The battle of court motions and counter-motions continues between the Kenai Peninsula Borough and the Alliance of Concerned Taxpayers in the latter's suit over the seating of re-elected school board and assembly members last fall.
ACT sued the borough late last year claiming the municipality and the school district illegally ignored the wishes of voters who on Oct. 3 had approved Propositions 2 and 3 respectively limiting members of the Kenai Peninsula Borough Assembly and Kenai Peninsula Borough Board of Education to two consecutive terms.
The votes on Props 2 and 3 produced conflicting outcomes. 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.
Complicating issues, the two initiative ordinances retroactively applied to sitting members, and further, defined a term as including not only a full three-year stint, but also shorter periods as sometimes occur due to redistricting or appointing people to fill vacancies.
Those matters are more than problematic, say borough officials. In a filed response to the ACT suit, the borough argued that the ordinances were unconstitutional on several levels, and disputed the validity of the retroactive effect.
Each side has since filed motions seeking summary judgment from Kenai Superior Court Judge Anna Moran. The latest filing was submitted by Borough Attorney Colette Thompson in late March opposing ACT's motion for a summary judgment.
In it, Thompson reiterated arguments that the ordinances should be tossed out, including that state law precludes term limits for borough school board members and that the ordinances violate the rights of candidates and voters.
She also contested ACT's view that the term-limits movement since the early 1990s has altered the legal landscape, noting that the Alaska Supreme Court has rejected the same argument concerning qualifications for the Alaska Legislature, she noted.
"The only way that term limits might be imposed on municipal school board members would be by an amendment of the governing statute," Thompson said in her brief, adding neither the original state law nor 1985 amendments achieved such a change. Thus, she said, the ordinance imposing term limits on school board members was invalid.
With regard to both initiative ordinances, the borough argued they "impermissibly violate the constitutional rights of voters and candidates" in failing to survive rigorous constitutional scrutiny applied under the ballot access and equal rights analysis. The initiative ordinances effectively imposed new qualification requirements on candidates after the election, and because of the way terms were defined, could prevent a person from seeking re-election after serving as little as 14 months.
"This is a severe infringement on the rights of candidacy and to vote that is not closely tailored to advance a compelling government interest," Thompson said.
A strict reading of the conditions imposed by the initiative ordinances could keep a term-limited candidate from running again for at least five years, Thompson said.
ACT has argued that term limits are healthy for the democratic process in that they restrict the power of incumbency and encourage new faces in political races. Thompson argued that borough election data shows there is no entrenched incumbency in the borough dissuading others from seeking office.
Thompson said Thursday that ACT's reply would be due this week, unless they request an extension. At some point after it is filed, the court will schedule oral arguments.
Hal Spence can be reached at hspence@ptialaska.net.
Note that while the propositions were number 2 and 3 respectively on the fall ballot, the initiative ordinances themselves are numbered Initiative Ordinance 1 and Initiative Ordinance 2 respectively.
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