Request By:
Robert M. Burnside, Executive Director
Kentucky Retirement Systems
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
In its 2008 extraordinary session, the Kentucky General Assembly enacted House Bill 1, "An Act relating to retirement and declaring an emergency, " which became effective on June 27, 2008. Section 21 of that bill amended KRS 61.645(3) so as to shorten the term limits for elected trustees of the Kentucky Retirement Systems from five to three consecutive terms. Robert M. Burnside, Executive Director of the Kentucky Retirement Systems, has requested an opinion as to whether this amendment "applies to a Trustee elected prior to the amendment, thereby depriving him or her of the right to seek re-election which they possessed at the commencement of their term."
The amended statutory language in question is as follows:
An elected trustee shall not serve more than three (3) consecutive four (4) year terms. An elected trustee who has served three (3) consecutive terms may be elected again after an absence of four (4) years from the board.
The question hinges upon whether the three-term limit is retroactive or merely prospective. Section 44 of House Bill 1 provides the following guidance:
The provisions of subsection (3) of Section 21 of this Act and subsection (1)(c) of Section 30 of this Act that reduce the term limits of elected or appointed members of the board of trustees of the Kentucky Retirement Systems and the Kentucky Teachers' Retirement System shall apply to terms of office beginning after July 1, 2008.
This language leaves the amendment still susceptible to either a prospective or a retroactive interpretation. Under a retroactive interpretation, trustees in their third, fourth, or fifth consecutive term could serve out an uncompleted term but could not begin a new one after July 1, 2008. Under a prospective interpretation, any sitting trustee who under the former law would have been eligible for three or four additional consecutive terms as of July 1, 2008, would still be eligible to serve three consecutive terms after that date.
Retroactive statutes "operate on transactions which have occurred or rights and obligations which have existed before passage of the act." OAG 97-36. KRS 446.080(3) provides that "[n]o statute shall be construed to be retroactive, unless expressly so declared." The "courts apply a strict rule of construction ? that legislatures intended a prospective application. " Peach v. 21 Brands Distillery, 580 S.W.2d 235, 236 (Ky.App. 1979). Accordingly, "unless the legislature clearly indicates otherwise, legislation is not intended to affect the legal consequences of events which occurred before its enactment." Magic Coal Co. v. Fox, 19 S.W.3d 88, 94 (Ky.2000).
Since we are aware of no published Kentucky authority on the construction of statutes setting term limits, we compare the language of House Bill 1 with term-limit laws construed by courts in other jurisdictions. These cases fall into the three categories of expressly retroactive, ambiguous, and expressly non-retroactive.
Expressly retroactive language
The following expressly retroactive language was voted upon in 1991 as a proposed amendment to the Charter of the City of Cincinnati, Ohio:
[N]o person shall hold the office of member of the council for a period longer than four consecutive two year terms of the council unless a period of at least two consecutive two year terms of the council has intervened without such person serving on the council[. T]he provisions of this amendment shall apply commencing with the nominations for the election for the council term commencing December 1, 1993[.] [C]onsecutive terms of service on the council to which members were elected prior to December 1, 1993 shall be counted in determining eligibility for office under this section[.]
(Emphasis added.) State ex rel. Mirlisena v. Hamilton County Board of Elections, 619 N.E.2d 1013 (Ohio 1993) (Douglas, J., dissenting). Although that amendment was expressly made retroactive in its operation, it was held not to be the kind of retroactivity prohibited by the Ohio Constitution because holding public office was deemed a privilege rather than a vested right. Miyazawa v. City of Cincinnati, 825 F.Supp. 816, 822 (S.D. Ohio 1993).
Ambiguous language
In Nevada, an amendment to the state constitution was approved in 1996 stating as follows:
No person may be elected to any state office or local governing body who has served in that office, or at the expiration of his current term if he is so serving will have served, 12 years or more, unless the permissible number of terms or duration of service is otherwise specified in this Constitution.
This enactment was considered to have merely prospective application from its effective date, "since any intent to make it retrospective does not clearly appear from the provision's terms." Miller v. Burk, 188 P.3d 1112, 1119 (Nev. 2008).
Similarly, the Supreme Court of Arkansas resorted to the presumption against retroactivity when confronted with an ambiguity. A state constitutional amendment adopted in 1992 contained the following language:
No elected officials of the Executive Department of this State may serve in the same office more than two ? four-year terms.
?
? No member of the Arkansas House of Representatives may serve more than three ? two-year terms.
?
? No member of the Arkansas Senate may serve more than two ? four-year terms.
The court found the amendment "vague and ambiguous on the point of when to begin counting terms," and therefore held, in accordance with precedent, that it should "not be construed as retroactive when it may be reasonably construed otherwise." U.S. Term Limits, Inc., v. Hill, 872 S.W.2d 349, 361 (Ark. 1994).
A different situation was presented in Maine when its electorate enacted term limits in 1993. The legislation stated simply enough: "A person may not serve more than 4 consecutive terms as a state Senator. ? A person may not serve more than 4 consecutive terms as a member of the state House of Representatives." 1 Also included in the referendum sent to the voters, however, was a "Transition Statement" that elaborated:
A person elected ? to an office subject to the provisions of this Act who is disqualified from service by this Act may complete that person's term of office if the term commences on or before December 2, 1996. The limitations imposed by this Act apply to the terms of office served by persons elected to serve in ? the First Regular Session of the 118th Legislature [which followed upon the 1996 election] and to all terms of office served by persons elected to serve thereafter.
Although the second sentence of this statement was phrased prospectively, the Supreme Judicial Court of Maine held that the first sentence indicated the term limits were intended to apply retroactively. The Court reasoned as follows:
The Transition Statement serves to "grandfather" any office holder who is in the middle of a term when the Act takes effect on December 3, 1996. Such a provision would be unnecessary and illogical if ? the first state legislators would not be disqualified pursuant to terms of the Act until the year 2004.
League of Women Voters v. Sec'y of State, 683 A.2d 769, 773 (Me. 1996). That is, because the Transition Statement referred to some persons then serving in the state legislature as "disqualified from service by this Act," the legislative intent must have been for terms served prior to the effective date to count against the term limit. Accordingly, the term limits were held retroactive.
Expressly non-retroactive language
Also in 1993, an amendment to the Los Angeles City Charter was approved which stated in pertinent part:
No person may serve more than two terms of office as member of City Council. These limitations on the number of terms of office shall apply only to terms of office which begin on or after July 1, 1993. These limitations on the number of terms of office shall not apply to any unexpired term to which a person is elected or appointed if the remainder of the term is less than one-half of the full term of office.
(Emphasis added.) The second sentence quoted above, with the exception of the word "only," closely approximates Section 44 of House Bill 1. Although the California appellate court was not required to rule on the issue, the parties to the subsequent litigation agreed that this language expressly made the term limits prospective only. Woo v. Superior Ct., 100 Cal.Rptr.2d 156, 164 n.11 (Cal.App. 2nd Dist. 2000).
We consider it unnecessary to dwell on the presence or absence of the word "only" in interpreting Section 44 of House Bill 1. Since all legislation has at least prospective application, there would be no need for the General Assembly to make express mention that an amendment was to be applied prospectively unless it meant prospectively only.
A retroactive interpretation of Section 44, under which the legislature would have been merely specifying the date after which no fourth or fifth consecutive term could begin, is not reasonable in light of two factors. First, the legislature would have no reason to specify July 1, 2008, as an effective date when the bill contained an emergency clause making it effective immediately upon its signature by the Governor (which occurred on June 27, 2008). Second, there is no clear declaration of retroactive intent such as would be required by KRS 446.080(3), particularly in light of the fact that KRS 61.645(3) itself is phrased in a future determinative tense ("An elected trustee shall not serve").
It is thus the opinion of this office that Section 44 makes the amendment to KRS 61.645(3) expressly non-retroactive. Even if Section 44 were not present, however, the presumption against retroactivity would lead us to the same conclusion. Peach v. 21 Brands Distillery, supra.
Since the shortening of term limits in House Bill 1 is not retroactive, it does not change the legal consequences of terms that were served prior to its enactment. Magic Coal Co. v. Fox, supra. No trustee, therefore, should be precluded from seeking three consecutive terms after July 1, 2008, unless such service would have resulted in more than five consecutive terms under the prior law.
Consequently, it is our opinion that any sitting member of the Board of Trustees who under the former version of KRS 61.645(3) would have been eligible for three or four additional consecutive terms as of July 1, 2008, is still eligible to serve three consecutive terms after that date. Likewise, any trustee who would have been eligible for one or two additional consecutive terms under the prior law is still so eligible.
Footnotes
Footnotes
1 21-A ME. REV. STAT. ANN. § 553.
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