Voter-approved ballot propositions setting term limits on Kenai Peninsula assembly and school board members do not violate the constitution and should be enforced, the attorney for the Alliance of Concerned Taxpayers said in a motion for a summary judgment filed in late February.
Ken Jacobus is the Anchorage lawyer representing ACT, the grassroots group whose twin initiatives seeking to impose strict term limits on Kenai Peninsula Borough Assembly and Kenai Peninsula Borough Board of Education seats won voter approval in October of last year. On Feb. 25, he filed an 11-page motion in response to a summary judgment request filed by the borough in January, in which the borough asked the Kenai Superior Court to rule the initiatives unconstitutional.
Ballot Propositions 2 and 3 imposed term limits not only on future office holders, but also made them applicable to incumbents running for office in 2007, counting terms they'd already served. Under the initiatives, candidates "term-limited out" would have to wait at least three years, and perhaps longer, before running again for that office.
The initiatives also redefined "term" to include even very short periods, as when someone is appointed to fill a vacancy, or is elected to a shortened term, as sometimes happens when districts are reset after a census.
Boroughwide, roughly 56 percent of voters approved the term limit initiatives. However, voters within the districts of three incumbent assembly members and two incumbent school board members also re-elected their representatives, in most cases by wide margins.
In effect, the outcomes pitted one set of election results against another, and sub-sets of voters against the wishes of the boroughwide electorate.
It was an outcome seemingly fated for the courts, and indeed, ACT filed suit on Oct. 22, 2007, shortly after the assembly (and earlier the school board) voted to seat the winning incumbents and let the courts settle the issues.
In January, Borough Attorney Colette Thompson filed a brief seeking a summary judgment that the initiatives violated equal protection clauses of the Alaska Constitution and would impose term limits in "a particularly draconian manner."
She argued that they collectively nullified voters' choices within the districts of the winning incumbents; that they served no compelling government interest; and unjustly redefined what a "term" was.
With respect to school board seats specifically, Thompson argued that state statutes say nothing about limiting terms or lengthy prohibitions against running for re-election. To change that, she said, state law would have to be rewritten.
The winning incumbents legally filed for office in August and conducted legal and successful campaigns, only to face a prohibition against assuming office imposed by the election. The borough has argued that term limits should not apply to those candidates, but perhaps „ if shown to be constitutional „ should be imposed beginning with the October 2008 municipal election.
Jacobus' brief sought to answer the borough's objections and to show the two initiatives were valid and enforceable.
Jacobus argued that a previous court ruling in 1994 determining that a term limit initiative aimed at state lawmakers conflicted with the Alaska Constitution did not apply at the municipal level because qualifications for municipal officers were not part of the constitution. He also said an Alaska Supreme Court decision in 2005 approved an election change enacted by voters at the same election at which it took effect.
"Since immediately-effective election changes are acceptable in the State of Alaska, the only questions which this court needs to decide are whether term limits for municipal assembly and school board members are constitutional," Jacobus wrote in his brief.
His brief went on to argue that school board term limits do not conflict with state law.
Statutes dealing with third-class boroughs permit assemblies and school boards to be composed of the same elected officials, he said, and since state law allows the initiative process to impose limits on assembly members, it must also apply to school boards by extension.
"To hold that this type of body cannot have its members' terms limited because they are also a school board is directly contrary to the authorization to limit the terms of these members as assembly members," he said.
In fact, Jacobus said, a statute cited by Thompson as an argument for tossing out the school board term-limit initiative says nothing about term limits at all, and that absence of reference should not be read as a prohibition.
Jacobus argued that term limits were not only constitutional „ they are applied in many states, including Alaska „ but also desirable. Citing a list taken from a term-limit case in Maine, he said they serve to reduce the unfair advantage of incumbency, promote competitive elections, encourage new candidates, dislodge entrenched officials, curb the power of political machines and encourage service by citizens.
The most important of those with respect to the Kenai Peninsula, Jacobus said, was drawing new people with new ideas into the governing process, so that the " the usual suspects" don't run things year after year.
In January, Thompson argued that term limits have a place, but that the so-called "evils of incumbency" were simply lacking in borough electoral politics. Citing borough records going back to 1997, Thompson pointed out that in only 28 of 38 elections for assembly seats did incumbents run, winning over challengers in just 15 of those elections. In the same period, school board incumbents ran in 25 of 35 elections, defeating 14 challengers. In many of the other elections, incumbents ran unopposed.
Those statistics, Thompson argued, "demonstrate that frequent elections of assembly and school board members are sufficient remedy for incumbency in the borough."
Thus, the initiatives did not serve a compelling government interest.
Jacobus argued that if indeed there was no issue of entrenched incumbency, "then term limits will not harm anyone." He went on to say that the borough "has its head in the sand" if it believes there is no entrenched incumbency.
"The very fact that the Borough Assembly ignored the will of the voters by seating those assembly members who hold office in violation of the term limits initiative in itself clearly demonstrates that an entrenched incumbency exists at the present time," he said. "The same situation exists with respect to the school board."
Whether that is true is debatable. The school board, on the advice of the attorney, sat its winning incumbents on Oct. 15.
Assembly members delayed, wrestling for another week over how to accommodate the desires of two sets of voters, while resorting to a borough law allowing incumbents to continue serving for up to 30 days while options were considered.
That drew a lawsuit from a local attorney demanding the courts require the assembly to seat the incumbents. A few days later, came ACT's suit. The two actions put the borough and the assembly in the uncomfortable position of having to argue interests in one case that would counter its interests in the other.
Facing that dilemma and the possibility that doing nothing could leave assembly seats unoccupied for weeks or months, the assembly voted to seat the incumbents, thus rendering one of the suits moot, and leaving only one to defend against.
ACT has argued that the assembly should have declined to seat the incumbents, and appointed people to fill their seats until the next election instead.
Thompson said Thursday that the borough would file an opposition brief to ACT's motion by March 19. Jacobus, then, would have roughly a week to file ACT's reply to that.
"They have requested oral arguments, which the court will grant," Thompson said. "We would prefer that there would be oral argument, too."
No material facts are in dispute in the case. The issues center on the law and how it should be applied.
A question raised last fall when the incumbents were seated was what the effect of a decision against the borough would be on assembly and school board votes cast by the incumbents on matters coming before the two governing bodies. Would those actions be at risk of nullification?
Thompson said she believes the "de facto doctrine" would apply.
"Their actions would not be subject to question as a result of a decision against the borough," she said. That is, they would be seen as "de facto" officials and their decisions would stand.
Thompson said she does not know how long it might take the court to enter a decision in the case, but suggested it would be "at least weeks" before any decision was made.
The case has been assigned to Kenai Superior Court Judge Anna M. Moran.
Hal Spence can be reached at hspence@ptialaska.net.
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