Simpson will remain on case

COEUR d'ALENE - First District Judge Benjamin Simpson isn't going anywhere.

Simpson ruled Friday evening that he would remain as the judge presiding over the election challenge lawsuit, saying that an unfavorable ruling against the Plaintiff Jim Brannon isn't enough to remove a judge from the bench.

"Objections to the court's power to set the bond amount are not supported in the law or by the facts of the case," Simpson wrote in his ruling.

Brannon, Simpson concludes in his ruling, "has failed to carry his burden of proof with his respect to bias or prejudice."

The order comes from Friday morning's motion to disqualify the judge in the latest hearing regarding the Nov. 3 election challenge. After the morning hearing, Simpson said he would weigh the arguments and issue his order by Monday.

But by Friday evening, the order was on the books.

It leaves Simpson in charge.

Where it goes from here is still up in the air.

At the Friday morning hearing, Simpson did give both Brannon's attorney Starr Kelso, and City Council incumbent Mike Kennedy's attorney Scott Reed, 14 days to file briefs on whether the $40,000 bond includes attorney's fees.

After that, a hearing date on that matter could be scheduled.

Still left are a number of other motions Kelso filed, including a motion to reconsider Simpson's ruling last week to dismiss the city of Coeur d'Alene from the suit, as well as the protective order on Kootenai County documents and the roughly $5,500 price tag the county said it would cost to copy and produce them.

Other motions to be decided are to reconsider the $40,000 bond amount and a motion for an interlocutory appeal and vacating and rescheduling the April 13 trial.

An interlocutory appeal is an appeal of a ruling by a court that is made before the trial itself has concluded.

Those could be scheduled, too.

With the up-in-the-air scheduling, the May 25 primary election could come and go before the Nov. 3 municipal election is settled.

"At this point I don't know what to expect," said Dan English, Kootenai County clerk after the morning hearing, of the approaching primary date. "It might get cramped for space."

Kelso couldn't be reached before Friday evening's Press deadline.

At Simpson's disqualification hearing Friday morning, Kelso argued that the judge was biased against Brannon because of the high bond amount should the challenge go forward against only Kennedy.

"That bond is the end of the case before this court," Kelso said. "And the people will never find out what happened to their election and how it was flawed."

Brannon is challenging the election on grounds that inadmissible ballots were cast in his five vote loss to Kennedy for seat 2 on City Council.

Kelso said he has doubled his original number of alleged illegal votes to 10, including some Hayden Lake residents who used their commercial address in Coeur d'Alene to vote, according to court filings.

Kelso said it was "likely" more potentially illegal voters would be found in the investigation, and that the case should move forward under a $500 bond, not the $40,000 bond requested by Simpson.

That figure would end the case before the court, as Brannon indicated in court filing he wouldn't be able to meet it.

The judge's bond was especially unfair, Kelso said, because the city offered $30,000 as the amount, while City Council incumbent Mike Kennedy's attorney Scott Reed offered $25,000, and Kelso pledged $500.

But Simpson ruled late Friday he will remain on the case, and while the motion to reconsider the bond amount is still on the court's table, the judge questioned some paperwork Kelso included in his motion filings, including copies of letters to The Press editor that criticized the judge's ruling last week.

"The court has been scrupulous not to read articles or posting concerning the case submitted by Mr. Kelso," Simpson wrote, referring to blog comments as well as the letters.

After the morning hearing, Reed said he is prepared to go to trial, regardless of what the bond amount turns out to be, or when it's scheduled, should the suit move forward.

But, Reed added, there was never enough legal argument from Kelso to even warrant Friday's hearing to disqualify Simpson.

"There is no cause to disqualify a judge because a judge rules against you," he said.