Contrary results from the Oct. 2 municipal election that saw voters re-elect three incumbent members of the Kenai Peninsula Borough to new terms while also approving term limits that prevent them from taking office has produced the expected lawsuit.
Soldotna resident Dale Dolifka, an attorney, filed suit Monday asking a Kenai Superior Court judge to order that Gary Superman, of Nikiski, Pete Sprague, of Soldotna, and Paul Fischer, of Kasilof, be sworn in and be allowed to serve regardless of the fact that voters approved a term-limit ballot proposition that applies to those candidates.
Proposition 2 limited assembly members to two consecutive terms, but also counted terms already served by sitting members. Superman, Sprague and Fischer had served multiple consecutive terms, and although they were eligible in August when they filed for re-election, they were ruled ineligible to serve when the election was certified Oct. 9.
If upheld, Prop 2 provisions would prevent them from filing for assembly office again before August 2010.
The five remaining members of the assembly (a sixth, Deb Germano, of Homer, had resigned effective Oct. 1, a day before the election) said Oct. 9 they intended to abide by the provisions of Prop 2 for the time being, but did so expecting that a suit would be filed.
The suit appears destined for the Alaska Supreme Court because there exists no statue, no borough ordinance nor any case law that would enable the assembly to resolve the incompatible election results.
Also named as a defendant in the suit is Borough Clerk Sherry Biggs, whose job it is to swear in elected officials.
Dolifka declined comment, but did refer the Clarion to his attorney, Anchorage attorney Tom Amodio, who said the superior court was empowered to make a decision in the case.
"Even of it is hard for the court to make, it is in its ballpark," Amodio said.
Dolifka, he added, is seeking expedited consideration by the court.
"I would expect, all things being normal, that the superior court will make a ruling in favor of one party or another. They will be sensitive to the timing and need for promptness."
In his suit, Dolifka, a registered voter and borough resident (Soldotna, Assembly District 4) who voted in the Oct. 2 election, asserted that throughout Alaska, registered voters were entitled to cast ballots for candidates of their choice, and that during the municipal election, he and other voters cast ballots for the winning candidates.
Election results showed Superman winning his district with 77 percent of the vote, Sprague winning his with 65 percent and Fischer his with 53 percent. Meanwhile, Prop 2 failed in Superman's District 3 and Sprague's District 4, but passed in Fischer's District 7.
"Despite having been duly elected, Superman, Fischer and Sprague have been prevented by defendants from being sworn in and/or from taking their seats on the Kenai Peninsula Borough Assembly," Dolifka alleged in the suit.
Dolifka said he had been disenfranchised by the assembly's decision not to seat the candidates, effectively denying him his constitutional right to vote, to have his vote counted, and to have Sprague serve as his elected official on the assembly.
Dolifka is seeking declaratory judgments that the borough's decision not to seat the three winners was legally erroneous because:
* Prop 2 does not apply retroactively;
* The decision would deny him his right to vote, to have that vote counted, and would vitiate (invalidate) that right;
* The decision would violate the constitutional guarantee of "one person, one vote";
* The borough's decision is against public policy;
* The borough's decision denies the rights of Superman, Sprague and Fischer, as duly elected winners of their districts, to represent constituents on the assembly; and
* The borough's decision is barred by legal doctrines of estoppel and quasi-estoppel, because the borough certified these candidates as qualified to run and allowed them to run for re-election. (Estoppel is a legal principal that essentially prevents assertion or denial of something that contradicts what has already been established as truth.)
Dolifka also is seeking a temporary restraining order stating that the refusal to swear in the three winners would do "irreparable harm" to him and to all other voters who voted for Superman, Sprague and Fischer, and asking the court to direct the borough and clerk to swear in those candidates.
Amodio said he would be filing more court papers laying out his arguments today, but he said the basis of the suit aimed at having the three candidates seated.
"We are not trying to have any specific portion of the initiative overturned or declared invalid, we're just asking for an interpretation that would not contravene anyone's rights," he said.
In effect, he said, Dolifka wants Superman, Sprague and Fischer seated and left to serve out their new three-year terms, Amodio said.
As for Prop 2's term limits, they should apply to the 2008 election, giving current members whose terms end next year plenty of warning that they would not be eligible to serve, and effectively render them ineligible even to file for assembly office.
Prop 2 was brought to the ballot through the efforts of the grassroots group Alliance of Concerned Taxpayers. Amodio said ACT members might ask for permission to file a brief with the court, but at this point the suit does not involve the group directly.
Depending on the court's decision, ACT could consider filing its own lawsuit.
If the court ruled in Dolifka's favor, the borough would then have clear direction from the court, and presumably, would not appeal. Amodio said that if the court rules against his client, it would be up to Dolifka to file an appeal to the Alaska Supreme Court.
Borough Mayor John Williams was in Homer on Tuesday engaged in talks with South Peninsula Hospital officials and was unavailable for comment.
Reached as his home Tuesday, Sprague said he was pleased Dolifka had filed the action.
"I'm not an attorney, but I would certainly believe that Mr. Dolifka knows enough and that there is enough here to bring the suit forward. I'm sorry it had to come to this, but I really believe it was necessary," he said.
Fischer said he, too, was glad to see a suit emerge.
"It sounds right to me," he said. "I'm seeing community members getting upset (about the term-limit dilemma). It's divisive."
Superman said he was thankful a voter had stepped forward, and hoped for expedited relief from the court.
"It's a good complaint that touches issues from the voter perspective," he said.
There are issues, he added, that are not addressed specifically by Dolifka's suit. He said was considering possibly joining in the suit as a candidate, or perhaps by filing an amicus brief with the court to "round out the corners" of the issues. Amicus curiae briefs are "friend of the court" filings by persons not actually parties to a suit.
Superman said he believed the court would resolve the matter by considering the rights of voters.
ACT member Ruby Denison, who was the prime sponsor or Prop 2, said it looked to her to be "a pretty cheap way for Gary Superman to get a lawsuit."
Superman has been the most vocal of the three assembly members regarding ACT, Prop 2 and the resultant incompatibility of the voter returns, and had said publicly that he would sue if the borough or someone else didn't.
"It is very interesting," Denison said after seeing a copy of the suit. "Personally, I am not qualified to discuss estoppel or quasi-estoppel, although I have looked them up. I'm passing it along to our (ACT's) attorney for comment and direction."
Anchorage attorney Ken Jacobus represents ACT.
Denison said it was way too soon to say if ACT would file suit should the superior court rule against Proposition 2's taking effect on Superman, S
Hal Spence can be reached at hspence@ptialaska.net.
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