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The self-disqualification of District Court Judge Benjamin Simpson might create an opportunity for compromise in the Coeur d’Alene City election contest. It could work, but it would take the cooperation of both remaining parties in the lawsuit.
Plaintiff Brannon and defendant Kennedy could both stipulate that the vote totals as reported in the canvass on November 9, 2009, are not correct based upon a review of the record available so far. Kootenai County Clerk Dan English can hardly dispute that fact since he was forced early in the lawsuit to admit publicly that Rahana Zellars did reside in the county but was somehow allowed vote in the City election.
English has also admitted that the absentee ballots received do not equal the number of absentee ballots counted. The valid ballots received total 2042, but the absentee ballots counted total 2051. Nine more absentee ballots were counted than were accounted for as received. How does English explain that? Well, English says, there weren’t really 9 more ballots counted than received. By our calculation, 2051 minus 2042 equals 9. But maybe for English, a 9-ballot variation is “close enough.” It isn’t for us. The number of absentee ballots counted should equal, not just be close to, the number of valid ballots received.
If there are more ballots counted than received, there are three plausible explanations. First, the County Election Office staff was incredibly negligent in handling and counting absentee ballots. Second, the absentee ballot box was stuffed with illegally voted ballots. Third, more than one absentee ballot was received in a voted ballot envelope. The first explanation would be unforgivable, and the second and third explanations would be illegal. So which was it: negligence or criminality?
The County has already admitted that when more than one absentee ballot is received in the voted ballot envelope, the county counts all the ballots in the envelope. State law is very clear that if more than one absentee ballot is in the voted ballot envelope, all the ballots in the envelope must be voided. By law, none of them can be counted.
So do the math. Assume that 9 voted ballot envelopes each contained only 2 absentee ballots (they could have contained more than 2). If all the ballots in the voted ballot envelopes were required by law to be voided, then that means 18 absentee ballots should not have been counted. That count, 18 ballots, is more than 3 times the 5 votes that separated Kennedy from Brannon.
The City could hardly object to a new election if both the plaintiff and the defendant agree that the election administration by the City’s contractor, Kootenai County, was fouled up beyond rehabilitation. It is likely that if both plaintiff Brannon and defendant Kennedy stipulate to the defects in the election process, the yet-to-be-appointed fourth judge in the case would have little reason to reject the stipulation and could enter an order and judgment requiring a new election.
But there is one sticky problem with just ordering a new election: Will the illegally registered voters who were blissfully ignored by Dan “We are not the residency police” English be removed from the rolls before the new election, or will they be allowed to once again vote illegally? That responsibility for and solution to that problem rests squarely with City Clerk Susan Weathers and County Clerk Dan English, not with either Jim Brannon or Mike Kennedy.
According to a KXLY television news story that aired on Wednesday, April 14, 2009, “Kootenai County’s Election Department does confirm that one questionable voter was forwarded to the prosecutor’s office which is investigating the matter.” That’s fine, but given early comments by Kootenai County Deputy Prosecutor John Cafferty that plaintiff Brannon’s supporters were on a “witch hunt,” we wonder how diligently and impartially Kootenai County Prosecutor Barry McHugh’s office will conduct any investigation of this one questionable voter’s action. Still, if the County Clerk determined there was probable cause to believe a criminal act was committed in connection with the election, forwarding it to the Prosecutor was an acceptable action in spite of Deputy Prosecutor Cafferty’s prejudicial proclamation. Whether the County Clerk’s criminal referral to the prosecutor was done to further the cause of justice or to further the delay the plaintiff’s examination of Kootenai County Clerk Dan English’s highly questionable election administration practices, it may have the effect of delaying resolution to the City’s election contest.
As much as we would like to see the City election contest resolved by having a new city election coincident with the May primary election, we have to acknowledge that is looking less likely. Thanks to the foot-dragging by the Kootenai County Prosecuting Attorney’s office, it will be a monumental task to clean up the election rolls and perform a competently administered election by then. That assumes, of course, that Kootenai County Clerk Dan English has a recently-acquired interest in ensuring that every vote is cast only by a lawful voter. But if the plaintiff and the defendant in the lawsuit both want to resolve this election contest lawsuit quickly, a stipulated judgment would be the way to get that ball rolling.
It does not matter that primary ballots have been printed and some already sent to absentee voters. Just print up a new ballot for the City election. That should take only a day or two. Then send the City ballot out only to those electors who are lawfully registered to vote in the City elections. The mailing might take another day. A lot of trouble and expense for the City and County, you say? It wouldn’t even have been necessary if both the City Clerk and County Clerk had performed their duties diligently and properly.
Jim Brannon’s election contest lawsuit was properly filed and is consistent with Idaho statutes. Defendant Kennedy persistently whines to anyone who will listen about how he has been forced to hire an attorney (He — or someone else acting on his behalf — has hired two: Scott Reed and Peter Erbland.) The election and subsequent election contest has already cost Jim Brannon far more than it will ever cost Mike Kennedy.
Kennedy also snuffles that he is being forced to defend himself for having won an election. No, he has to defend himself in an election contest lawsuit. Kennedy and his team of attorneys stand alone at the defense table, because Judge Simpson chose to remove the City from the lawsuit over the objections of Jim Brannon and his attorney. Kennedy’s defense team attorneys could have objected when Judge Simpson removed the City. They didn’t.
Still, to the extent that Kennedy genuinely wants the election contest resolved quickly, he can agree to stipulate that a new election is the best way to resolve it. If the judge agrees that a new City election is warranted, and there is no reason to believe an unbiased judge would disagree when Brannon and Kennedy agree, a new election could be ordered. The judge could and should order that representatives acceptable to both the plaintiff and defendant work with the City and County Clerks to purge illegal voters from the rolls before the new City election was conducted.
The electors who lawfully registered to vote in the Coeur d’Alene City election deserve to know, with certainty, that their lawfully cast votes were not nullified by illegal ones.
Well put Bill, Maybarry Mike has been hosed by his friends and their attorneys. They were the ones developed the winning strategy for themselves, by putting up the smoke and mirrors, rushing everything through, discrediting Brannon and team in the media, getting the City off the case and figured that since there is no more remedy, Maybarry Mike would be let off the case also; end of story. They almost got it done except for a KREM 2 reporter who took interest into the Canadians voting in a city election. The story ran, Judge Simpson was in over his head, he started to feel the heat, he over ruled himself and now has left this mess for some other Judge to clean up. Very clever how the city got out of this so cleanly and left Mike Kennedy holding the bag. Maybarry Mike was hosed. Lesson learned be careful who you hang with it might cost you.
Comment by WannaBe JD — April 15, 2010 @ 3:20 pm
WannaBe JD,
Thank you. I am absolutely astonished at the shallowness of the press coverage of this issue that has statewide ramifications. Then again, expecting depth of news coverage in this region is a bit like expecting snow in August — it would be welcome but come as a total shock. The result is that I would venture to say 95-98 percent of the registered voters in Coeur d’Alene have no idea whatsoever what the election contest is about. That seems to be the Press/press objective, though — keep the people in the dark. Don’t encourage them to think too much about what they see happening around them. They might start asking embarrassing questions which could lead to — gasp! — honest government officials rather than totally manipulable and controllable officials.
Comment by Bill — April 15, 2010 @ 7:25 pm
Judge Simpson was over his head before Krem touched it. The story broke because it was just too juicy -the unexpected link/connection of Judge Simpson’s wife’s business address tied to the alledged fraudulent Canadian voter that was tied to the case. Why/how do you think that happened – WannaBeJD?
I think stipulating would be the best answer for Kennedy. But, it would also acknowledge a bit of defeat unless his handlers could spin the case to make it look like he is acting in the best interests of the citizens and all that jazz – saving us poor blokes taxpayer dollars. By stipulating it would save Kennedy some face and take the heat off the justice system but at that same time, would the possibility of actual corruption/voter fraud really surface or would it be whitewashed? Just another innocent mistake – the lone voter forwarded to the “witch hunt” prosecutor’s office that will go no where? We all know the defense on behalf of Dan English, nothing is 100% – mistakes can be made. Was the ballot box stuffed? Can that be proved?
If this election goes up before the voters again, there is not a doubt in my mind that every ballot will be accounted for and under the watchful eyes of real oversight.
This county might straighten up but without a state case to emphasize the details of questionable voting practices, I think the other counties will carry on – business as usual. This case needs to hit home – statewide. “Whew, that was a close one!”
Elections are coming up. The justice system is under the microscope, the election administration is being questioned along with SOS and the AG’s office who does not see a problem along with the “witch hunt” brigade. Everyone probably just wants this all to go away so they can breathe easier. Yeah, Kennedy will probably feel the heat and fold.
Slow it down in the papers, ignore it, and it all goes away and it really never happened. Give it that complimentary hit or two of weak acknowlegement. Business as usual begins again. Even with huge press limelight – getting it to the big time, like Dateline or 20/20 would not make a difference.
There is not a judge in the state of Idaho who would want this case and completely off his rocker if he does. Every judge in the state of Idaho could recuse himself or herself just because of the nepotism in the court system. Where is that story?
Comment by Stebbijo — April 15, 2010 @ 8:20 pm
With that said, “citizen journalism” broke this story – not Krem, even though their coverage gave it more real mainstream exposure. The credit for getting this through to the public goes to OpenCdA – moving the story along with the best factual coverage or it would have been toast.
Comment by Stebbijo — April 16, 2010 @ 6:14 am
Stebbijo,
The story has been a news story all along. That was what I meant when I first referred to it as Coeur d’Alene’s Watergate. I was referring to the news coverage that the Watergate burglary prompted. This story in Coeur d’Alene would have been an up-and-coming reporter’s ticket out of Coeur d’Alene provided, of course, that his or her medium would have printed or aired the series of stories that will likely now remain buried. Our local news media exist to make money for their owners, not report news completely, factually, and timely. In some cases, good news reporting is antithetical to owners’ objectives. If a medium owner controls the information the people receive, the owner controls the people. In Spokane and Coeur d’Alene, owners prefer status quo corruptus to an informed public. An informed public asks too many questions and does not roll over and play dead on command. I also have to say that too many reporters have to be spoon-fed their stories. That leads to press release news.
I imagine most people in north Idaho are familiar with the names Bob Woodward and Carl Bernstein, but if you want to read an even more fascinating story that followed and was somewhat overshadowed by Watergate, read about the Arizona Project. There were three or four pretty good books written about the 1976 car bomb murder of Arizona Republic reporter Don Bolles. The Hayden library can still get the books on loan from other libraries.
Comment by Bill — April 16, 2010 @ 6:23 am
The fact that there were questions about Mike Kennedy’s “Residence” in the 2005 election should have defined who were legal electors in the city of Coeur d’Alene. Where can I get a copy of this ruling?
Comment by doubleseetripleeye — April 16, 2010 @ 8:56 am
IMO, in this particular case, it is in the best interest of the voting public that the case go forward to trial. It would be almost impossible for the press to ignore the findings in a trial. And even if the local press was less than thorough in reporting, I believe the
Spokane TV coverage would be informative. At the end of a program I recorded this week on ABC, was a lead in to their 11:00 news. The promo featured Jims suit as the lead story. So it is out there and I can see no reason that Spokane TV would bury this story. Quite the opposite in fact. And lets face it, more people watch TV than read newspapers, more the pity!
Comment by rochereau — April 16, 2010 @ 9:12 am
And…..if Mike Kennedy is becoming financially burdened by this suit, how is it he needs two attorneys? Please Mike, nobody with an ounce of smarts believes that you are paying your own legal fees.
Comment by rochereau — April 16, 2010 @ 9:19 am
The way the city and county have taken sides in this election, he actually has even more legal firepower on his team. You would think the city of Coeur d’Alene would want an election that is above reproach and hold their contractor, the county responsible. No, city attorney Mike Gridley, a known Mike Kennedy supporter, goes after Brannon instead of demanding accountability from the county. John “Witch Hunt” Cafferty under the not-so watchful eye of prosecutor Barry McHugh continue the stall tactic. This makes me wonder how bad was the election administration last November. The first post in this thread references Mayberry. I don’t think that is a fair comparison because the fictional town of Mayberry was portrayed as an honest place.
Comment by doubleseetripleeye — April 16, 2010 @ 9:41 am
2c3i,
Some time ago I did a public records request to the City for any writings relating to the City’s determination that Kennedy’s allegedly living in Ryan Hill’s basement for 30 days constituted “residency.” The response was that there were no records responsive to my request. What a surprise! As I recall, Ryan Hill’s ex-wife is Monica Paquin, one of the voters from the Canadian provinces in the last City election.
Comment by Bill — April 16, 2010 @ 9:42 am
Perhaps we the First Judicial District needs a wake up. When is Judge Simpson up for election. I think he only gets two years after a Gimme appointment to face the voters.
Comment by WannaBe JD — April 16, 2010 @ 3:15 pm
Bill, I have a bit of experience with the “Mike Kennedy living in his friend’s basement so he can get residency and run for city council” situation back in 2005. I was one of the candidates running for that same position. The casual attitude of the City Clerk, Susan Weathers, and the City Attorney, Mike Gridley, toward Mike Kennedy’s strange living “arrangement” back then is oddly similar to their lack of concern toward this whole election challenge. People voting from Canada who haven’t lived here ever or for many years? No problem. People voting from their commercial properties within the city, even though they actually live in Hayden? Who cares. Absentee ballot counts that don’t total up to the correct numbers? Oh well…
The judicial system is our only hope for accountability at this point and, so far, I’m not impressed.
Comment by mary — April 16, 2010 @ 4:55 pm
The bigger question is, of course, why
iswas it so important for various power players to have Kennedy on the council?Comment by Dan — April 16, 2010 @ 5:16 pm
At the risk of alienating a lot of people …
I have found myself somewhat sympathetic to Judge Simpson. Two days after being appointed to the District Court, he was handed a very complex case. In my view, two things should have happened. First, whoever assigned the case to him did everyone, including the Judge, a real disservice. Before assigning the case to any particular judge, someone should have examined the complaint and asked the obvious question, “What level of judicial experience and temperament are needed to handle this case smoothly and expeditiously?” Second, Judge Simpson needed to swallow his pride and go to the administrative judge and ask to be removed. No one would have blamed him for showing uncommon wisdom and humility in recognizing that he just might be in over his head. Asking Judge Simpson to handle the election contest, a very unique type of case in Idaho, was somewhat like putting a twin-engine Cessna pilot in the seat of a Space Shuttle and expecting him to pilot and land it successfully without scratching the paint.
If the Idaho District Courts don’t have some mechanism for matching judges to cases, they need to. In looking at the online calendars for First District judges, it does appear there is some selectivity in making assignments. Whatever that system is, it apparently didn’t function as intended when Judge Simpson was assigned to Jim Brannon’s election contest lawsuit. Judge Simpson may prove to be a perfectly fine judge, given time to develop into the position. Hopefully both the District Court administrator and Judge Benjamin Simpson will learn from this experience.
Comment by Bill — April 16, 2010 @ 7:00 pm
Oops. Based on Kennedy’s Facebook rants, I had to change my comment #13, above.
Comment by Dan — April 17, 2010 @ 8:40 am
I think you have an excellent point Bill. Which brings up the question, just why was this particular judge selected?
Comment by rochereau — April 17, 2010 @ 9:50 am
rochereau,
Thank you.
It is possible that Judge Simpson’s name was simply next on the list to get the next civil trial that came up. It is also possible that whoever made the assignment simply assigned all of retiring Judge Hosack’s cases to Judge Simpson without considering the complexity of any of those cases. I think there needs to be a process whereby cases are reviewed before being assigned to ensure to the greatest extent possible that case assignments match experience and temperament levels of the judges. I would hate to see an inexperienced but otherwise qualified judge’s career damaged because s/he was given a “career” case too soon. That not only hurts the judge, it hurts all the parties to the action.
Jim Brannon’s election contest is a complex case. It is not your run-of-the-mill criminal or civil case. It may well draw legislative attention to the new election administration laws scheduled to go into effect on January 1, 2011. The legislators ought to demand that any defects in the “old” (present) laws haven’t been carried forward into the new laws. This election contest may well be the mechanism for revealing those defects if they exist.
Comment by Bill — April 17, 2010 @ 10:13 am
LOL, Bill “At the risk of alienating a lot of people …”
Nah, but ‘at the risk of alienating a lot of people’, I have absolutely no sympathy for a judge who is too damn stupid to see a conflict of interest or the system itself that appoints spouses to committees as well as other folks who don’t belong on those committees. These people are well educated, well paid, and live on a pedestal of security that many of will never know.
But, you know what? They don’t care. They are untouchable and our judicial council is worthless. They are cocky and arrogant and they have been getting away with their actions for years. Why not this time? Judge Simpson was the perfect solution to try to skate past all of it and make this great big name for himself because he had this great high profile case that was supposed to be resolved on the side of the culprits under his watch.
It backfired on him big time and I don’t feel a bit sorry for him – not one little itty bitty bit.
Judge Simpson does not deserve a career unless he fixes his god awful mess and does something right to benefit the judicial system. What a novel approach that would be. If he doesn’t then he has it coming and every attorney out there has a good reason to throw him off a case. God, knows I would, IF I were an attorney and thought I would lose. Expert testimony anyone? Pick Judge Simpson’s wife!
He can always retire and I am sure he will survive, both he and his wife. After all – their business ventures together that benefit them both through the legal system are most likely stable and will support them in the manner they are accustomed to. Some gig.
I agree Bill, that legislators ought to demand that any defects in the laws be fixed. Not that it matters, the judicial system doesn’t really have to follow any laws if it is their discretion to ignore them.
Comment by Stebbijo — April 17, 2010 @ 3:50 pm
Stebbijo,
Good comment! Thank you.
Comment by Bill — April 17, 2010 @ 4:04 pm