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Jim Brannon v. City of Coeur D'alene

November 16, 2012

JIM BRANNON, PLAINTIFF-APPELLANT,
v.
CITY OF COEUR D'ALENE, IDAHO, A MUNICIPAL CORPORATION;
SUSAN K. WEATHERS, IN HER CAPACITY AS THE CITY OF COEUR D'ALENE CITY CLERK; AND MIKE KENNEDY, IN HIS CAPACITY AS THE INCUMBENT CANDIDATE FOR THE CITY OF COEUR D'ALENE COUNSEL SEAT #2, DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Charles W. Hosack, District Judge.

The opinion of the court was delivered by: Burdick, Chief Justice

2012 Opinion No. 140

Stephen W. Kenyon, Clerk

District court decision affirming election results, affirmed.

This case appeals the Kootenai County district court's denial of Jim Brannon's (Brannon) election contest of the Coeur d'Alene city council election in 2009. In the official vote total, Brannon lost the election for seat 2 of the city council to Mike Kennedy (Kennedy) by five votes. Brannon then filed an election contest that alleged numerous irregularities and sought to set aside, void, or annul the election. After a bench trial, the district court issued a memorandum decision that affirmed the election result, finding insufficient illegal votes or irregularities to change the outcome of the election. On appeal, Brannon argues that the City delegated its election duties to Kootenai County in contravention of Idaho law, that the district court made numerous factual and legal errors at trial, and that the district court erred in denying Brannon's motion to disqualify and motion for new trial. We affirm the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The city of Coeur d'Alene held a general election on November 3, 2009. As part of that election, Kennedy, the incumbent, was in a contest against Brannon for seat 2 on the city council. The official election results showed 3,165 votes for Kennedy and 3,160 votes for Brannon.

On November 30, 2009, Brannon filed a complaint that included multiple claims and a request to set aside the results of the election. An amended complaint was filed on December 10, 2009. The amended complaint named the following defendants: the city of Coeur d'Alene (the City), Susan Weathers (Weathers) in her capacity as city clerk, Kennedy in his capacity as incumbent candidate for city council seat 2, the entire city council individually, and the mayor. The amended complaint alleged numerous failures by the City and Kootenai County, including a failure to follow applicable election law that resulted in improper absentee ballots being counted.

After some preliminary matters, only the City, Weathers, and Kennedy remained as defendants. The original district judge assigned to the matter, the Honorable John T. Mitchell, voluntarily disqualified himself from the proceeding on December 4, 2009. Judge Mitchell was replaced by Judge Benjamin R. Simpson. Brannon filed a motion to disqualify Judge Simpson for cause under I.R.C.P. 40(d)(2)(4) on March 8, 2010, which the district court denied.

However, Judge Simpson entered an order of voluntary disqualification on April 13, 2010. Senior Judge Charles W. Hosack was assigned to take jurisdiction in the matter. On the first day of trial, Brannon filed a motion to disqualify Judge Hosack for cause under I.R.C.P. 40(d)(2)(A)(1) and (4). Judge Hosack denied the motion, and began the bench trial on September 13, 2010. The trial consisted of five days of argument and testimony regarding the conduct of the election and the nature of the absentee ballots that were counted. The district court issued a memorandum decision on November 5, 2010, affirming Kennedy's election victory. Specifically, the decision found that there were insufficient illegal ballots to change the outcome of the election, and that the alleged irregularities did not constitute malconduct.

Brannon filed a motion and memorandum for new trial, or in the alternative, to amend the judgment on November 8, 2010. The motion was heard on December 7, 2010, and denied by the district court in a January, 4, 2011 order. Brannon timely filed a Notice of Appeal on November 15, 2010, and filed an Amended Notice of Appeal on February 1, 2011.

II. ISSUES ON APPEAL

Appellant raises the following issues on appeal:

1. Whether the district court erred in denying Brannon's Motion to Disqualify.

2. Whether the district court erred in ruling that non-city residents were entitled to vote in the election under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).

3. Whether the district court erred in refusing to order non-city residents who returned absentee ballots to testify as to their residence and for whom they cast their vote.

4. Whether the district court erred in dismissing Brannon's malconduct claim.

5. Whether the district court applied an incorrect burden of proof for election contests.

6. Whether the district court erred in finding that the county counted 2051 valid absentee ballots.

7. Whether the district court erred in finding no error in the city's vote counting or election result.

8. Whether the district court erred in finding that the City could delegate city election duties to Kootenai County.

9. Whether the district court erred in retaining only the claim to set aside the election for seat 2, and dismissing the claim to set aside the entire election.

10. Whether the district court erred in denying the motion for new trial or amended judgment.

11. Whether the City is entitled to costs and fees on appeal.

III. ANALYSIS

A. Whether the district judge erred in denying Brannon's Motion to Disqualify.

On September 13, 2010, Brannon filed a motion and an accompanying memorandum to disqualify Judge Hosack for cause. In the motion, Brannon moved for disqualification under I.R.C.P. 40(d)(2)(A) on the grounds of interest and or prejudice against Brannon by Judge Hosack. September 13, 2010 was also the scheduled first day of trial, so the motion for disqualification was argued immediately. The 76-page motion and accompanying materials were filed at 8:50 a.m., and argument began at 9:16 a.m. Judge Hosack denied the motion from the bench after hearing argument by both parties.

On appeal, Brannon argues that the district judge erred when he denied the motion to disqualify Judge Hosack for cause. More specifically, Brannon argues that the denial was not based upon any analysis, that Judge Hosack never claimed that his disparaging prior statements on election contests were inaccurate, and that the district court failed to identify the discretion standard for its decision. In response, the City argues that the motion was based solely on a vague comment made by the judge in an unrelated matter and was correctly denied.

1. Standard of Review

"Whether a judge's involvement in a case reaches a point where disqualification from further participation in a defendant's case becomes necessary is left to the sound discretion of the judge himself." Sivak v. State, 112 Idaho 197, 206, 731 P.2d 192, 201 (1986).

To determine whether there is an abuse of discretion this Court considers whether (1) the court correctly perceived the issue as one of discretion; (2) the court acted within the boundaries of such discretion and consistently with legal standards applicable to specific choices; and (3) the court reached its decision by an exercise of reason.

Lee v. Nickerson, 146 Idaho 5, 9, 189 P.3d 467, 471 (2008).

2. Whether the district judge erred in denying Brannon's Motion to Disqualify.

In the motion, Brannon moved for disqualification on the grounds of interest and or prejudice against Brannon by Judge Hosack. In support, Brannon cites comments made by Judge Hosack in the transcript of a September 7, 2010 Contempt Hearing. The September 7, 2010 contempt hearing was prompted by the online publication of an affidavit by a non-party, Bill McCrory. The hearing was to determine whether McCrory was in contempt when he published information regarding ballots and ballot envelopes that was subject to a confidentiality stipulation. The hearing focused on the nature of the confidentiality and the potential disclosure of sensitive voting information.

Brannon's motion took exception to snippets of two comments by Judge Hosack. First, that "Judge Hosack harbored and possessed unrevealed personal opinions that election contests of the nature of this case have 'ramifications upon the average voter' that are 'not a salutary connotation.'" Second, that the judge had an opinion that the process of voters "to be 'grilled by a Judge' to testify for whom they cast their ballot 'is an anathema to everything about our democratic process.'" To Brannon, these comments indicate an opinion by the judge that this election contest is not beneficial to Coeur d'Alene.

To properly understand the nature of Judge Hosack's comments, they must be placed in context. Below are Judge Hosack's comments with the portions Brannon extracted in bold:

There are some very meritorious arguments here raised by Mr. Macomber with regard to the technical inadequacies of this particular contempt proceeding.

And I'm not certain that we necessarily need a trial for the Court to resolve those. On the other hand, the Court has a concern in this litigation about the rights of the citizen voters. This type of litigation which may be and no doubt is and should be important in litigants has a ramification upon the average voter that in the view of this court is not a salutary connotation.

And there's been arguments even made in open court that because this is an election case, a court should exercise extraordinary powers never used in civil litigation before in the history of American jurisprudence and haul citizens back at their own cost into court for a hearing for trial because they voted. That's very disturbing to this court. The wisdom of the American democracy is not delivered by the fiercely partisan voting.

The wisdom of the American democracy is delivered by the average citizen that goes down to the voting place on the day of the election and votes as they see best to serve their community and does so out of public duty. Not because they have some crusade or some test point that they want to prove, but because they want to see their community work.

To have litigation, publishing voters' names, calling in whether their affidavits are correct, whether they're legal or illegal, whether they can be hauled into court, grilled by a judge with regard to their votes, is an anathema to everything about our democratic process.

So the secrecy, the confidentiality, the privacy of the voter is of paramount concern to the Court, and some apparent disregard of those issues by litigants or participants is of concern to this court.

Argument on the motion for disqualification was heard on September 13, 2010, and after hearing argument from both parties, Judge Hosack denied the motion in a ruling from the bench. In his denial, Judge Hosack provided further context and clarification for his earlier comments:

[T]he comments then that I made were in the context of whether or not to dismiss the contempt proceeding and while there were technical issues, at least superficially, prima facie, for purposes of a motion to dismiss, the issue before the Court was an alleged court order requiring confidentiality, an individual inspecting documents pursuant to that order of confidentiality and then that individual turning around and publishing that very information obtained through the confidentiality order on the Internet. Not only that, it pertained to ballots.

After additional explanation, Judge Hosack denied the motion to disqualify. "[T]hose comments were extremely limited, extremely focused and on a proceeding that as Mr. Kelso points out had absolutely nothing to do with this case. So that's how I can proceed. And the motion to disqualify will be denied."

Brannon brought his motion for disqualification under I.R.C.P. 40(d)(2)(A)(1) and (4).

I.R.C.P. 40(d)(2)(A) states in pertinent part:

Any party to an action may disqualify a judge or magistrate for cause from presiding in any action upon ...


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