The Kenai Peninsula Borough Assembly will consider three resolutions at its Oct. 23 meeting directing Borough Clerk Sherry Biggs to administer the oath of office to three incumbent candidates who won re-election Oct. 2 but who are currently prevented from taking office by the provisions of a term-limit proposition.
Introduced by Assemblyman Paul Fischer, of Kasilof, one of those affected by the new term-limit law, Resolutions 2007-071, -072 and -073 would, if passed, seat him, Assemblymen Pete Sprague, of Soldotna, and Gary Superman, of Nikiski.
All three won re-election in their respective Districts 3, 4 and 7. Boroughwide, however, roughly 54 percent of voters also passed Proposition 2, which now limits assembly members to no more than two consecutive terms and retroactively counted terms already served by sitting members.
Fischer, Sprague and Superman, who have all served multiple consecutive terms, were eligible to serve when the filed in August for re-election, but were deemed no longer eligible by other members of the assembly on Oct. 9, the day the election results were certified.
In Sprague's district and in Superman's, majorities of voters opposed term-limits. Thus, voters outside those districts have thwarted the wishes of a majority of voters within.
Fischer's district supported Prop 2, while simultaneously re-electing him.
Fischer said he forwarded the three resolutions for the agenda prior to a suit filed late Monday asking the Kenai Superior Court to resolve the contrary and incompatible election results by directing that the three candidates be sworn in and seated, and that Prop 2's terms begin applying next year.
Fischer said he submitted three resolutions so that the three candidates could be treated separately by the remaining six assembly members and not as a block.
The resolutions are "basically, doing the same thing that the suit is asking for," Fischer said, adding that he expects the three candidates may submit amicus briefs to the suit now before the superior court.
The suit filed by Soldotna voter and attorney Dale Dolifka named the borough and Biggs as defendants. It seeks a court order to seat the three election winners despite the outcome of the term-limits proposition. The borough is unlikely to appeal a loss.
On Oct. 9, anticipating just such a lawsuit, the assembly said it would abide by the term-limit election results "at this time." Assembly members said they could not decide between two legitimate sets of election results and could find no state statute, ordinance or case law that would give them direction. Only the courts could render such a decision, assembly members said.
Borough Mayor John Williams agreed Thursday that what the borough seeks is firm support built on case law.
"I've been trying to put together a view from outside the administration," he said. "What we want is intervention by the court to create an answer. The answer is what we do not have."
He said the borough is seeking either a court direction to seat the candidates based on existing or judicially created law, or a ruling that they not be seated because of the provisions of Prop 2. Beyond that, Williams, in his capacity as head of the borough, declined to speculate.
"It's rather tough for me to speak to the thing because I'm a party to the litigation," he said.
Dolifka's attorney, Tom Amodio, said Tuesday that if his client loses, an appeal could be filed with the Alaska Supreme Court. Williams declined to say how the borough might react in that case.
Should the case get that far, however, high court justices could consider the broader issue of term limits generally and the retroactivity of Prop 2, providing an opportunity, at least, for the borough to be a friendly adversary and request of the court clarifications beyond the narrower results Dolifka would be seeking.
Dolifka's suit asserts that the borough's conduct (the assembly's and clerk's refusal to administer the oath of office and seat the winners) denies Dolifka and other voters their right to vote and have their votes counted, and violates the voters' constitutional right to be governed by representatives of their choosing.
It further asserts that based on past court decisions, Prop 2's provision should not be applied retroactively to Fischer, Superman and Sprague. Indeed, Dolifka argues that the "constitutional crisis" created by the borough could be avoided by applying the term-limit provisions "prospectively" to future borough elections.
"This alternative would not only preserve the voters' constitutional rights but is also supported by sound legal principals," the suit says.
Citing case law, the suit noted that as a general rule, laws are presumed to have prospective effect unless specific language makes retroactivity a clear intent of the legislators. Such a rule allows reliance on existing laws. The word retroactive did not appear in the ballot proposition, though if applied to the three winners, would clearly have such an effect.
Alaska courts have considered "retrospective" (retroactive) laws "generally unjust," and when the purpose of a law is punitive, there has been "an absolute prohibition" against retroactivity, the suit notes.
Motions filed Tuesday argued that the Prop 2 contained contradictory language by expressly providing that the "term of an assembly member holding office when this ordinance becomes effective is not affected," while also saying it applied "to any assembly member whose second consecutive term ... ends in 2007 ..."
Further, the suit contends that it would be unjust to the candidates and the voters to render void all the votes of those who supported the candidates and, indeed, all the voters within the affected districts.
"Applying the initiative prospectively (next year) strikes the proper balance between the rights of voters who elected Superman, Fischer and Sprague and the rights of those who voted for the initiative," the suit said.
Dolifka is seeking a court hearing no later than Oct. 31. Meanwhile, Superman, Fischer and Sprague continue as active members through Nov. 8. The assembly has not declared their seats vacant, and by law they can continue in office for up to 30 days after the date or election certification.
Should the assembly declare vacancies at its next meeting on Oct. 23, Amodio has asked that an immediate hearing before the court be scheduled.
Hal Spence can be reached at firstname.lastname@example.org.
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