The Kenai Peninsula Borough will respond by Friday to a lawsuit filed by a voter over the conflicting results of the Oct. 2 municipal election that three winning assembly incumbents denied their seats because of the success of a term-limit ballot proposition.
A court hearing on the suit has been scheduled for Nov. 2 in Kenai Superior Court.
Assemblymen Gary Superman of Nikiski, Pete Sprague of Soldotna and Paul Fischer of Kasilof each won in their respective districts. Proposition 2, which established term limits on assembly seats and counted past terms retroactively, went into effect Oct. 9, effectively denying them their seats.
The remaining members of the assembly opted not to seat the three, knowing a lawsuit seeking a court ruling on how to resolve two conflicting election results would be forthcoming.
Soldotna attorney Dale Dolifka, filed that suit Oct. 15, asking the court to act swiftly, to seat the three winning candidates and rule that the term-limit provisions in Prop 2 take effect next year. He names as defendants the Kenai Peninsula Borough and Borough Clerk Sherry Biggs. It is Biggs' duty to administer the oath of office.
The case has been assigned to Kenai Superior Court Judge Carl Bauman.
Borough Attorney Colette Thompson acknowledged Monday that preparing a response to Dolifka's suit was not easy, in part because the borough is seeking an answer from the court, too. The assembly had no borough ordinance, state statute or case law on which to decide between the rights of voters in Districts 3, 4 and 7 to choose their representative, and the rights of voters' boroughwide to impose term limits.
She said she would not discuss details of the response while it was in draft form but said she had gotten a court order asking for the written response to be filed by Friday.
The court has granted a motion to intervene file by Superman, Fischer and Sprague. That means they are parties to the case but are not plaintiffs, according to Dolifka's attorney Tom Amodio, who now also represents the three assemblymen. By granting the intervention, the court allows them to file motions and raise issues - the full panoply of rights that a party to action has, Amodio said.
"We did not oppose the motion to intervene," Thompson said. "It would have, in my opinion, been granted anyway."
Meanwhile, the assembly tonight will consider three resolutions sponsored by Fischer that, if approved, would require he and the other two winners be sworn-in and seated. If that happens, the suit might be rendered moot. The three resolutions were submitted for the agenda prior to the filing of Dolifka's suit, Fischer has said.
Hal Spence can be reached at firstname.lastname@example.org.
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