Term limits raise legal questions

Sponsor didn't anticipate ramifications of ballot measure wording

Posted: Friday, September 21, 2007

A member of the Alliance of Concerned Taxpayers sponsoring a pair of term-limit propositions on the Oct. 2 municipal ballot acknowledged this week that she did not anticipate certain ramifications that would result from success at the ballot box.

Propositions 2 and 3 would prevent incumbent candidates who've served two consecutive terms as defined by the propositions from taking their seats even if they won re-election.

Critics and supporters alike have said the post-election fate of the propositions may rest with the courts, something that might have been avoided had the measures been written to take effect next year instead of immediately. So why weren't they?

"I did not give consideration to that when we were busy getting signatures," said ACT member Ruby Kime Denison, prime sponsor of the term-limit propositions, who was addressing a sparsely attended Anchor Point Chamber of Commerce luncheon Sept. 19.

Assemblywoman Milli Martin, of Diamond Ridge, who attended the luncheon, told Denison that the term-limit measures might have been easier to defend if they didn't retroactively count terms already served by sitting members. She also said the measures seemed to single-out certain sitting assembly members.

"The one person who seems to be taking this all personally, needs to check his sophomore status at the door," Denison said, acknowledging upon inquiry that she was referring to incumbent Assemblyman Gary Superman, of Nikiski, whose votes and positions have made him a frequent political target for ACT-member ire.

Superman, who could win and not be seated, is running unopposed, prompting the question why no Nikiski ACT member chose to file against him, despite having 15 days in August in which to decide to do so.

"I'll tell you the real, on-the-ground reason; we didn't think to do it," Denison said. "We were exhausted getting the petition signed in 13 days. It was an error on our part that we didn't tumble to doing that just to have somebody in the fight."

Denison agreed the language of the propositions might have been better. But she blamed the borough clerk and attorney for not providing ACT with the help necessary to frame the propositions precisely enough to avoid future conflict. She said she believes state law required that help, and said that while there was some back-and-forth between ACT and Borough Clerk Sherry Biggs over specific language, it was, from her perspective, of a "gotcha" nature.

Borough Clerk Sherry Biggs said early last week that she had provided ACT members with help which resulted in changes to the original language that better defined which assembly members would be affected by the propositions. However, the final ballot language of a proposition is not required to meet every conceivable constitutional challenge before being eligible for the ballot. Indeed, any court challenges subsequent to the election would generate much more stringent legal scrutiny.

Denison acknowledged it was not the borough's job to eliminate every flaw and that a borough clerk could never fully guarantee that the final ballot language would be airtight against challenge or reversal by a court.

"There is a sense this has gone a little too far," Martin said.

"I don't disagree with that," Denison replied.

Denison began her remarks noting that the modern drive for term limits began in the early 1990s and blossomed nationwide, resulting in term limits being adopted in 19 states. Though the movement has slowed, Denison said that when politicians know they must return to "ordinary society" and live under the laws they've passed, they tend to think more carefully about the programs they support.

Pressed to name any sitting assembly or school board member who does not live under the laws they pass, Denison said it was "hard to be specific about that." After reflecting a moment, she admitted she could think of none, but made vague reference to certain exemptions enjoyed at the state and congressional level, none of which apply at the local level.

"So maybe I was overly aggressive on that comment," she acknowledged. "I probably shouldn't have said that."

ACT's term-limit effort is an outgrowth of public dissatisfaction with government, Denison said.

"Our current elected officials aren't doing anything about lowering costs. The voters see a never-ending spiral of higher taxes," she said.

Martin challenged that assertion, citing the fact that the borough's property tax mill rate had just been cut by more than 16 percent, a full mill. Similar cuts were made under former borough mayor Dale Bagley.

Denison countered arguing that, come January, the borough's 2-percent sales tax will rise to 3 percent. The net effect, she said, would be a lowering of one tax and an increase to another. She called it "a shell game."

According to borough officials, the controversial increase in the sales tax was necessary to address a declining fund balance.

Denison said term limits would be "a positive structural reform" ensuring a regular influx of new people and new ideas to the assembly and school board, something that the power of incumbency tends to prevent.

"The system, right now, allows incumbents to amass so much power and attention that challengers can rarely win," she said, adding that in many cases incumbents simply run unopposed.

Martin also challenged that assertion, noting that in relatively recent assembly races, Betty Glick ousted Tim Navarre, Dan Chay unseated John Davis, Margaret Gilman beat Glick, and Gary Knopp (running for a seat in which the incumbent declined to run) defeated an ex-state lawmaker, Kelly Wolf.

"I think those are very good examples that we already have the opportunity to make a change at the ballot box," Martin said.

As far as the Navarre-to-Glick-to-Gilman rollover, Denison said that had occurred in one area (Kenai) where the distance between houses is conducive to door-to-door campaigning. Davis lost his bid because he was not very popular, Denison added. She then pointed to times when qualified candidates emerged when incumbents chose not to run, such as former members Dan Chay, of Kenai, and Chris Moss, of Homer.

Denison acknowledged, however, that it was "a fact of life" that term limits won't necessarily guarantee highly talented fields of candidates will file for seats vacated by term-limited incumbents. The situation could produce candidates of substantially less talent.

"That is true," Denison said.

She called the anti-term-limit argument that inexperienced legislators would be unable to control the permanent bureaucracy "a red herring," noting that the assembly and school board control the purse, and thus, have power over the bureaucrats.

On the other hand, she also warned against overlooking "the unholy alliances" that can build up between bureaucracies and long-term legislators.

Denison said she hoped to see some laws rescinded if the term-limit propositions are successful and, in a year or two, the assembly is a body of fresh faces. She was asked for examples.

"One was pointed out to me last night, and that is that if you are in arrears on your property taxes and the borough forecloses, there is a very old law that says that you can have one cow, two pigs, six chickens and $25 and a few other things. That law is still on the books."

According to the borough legal department, no such language exists in the borough legal code. State statutes in Title 29 govern borough foreclosures. No reference to livestock in connection with foreclosures on real property could be found there either.

However, state Title 43, which covers penalties for not paying certain taxes, does include language exempting certain personal property from "distraint" (a legal remedy for nonpayment of rent), including "one cow, two hogs, five sheep and their wool ..."

Deputy Borough Attorney Holly Montague said that any assembly, fresh-faced or otherwise, would be unable to rescind a state law, and in any case, the state language has to do with personal, not real property.

Finally, Denison said that, overall, she wanted less government whether at the city, borough or state levels.

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

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