Kodiak Superior Court Judge Stephen Wallace has ruled in favor of the Kodiak Island Borough in a civil suit filed by a local attorney seeking to place two open Assembly seats on the Oct. 5 ballot.

Attorney Mel Stephens sought a preliminary injunction, asking that seats vacated by former Assembly members Duane Dvorak and Julie Kavanaugh be placed on the ballot because each seat opened up within a specific period of time. Stephens could not be reached for comment.

Wallace, in his written order, said that the Kodiak Island Borough Assembly properly followed its own laws when deciding to fill the seats by appointment rather than by placing them on the ballot.

Dvorak submitted his resignation on July 15 but dated it Aug. 5, with 14 months left on his term. Kavanaugh submitted hers Aug. 11, with an effective date of Sept. 2, but had two years left. 

Borough code requires that the assembly appoint a qualified applicant within 30 days; if fewer than 30 days remain in the vacant seat’s term, the seat is then to be filled during the next general election.

The resignation needs to be accepted within a specific timeframe to comply with election preparations, including the publication of seats up for election at least 75 days before the election.

Borough code allows the Assembly to appoint someone to fill a vacancy until the next municipal election. Stephens asked that the court determine the borough code to define the “next general election” to mean the one coming up soonest.

Stephens said during an Aug. 30 hearing that the borough should have taken every step necessary to ensure that both seats were on the ballot, in large part because he felt residents should choose who will represent them for at least a year. 

Stephens also asked to be a candidate for Dvorak’s one-year seat, as he had filed a self-modified form on Aug. 16 — the last day to submit declaration forms for the ballot. Stephens argued that he would be “substantially prejudiced” if it wasn’t added.

In his decision, Wallace wrote that the “importance of a freely elected government cannot be overstated,” but it was “not the place of the court to legislate by judicial fiat.”

“Our statutes and ordinances are the lawful enactments of elected officials of both State and local governmental institutions,” Wallace wrote. “The law so enacted is presumptively the ‘will’ of the people.”

Wallace agreed borough code contains a restriction on the time an appointed Assembly member can serve on a seat vacated by an elected person. However, Wallace wrote that those restrictions shouldn’t be limited by when the next election appears on the calendar.

“Rather, the timeframe for appointment can only be determined by reading the relevant statutes and ordinances together in a manner which makes the greatest sense when taken together without disregarding the appropriate meaning of a single one,” Wallace wrote.

During the Aug. 30 hearing on the lawsuit, Borough Clerk Alise Rice explained that the borough election process has a stringent set of things to follow, from publishing and mailing the election information pamphlet to ordering ballots in time to provide for absentee or early voting.

Rice said while the borough published a supplementary notice for the availability of Dvorak’s seat, it was in part contingent on whether the borough would accept Dvorak’s resignation on July 29. Rice also said that the 75-day deadline to publish the list of vacant seats had occurred on July 22.

Stephens had argued that because Dvorak’s resignation letter was submitted on July 15, it fell within the 75-day window. He also argued that Kavanaugh’s position should be placed on the ballot for write-in candidates. Stephens said appointed Assembly members would be serving a year before the next election, and that wasn’t fair to voters.

In his decision, Wallace said the borough responded in two ways he found relevant: that Dvorak’s resignation was not effective until accepted by the Assembly, and that its supplementary notice was contingent. 

Wallace wrote that resignations could technically be withdrawn by their author before they were accepted by the Assembly. He also wrote that a follow-up special meeting where a motion to place Dvorak’s seat on the ballot failed, making the direction clear to the borough clerk that it would be filled by appointment.

“The court must find that the Assembly lawfully exercises its authority to construe the local election ordinances it has enacted,” Wallace wrote. “Because the Assembly acted lawfully, the court cannot find in favor of Mr. Stephens on this point.” 

Wallace also ruled against Stephen’s argument that he would be prejudiced if not included on the Oct. 5 ballot.

“On the contrary, the court must find that an order forcing the Borough Clerk to add Mr. Dvorak’s position to the Oct. 5, 2021, ballot with Mr. Stephens as the named candidate would more likely advantage Mr. Stephens by likely assuring his being elected to the position as an unopposed candidate,” Wallace wrote. 

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