Coeur d’Alene attorney Starr Kelso has filed his opening brief appealing the First District Court’s (court) decision in the November 2009 Coeur d’Alene City election contest lawsuit. The brief was filed with the Idaho Supreme Court (Court) on behalf of Appellant Jim Brannon. A link to the entire brief is provided near the end of this post.
Before going to the brief, however, readers should first understand that an appeal brief is not written as entertainment reading for the general public. It is a road map to guide the Idaho Supreme Court justices through the 2,676 pages of documents in the trial court record, 111 exhibits consisting of 563 pages, 876 pages of trial transcript, and transcripts of numerous other hearings held before and after the trial. Much of that information is available to the justices during their preparation and deliberation. Readers expecting the appeal brief to give them the complete picture of every detail will be disappointed. (For more detailed information about the case as it developed, see my February 2011 report titled The Coeur d’Alene, Idaho, Election Contest Lawsuit – 2009-2011.)
This current post with the link to the appeal brief will identify the ten issues raised on appeal and then briefly try to explain each issue.
The brief’s section titled Statement of Facts provides the justices with some basic information about the case and how it came to be before them. Then it identifies in Argument the ten Issues on Appeal. Those issues describe what the Appellant (Brannon) believes were significant errors or omissions in the court trial which should cause the justices to order a new election either in total or for Coeur d’Alene City Council Seat No. 2 (the Brannon-Kennedy election). The Argument for each issue and the cited references explain why the Court should order a new election. For readers’ convenience, after each Issue on Appeal heading is brackets containing the brief’s page number where the issue and its argument begin.
The brief has 307 footnotes. Some of the footnotes contain rather cryptic but standardized references to various court documents. Here are the formats for some of the more common references you are likely to see in the brief’s footnotes:
Remember that some of Idaho’s election laws have changed since January 1, 2011. Readers who want to read the statutes cited in the brief and applicable to the November 2009 City election should not rely on the state’s online Idaho Code which has been updated to reflect the new laws. Rather, readers can refer to the 2009 Election Manual for City Clerks prepared by the Idaho Association of Cities to read the statutes as they were in 2009. The Supreme Court must interpret and apply the law as it was written in 2009 to this case.
Issue No. 1: It was error to deny Brannon’s motion to disqualify. [Brief, p. 5]
Brannon, through his attorney, filed a motion for the trial court judge, Senior Judge Charles Hosack, to disqualify himself. The brief quotes Hosack’s comments made in open court, comments which leave the unmistakable impression that Hosack did not agree with and might not follow the election contest law as passed by the Idaho Legislature. For example, Hosack said that the statutorily prescribed election contest processes were an “anathema to everything about our democratic process.” “Anathema” means loathsome, disgusting, and hateful. Hosack’s own words suggest he finds the election contest laws and associated processes passed by the Idaho Legislature to be loathsome, disgusting, and hateful. His own words reveal his personal bias and prejudice against the very process he was duty-bound to adjudicate impartially.
The brief states: “The district court’s comments exposed its deeply held bias and prejudice towards election contests to be of such an extreme nature that they rendered him unable to render a fair judgment.” The brief asserts that many of Hosack’s rulings on several important issues in the trial were a direct result of his underlying bias and prejudice.
Nevertheless, Hosack denied the motion that he disqualify himself.
Issue No. 2: The district court erred in holding that non-city residents are entitled to have their votes counted in the municipal election based upon the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. 1973ff, et. seq. (UOCAVA). [Brief, p. 8]
The issue is whether the federal UOCAVA permits non-U.S. service/non-City residents to vote in municipal elections required to be conducted pursuant to Idaho Code, Title 50, Chapter 4. At least five non-City residents and non-US service absentee ballot voters (Paquin, Farkes, Friend, Dobslaff, and Gagnon) received and voted absentee ballots that were counted in the City election. Paquin and Dobslaff were each sent a City election ballot even though neither had specifically requested one for that election.
Paquin, Farkes, Friend, and Dobslaff are apparently US citizens who actually reside in Canada. Paquin and Dobslaff, by their own admission, are Permanent Residents (PR, formerly known as “landed immigrants”) of Canada. That is a Government of Canada immigration status which conveys extra privileges. It is a required status which a PR must have if that PR intends to apply for Canadian citizenship. It requires the PR applicant to complete a detailed application form declaring, “I am a permanent resident of Canada” and acknowledging, “I understand that any false statements or concealment of a material fact may be grounds for my prosecution or removal.” The brief notes that neither the City nor Kootenai County election officials conducted any investigation into the residence, the primary home or place of abode, of any of these persons. The court allowed their four votes to be counted but refused to issue an order for them to appear to testify to have their residency determined.
Gagnon is not in the US service and has never been a resident of Coeur d’Alene. The court allowed her vote to be counted but refused to issue an order for her to appear to testify to have her residency determined.
The brief explains that while the Idaho Legislature specifically applied UOCAVA to federal and state elections held in Idaho by adopting it into Idaho Code, Title 34, the Legislature intentionally did not adopt it into Idaho Code, Title 50, which prescribes how municipal elections must be conducted.
Issue No. 3: The district court erred in refusing to order the non-city residents who returned absentee ballots to testify as to their residence and for whom they cast their vote. [Brief, p. 14]
Brannon requested the court to issue an order compelling Paquin, Dobslaff, Farkes, Friend, and Gagnon to testify so their legal residence for voting in a City election could be established. Idaho Code, Section 34-2013 and Section 34-2017, specifically authorize the court to compel the testimony of non-resident voters in an election contest for just that purpose. Hosack refused to apply the specific election contest law authorizing the issuance of these orders. The brief explains why Hosack’s refusal to issue the orders compelling their testimony was error.
Issue No. 4: The district court erred in dismissing the claim of malconduct, refusing to permit the complaint to be subsequently amended to assert a claim of malconduct, and holding that there was insufficient evidence in the record to find malconduct. [Brief, p. 20]
As it had for many prior elections, the City entered into an agreement with the Kootenai County Clerk to conduct the City’s municipal election. Under that agreement the City delegated nearly all substantive duties and responsibilities for the conduct of the election to a contractor, Kootenai County. Assuming for the moment that such a delegation was even authorized by law, the Idaho municipal election code still required the City Clerk, Susan Weathers, to be completely responsible for the administration of the election laws. The Coeur d’Alene Mayor and City Council were also still statutorily responsible for canvassing the election, but they tried to delegate their duty to the County.
The City so completely abandoned its duties and responsibilities that its cumulative failure to perform its various statutorily required duties amounted to malconduct as that term is used but not precisely defined in Idaho election laws. Furthermore, the testimony showed that the City’s contractor, Kootenai County as represented by County elections officials English and Beard, was unfamiliar with Idaho Code, Title 50, the laws governing municipal elections at that time.
English and Beard were required by the municipal elections statutes to verify that before any person could be provided with an absentee ballot, the Clerk must first verify that the applicant is (1) registered and then (2) lawfully entitled to vote [in that particular election for which the ballot was requested]. English and Beard did not fulfill that duty. They assumed that any registered voter listing a Coeur d’Alene address was automatically qualified to vote in the City election. But they never checked. Deedie Beard, the County Elections Office supervisor, testified that they were not the “residency police”. If it was not their job to verify residency, then whose job was it? Beard was wrong; it was their job, and they failed to perform it as required.
English and Beard failed to keep and verify the absentee ballot record explicitly required by Idaho Code, Section 50-451 to be kept for all elections. Had they diligently kept that record as was their duty, the entire election contest lawsuit may have been avoided, because the exact number of valid returned absentee ballots would have been known prior to the ballots being counted. Any difference between valid ballots received and ballots counted would have been resolved before the counting occurred.
But when the City and County had failed to keep the statutorily required record, the best evidence of absentee ballots sent, returned, and voted in the election became an absentee ballot record printed three days after the election and three days before the meeting for the canvass was held by the Mayor and Council. This record established that only 2041 valid absentee ballots had been received by the poll closing time, yet the County tabulating machinery somehow counted 2051 ballots.
On November 16, 2009, Kootenai County Prosecuting Attorney Barry McHugh was notified that fewer valid ballots had been received than counted. At the end of November 2009, former Elections Office Supervisor Deedie Beard retired. Yet sometime in 2010 while the election contest lawsuit was proceeding and Brannon was trying to obtain access to all election records, Beard’s computer was “cleaned” of all material. Important records sought for the election contest were destroyed. According to McHugh, this didn’t raise any concerns to him even though such records are required to be maintained.
Idaho’s election laws require back-up accounting records be kept to help reconcile discrepancies before and at the canvass. Those records were not kept as required.
The Coeur d’Alene Mayor and City Council were required to canvass the election results on November 9, 2009. A canvass requires them to undertake many actions to verify the correctness of an election. They failed to conduct the canvass as the law intended. (For a better understanding of what a “canvass” often includes, see Chapter 13 of “Election Management Guidelines” published by the U.S. Election Assistance Commission.) The City’s trial attorney declared in open court, they simply “rubber-stamped” the results prepared entirely by the City’s contractor and presented by the City Clerk to them. No questions asked.
When Deedie Beard retired, Carrie Phillips became Kootenai County’s sole custodian of the election records. After retiring in late 2009, Beard was not legally entitled to any access to the election records; she should no longer have had any access to any election materials. Yet in mid-2010 at a meeting Phillips wasn’t even told about until after it occurred, Beard produced ballots she claimed were 2009 City election ballots for Senior Magistrate Judge Eugene Marano to count. Beard’s unauthorized action occurred after Carrie Phillips had already provided Marano with the absentee ballots that Phillips declared to be all of the absentee ballots counted in the election. Who ordered that Beard be given that unauthorized access to 2009 City election materials that would become evidence at the trial?
The absentee ballot record printed on November 6, 2009, also shows that one elector voted two absentee ballots, each at different locations. The November 6, 2009, Absentee Ballot Report shows that neither ballot was voided. At least one of her two votes was illegal and should have been voided.
Issue No. 5: The district court erred in finding that the county counted 2051 valid absentee ballots based upon envelopes. [Brief, p. 39]
Hosack ordered that Judge Marano count the envelopes that were returned containing City absentee ballots. Marano was provided and counted 2086 absentee ballot envelopes from both City and County elections. He was told that four of the envelopes could not be determined to have been for City or County elections. From Marano’s testimony that the court-ordered count documented the existence of 2082 absentee ballot return envelopes, Hosack determined that 2050 City absentee ballot envelopes existed. Even with this determination the number of envelopes (2050) didn’t match the number of ballots (2051) that were machine counted . Without any claim of envelope loss by the County, Hosack independently divined that one envelope must have been been lost. Voila! That allowed him to conclude 2051 absentee ballots had been returned in the City election.
But what Hosack failed to do was to subtract the six voided absentee ballots that were returned from his total of 2051 City absentee ballots in existence. Voided ballots must never be put into the tabulator machines to be counted. The brief points out that after subtracting these six voided absentee ballots returned, then at the very most only 2045 valid ballots could have existed. That difference, six envelopes and therefore (according to the County) six votes, was more than enough to change the outcome of the election for Seat 2.
Issue No. 6: The district court’s finding that there was no error in counting votes or declaring the election result is not supported by competent evidence. [Brief, p 40]
Beard failed to take any action to verify that the total existing non-void absentee ballots received matched the number of ballots the tabulating machinery showed were counted. Simply put, the County checked no records to confirm that every City absentee ballot counted by the tabulating machinery was a valid ballot to be counted. As noted in Issue No. 4 above, the absentee ballot record which neither the City nor County kept as required by state law would have been the record cross-checked to ensure that only valid absentee ballots were counted. Chief Deputy Secretary of State Timothy A. Hurst testified that the failure to keep the required timely absentee ballot record was a failure of duty.
Chief Deputy Secretary of State Hurst testified that [absent the statutorily-required record which neither the City nor County kept] the November 6, 2009, Absentee Ballot Report was the “only evidence” of the number of City absentee ballots returned. That Report documented that only 2041 non-voided legal ballots existed to be counted. So on election night, how did the Kootenai County Clerk’s Elections Office count ten more absentee ballots than were actually received?
The County Elections Office knew the Absentee Ballot Report documented that only 2041 valid absentee ballots were returned, yet no evidence was presented showing the County Elections Office told anyone of the discrepancy until after the election was certified by the Mayor and Council on November 9, 2009.
On November 9, acting as the Board of Canvassers, the Mayor and City Council did nothing but rubber-stamp the numbers presented to it by the County. As the earlier-cited U.S. Election Assistance Commission canvassing guidelines clearly show, merely signing off on its contractor’s vote count without any further accounting is not a canvass. If the canvass was not properly done, then the Mayor and Council did not actually canvass the vote as required. They should not have accepted the County’s ballot count without investigation.
The brief also points out that even the minutes of the Mayor and Council’s “canvass” meeting are incorrect. According to the brief, the minutes don’t list Councilman Bruning as being present, yet they reflect that he seconded the motion to “accept” the county’s ballot count. This seemingly small error in a public record reflects the casual attitude taken by the City toward its own duties.
Issue No. 7: It was error for the district court to fail to shift the burden of proof to City and Kennedy after Brannon met his burden of proving a prima facie case that more absentee ballots were counted than the total number of non-voided absentee ballots in existence. [Brief, p. 45]
Brannon introduced evidence establishing that the tabulating machinery had counted more ballots than the number of non-voided ballots received. Additionally, the court determined that ballots cast by Proft, Ainsworth, White, and Zellars were illegal (based on the electors not being residents of the City) and should not have been counted.
Magistrate Marano’s court-ordered count established that only 2027 absentee ballots were counted and not the 2051 ballots the machine tabulation reported. The brief asserts that these facts should have shifted the burden of proof to the Respondents. At that point, it was no longer up to Brannon to show how the City’s/County’s ballot numbers didn’t match up. By that time he had cast more than sufficient doubt on the veracity of the election conducted by the City’s contractor, the Kootenai County Clerk’s Elections Office. It was then up to the County or City to prove that their figures were correct, but they didn’t. Without the statutorily required absentee ballot record which the County failed to keep, and with the next best evidence (the November 6, 2009, Absentee Ballot Report) showing fewer absentee ballots received than were counted, neither the City nor the County could produce plausible evidence to establish that the machine count was not wrong by at least six votes.
Issue No. 8: It was error to hold the City could contractually delegate all its election duties to the County. [Brief, p. 47]
The brief asserts that from 1993 until 2011 (when the new election consolidation laws took effect and the counties took over the municipal election administration duties), Idaho’s laws expressly did not permit the City and its officials to delegate all their election duties to the County. In 1993, the Legislature amended state election law and specifically removed the authority of municipalities to contract with counties to run the cities’ elections. That law was not changed until 2011. The wholesale delegation of nearly every single duty and responsibility by the City of Coeur d’Alene to the Kootenai County Clerk was without authority for the November 2009 city election. This suggests that the City and County had been violating the law since 1993.
Issue No. 9: The district court erred in dismissing the claim seeking to set aside the entire 2009 General Election and only retaining the claim to set aside the election for Seat 2. [Brief, p. 56]
Both the judges assigned to the case, Judge Benjamin Simpson and Hosack, viewed the election contest as merely a dispute between Brannon and Kennedy. That was never the case. The election contest has always been about the invalidity of the entire election, not who won Seat 2. The claim has always been that the City’s contractor, the Kootenai County Clerk, had so badly fouled up the election administration that the public could not and the court should not have had any confidence in any of the numbers of ballots counted.
Issue No. 10: The district court erred in refusing to consider the affidavit submitted and denying the motion for a new trial or amended judgment. [Brief, p. 59]
After Marano counted 2082 absentee ballot envelopes, the court made its own calculation without any actual envelopes. Hosack decided that 2051 envelopes containing 2051 valid absentee ballots had been returned. In seeking a new trial or an amended judgment, Hosack was given an affidavit that had copies of four city absentee ballot envelopes that had been voided (meaning the enclosed ballots could not be legally counted). The affidavit was to inform Hosack that his calculation could not possibly be correct. Despite the lack of any objection from the City or Kennedy, Hosack refused to acknowledge or consider the affidavit. The four absentee ballots that had been in the voided envelopes should not have been counted. Since the Seat 2 race was decided by 3 votes, counting those four voided ballots changed the outcome of the election.
The CONCLUSION [Brief, p. 61] clearly summarizes all of the issues presented at trial. To this conclusion, I would simply add my own opinion:
This contest to the 2009 Coeur d’Alene City election was filed not because any particular candidate won or lost. It was filed because the City of Coeur d’Alene and its contractor, the Kootenai County Clerk’s Office, failed to follow Idaho’s election laws. Those laws were passed by Idaho’s Legislature to ensure fair and honest elections, but also so voters could and would have well-placed trust and confidence in the integrity of our elections. When, as in this case, so many of the state’s laws were disregarded and violated by those who had a duty to follow them, the Supreme Court becomes the last remedy available to enforce the law and restore the voters’ confidence in our elections.
The Respondents (City of Coeur d’Alene and Kennedy) have been served with copies of Appellant Brannon’s Opening Brief. Because there are 2,676 pages of documents in the court record, 111 exhibits consisting of 563 pages, 876 pages of trial transcript, and transcripts of numerous other hearings held before and after the trial that had to be reviewed and considered before the brief could be finalized, Kelso requested and received an extension of time to file the opening brief.
Kelso also received approval from the Supreme Court to file a brief 20 pages longer than permitted by the Supreme Court rules.
Normally the brief of the City and Kennedy would be due 21 days after the Kelso’s opening brief was submitted. While the vast majority of the work in reviewing all of these records was done for the opening brief, it may be necessary for the attorneys for Kennedy and the City to also request additional time. Once their briefs have been filed, Kelso will determine whether or not to file a reply to either or both of those briefs. After all the briefs and any motions have been filed, the Supreme Court will calendar the case for oral argument. It may schedule oral arguments to be heard in Boise, or it may wait until the Supreme Court holds court in north Idaho in April 2012.