Cd'A seeks fees from Brannon

City Council could decide Tuesday about paying Kennedy's fees

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COEUR d'ALENE - The city of Coeur d'Alene is seeking around $36,000 in legal fees and costs from 2009 general election challenger Jim Brannon.

Brannon has objected, claiming that the city doesn't have the legal grounds to request money from him since the election challenge wasn't frivolous.

Meanwhile, the Coeur d'Alene City Council may take action next week on whether the city will pay around $105,000 for Seat 2 incumbent Mike Kennedy's legal fees.

All could be decided Tuesday.

"We were dismissed and brought back on one claim that required the plaintiff prove there was illegality in the canvassing of the votes," said Mike Haman, attorney representing the city. "There was no evidence showing that."

Brannon had challenged the Nov. 3 2009, election on grounds that illegal ballots had been cast, and sought a new election. The suit lasted nearly a year in the courtroom, and after a six-day trial, illegal votes for Brannon and Kennedy were tossed, leaving the incumbent winning by three votes.

To seek fees after a ruling, however, attorneys must prove that the case was frivolous. Kennedy's counsel doesn't think that's a likely stance to take with 1st District Judge Benjamin Simpson.

The city does.

It was brought back in as a possible remedy provider, should misconduct amount to a new election, which didn't happen.

But also set to go before Simpson at 2 p.m. Tuesday at the Kootenai County Courthouse is a motion for a new trial or to vacate the judgment.

Brannon's attorney, Starr Kelso, filed reports that state erroneous determinations were made by the court that contributed to the ruling, such as when the court didn't shift the burden of proof to the defendant after reports were introduced in court that showed a different number of absentee ballots were documented (2,041) other than what the machines had counted on election night (2,051).

Kelso declined to comment before the hearing, but referred to the court filings.

Another report filed for the judge to consider is a previous court case that ruled a Uniformed and Overseas Citizens Absentee voter's absentee ballot rights only counted for federal elections.

That divide was a central point during the election, and its verdict helped Kennedy win.

The bond amount to go to trial was originally set at $40,000, before being trimmed to $5,000. When it was posted at $40,000, Brannon filed in court that he could not pay. Kelso said Brannon shouldn't have to pay $36,000 either.

"The election contest was not brought, pursed, or defended frivolously, unreasonably, or without foundation," a court filing states.

Should the City Council take up Kennedy's fees at 6 p.m. Tuesday during the City Council meeting, it could be an agenda item open to the public, said city attorney Mike Gridley. The meeting schedule hasn't been finished. Litigation issues are usually reserved for executive session - closed to the public - but the high profile nature of the case could warrant public discussion, he said.

Kelso has also appealed the court ruling to the Idaho Supreme Court.

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