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Simpson takes self off case

by Tom Hasslinger
| April 15, 2010 9:00 PM

COEUR d'ALENE - First District Judge Benjamin Simpson disqualified himself from the election challenge lawsuit, the third judge to remove himself from the case since it was filed last November.

Simpson did not state the reason for his disqualification on Tuesday, but another judge will be assigned as a replacement - the fourth judge to handle the case.

Meanwhile, the Kootenai County clerk's office said it's too late to add a one-on-one showdown to the May 25 primary ballot between the city candidates.

"The May primary election is already fully engaged, so that certainly isn't an option at this point," said Dan English, adding that they've already mailed out around 1,500 absentee ballots.

The clerk was responding to challenger Jim Brannon's open letter to incumbent Mike Kennedy this week that asked Kennedy to agree to set aside the court proceedings so the county can redo the seat 2 City Council contest.

The Secretary of State's election department said there isn't a provision for such a challenge, but a judge could rule for one should the judge choose to. Kennedy's attorney, Scott Reed, said they weren't interested, and questioned the legal possibility of redoing the election like that.

"We both know that when the court sets aside the election it will not declare me the winner. It will order a new election," Brannon's letter states, saying the parties should avoid future legal proceedings and join the primary race.

But the county said absentee ballots are already out, and the city's legal team estimated it could cost around $11,000 should the election have to be re-done separately, Reed said.

Kennedy commented online after a recent Press article about the challenge, detailing the financial burden he has endured fighting his five-vote victory in court.

"My family is having to bear this burden simply because I won an election," Kennedy wrote, calling Idaho's current political climate "toxic" where winning a close election can put one at risk of getting sued.

"The city and county are not responsible for my legal bills, I am personally," he wrote.

That prompted Brannon's letter.

Reed agreed that the financial burden defending the election could prove to be a worry for future candidates.

Reed has also filed a motion that could drop Kennedy from the suit. Since the city was dropped, and the county was not part of it, he said, it has left Kennedy as a powerless defendant because the incumbent does not have the authority to order a new election should the judge rule to do that.

"We can't do anything," Reed said of a potential order coming from the judge, which should be directed at the county since it conducted the election. "Mike Kennedy can't conduct an election."

It's one of several motions the new judge will need to schedule, including the motion to reconsider dismissing the city of Coeur d'Alene from the suit.

Earlier, 1st District Judge John Mitchell disqualified himself from the case and Judge Charles Hosack retired. Since then Bill and Elizabeth McCrory have filed a motion to intervene on the suit, supporting the challenge as voters of Coeur d'Alene.

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