In a stunning, arbitrary decision this afternoon, Judge Benjamin Simpson imposed a $40,000 bond on those challenging last November’s local city council election.
His action appeared random because the number was apparently plucked from thin air, as we all watched, without reason or rationale given by the judge. First he asked Mike Kennedy’s attorney, Scott Reed, what dollar amount Scott thought the bond should be to cover his expenses. Mr. Reed hesitated and said it would take some thought... but the judge prodded him again, asking for a dollar figure, to which Scott Reed answered, “$25,000”.
The judge then talked about a few other issues and concluded with the surprise announcement that the bond for challengers Jim Brannon and his attorney Starr Kelso would be set at $40,000. Almost twice the amount suggested by Mr. Reed!
Here’s the message from Judge Simpson and the City and the County to the public: Don’t even THINK about questioning a local election unless you have lots and lots of money!
How and why would Jim Brannon and Starr Kelso (who is working for free) come up with $40,000 to question an election for a city council position that pays $700 per month? I don’t know if they will or if they can. But I do know that they have uncovered irrefutable evidence that there were serious problems with this last election.
An interesting point of law is that Idaho State statues address bonding for challenges in primary elections, not city, county or general elections. The bond listed in the state statutes is $500. Here’s a key point: There is NO procedural or substantive difference in challenging a primary election as compared to any other election; they all have the same steps. So doesn’t it make sense that the bond should remain as set forth in the law?
Now back to what happened yesterday. After my newsletter went out, many of you sent emails and probably phone calls, to County Prosecutor Barry McHugh. There were so many that Barry set up an “auto-reply” email, referring to my newsletter by name and laying out the County’s case that the election challenge was filed only under Title 50 of state law, which deals with the city-county contract and not actual election documents. Congratulations, readers, your responses got their attention, big time!
Barry was wrong. County attorney John (“witch hunt”) Cafferty was also wrong. The judge said today, in court, that the motion filed by the challengers was brought forward under BOTH Title 50 and 34 of state law. And Mr. Cafferty publicly apologized for his poorly worded “witch hunt” comments and admitted that he was mistaken about the basis for the motion.
It didn’t matter, though. Judge Simpson ruled that the City of CdA has totally NO responsibility for the election. And he “quashed” the subpoenas for County Clerk Dan English and County Elections Director Deedie Beard to appear as witnesses in the trial. Are you kidding? They RAN the election! Of course they should testify to what happened. No, said the judge. The challengers can only take depositions (statements) from them.
So the gist of the story is this: The County is off the hook, even though they ran the election. The City is off the hook, even though State law specifies they are responsible for City elections. And the election challengers have to pony up $40 THOUSAND DOLLARS WITHIN ONE WEEK, or they can’t go forward.
That’s justice in Kootenai County. Why vote? It’s all sewn up.