Reality Check Radio with Justice Richard Sanders

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UNOFFICIAL TRANSCRIPT

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Justice Richard B. Sanders interview on Reality Check Radio

March 12, 2013

Former Justice, Washington State Supreme Court

Transcription of audio posted on the web at

http://www.blogtalkradio.com/rcr/2013/03/13/rc-radio

2:00

Reality Check: Tonight, as I mentioned, I do have a guest, a very distinguished guest. His

name is Justice Richard B. Sanders. Hes a former justice on the Washington State Supreme

Court. I think he, well get into his biography when I bring him up in just a minute, but I think

he was on the court for about 15 years. And the reason hes our guest is hes representing

Linda Jordan in her appeal of fees in the case in Washington State that weve covered on the

show. And I hope he has time, he said he probably will be able to stick around and take a few

calls and that number to call is 347-324-5546. And, there is a chat room available that Im

back into now after I got kicked out of it but Im back in now. 347-324-5546. You can either

listen or ask a question a little bit down the road. But first, let me bring up Justice Sanders.Good evening.

Justice Sanders: Thanks for inviting me on your show.

RC: Its great to have you. As I said as we were chatting before the show started there this is

a first for us having a former justice of the Washington State Supreme Court. So why dont

you take just a minute or two and give up your background, Justice Sanders.

JS: Well, I went to the University of Washington. I played in the Rose Bowl for the Huskies,

albeit French horn. I went to the UW Law School. I was in private practice for about 26 years.

I did all kinds of cases, personal injury cases, civil rights cases. Then in 1995, there was aretirement on the Washington State Supreme Court and someone was appointed that I

thought I could do better than. I thought what the heck, you know, Im 50 years old. Its now

or never. So I ran for the state supreme court. My wife said that I wasI didnt have a

chance. I was wasting community assets but, lo and behold, I actually won, and I remained on

the court until 2011, for 15 years. And it was the time of my life, a lot of interesting cases.

Found out how the judiciary functions from the inside. And I think I have a lot of insight about

the world of the judiciary and lawyers and the law.

4:40

RC: OK, great. Uh, are the uh, Im sorry I lost my train of thought there a minute ago. But arethere any cases that stand out in particular while you were on the bench? Im sure you had

plenty over 15 years, but any particular one?

JS: Well, there were, there were a tremendous variety of cases. I remember the first day that

I ever heard oral arguments. We had three so-called three strikes youre out cases. And one

of these cases involved a young black man who had stolen $300 from an espresso stand,

armed only with the finger in his pocket, and he was given life without possibility of parole.


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And this individual is still in prison. The court affirmed his conviction 8-1. I dissented. I

thought that was a cruel conviction, or a cruel, a cruel sentence for not-a-very-heavy-duty

felony.

So I saw then an uncomfortable trend in the judiciary, and that is, if youre the little guy,

theyre going to throw the book at you, but if you are a man of means or if you are

governmental elite, chances are you are not going to have to face the consequences of your

misconduct. You know, this has been detailed in other books, one by Glenn Greenwald. Hes a

left winger but hes right about this. And I see the war on terror. I see governmental

misconduct all the time, wire tapping. This is against the law but yet governmental officials

are never held to account for it and I think thats a real problem in our judicial system. Its

not the fault of the courts. Its the fault of the prosecutors, I think, who try to throw the

book at the little guy and virtually give immunity to elites. So thats, thats a problem.

During the course of my tenure on the state supreme court I heard a lot of [unintelligible]

cases. That was my forte when I was in private practice, trying to protect the rights of private

property owners from arbitrary governmental action or governmental action that took theirproperty without just compensation. Thats important, you know, the protection of private

property was one of the first reasons that we have a constitution, a federal and a state

constitution in the first place, and I think that the judiciary has to be attuned to that and

make sure that the rights of the private property owner are not sacrificed to the government

who always thinks that they can do things more cheaply if they steal your property rather

than paying you just compensation or if they treat you fairly. So that was an area.

I saw people lose their children who were fit parents because some case worker thought that

she could parent better or thought that someone else could parent better than their natural

parents. But, you know, thats not the standard. The natural parent has a constitutional right

to raise their kids or unless they are really unfit and incorrigibly so. I didnt see that honored.So, generally its an assault on liberty everywhere you look.

I was worried about public disclosure. In the State of Washington, as in most states, we have

a public records act, open public records act where citizens are entitled to have access to

government documents with some exceptions and I would see the courts with very, not very

prone to make sure that citizens gets the documents that they need and very reluctant to

adequately sanction the government by fining the government for wrongfully withholding

those documents.

You know, so in the criminal law, the civil law, were talking about free speech, free press,

the right to keep and bear arms. Its all under assault. We have many cases involving the rightto keep and bear arms. You know, theres a doctrine where, in our state, which is called

hard time for armed crime but what does armed mean? I would think that armed means

that you are using your firearm in the course of committing a felony. But the doctrine has

been come to be understood by the majority of the courtI never bought thisas just having

possession of a firearm or owning a firearm even though you did not use it in the commission

of a crime. And they call that armed crime and they want to add five years to your


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sentence, even if your gun was at the other side of the house or locked in a safe. So, thats

no more than punishing someone because they happen to own a weapon. So, that was a

matter of concern.

Every day was something new, something different. That made it fun on the state Supreme

Court. And also, it was a challenge to try to defend a case, the rights of a private citizen

against the government.

10:15

RC: OK, that [unintelligible]. In general, I would agree with most of those notions. That kind

of leads us to the case I really wanted to talk about tonight that youve, now that youre no

longer on the bench, you were, didnt win reelection in 2010 as I understand so youve been

in private practice since then, I believe. Is that correct?

10:38

JS: Yes, thats right.

RC: OK. And, you became involved at a fairly late stage in a case called Jordan v Reid, which

was filed by Linda Jordan. How did you hear about that case?

JS: Well, she called me up on the phone. She said that she was in trouble, that the, she had

brought a case against the Secretary of State back last August to try to keep President Obama

off the ballot. And she lost her case within a couple of days. It was dismissed. She appealed it

to the state Supreme Court. Nobody really was interested in hearing her case on the merits.

Rather, the court then dismissed her case as frivolous, directed the clerk of the court to

assess an award of reasonable attorney fees against her, and hit her with a $13,000 award. At

that point, shes had enough of representing herself and came to me. And I discovered thatthe Attorney General, who had sought the $13,000 award, never told the clerk that he had

charge, actually charged the Secretary of State about $3500 for the representation. But yet,

he had obtained an award three or four times that amount. So, that was one of the main

talking points that I had in trying to set this award aside. Its still pending. I think were going

to be able to do it. But its not over yet.

12:27

RC: Lets talk a little bit about that. I know you, we talked just before the start of the show,

and you said you werent there at the beginning of the case. Now I listened to another radio

show where Ms. Jordan was on. I want to go into the details, some of the details,[unintelligible] details of the case. First, she said she asked eight attorneys to take her case

and were, they all refused. Do you, do you know why they refused?

JS: Thats right. She said that she went to numerous lawyers to try to get some help and they

turned her down. I guess that they were worried about being labeled as birthers or out

there and thought of, some of them said that they just disagreed with her politically and

wouldnt represent her. Thats, you know, thats not my attitude at all. I think that if people


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can make a reasonable deal about paying their lawyer, you know, Im happy to represent

them if I can. And I dont really care what other people think about me. Thats not my

problem. Thats their problem. Im here to try to bring justice to the individual

13:45

RC: OK but do you think her case as filed was frivolous? The original case.

JS: Well, the reason she lost is that the Secretary of State took the position that he had

gotten a certification from the National Democratic Committee that Barack Obama and Joe

Biden were the nominee for president and vice-president and the Secretary of State took the

position that under the laws of the State of Washington thats all he needs to know and that

its not his prerogative to go beyond or behind that certification to determine whether or not

the candidate is actually certiis actually eligible to run. So, you know, I dont know whether

hes wrong about that or right about that but thats the position that he took. So I think that

these cases have usually been losers in the end and there were a couple on the east coast

where the court fined not only the litigant but the lawyer like 20,000 bucks for bringing the

case. So I think we have to be pretty careful about this and make sure that the claim has an

ability to get relief on the theory that you bring the claim. So, I dont know what that theory

would be but apparently the Superior Court in this State as well as the State Supreme Court

thought that there was no way that a claim such as the one that she brought could obtain

relief even if she was correct.

15:31

RC: Well apparently the judge was persuaded by the Attorney Generals argument because he

said, Im persuaded by every defense raised by the Secretary of State. And the main points

of the case were that she failed to name an indispensible party, which was President Obama;

that the court lacked subject matter jurisdiction because its not the Secretary of States job

to determine presidential eligibility, and that yourMs. Jordangreatly misconstrued the law

on what the Secretary of State had to do. As a matter of fact, he concluded, he said, I can

conceive of no reason why this lawsuit was brought except to join the chorus of noise in that

blogosphere. This case is dismissed.Thats pretty much sounds like the judge thought it was

frivolous, doesnt it.

JS: Yes, right. He did. He did think it was frivolous. And thats what he did.

RC: So, you really didnt answer my question. Do you, I assume youve read some of the

earlier papers in this case. Do you think it was frivolous?

16:42

JS: Well, look at it. I think that Linda Jordan brought this case in good faith. I dont think she

could get from here to there in the context of this case, if thats your question. You know, I

think that she thought the merits of her claim through. I think that she had evidence to

support her claim but that she could not surmount the situation where, that it was out of the


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department of the Secretary of State to, even if he believed it, to stop Barack Obama from

being on the ballot. I think that was the central problem here in this case.

Although, beyond that, lets be honest about this. No matter what the context of the case, if

the court heard it on the merits and she would come forward with her evidence, and if the

court ever ruled in her favor, or in favor of anyone else taking a similar position, that would

be catastrophic and upset the apple cart and the system is not going to permit that to

happen. Thats the sad, you know, the sad reality of our current situation.

18:05

RC: Lets talk about her evidence. Did she have any admissible evidence?

JS: Well, I think that, I think that the thrust of her argument and her evidence was that

Barack Obamas birth certificate was forged. And she had some declarations from individuals

who purported to be experts on that who testified that they thought it was forged. That was

her evidence. But like I said, it kind of goes to a point that the Secretary of State said didnt

matter as far as what his job was.

18:50

RC: What do you believe? Is President Obama eligible?

JS: Well, personally Id like to see some evidence, not just negative type evidence saying that

theres a problem with his paperwork, but rather some positive evidence showing that he was

actually born some place outside the countrywhere he was born, when he was born, what

the circumstances wereand I havent seen that evidence.

RC: So you believe hes eligible then from the evidence youve seen.

JS: Well, I think that the people that believe hes ineligible have a ways to go to prove their

case because you cant just prove a positive by demonstrating a negative. And thats, now I

know that there are individuals listening to your program who have answered all of this and

maybe they do. Maybe theyre right. Im not an expert on this. But that, I mean, from Im, in

this regard, Im a layman, and that would be my question. How do we prove where he was

actually born?

RC: I think its pretty easy. He produced two birth certificates that were valid. The short form

birth certificate that the birthers made such a hick-hack over is a perfectly legitimate birth

certificate. If a sealed birth certificate were presented before your court with no evidence to

the contrary and with a letter and verification from the State saying its valid, wouldnt you

tend to accept it as valid?

JS: Sure.

RC: OK. Were all in agreement there. This is not, in case you havent figured out, this is not

a Birther radio show. We actually believe in the full faith and credit clause in the

Constitution. Theres a reason its there. So, good, so, youve seen no evidence at all that he


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wasnt born in Hawaii. And, while were talking about that, well get back to the case in a

minute, lets accept the fact that he was born in Hawaii because I think most reasonable

people would conclude that. Dont you agree?

JS: That he was not born in Hawaii?

RC: No, that he was born in Hawaii in 1961.

JS: Well, you know, thats my assumption. I guess there were a couple of notices in local

newspapers at the time, Hawaiian newspapers, of the birth, so youve got [unintelligible,

21:32] to overcome that is seems to me.

21:35

RC: I agree. Now, by his birth in Hawaii, you know, and the fact that hes 35 years old, and

hes been a resident, he was a resident of the country for 14 years before running for

President, then he is eligible, correct, if those points are all correct?

JS: Yes, yeah, sure.

21:55

RC: And, I take it than you dont buy into the Birther theory that s being pushed lately

especially with the emergence of candidatespotential candidateslike Marco Rubio and

Senator Cruz that you do not have to, it doesnt matter if, your parentage doesnt matter.

Theyre pushing this theory, and its actually been adjudicated in some of these Birther cases,

that both of your parents have to be citizens or youre not a natural born citizen. You dont

buy into that, do you?

JS: No I dont, but I dont claim to be an expert on this either.

22:34

RC: OK, well, Ive read quite a bit about it. Weve had two presidents now who only had one

parent as a citizenChester Arthur and Barack Obama. It really, it really was never even

brought up when Obama was a candidate. It was only, only brought up after the election.

JS: Right, right.

RC: Lets get back to the underlying case then. We talked a bit about the evidence. Now one

thing that troubles me about Ms. Jordan and the way she approached this case is she seemed

to make a big deal about the fact, something about the Presidents Social Security Number

not passing E-Verify. Now, I researched a little bit what she actually did. I read her affidavit

that she filed with her case and what she actually did was to go into ashe tried to go into a

system called E-Verify for employers. Its operated by the Department of Homeland Security

and the Social Security Administration. And she wasnt able to get in because employers,

youre supposed to have an I-9 form for that employee. Then she went to what she called in

her affidavit a self-service system. Its actually not self-service. Its called Self-Check system,


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the Social Security Self-Check system. And this system is opis supposed to be only for an

individual to check their own status. Are you aware of that, of what she actually did?

JS: No Im not. I really dont know.

RC: Well, I urge you to research it a little bit because I looked at the Self-Check system and I

think she actually misrepresented to the court in her affidavit what the system was all about.She said it was just a simpler system and she justified her access to that system saying that,

well, President Obama is an employee of mine because hes an employee of all the people.

But I dont think the court would really buy that. So what she did, she actually impersonated

the President. She actually in effect committed identify theft by using Self-Check because,

heres what the terms of use say on Self-Check. They say, Your use of Self-CheckYour use

of Self-Check is for the purpose of learning about your work authorization status and the

accuracy of your related government records only. By using the Self-Check service, you agree

that you will not submit biographical or employment authorization document data that

relates to anyone other than yourself. You also agree that you will not run a Self-Check query

at the request of another party or attempt to use the results of your Self-Check query toprove another partyprove to another partythat youre authorized to work or eligible for

admission to any organization or receive any benefit.

So, I actually went into the system today and ran a check on myself. And it is clear what its

for. You have to click on a button that says you agree to those terms of service. And it further

says that unauthorized access is a violation of the laws of the United States and the policies

of the U.S. Department of Homeland Security and may result in administrative or criminal

penalties. Users shall not attempt to access other users files or system files without prior

authorization.

So, it sounds like to me she clearly violated those terms of service which is, is not good. So Idont think she even gets by saying that President Obama is an employee of hers because the

system clearly is only for, President Obama should be the only oneor his authorized agentis

the only one that could access that. So you werent ware of what she did, then.

26:37

JS: No, no I wasnt. That was kind of out of my department. I was hired to fight this award of

attorney fees.

[snip conversation about audio problems]

27:15

Dr. Ken: Hi Mr. Sanders. How are you doing tonight?

JS: Hi. Fine.

DK: One of the things I wanted to bring up. I was looking into what you said in the opening

argument about how she acted in good faith.


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JS: Yes.

DK: After what we just went through with the explanation, wouldnt that constitute that she

didnt act in good faith in her argument that she committed fraud in order to get what she

deemed as evidence?

JS: Well, like I said, I dont know how E-Verify works. I am convinced that Linda Jordan is apatriot and that she thought that this was a serious issue and that she did the best she could

to bring it to the attention of the court. The courts did not find that her case was frivolous

because of how E-Verify functions. They found it was frivolous because they thought that she

could not get the relief that she was requesting even if she proved her case on the merits. So

that was the problem.

DK: OK, but I was just asking about the good faith argument. You said that you thought that

she probably acted in good faith, if that was in good faith.

JS: Good faith about what? You know, some people bring actions in court knowing that

theresfor the only purpose of harassing people. They would file liens against publicofficials property just to hurt them without having any basis to contest the title to their

property. Now thats bad faith. People that bring a lawsuit thats unsuccessful, thats not

necessarily bad faith. It is simply losing your case. And, you know, half of the cases out there

are losers. So, I think that theres a difference there.

29:07

DK: So, over 200 actions against one individual or a sequence of individuals doesnt count as

harassment or frivolous in your nature? Because theres been so many of these cases.

JS: Well I dont know about the other 199. I think that, you know, we have a right in thiscountry to access the courts and a single individual has to be judged on the basis of their own

case. Im convinced here that she brought the case for the stated purpose of disqualifying

Barack Obama from the ballot. That was the reason she brought the case. It wasnt for some

other reason.

DK: OK. So, in your mind if someone brought what they considered evidence to the court, into

your court, but was obtained fraudulently, how would you react as a judge?

RC: As a judge, I think you mean, Dr. Ken.

DK: I said as I judge, as a judge himself. If someone came to his courtroom while he was

justice and they obtained what they thought to be evidence fraudulently, fraudulently,

which, of course, if it was obtained fraudulently, it would be inadmissible in court, but,

besides that, how would you, how would you respond as a justice?

JS: Well, the Supreme Court is an appellate court. I would think that that would be a matter

that the trial court would be dealing with. And when you say obtained it fraudulently, I

mean, theres different ways of looking at that. I mean, the information may be accurate but


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I think that what you folks are talking about is trying to obtain the accurate information in an

unlawful manner. Or a manner that youre not entitled to proceed. And thats a little bit

different. You know, I think that, and for an appellate court, we look at the record. We dont

try to second guess the facts in the record. We deal with the theories of law and the trial

court is the finder of fact, not the appellate court.

DK: OK. How about personally, from your own opinion, as opposed to being a judge. You

mentioned the idea of how warrantless wiretapping earlier was kind of bad and illegal and

were an infringement on us. Wouldnt that be [unintelligible]? Wouldnt that be related? If

you were obtaining information fraudulently through, youre committing fraud in order to get

something that, technically wasnt even correct because at the time that she did that, E-

Verify was only available in 21 states and none of them were the residence of Barack Obama.

So his information wouldnt even have been in the database. And now shes misrepresenting

what actually she got.

32:08

JS: Well, I dont know that. I think people should comply with the law. People should not

commit fraud. I mean, Im dedicated to upholding the rule of law.

DK: So do patriots commit fraud? [talking over JS]

JS: Thats what the whole system is about and honesty is important. But youre talking about

things that I have no knowledge about really.

RC: OK, lets, this is RC. Im back. Lets get back to the appeal now. Would you agree, Linda

Jordan had her day in court. She got a full airing of the case in district court and Judge

McPhee issued a, about an 8-page ruling pretty much saying the case was frivolous, refuting

agreeing with the Attorney Generals dismissal on every point. And then at that point theAttorney General I think sent a letter to her warning her to not appeal the case. This case

need not be appealed. It was frivolous. But she proceeded anyway and lost at the appellate

level. Is that correct?

JS: Well, I wouldnt say that she had a full airing of the case at the trial court level.

Remember, this case was dismissed within two days of her bringing the case. What she

wanted was an evidentiary hearing. She wanted to have some discovery. She wanted to have

a trial. And she didnt get that because the Attorney General alleged, and the trial court

accepted, that no matter what the facts of the case, or taking the facts as she had alleged

them, she would not have a remedy against the Secretary of State and the trial court

dismissed it. And she appealed and it was dismissed again by the State Supreme Court as

frivolous. And then they made an award of attorney fees and my job is just to try to hold

those attorney fees down to a reasonable amount. Thats all.

34:15


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RC: OK, so, after the award of attorney fees, the Attorney Generals office calculated those

based on the hours they spent on the case and then they used something called the lodestar

method. Do you disagree with the use of the lodestar method for determining the fees?

JS: No I dont. The lodestar method is the reasonable number of hours on a case times the

hourly rate of the lawyer. So, theres really two issues here. One is what is the reasonable

hourly rate? And normally the courts presume that the actually hourly rate is the reasonable

hourly rate and that you are not entitled to contend for an hourly rate that is greater or

higher than your actual hourly rate. And then the number of hours sought by the lawyer is not

necessarily the actual numbers, but it may be discounted for time, wasted time, duplicitous

time, or time that you spent on losing endeavors.

So here, the Attorney General was claiming $250. He said that thatper hourhe said that

was a reasonable hourly rate, although it turns out that his actual hourly rate was more like

$65 an hour. So that was not disclosed to the clerk at the time that the award was made. So,

that would be my first point in contesting this award, was to say, Look, the reasonable

hourly rate is not $250. Its more like $65. And all of the hours claimed by the AttorneyGeneral were not necessarily reasonable hours but it was something less than that because

there was efforts made on things other than dismissing this case, which is the thrust of what

the Attorney General was getting the award of attorney fees for. So I agree with the lodestar

method but I think it was misused in this case.

36:29

RC: But really, that number youre, that $65 an hour, I mean thats not a going rate for

attorneys. I mean, your, your rate is five, six times higher than that, right?

JS: Yes but I remember when I was in private practice I asked the court to award me a higher

rate than my actual rate and, as a matter of fact the same Supreme Court came back and said

no, I was only, I was entitled at the most to my actual hourly rate. The hourly rate that I

actually charged the client. The idea behind this is that an award of attorney fees is not to

punish somebody. Its to compensate the litigant who was prejudiced by the conduct of the

other litigant. Or the frivolous conduct, if you will. So, it isnt to punish Mrs. Jordan. Its to

compensate the attorneythe Secretary of Statefor his expenses incurred that he would not

have incurred but for this litigation.

RC: But isnt part of the reason for assessing fees, especially in this case, to dissuade people

from taking up the courts valuable time to file such frivolous cases?

JS: Well, I would say no because the award of the attorney fees does not go to the court. It

goes to the other party and its designed to be compensatory to the other party. Its not a

punishment. If the court wanted to punish a litigant, they could do that. They could award,

they could fine the litigant. Sometimes they fine the litigant and tell them that they have to

make a monetary donation to some charity. Ive seen that happen from time to time. But an

award of attorney fees is supposed to be compensatory, not punitive.


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RC: But again, I think youre comparing internal accounting thats going on in the State with

fees in private practice and I dont think theyre comparable. By the way, are you doing this

case pro bono?

JS: No Im not.

RC: Or are you hired? OK. So, so, is your rate higher than $65 an hour, if I might ask?

JS: Yeah, I took this case on a flat fee but normally my rate is much higher than $65 an hour.

RC: OK, I would expect it would be. I expect it would be more comparable to the $250. By the

way, not all the time was billed at $250. I think there was a less senior attorney who was in

that calculation who was billing at $175 an hour based on experience.

39:18

JS: Yes, thats true. She basically was doing proofreading. I said in my, in my response that

that was more of a clerical function and it didnt merit a normal fee for a lawyer. But, thats

true.

RC: And actually, your client, as mentioned by the Attorney General, not only filed the

appeal, but did some things that actually increased the time to respond to the appeal,

correct?

JS: Well, I dont know, I dont know, it, when you appeal a case, theres a number of things

you have to do besides simply filing the notice of appeal. When you appeal to the

Washington, or the Supreme Court of the State of Washington, you have to persuade the court

to accept jurisdiction. So you have to make a showing that this is the kind of case that the

Supreme Court would want to hear, so she did that. And there were some other motions that

both sides filed pertaining to that. And of course the Attorney General claims that all of that

should be compensated. Whereas she would claim, or I would claim on her behalf, that some

of that is worthy of compensation. Some of it isnt.

RC: OK. Ill tell you what. How about we pause a minute here and, I mentioned, I do see a

caller there who I think would like to ask you a question. This is Kevin Davidson I believe.

41:06

Kevin Davidson: Hi. Can you hear me?

JS: Yes I do.

RC: Very well.

KD: OK. Great. I had a little problem before. You know, putting the specific Linda Jordan case

aside because Im sure we agree that shes an individual and her actions and her case should

be treated as an individual case but, you know, as Dr. Ken alluded to before, on the other

side where there is one Linda Jordan, there is also one Barack Obama against whom about 200


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eligibility lawsuits have been filed. And most of the lawsuits make the same allegations that

Linda Jordan has made. You know, I gathered from your earlier remarks that you have some

knowledge of or experience of anecdotes about people who have made harassing lawsuits,

and I wondered if you had an idea, protecting the rights of individuals like Linda Jordan, how

to deal with the public problem of hundreds of lawsuits alleging the same thing being brought

against Barack Obama largely based on material that people read on the Internet, essentially,rumors.

JS: Well, I think the way the system works is that someone brings a lawsuit. They lose at the

trial court level, and if it goes up on appeal theres no published opinion. Therefore there is

no precedent. And the result of that, the adverse result of that lawsuit is not binding on

anybody else who might want to bring a lawsuit because that would be, in order to have res

judicata or collateral estoppel you have to be a party to the case and these other 199 people

were not parties to her case.

Now, if she had taken it up to the State Supreme Court and the State Supreme Court had held

in a published opinion that her case did not have merit, then that would be a precedent forother cases brought in the State of Washington. Or if someone was in the federal system or

appealed from the State of Washington to the US Supreme Court, then that certainly would

be a precedent that would control other cases. But short of that, individuals can bring their

case and just because one of them loses, that doesnt preclude another one from bringing a

case. So, I think you can see that, if you understand that everybodys entitled to their day in

court, you cannot be bound by the adverse result of somebody elses case, who may not

properly cast the case or may not properly work it up or may not have a lawyer or may have a

lawyer that drops the ball. Unless you have some sort of a precedent, it does not bar future

litigation.

44:19

KD: You know, I understand that principle but, in the case of the Obama eligibility litigation,

you know, the meter is way off on the extreme end when you have 200 lawsuits. And I would

point out that at least in the 9th Circuit, there have been appellate decisions in Keyes vs.

Bowen, which basically said things like Secretaries of State dont have the duty to check

candidate eligibility and, in fact, that eligibility is not something that can be done at the

state. That was said in that case. The New Jersey Supreme Court has ruled and weve got a

number of federal courts, appeals courts in Georgia. Im just talking off the top of my head.

Granted the Washington State Supreme Court hasnt ruled on this before but 200 courts of

original jurisdiction have ruled and maybe 15, 20, 25 appeals courts have ruled on theparticular questions that Linda Jordan brought in her suit. I mean, she, I meanthese cases

have been going on for 4 years now since 2008 making basically the same allegations. And,

you know, how does the judicial system say enough is enough? Or should they just keep trying

them and Obama has got to just keep paying legal fees and Secretaries of State in the 50

states have to keep paying legal fees?

45:57


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JS: Well, I think it is a disincentive to bring a frivolous lawsuit and be required to reimburse

whoever you are suing their reasonable attorney fees. Thats what the rule is all about.

KD: In the Jordan case, if my recollection is right, at the original jurisdiction level, her costs

were, I believe, $200 in something called statutory costs. It seemed like it was a fairly small

RC: Yeah thats correct Kevin.

JS: Right. OK.

RC: I looked that up today.

JS: Statutory attorney fee. Right.

RC: Yes, and those kinds of fees have been awarded in a few cases but the cases are actually

few and far between where real fees have been awarded. I think thats why, I think thats

whats going to put a stop to this waste of the courts time is if courts get more aggressive in

awarding fees like this.

KD: Yeah, I do want to mention, you brought up that $20,000 item that was against Orly Taitz

in Georgia. But that wasnt for bringing the suit. That was forI dont know what all she did.

She insultshe claimed the judge was holding ex parte meetings with people who were in the

other side of the country and she insulted the court and she called the judge treasonous. She

filed, that appeal went, she appealed those sanctions to a district court and to the Supreme

Court too. And, you know, that conduct was, like, hugely outrageous. After the judge

basically fined her for $10,000, she came back and railed at the court, so he raised it to

$20,000, saying that the first amount didnt get her attention. That was most egregious. In

fact, some of the law journals, there was a law journal article written, called Trying the

Courts Patience Instead of the Case actually cited her outrageous conduct in that case as anexample of attorney

JS: Well, theres nothing like that that happened in this case as far as I know. Perhaps Linda

Jordan shouldnt have brought the case in the first place but, shes not a lawyer. Im sure she

hadnt read the case that you are referring to. In a perfect world, maybe she would have, but

she didnt. So thats

KD: Well, actually, didnt LindaRC you can help me herebut didnt Linda Jordan testify in

the case in Georgia that Orly Taitz lost?

JS: Oh, in another case. I dont know that.

KD: Shes filed,shes filed affidavits that have been presented in many of these losing cases.

Shes not, shes not unaware of whats going on and whats happening in the other cases.

Shes been a vocal player in the Birther movement for a very long time.

49:26

JS: Im convinced that shes convinced.


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KD: I dont think anybody here would dispute that.

RC: Well, yeah, and I did find today that, yes, Orly Taitz has filed a so-called affidavit by

Linda Jordan similar to the one that was filed in this case in Washington. Orly Taitz, thats in

her standard packet of nonsense that Orly Taitz has filed multiple times. Orly deluges the

courts.

Justice Sanders, some of us have a different take on this. Now I know you feel that Linda

Jordan was sincere in what she was filing and I wont dispute that. But, I think in general,

especially theseIll call them multiple offenderslike Orly Taitz are doing this for publicity

and just as part of a huge smear campaign. You know, they want to come out there and say

things like Well, President Obama failed E-verify. Linda Jordan said that.

President Obama didnt fail E-verify. Linda Jordan impersonated President Obama to go into a

system that is designed only for the holder of that number to check. The number she put in

came back with some sort of code that said this number is incorrect. Well, a good possibility,

and what many of us think, is that once people like Orly Taitz and Linda Jordan and Susan

Daniels and others started publishing President Obamas Social Security Number, that as a

matter of security, he had that number changed, which an individual has every right to do if

they think their numbers been compromised. So the code she got is easily explained by the

fact that either the President, access to President Obamas account has been blocked or,

what many of us think, hes been assigned a new Social Security Number.

DK: Oh RC, even further than that, what I brought up earlier was the system at the time was

[unintelligible] a limited number of states, only 21 and Illinois and Hawaii and I think even DC

wasnt part of the program at the time. So any kind of information they plugged in, if the

states not enrolled in the program, then that information would not come up.

RC: Yeah so, thats a good point. I looked at the list of states today. I dont think Washington

State is even

DK: They actually rolled it out, Ive checked in since then. They rolled it out to all 50 states I

think as of the end of last year. Just to double check. Then again, they havent ran that

again, they havent tried that trick again since then.

52:17

RC: So a lot of the birthers, I would profess, Justice Sanders, are not in this in any altruistic

way. Theyre in this to run a smear campaign because they dont like Obama and they would

do anything they can to besmirch his name and hurt his reputation and I think thats a lot ofwhats going on here. So, while I agree with the principles that youre espousing, I think this

is the wrong, the wrong horse to ride.

JS: Well, you know, you have a woman whos pro se of modest means. She goes into the

court. She gets hit with a big award of attorney fees. She seeks representation and Im happy

to help her. I think that an award of attorney fees which is three times the actual attorney


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fees, that theres a problem with that. And Im glad to bring that to the attention of the

court.

RC: And I understand that, but she had fair warning. Its not like

JS: No, no, no. She didnt have fair warning that the Attorney General was going to seek

three times his actual attorney fees. She had fair warning that he was going to try to dismissher case as frivolous but there was no warning to her or to the court that he was seeking an

award three times the actual amount of the attorney fees that he, that were incurred by the

Secretary of State. There was no warning of that. I think it would have been much better

practice, if a lawyer wants to get an award of attorney fees more than he charges his client,

that he goes into court like I did when I was in private practice, and say, Look. I charged

$150 an hour but Im so good I think I should get awarded $225 an hour. Thats the way you

do it. And either the court agrees or it doesnt. But all the cards are on the table and thats

not what happened in this case.

54:24

KD: Let me just slip in for a second because I did suggest that Linda Jordan had been at that

trial in Atlanta and that apparently is wrong. I dont know that she was active in this issue

before about September of 2011, the earliest I could find.

RC: I think it was Susan Daniels from Ohio, and yes, and I confuse them a lot of times too

because they both sort of championed this E=Verify Social Security investigation and its easy

to confuse them.

JS: Lets take another case, this al-Aulaqi, the guy that was the propagandist for al Qaeda. He

was an emir here in the United States. He moved to Yemen a number of years ago. Word

came out that he was on a target list for drones. His mom and dad, or at least his dad, wentto court, I believe it was in Massachusetts, trying to get some disclosure, an injunction against

the government trying to kill him. The government argued that this was a state secret and

that his parents were not entitled to access the courts to even have their claim heard.

That strikes me as wrong. People should be able to access the courts to get relief and have

their cases determined on the merits. Maybe his case would have been a loser but they never

got that far. They did not permit this man to make a case that his son shouldnt be killed.

That distresses me because the courts are there to keep us off the streets from having

gunfights and we should be able to resolve our cases on the merits in court. So its a powerful

engine. Thats what distinguishes the United States from many other countries in the world.

So I think we have a great judicial system and we shouldnt be so narrow and cramped and

punitive when people try to access the system even when theyre wrong.

58:33

RC: Well, I dont disagree with having access to the courts, but Ill repeat again. Linda Jordan

had access to the courts. She was given fair warning that bad things were going to happen if


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she appealed this and she chose to forge ahead. And not only that, she forged ahead with

other actions once it was appealed.

JS: Thats true. She did appeal. She lost in the trial court. She did appeal. She lost again. The

court said that her action was frivolous. For the sake of argument, were accepting that.

Were just contesting the sanction that was imposed against her. I think thats completely

legitimate, to take up her cause in court in terms of what is a reasonable attorney fee. So, I

think that, at this stage, shes doing the right thing and Im happy to represent her.

DK: So you problem is more the amount of the fee as opposed to having the fee in the first

place.

JS: Thats right. Thats right. The court has determined that the Attorney General is entitled

to some fee and were just talking about how much.

DK: So if you didnt think it was frivolous, wouldnt you try to get the fee dropped

completely?

JS: Im not arguing it wasnt frivolous.

DK: Just double-checking.

JS: You know, thats a target gone by. That was over before I got into the case.

DK: [unintelligible] the entire Birther movement.

KD: I was going to say, most of the birthers, if they lose in the appeals court, they just file a

motion to reconsider.

JS: Well, I think, under these circumstances, they probably, such a motion would beunsuccessful. Lets just get on with it, right. Im here to try to, Im a lawyer, Im trying to

help her out and trying to do the right thing, trying to be effective for her. And I think I, I

think well be pretty successful too.

KD: Do you have any idea of when a decision will be made?

JS: Well, its set to be decided on April 4thso some time after that well be notified.

59:02

RC: Yeah, and Justice Sanders, theres, I think there will not be an oral argument, is what I

read. Is that correct?

JS: Thats correct. Thats correct.

RC: Yeah, you would understand the inner workings of this I imagine, very well.

JS: Its a matter of submitting paperwork. And then the court has its own internal workings.

What they do is they assign this to some justice to make a report to the panel of the court.


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He or she would probably have their law clerks put together some sort of a memorandum and

submit it to the panel of the court. And then they would, based upon that and the pleadings,

they would make some sort of a decision.

RC: Justice Sanders, youve been very kind to hang on this long. Would you have to take one

more call?

JS: Sure.

RC: And then I promise to let you go. This is great.

JS: OK.

RC: This is Thomas Brown. Good evening Thomas.

60:00

JS: Hi Thomas.

Thomas Brown: Hey there. Before I saw what I was going to say, I just wanted to start by

saying for non-lawyers, in following this whole thing, its been very, very entertaining and

very educational. And I wanted to say that I and a lot of other people on the anti-Birther side

have been extremely impressed with the quality of the judicial system, of the judges and

justices that we have, many of which are, would be political enemies of the President if left

to their own devices in the voting booth, but have all ruled the same way. Independents,

libertarians, conservatives, liberals, black, white, you name it, every judge has been

coherent in their rulings following the law, and thats really, really good to see.

JS: Well, thats the job of the judge and Im glad that youre pleased.

TB: I was going to come in sort of on your side, or at least the side of the wisdom of the law,

the way the law treats people like Linda Jordan. I do a little bit of acting on the stage and Im

asked to pretend to be people. And it occurred to me one time that its really hard for us to

understand what it would be like if we and people like Linda presumably sincerely believe

what theyre contending in court, what theyre, that the Republic is in peril because of

Barack Obama. It seems ludicrous to us but if you assume somebody really believes that, you

can see, you can maybe give them a little leniency in terms of the letter of the law and

punishment and fees and stuff.

JS: Well, I think thats a good attitude to have. We have a great system. We want to try to

have people resolve their disputes in court and I dont think were going to go wrong. Wehave a good judiciary and if a few extra people come to court, well, thats not all bad.

TB: Well, I think the point is that when we watch people like Linda, we have to separate

them from people like Orly Taitz, because everything she says, practically every time she

opens her mouth, its The courts were biased.They were in the tank for Obama. Theyve

been threatened. Theyve been bought. Theyve been bribed. And its so plainly ridiculous


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and not the case and un-American, that our negativity toward people like Orly perhaps

shouldnt bleed over onto people like Linda.

62:49

JS: Well, I appreciate your comments and I think they are very perceptive.

TB: Thanks for coming on.

RC: Yeah, thank you Thomas.

DK: I want to butt in real quick and make another correction. Doc, you were actually right

earlier before you said you were wrong. According to Taitzs own transcript, Linda Jordan was

called to testify in the Georgia case in January.

KD: That was 2009, right?

DK: Yeah its on her transcript. She was called in right after, umm, let me see, according to

the transcript, after Felicito Papa. She was the next witness in Taitzs direct questioning ofher.

KD: I should be ashamed at backing down because I was there in that courtroom in 2009.

DK: She has been involved in these lawsuits before.

KD: Ok. So Lindas actually been involved, I mean, Linda was, the decision that came out in

that case was the only trial on the merits of all the Birther lawsuits where Judge Malihi, who

is an administrative law judge, basically listened to the experts that said Obama was, had a

false birth certificate and said that the experts were not qualified, to use his phrase. So, um,

you know, 2009.

RC: Hey Kevin I want to get in one more caller so Im going to put you on mute if its OK, or

you can mute yourself.

KD: Ill mute myself.

RC: OK. All right, this is Veritasitas. Good evening

64:37

Veritasitas: Hi there. Its a pleasure to speak with you Justice Sanders. I am a little confused

about your apparent conflation of what Linda Jordan is going through and what the parents ofAnwar al-Aulaqi were going through. Were you saying that Jordan should have had access to

private documents of the Presidents? His birth certificate, his school records, his health

records, and all of that. Things that no one else can see. I mean, does that mean, with that

precedent set, does that mean I would have the ability to see your law school records, your

health records, your everything I want because I dont believe, I would not take your word as

a justice. Im very confused by this.


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JS: I didnt say that at all. I said that my role in this case is simply to reduce the award of

reasonable attorney fees to a reasonable amount. I talked about al-Aulaqi because his parents

went to court believing that he had been targeted, or would be targeted by a drone attack

and were trying to do something about it. And, really, they were denied a hearing on the

merits and I think that was, I think that was wrong. The government came up with a state

secrets act defense, claiming that the court had no jurisdiction to inquire about its intentionto kill an American citizen. And that strikes me as extraordinary.

V: But that also sounds to me what you said in your opinion that Jordan has the right to

Obamas records for the exact same reason. They need to know whats going on. Theres no

state secret here. These are personal documents.

JS: No, I never said that. No, and she

DK: Were trying to understand what the relevance was, you brought that up.

V: Yes, I dont get that. It sounded to me, and please forgive me, I am living with a traumatic

brain injury so I have a little cognitive issue.

JS: Well, the reason I brought that up was I think its pretty fundamental in America that we

should have the ability to access the courts in an appropriate way to seek relief. And, true

enough, Linda Jordan was able to access the courts. She was unsuccessful. There are other

cases however that merit access to the courts where access has essentially been denied and

we should be concerned about that. Thats all. It certainly isnt a direct analogy to anything

Linda did.

V: It sounded that way.

JS: Pardon me. I missed that.

V: It, it, Im sorry, and sorry if Im echoing here you guys. Is anybody else hearing an echo?

DK: You werent the only one who was confused on that one either. Usually when you bring

another case or another subject into it, theres some kind of relevance to the case at hand

instead of some non-, non-, non-, totally, completely-out-there point.

V: I understand the concept of day in court and being heard on the merits, but

DK: She had a chance in Malihis case. So this is like post partum case on the merits.

V: Yah, its

RC: Well, I dont think, yeah, go ahead Veritasitas.

V: And forgive me Justice, Im not ganging up on you. Its just a confusion that I wanted to

have settled because I did not see a correlation between al-Aulaqis familys day in court and

Linda Jordans multiple days in court.


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RC: Well, go ahead Justice Sanders if you had some comment to that. I think you clarified

that the cases are not comparable.

V: And thank you very much for that.

JS: Yes. They are only comparable to the extent that people want to go to court. I suppose

that thats, perhaps the point I had in my mind doesnt really pertain here.

69:10

DK: Im sure it threw everyone off like when people compare Obama and Hitler and the fact

that theyre both men.

JS: [laughs] Yeah, thats right. Yeah. I think it is important as a general proposition that we

be able to access the courts and it shouldnt be too high of a bar and having our cases

decided on the merits and if we have a misstep and bring a case thats not meritorious we

shouldnt be punished too severely because of that.

DK: You dont think she was a little late and she could have done it back in 2008?

JS: Oh I dont know. I suppose anybody could have done it any time I suppose, but it doesnt

matter unless theres a statute of limitation, then it would be barred but I dont know that,

that was never the claim.

DK: It said the court had no authority to remove the sitting president. At that point, it was

pretty much a statute of limitations.

JS: Well, I dont know that.

DK: The Constitution says that. You cant remove a sitting president through the courtsystem. Only Congress can. So at that point it was a moot

JS: I dont know what provision in the Constitution youre referring to there sir.

DK: Really, you dont, you dont, are you saying that the courts have the ability to remove

the sitting president?

JS: They may. I dont recall the Constitution talking about that.

DK: The only thing in the Constitution related to that is the impeachment process. You cannot

remove a sitting president through the court system. Thats what every single court that has

heard this has even talked about.

JS: Do you think that if the president was plainly ineligible to serve that he could not be

removed?

RC: Not by the courts.

JS: Thats a novel position. I hadnt considered that before.


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DK: But you havent established that. No court has established that. No plaintiff has

established that.

JS: Well, youre telling me the Constitution says that and Im not aware that the Constitution

says that.

DK: You do, you do know, even if they tried to say he was ineligible that Article, uh, that, uh,the 12th Amendment says that the person who gets the most amount of electoral votes shall

be president, not can be or will be or might be. At that point, its a moot point.

71:34

JS: Well, you know, the Constitution sets up the qualifications for President. I believe that

you have to be a natural born citizen. You have to be at least 35 years old.

DK: [talking over JS] And he matches every one of those.

JS: For many years, you had to be a male, right? So, there you are.

DK: Theres nothing about being male.

RC: Actually, you never, I dont think you ever, there was never a requirement that the

president be male. There was just a prohibition on females from voting, but they certainly

could have served. They werent likely to be elected though. Go ahead Kevin.

DK: The thing about the President being a male, though, please proceed, Justice.

KD: Let me just mention what Dr. Kens going to. Theres something thats called the political

question doctrine that has come out of several court decisions which basically says that if the

Constitution assigns a particular duty to a particular branch of government that the otherbranches of government cant interfere. There was a case called U.S. versus Nixon. Nixon was

a judge and he was impeached by Congress. He tried to go to the courts because he didnt

like the way he was impeached and the court basically said Well, you know, impeachment is

the sole prerogative of the Congress and the courts have no review of that process. And so

this political question doctrine has been held by several courts of appeals to say that the

question of whether a president is eligible or not is assigned to the Congress because of

several amendments that talked about what Congress does if the President-elect shall fail to

qualify and that a President to be removed from office

JS: Well, I just, Im not, Im familiar with the political question. Im not familiar with the

cases that you talked about. More fundamentally, my role in all of this is a lot less global thanyour interest I guess. I dont really know what else I can say that we havent said before. So,

I, both of you gentlemen have spent a lot of work, a lot of effort, and have a very intense

interest in this, more so than I do. I just have a limited role to try to reduce attorney fees

awarded against my client to a reasonable amount. Thats what I set out to do and thats

what Im trying to do.

74:00


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RC: Hey Justice Sanders, Ill wind it up with one question. And again, thank you very much for

spending the time with us and its been a fascinating discussion and I understand your role I

think very well. One thing I wanted to ask you, and you dont have to answer it if you choose

not to. Do you think the fact that you worked with many of these folks I guess are still on the

court that were there, that you worked with in 2010, do you think it helps or hinders you? The

fact that you were a sitting justice.

JS: I dont think it makes any difference. I think that theyll judge the arguments on the

merits and thats the wayit should be. I dontthink theyre going to give me any deference. I

think they are going to look at what I write in these pleadings and what the Attorney General

writes and try to follow the law.

RC: Yeah, I was being facetious when I said that.

JS: [laughs] I often wondered about it myself but I hope I gave you the accurate answer.

RC: You did. I think you did. Hey, theres a gentleman here who says hes called all the way

from Australia and he has one question. Could you hold on for just one more question? This isDick from Australia.

JS: OK but thats got to be it.

RC: All right. Go ahead Dick.

Dick: [unintelligible] Its probably two short questions. One, now, I understand that you took

this as more of a, shall we say, civil liberties case because youre familiar with the

[unintelligible]. The question is: Do you have any opinion as to the eligibility? Now I may have

missed this because I came in late, as to the eligibility of Barack Obama. Has it ever been a

question in your mind?

JS: Well, Ive read articles about this where there has been a couple of notices in Honolulu

newspapers of his birth so I think its a pretty big hurdle to overcome given that, given the

birth certificate, given the paucity of any evidence really that he was born someplace else.

So, I guess from my point of view, Im a skeptic of those who claim that he was not born in

the United States.

D: OK, look, in other words, youre not a Birther and you are just somebody, I take it youre

not a Democrat but thats no [unintelligible] because you, thats what we do in free societies,

we oppose the people we disagree with but I just think that the birthers have gone a little too

far with this. Thank you very much for your answer.

JS: OK. Thank you.

RC: Hey, thanks Dick.

D: Bye RC bye


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RC: Oh, Im sorry. I cut Dick off there. Ill bring him back up. Hey Justice Sanders, we will let

you go. Much longer than I told you would be here and its been, its really been great.

JS: Thank you very much. Hopefully we all got something out of this.

RC: I think we did. I hope you did too.

JS: Thank you.

RC: All right. Thank you much. Good night.

Reality Check Radio with Justice Richard Sanders

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Transcript of Reality Check Radio with Justice Richard Sanders