Gary Superman, Pete Sprague and Paul Fischer were sworn-in and took their respective assembly seats Tuesday night following a decision by the other six members of Kenai Peninsula Borough Assembly to ignore certain provisions of a term-limit proposition passed by voters Oct. 2 that precluded them from serving.
The three incumbent candidates won re-election in Assembly Districts 3, 4 and 7 respectively, but were precluded from serving by retroactive provisions of Proposition 2, which limited members to no more than two consecutive terms, and counted terms already served.
The election results were certified at the Oct. 9 assembly meeting.
On that day, the assembly found no guidance in state or case law about how to decide between two sets of conflicting election results, so they voted down a motion to seat the three winners. Only Grace Merkes, of Sterling, voted for the motion. However, the assembly also did not declare the seats vacant, which left Superman, Sprague and Fischer in office for up to 30 more days.
Assembly members said they took that action anticipating that a lawsuit would soon be filed demanding that the three winning candidates be seated despite the outcome of the controversial term-limit proposition.
Soldotna voter and attorney Dale Dolifka filed just such a suit on Oct. 15 naming the borough as defendant and asking the Kenai Superior Court to order Borough Clerk Sherry Biggs to swear-in the three winners and declare that the term-limit provision of Prop 2 take effect next year.
On Monday, a second suit naming the borough and the Kenai Peninsula Borough School District as defendants was filed, this one by the Alliance of Concerned Taxpayers Inc., the grassroots group that had sponsored Prop 2, and a similarly successful ballot measure, Proposition 3, that imposed the same term limit provisions on Kenai Peninsula Borough Board of Education seats.
Prop 3 directly affected school board incumbents Sunni Hilts and Sammy Crawford in the same way Prop 2 impacted Superman, Sprague and Fischer. However, while the assembly opted Oct. 9 not to seat the assembly candidates, the school board seated Hilts and Crawford when they met Oct. 15. According to the borough, state law governs eligibility for the school board, making that body somewhat different than the assembly.
ACT's suit seeks a declaration by the court that the provisions of the two propositions apply to the Oct. 2 election and that incumbents now occupying the conflicted assembly and school board seats do so in violation of Props 2 and 3. Further, ACT wants a declaration that all those seats are vacant.
It was the advent of the second suit that led directly to the assembly's change of position with regard to seating Superman, Sprague and Fischer. As defendant in both suits, the borough would have had to defend not seating the assembly members in the Dolifka suit, while also defending the school board's decision to seat incumbent school board members in the ACT suit.
By choosing to seat Superman, Sprague and Fischer, the assembly eliminated the Dolifka suit, which was rendered moot, and reduced the litigation to just one lawsuit.
Tom Amodio, attorney for Dale Dolifka, said Wednesday morning that he was preparing court papers dismissing the Dolifka suit since the assembly had provided the relief the suit sought.
"There is no reason to proceed," he said. "It's over."
Three resolutions sponsored by Fischer on Tuesday's agenda gave the assembly the mechanism for seating the three winning candidates. Resolutions 2007-071, -072 and -073 directing the clerk to administer the oath of office to the candidates, were dealt with one at a time. Superman, Sprague and Fischer were not eligible to vote, but the other six members, including newly seated member Bill Smith, of Homer, passed each unanimously.
During discussion over the first of the resolutions, Assemblywoman Milli Martin, of Diamond Ridge, said voting Oct. 9 not to seat the three winners had left her with "a very, very bad taste in my mouth." She said Tuesday she thought the assembly had to make a decision to seat the members or declare the seats vacant, and that she was prepared to seat them.
Assemblywoman Grace Merkes, of Sterling, said she had voted Oct. 9 to seat them and nothing had changed her mind.
"It's time that we move forward," she told her colleagues.
Assemblywoman Margaret Gilman, of Kenai, said defending two sides of an issue was nonsensical and that she was prepared to vote to seat the re-elected members and defend against just one suit.
Assemblyman Ron Long, of Seward, said the turning point for him was doing some math.
"In looking strictly at the (election) numbers, on the school board side ... more people voted for the incumbents in two districts than voted for term limits in nine districts," he said. "On the assembly side, more people voted to re-elect the incumbents of their choice in three districts than voted for term limits in nine districts."
Borough Attorney Colette Thompson said mounting a defense was now a simpler matter. She declined to go into details regarding how that defense would be erected, but did say the borough would focus on issues in the ACT complaint relating to the seating of the winners this year in the face of propositions that appeared to state that their provisions were to apply immediately.
"The issues are now ripe (ready for court)," she said.
Interviewed after the meeting, two ACT members discussed the ACT suit and why their attorney filed it when the Dolifka suit might have answered essentially the same issues.
"If we had allowed the Dolifka suit to proceed without us saying anything, then our side's issues wouldn't have been brought out," said James Price, of Nikiski.
Price acknowledged that ACT might have gotten intervention status and provided an amicus brief to the court laying out ACT's positions. He also said he wished ACT attorney Ken Jacobus, of Anchorage, would have held off for another 24 hours.
"We don't know why the attorney done exactly what he done," said ACT member Fred Sturman, of Soldotna. "But now there is one suit that will settle the whole argument."
Sturman also said the court would determine which side ends up "with egg on its face."
Hal Spence can be reached at email@example.com.
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