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Decision split on term limits

Posted: Friday, August 15, 2008

A Kenai Superior Court judge Thursday handed down a mixed decision in a legal dispute pitting the Alliance of Concerned Taxpayers against the Kenai Peninsula Borough and Kenai Peninsula Borough School District over a pair of term-limit propositions voters passed boroughwide during last year's municipal election.

Propositions 2 and 3, which grew out of initiatives sponsored by the alliance, also called ACT, respectively imposed term limits on assembly and school board seats. However, several incumbent members of those two bodies also won re-election within their districts, raising legal questions about which votes should take precedence.

Within weeks of the election first the school board, then the assembly voted to seat the winning candidates, despite the fact that the number of terms they had already served put them under the provisions of the new term limit laws.

ACT members said seating the incumbents violated the law. The borough argued the ballot initiatives violated the Alaska Constitution and restricted other rights of access to the ballot.

The matter ended up before Kenai Superior Court Judge Anna M. Moran in January when the borough and school district sought a summary judgment declaring the term-limit initiatives invalid and unconstitutional. ACT filed a cross-motion in February.

Thursday afternoon, Judge Moran ruled that the term-limit law targeting school board seats was invalid entirely, because state statutes were "explicit in the formation and composition" of state school boards, and that those provisions did not include the authority for general law municipalities to restrict the number of terms a board member could serve.

Moran said flatly, "Kenai Peninsula voters could not pass legislation imposing term limits on school board members."

That means that Sammy Crawford and Sunni Hilts, seated last fall while questions of legitimacy remained, were legally seated, and there is no term-limit restriction on school board seats whatsoever.

With regard to the assembly, the decision was mixed. Moran noted that state law does provide for term limits of assembly members when voters approve such limits. She said a provision requiring term-limited incumbents to sit out a three-year term before running again was "narrowly tailored" to prevent an entrenched incumbency and promote fair elections, and that the initiative, "does not unconstitutionally infringe upon the rights of voters or candidates running for office."

However, when it came to candidates who ran in the 2007 municipal election, Moran ruled the proposition invalid, finding that the ballot initiative, as applied to that election, was "an unconstitutional violation of a person's right to vote as guaranteed by the First and Fourteenth Amendments of the United States Constitution and Article 1, section 5 of the Alaska Constitution."

Thus, Assemblymen Gary Superman of Nikiski, Pete Sprague of Soldotna and Paul Fischer of Kasilof, re-elected by their constituents despite having served multiple successive terms, were legally seated, Moran said.

"The application of the initiative to the October 2007 election would nullify the voters' choices for Assembly members in District 3, 4 and 7 and would have the effect of excluding three successful candidates who had won at the polls," she wrote. "The initiative could cause one group of voters to be able to nullify other voters' selections of candidates from individual districts."

Moran said the right to vote for and elect candidates and the right to run for office were constitutionally protected. The state's interest in removing entrenched incumbents and encouraging new citizen candidates "pales when measured against a voter's right to elect candidates of their choosing and not have those elections subsequently vacated," Moran wrote.

Moran went on to say, however, that the term-limit proposition was valid with regard to the upcoming 2008 municipal election, meaning that incumbents who have served more than two consecutive terms, as defined by the term-limit proposition, and who might have been considering another run this fall, can abandon that idea. Only a swift and successful appeal would change that.

"We are reviewing the ruling," Borough Attorney Colette Thompson said late Thursday, adding that, while an appeal was possible, no decision had been reached whether to seek reconsideration, appeal to a higher court, or accept the ruling. "There are some good things in this ruling," she said.

Moran ruled that severing the 2007 election from its effects did not render the assembly term-limit proposition invalid.

That term-limits are in place starting this election means long-serving Assembly President Grace Merkes, of Sterling, who said last week she would decide whether to run again by today, is now rendered ineligible.

Single-term members now hold the other two seats on the 2008 municipal ballot. Assemblywoman Margaret Gilman, of Kenai, is not running for re-election after having served one three-year term. Assemblyman Bill Smith, of Homer, is currently completing a truncated, one-year term, is seeking a full three-year term and is eligible.

It should be noted that provisions of the term-limit law consider even shortened terms, such as the one Smith is currently completing, as equivalent to a full, three-year term for purposes of counting successive terms.

Unless overturned by a higher court, the term-limit provision could have a dramatic impact on the 2009 municipal election. Assemblyman Gary Knopp, of Kenai, would be free of any restriction should he decide to run again in District 1. But Ron Long, of Seward, previously elected in 2000, 2003 and 2006, and Milli Martin, of Diamond Ridge, previously elected in 2000, 2002, 2003 and 2006, both experienced assembly members, would not be eligible to run again.

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



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