices invited by that law school, including the bills of the U.S. Supreme Court Justice Ruth Ginsburg who vacationed in Hawaii, at the State of Hawaii's expense, during the pendency of the lawsuit in the Hawaii district court and right when the 9th Circuit has made its now-mooted (but, as 9th Circuit pretends, still alive) decision.  Ruth Ginsburg, as I said before, was vacationing within 7 miles of the chambers of one of the 9th Circuit judges who has made a decision, and had meetings with Hawaii State University Law School faculty, while three of Judge Clifton's law clerks:

• Joshua Korr;
• Aaron Henson; and
• Wayne Wagner

are currently part of that faculty, being professors at the Hawaii State University School of Law.  Nothing too crooked.

Here is the FOIA request that the Hawaii State University School of Law acknowledged, listing request for records about employment of Judge Clifton (the 9th Circuit judge whose chambers are located within 7 miles from the law school where Ruth Ginsburg visited at the time Judge Clifton was making his decision regarding President Trump's TRO and who himself enthusiastically participates in the law school's activities):

By the way, Joshua Korr, law clerk to Judge Clifton in the U.S. Court of Appeals for the 9th (federal) circuit (see his picture and information about him on the University of Hawaii School of Law as of today, which is a public record):

is listed as a law clerk for a state judge of the State of Hawaii in 2016, yet another "interesting" coincidence, further potentially miring the decision of Judge Clifton in conflicts of interest:

Here is the slideshow as to how well Ruth Ginsburg was entertained during her self-given vacation during work time in February of this year while she was likely help draft orders for the 9th Circuit, and for the Hawaii Federal district court, as well as when she was likely consulting the State of Hawaii how to fight President Trump (who she openly hates, and keeps making public statements against him, disregarding the fact that his case may come to her for review).

Watch how frail Ginsburg is - she literally cannot stand very well on her own.  How can she be allowed to handle a rigorous caseload of the U.S. Supreme Court, including death penalty cases? 

Note that Ruth Ginsburg is called here the State of Hawaii University School of Law's "Jurist in Residence" - and even that designation did not deter her from coming, at the time when the State of Hawaii is a party in a federal court litigation potentially heading towards the U.S. Supreme Court.

Here is the bill estimate, with a demand to pay 50% down, that I received from the State of Hawaii University Law School several days ago.  This information, public records of great public concern, showing whether judges of the U.S. Supreme Court, and of the 9th Circuit, are, very simply, bought by free vacations in Hawaii, should be published and available to the public for free, not hidden by allegedly high cost of research and retrieval.

185 hours to retrieve all records of who paid for judges wining and dining?  And, 45 more hours for "review and segregation"? Are those records so well hidden that it requires over 23 full working days (8 hours a day) of search?  Or are they so plentiful, which raises even more concerns, because the U.S. Supreme Court will, most likely, have to review a writ of certiorari from this case in the long run.

And, "another person" should be consulted about possible exemptions - who are those "other persons", I wonder - Ruth Ginsburg herself and other judges who were wined and dined and vacations for free in Hawaii?  Or their private sponsors who pitched in to defray some of the costs of providing freebies to the greedy millionaire judges who would not turn a freebie down even if that screams disqualifying conflict of interest?

So, here is the bill estimate and a bill for 50% of costs for public records as to who paid and how much was paid for wining and dining U.S. Supreme Court justices by the Hawaii University School of Law, a party in the action where a temporary restraining order upon President Trump's second executive order on immigration was imposed by a judge who has interns from Hawaii State University School of Law:

With that background in mind, let's look at the 5-judge dissent that the 9th Circuit considered possible to file (as well as a "majority" and a "concurring" opinion), and to file on March 15, 2017, a week after the appeal was dismissed by order of the same court - and thus jurisdiction in that appeal, FOR ALL PURPOSES, died as of that same date, making all orders in that appeal moot and void.

Here are the concurring and dissenting opinions regarding the belated denial of en banc review of the mooted 9th Circuit decision, I downloaded them directly from Pacer.gov.

On the one hand, the dissenting judges use pretty strong language to describe what the 9th Circuit 3-judge panel did when they refused to grant to President Trump a temporary stay of Judge Robart's unlawful decision (see analysis of judge Robart's decision here and of the 9th Circuit's decision here).

The 5 dissenting judges:

• Jay Bybee;

• Alex Kozinski;

• Consuelo Maria Callahan,

• Carlos Bea, and

• Sandra Segal Ikuta

branded the 9th Circuit decision as having made errors that "so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future".

That is pretty strong language.

It practically say that the 9th Circuit panel:

1) did not follow or apply the law;

2) created confusion and chaos in the law

where respect to judicial decisions heavily relies upon predictable and correct application of the law that is GIVEN to judges, not CREATED by them.

The dissenters confirmed their opinion that the 9th Circuit violated the constitutional separation of powers and wreaked havoc in federal case law:

Then, the dissenting opinion states, in exhaustive analysis, that only the President gets to decide issues of immigration policy, and that it is subject only to review whether there can be found any bona fide basis for the decision of the executive.

In that, the dissenting opinion did not even touch upon the question that aliens outside of the U.S. are not entitled to any constitutional rights, by the U.S. Supreme Court precedent, and thus, states, "standing in their shoes", do not have any standing to sue on their behalf either, as well as on their own behalf.

Moreover, the dissenters confirmed that courts should not, even in camera, review issues of national security that the President is debriefed on, and pointed out that it is wrong to expect the President to reveal his considerations for issuing the executive order because that would reveal contents of secret security briefings:

In fact, the dissenters not so subtly accused the 9th Circuit panel of trying to second-guess the results of presidential elections that vested President Trump with the discretion to decide issues of immigration policy, without second-guessing by courts:

Yet, after saying all those right words, the 5 dissenters then said something extraordinarily stupid - under the circumstances.

Look what these 5 dissenting judges are saying, in the same breath:

1) that the judges of the panel did not follow the law at all, creating confusion in courts as to what IS the law

which necessarily leads us to conclusion that these 5 judges, as well as those 3 judges they are criticizing, harbor a dangerous delusion that judges in the United States, and not the U.S. Constitution and written laws enacted by legislatures, as people's representatives, are sources of law, and

2) that when judges do not follow even their own "law" that they created - without authority - they still need to be respected and not criticized?

Considering any out of court criticism, any statements about court decisions which are less than deferential to judges, to be regarded as unacceptable "ad hominem" , personal attacks on judges?

I think we are beyond that hurdle already when even such a stronghold of deference to the judiciary, New York Law Journal, has published an article, specifically on Donald Trump's criticism of judges, fully supporting his criticism:

"If the judiciary is to maintain our respect and our deference, judges across the country must show that their decisions are just not politics by another name.  Otherwise, jurists can expect even sharper criticism than Trump's."

When judges, public servants, violate their own oath of office by not following the law and ruling based on their own political views - which is what obviously happened in the 9th Circuit decision - they are not entitled to respect of their employer, the public, no matter what honorary titles and names they bestow upon himself.

They can view themselves as honorable and distinguished, and they are still unruly and contemptible oath-breakers in the public eye if they MAKE the law instead of APPLYING the law in the decisions.

The dissent ended with interesting phrases:

But that's EXACTLY what courts are doing nowadays - setting policy instead of legislators and executives, instead of doing their duty and only APPLYING the law as written.

And, the dissent actually recognizes that what the 3-judge panel decided was not the law.

So, the dissenters must realize that the we have long passed the line where "we are not governed by law at all" - and that courts are the reason why that happened.

Yet, by placing respect to judges, even openly lawless judges, above all else, the dissenters showed that they are still very much members of a brotherhood that have long circled their wagons against their employer, the public, and that considers their own interests above all others, first and foremost.

To any reasonable person, calling for MORE respect to people who are engaged in actions that deserve NO respect, and actually DISCIPLINE for oath-breaking and of promises to follow the law and precedents made at each of the 3 judges' confirmation hearings in Congress - will not bring more respect to anybody.

It will bring less respect even to the dissenting judges themselves, and to the judiciary as a whole, because such feverish efforts to protect the judiciary from fair criticism - which does NOT have to be deferential, especially when judges openly refuse to follow the law and their own oath of office - and will bring further contempt to the judiciary as a whole.

When they act as politicians in black robes, they must be criticized for that behavior.

And criticized more, not less.

Because, as the dissent makes very obvious, there is just one thing that judges appointed for a lifetime fear - exposure of misconduct through harsh criticism.

And you know what comes when the public thinks lowly of the lawfulness of court decisions - because they are unlawful?

The public will start disregarding those decisions.

It is a matter of time when massive civil disobedience of unlawful court orders will start, and when that starts, the judiciary should look in the mirror to find the reason why that will start happening.

For example, the law may not possibly require President Trump, who has been sworn to uphold the U.S. Constitution, to follow an unconstitutional order of the 9th Circuit which even the fellow judges recognize is unconstitutional - not in so many words, but quite transparent (by saying that the decision will "confound" the U.S. Supreme Court and other courts as to "what the law is").

In fact, President Trump's oath of office requires to follow only his constitutionally vested duties, and to disregard any unconstitutional interference into his duties.

So, President Trump will be in the right if he would simply disregard orders of various federal courts acting as if presidential elections are still ongoing and as if judges are his political opponents in those elections.

President Trump already made a step towards that, by saying that, if his "honed down" executive order is also not good enough, he may just as well go back to his original order, which was perfectly good in the first place.

And let the dice roll.

Meltdown moments for judges

Michigan judge Lisa Gorcyca (the last name means "mustard" in Russian, by the way), whose outrageous behavior towards three children I described before on this blog, here and here, is now begging the disciplinary authorities not to suspend her for 30 days, and is using very interesting arguments to justify her begging.

She is, first, asserting a judge's right to a "meltdown" on the bench - claiming that her outrageous behavior, with multiple violations of the very basic constitutional rights of children - to counsel, to a hearing, to due process, to not be locked up for refusing to see their father because reportedly they were afraid of him - was just "one instance" of "lapse of judgment" in her otherwise stellar record.

That means that Gorcyca impliedly recognizes that there was a lapse of judgment.

Yet, at the same time, Gorcyca's lawyers were reportedly arguing that her behavior (the very same which she recognized was "a meltdown" and at least one instance of a lapse of judgment) received "more national praise than outrage".

Moreover, Gorcyca accepted a standing ovation from lawyers in her court after a finding of misconduct was made last July - behavior which clearly does not correspond with remorse.

Discipline of judges in this country, or rather, lack thereof, does not fail to amaze me.

At the worst - and that's what Gorcyca is trying to prevent, arguing about her "right to a meltdown" - she is looking at a 30-day suspension, losing about $11,000 in salary and having to pay $12,000 in fines and court costs.

Yet, for what she did - unlawfully incarcerated children after intimidating and humiliating them in court, without any legal basis for either humiliating or intimidating them, or locking them up - she clearly should have been taken off the bench and disbarred.  That was not a "legal error".  That was not a "lapse in judgment".  That was a clear evidence of a character flaw and unfitness for the bench.

Does a judge have a right to a meltdown on the bench?

Sure.

One time.

After which that judge should be taken off the bench for good, so that those meltdowns would not happen again.

If Gorcyca is left on the bench, that is leaving a time bomb on the bench, which judicial disciplinary authorities know will go off, sooner or later.

If Gorcyca, a longtime attorney, longtime prosecutor and longtime judge, cannot discipline herself not to lash out in "frustration" against the most vulnerable and helpless people in front of her, children, she is hopeless and clearly unfit for the bench.

Take her off, for good, so that her "meltdowns" do not affect other people in such drastic ways.