KODIAK — Kodiak voters in this year’s municipal election will be asked if they want to limit the number of years elected officials can serve in the borough.

While the question is relatively straightforward, its implications might not be, and at least one Alaska borough has already found it could result in costly legal battles.

In October 2007, Kenai Peninsula Borough voters approved a measure limiting borough assembly members, the borough mayor and borough school board members to two consecutive terms. After three years, a candidate who had filled two terms would be allowed to run again.

The year that measure passed, several incumbents who had already served two terms were re-elected. A debate followed: Should those incumbents be seated?

“The difficult part was that (the measure) was written to apply immediately upon enactment,” said Kenai Peninsula Borough attorney Colette Thompson, who agreed to explain the Peninsula Borough’s situation to the Daily Mirror.

“They were simultaneously elected to office and made ineligible to serve,” she said.

The borough delayed seating the elected assembly members, and lawsuits followed. One litigant said not seating the representatives was taking away the value of his vote. The organization that sponsored the term limits legislation also sued, saying that seating the representatives would be a violation of the voter-approved measure.

Kodiak’s measure, which will appear on the Oct. 4 municipal ballot, is written along similar lines.

“Statute says that if there are no other specific dates stated in the ordinance or the initiative petition, it’s effective immediately,” borough clerk Nova Javier said in early August.

As the Kenai lawsuits progressed, “We went ahead and recommended the seating of school board members, held off on assembly members,” Thompson said. “We concluded that because the state has ultimate power over education, and there’s nothing in the statutes authorizing us to limit the terms … neither the assembly or the voters could pose a limit on the number of terms a school board member could serve.”

The Peninsula Borough Assembly ultimately voted to seat the elected assembly members, thus settling one lawsuit.

The lawsuit brought by the ballot initiative group went to Kenai Superior Court, where Judge Anna Moran ruled, “Under the ‘pervasive’ authority of the state in the field of education, the borough cannot enact an ordinance that conflicts with a state education statute.”

Thus, term limits for the Kenai Peninsula school board were overturned. Term limits for the borough assembly were upheld — but only for candidates running in elections after the contested 2007 one.

“The application of the initiative to the October 2007 election would nullify the voters’ choices for assembly members,” she ruled.

The Kenai legal decision might not be applicable in Kodiak, however, as Superior Court judgements do not have the wide applications that Alaska Supreme Court judgements do.

“It’s not binding in the same sense that a Supreme Court decision is binding,” Thompson said.

The Kodiak Island Borough Board of Education is watching the approaching election with interest, as the local term limits initiative is written to encompass the school board as well. The board addressed the upcoming initiative in one of its executive sessions, which are closed to the public, but board president Norm Wooten said, “We really don’t have a position on it yet, so I can’t speak for the board on that. … We’re just trying to figure out what it means.”

Board vice president Melissa Borton echoed the statement.

“We have been meeting with our attorney, and our attorney is doing research,” she said.

School board attorney John Sedor said, “No pre-election challenge has been filed, and no pre-election challenge will be filed.

Thompson said that’s fairly common in cases like this.

“There’s a big difference between pre-election and post-election review because of the deference to the will of the voter,” she said.

“That’s my understanding as well,” Borton said.

Lorna Arndt, who organized the drive to get the term limits measure on the ballot, said the ballot language came from her conversations with the borough clerk.

“I talked to the borough clerk and told her what I would like to do, and she went to all the others in Alaska that had it, and she put it together,” Arndt said.

Arndt said she hopes no one challenges the measure if it passes.

“It’ll cost them money to challenge it, and that to me is foolish,” she said. “Let it go. If the people vote for it, let it go. … Don’t go fighting it, because we need it. We need some new people to get some new ideas.”

Contact Mirror editor James Brooks at editor@kodiakdailymirror.com.

Correction: Judy Fulp and David Kaplan are running for re-election to a second term on the Kodiak Island Borough assembly and would not be affected by the passage of the proposed term limits measure. A paragraph in the story was incorrect.

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