Term limit ruling sought

Borough files for summary judgment in ACT lawsuit

Posted: Friday, January 11, 2008

The Kenai Peninsula Borough has asked a Kenai Superior Court judge to declare term-limit initiatives passed by voters in October invalid and unconstitutional.

Court papers filed Wednesday seek a summary judgment in a lawsuit filed in October by the grassroots group Alliance of Concerned Taxpayers, or ACT, sponsors of a pair of propositions on the Oct. 2 ballot setting term limits for borough assembly and school board seats.

Those ballot measures, Propositions 2 and 3 respectively, imposed term limits in "a particularly draconian manner," that violated constitutional and state laws, Borough Attorney Colette Thompson said in her brief.

Issues were further complicated by the intent specified by initiative sponsors that provisions limiting members of the two bodies to no more than two consecutive terms would apply to incumbents running for office in 2007, and because those provision were to be applied retroactively that is, they would count terms already served by sitting incumbents.

In the October municipal election, a 56-percent majority of voters across the borough favored setting term limits. However, voters in all districts where incumbent assembly and school board members were running easily re-elected those candidates in effect, pitting one set of election results against another.

The Kenai Peninsula Borough Board of Education voted Oct. 15 to seat its two incumbent winners, Sammy Crawford and Sunni Hilts. The Kenai Peninsula Borough Assembly at first declined in the face of the election dilemma, but allowed the incumbents to continue serving for up to an additional 30 days while options were considered.

The delay led local attorney Dale Dolifka to sue, demanding that the courts order the borough to seat the incumbents. On Oct. 22, ACT also filed suit urging the court to uphold the provisions of the initiatives and bar the incumbents from assuming office. The borough then faced two lawsuits one insisting that the incumbents be seated, one insisting they not. To defend each would require the borough to pose essentially opposite arguments.

The following day, the assembly voted to seat the three winners, Gary Superman, Pete Sprague and Paul Fischer, thus rendering the Dolifka suit moot and leaving the borough just the ACT suit to defend against.

Wednesday's filings by the borough were in response to the ACT suit. The borough wants a court declaration that the actions taken by the assembly and school board to seat incumbent winners were legal.

In a lengthy 33-page brief accompanied by several exhibits, the borough's legal staff, with the assistance of attorney Thomas Klinkner, of the Anchorage firm Birch, Horton, Bittner and Cherot, said the initiatives failed several constitutional tests.

Specifically, the borough argued that term limits imposed on the assembly and school board served no compelling government interest and that the initiatives were not "closely tailored" to the government interests they allegedly served, making them unconstitutional.

Thompson noted that term limits have a place: they reduce unfair incumbent advantage, promote fairer and more competitive elections, encourage qualified new candidates, dislodge entrenched officeholders, curb the power of political machines and encourage citizen service rather than career politicians.

"While appealing in the abstract," Thompson wrote, "the 'evils of incumbency' that term limits seek to address are absent from the electoral politics in the borough. The empirical (observed) absence of conditions that would justify a ballot access restriction is far more important than the interest's abstract appeal."

Indeed, borough records show that since 1997, in only 28 of 38 elections for assembly seats did incumbents run, defeating challengers in 15 elections. In that same period, school board incumbents ran in 25 of 35 elections, defeating challengers 14 times. In many of the other elections, incumbents ran unopposed.

Those statistics, Thompson argued, "demonstrate that frequent elections of assembly and school board members (every three years) are a sufficient remedy for incumbency in the borough."

She went on to say it was no surprise that an entrenched incumbency is absent in the borough. Pay and benefits, such as they are, are very limited and "clearly designed to appeal to civic-minded citizens with other occupations not to persons seeking a career in public office."

Imposing the initiatives' provisions on the Oct. 2 election candidates also violated equal protection clauses of the Alaska Constitution, the borough said, by collectively nullifying voters' choices for assembly and school board members in Districts 3, 4 and 7 and Districts 1 and 9 respectively.

Furthermore, the way "term" is defined in the initiatives conceivably under rare circumstances could bar a prospective incumbent from running again after having served as little as 14 consecutive months as in being appointed to finish the final couple of months of a vacated term, then filing for and winning a seat truncated to just one year in length by redistricting.

The initiatives bar term-limited members from becoming candidates until three years had passed since their last term ended. In effect, it could deny candidacy for nearly as long as six years under certain circumstances. Such a provision violates equal protection.

Atop that, former members who moved to another assembly or board district, where they would presumably enjoy no power of incumbency, still would be prevented from running, in effect, creating a lengthy residency requirement.

The Alaska Supreme Court has ruled in past cases having to do with lengths of residency that such extraordinarily long bans are unconstitutional.

Thompson argued that in this case the right to initiative must yield to other constitutional principals.

In the case of school board seats, the issues are very clear. Lawmakers set candidacy requirements by law, but the Alaska Constitution gives the Legislature pervasive control over education. State statutes say nothing about term limits or lengthy prohibitions against running again with regard to school board seats. To change that would require amending state statutes, something neither a borough ordinance nor a boroughwide initiative may do.

As for the assembly seats, term limits are permitted by state statute, but the borough argues that the initiatives impose unconstitutional restrictions.

Under court rules, ACT's attorney, Ken Jacobus, has 18 days in which to respond. No court date has been set. The borough is hoping for a resolution before the Oct. 2008 municipal election.

Hal Spence can be reached at hspence@ptialaska.net.

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