Back in session

COEUR d'ALENE - It's been six months since the polls closed, and two months since the election challenge lawsuit was last in court. It resumes today with its fourth judge, Charles Hosack, presiding.

COEUR d'ALENE - It's been six months since the polls closed, and two months since the election challenge lawsuit was last in court.

It resumes today with its fourth judge, Charles Hosack, presiding.

Hosack, who was appointed to the case by the Idaho Supreme Court, could decide at 3 p.m. whether the suit should be dismissed entirely, or the city of Coeur d'Alene - earlier dropped as a defendant by 1st District Judge Benjamin Simpson - should be brought back into the case.

Simpson removed himself from the suit in April - the third judge to handle the case at the time. But before he did, he dropped the city of Coeur d'Alene from the suit, leaving City Council incumbent Mike Kennedy as the lone defendant against seat 2 challenger Jim Brannon, who is contesting the Nov. 3 election on grounds that inadmissible votes had been cast in Kennedy's five-vote victory.

"It's just sort of a helpless feeling. I didn't run the election. I just ran and won," Kennedy said of the personal suit against him during a recent City Council meeting. "Here we are six months later and the attorney fees keep racking up."

The city could come back in today. Or the suit could be thrown out entirely.

But the case is back in the courtroom after a nearly two-month break following Simpson's disqualification. And legal arguments from both teams are expected to cover the same ground that brought the case this far.

Starr Kelso, Brannon's attorney, has argued the city should be held responsible for the election since an amendment specifically dealing with municipal election code requires cities to employ - not contract - its election services.

The city contracted Kootenai County for the general election, which it didn't have the legal authority to do according to that exemption, Kelso said.

But Simpson overruled that argument on grounds that the code goes on to state that political subdivisions may contract with the county clerk.

"The fact that nobody has enforced that statute doesn't mean anything," Kelso said of the exclusion clause, which he said he will still argue before the court today.

But should the city remain out, Kennedy's attorney Scott Reed said the entire suit should be thrown out since the county - which would then be legally responsible for the election in the court's view - isn't a part of it.

The 30-day window for including the county has long passed, Reed said, and Kennedy doesn't have the legal grounds to order a new election.

City Attorney Mike Gridley said it cost the city $17,000 in court fees when it was a part of it. The city has filed a motion to recover fees and costs should the city remain out.

Both Kennedy and Brannon have spoken about the stressful toll the six-month court contest has taken on them personally.

"The best thing for both parties, for me and Mike, is to have this issue resolved," Brannon said in an earlier interview. "There isn't much benefit to either of us when the case drags out."

During the pause between judges, Brannon tried to expedite a resolution by challenging Kennedy to a one-on-one election during the May 25 primary.

Kennedy spoke about the challenge in general at the May 4 City Council meeting.

"It had the potential to be a real difficult, have a chilling effect for people running for office if you get the excitement of running and have to defend the lawsuit personally," he said. "At some point in time there is an issue to bring to the Legislature to determine how you put more teeth in the timeline so this gets over and it doesn't drag on as a political attack lawsuit for a long period of time."

Simpson didn't disclose his reasons - nor is he required to - for removing himself from the case.

His last actions as judge included denying Kelso's request to remove him from the bench back in March, and reducing the original $40,000 bond to $5,000.

Kelso requested Simpson be taken off the case March 12 - the last time the suit was in court - after Simpson issued the original $40,000 bond. In his court filings Kelso included letters to the editor and blog posts criticizing the judge's bond decision, and Simpson, in turn, criticized Kelso for their inclusion in the court filings.

"The court has been scrupulous not to read articles or posting concerning the case submitted by Mr. Kelso," Simpson wrote back in March.

But by mid-April Simpson took himself off the case.

First District Administrative Judge John Mitchell requested the Idaho Supreme Court intervene by appointing an out-of-district or senior judge to take over.

Simpson didn't return messages from The Press, but Mitchell, who was the first judge to recuse himself from the case because he knew all the parties involved, said he requested the help as a way to expedite the process since visiting or retired judges have more time to devote on their calendars.

Chief Justice Daniel Eismann, who appointed the retired Hosack, said it's not uncommon for the Supreme Court to intervene in cases for a variety of reasons, including workloads for acting judges and for cases involving elected officials.

"It can be used to eliminate the perception that the elected official would be treated any differently than anyone else by the local judges," he said of appointing a senior or out-of-town judge.