Did Kentucky's 2008 three-term limit count retirement trustees' earlier board terms?

Plain-English summary

Kentucky's Attorney General concluded that the 2008 amendment reducing the consecutive-term limit for elected Kentucky Retirement Systems trustees from five terms to three was prospective. It did not change the legal consequences of terms served before the amendment. A sitting trustee who could have sought another term under the former rule remained eligible to seek that term after July 1, 2008.

The opinion did not give every trustee a fresh, unlimited sequence. It said no one should be excluded from seeking three consecutive terms after July 1, 2008 unless that service would exceed five consecutive terms under the former law. Trustees who had only one or two terms of remaining eligibility under the old rule kept that smaller amount. The AG relied on the bill's application to “terms of office beginning after July 1, 2008” and the statutory presumption against retroactive laws.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the new three-term limit immediately bar a trustee already in a third or later consecutive term? A: The AG said no. It read the change prospectively, so earlier service did not suddenly disqualify someone who could still seek another term under the former five-term rule.

Q: Did every sitting trustee get three new terms after July 1, 2008? A: No. The opinion allowed up to three consecutive terms after that date only if doing so did not exceed the trustee's remaining eligibility under the old five-term limit. A trustee with only one or two terms left under the old rule kept that limit.

Q: What text drove the prospective reading? A: Section 44 of the 2008 bill said the reduced limits applied to terms beginning after July 1, 2008. The AG also applied KRS 446.080(3), which required an express declaration before construing a statute as retroactive.

Background and statutory framework

House Bill 1 from Kentucky's 2008 extraordinary session amended KRS 61.645(3) to shorten the limit for elected retirement-system trustees from five consecutive four-year terms to three. Section 44 addressed the amendment's application to terms beginning after July 1, 2008. The AG compared prospective and retroactive readings, then found the statute expressly nonretroactive. It said the same conclusion would follow from Kentucky's ordinary presumption against retroactivity even without Section 44.

The opinion compared term-limit provisions interpreted in other states, but its Kentucky conclusion rested on the bill's text and KRS 446.080(3). Its practical result was to preserve each sitting trustee's remaining eligibility under the former five-term rule while applying the new limit to later terms.

Citations and references

• KRS 61.645(3): trustee term limit amended in 2008.
• HB 1 (2008 Extra. Sess.), Section 44: transition provision discussed by the AG.
• KRS 446.080(3): presumption against retroactive construction.
• OAG 97-36: earlier AG opinion quoted for the meaning of retroactivity.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_85e8b793-3235-4efe-8e1e-bf7ca74cc40d/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_85e8b793-3235-4efe-8e1e-bf7ca74cc40d

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OAG 09-006
August 18, 2009

Subject: Whether the 2008 amendment to KRS 61.645(3) shortening the term limits of Kentucky Retirement Systems trustees is retroactive or merely prospec- tive.

Requested by: Robert M. Burnside, Executive Director Kentucky Retirement Systems

Written by: James M. Herrick
Assistant Attorney General

Syllabus: The shortening of term limits under KRS 61.645(3) as amended in 2008 is merely prospective, so that a Kentucky Retirement Systems trustee who had been eligible to seek an additional consecutive term in 2009 is still so eligible.

Statutes construed: KRS 61.645(3), HB 1 (2008 Extra. Sess.)

OAG cited: OAG 97-36

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 Ken-

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tucky 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) con- secutive 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 inter- pretation, 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 oc- curred 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

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a prospective application.” Peach v. 21 Brands Distillery, 580 S.W.2d 235, 236 (Ky.App. 1979). Accordingly, “unless the legislature clearly in- dicates otherwise, legislation is not intended to affect the legal conse- quences 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 juris- dictions. 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 Cincin- nati, 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 per- son serving on the council[. T]he provisions of this amend- ment shall apply commencing with the nominations for the election for the council term commencing December 1, 1993[.] [CJonsecutive 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). Al- though that amendment was expressly made retroactive in its opera- tion, 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).

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Ambiguous language

In Nevada, an amendment to the state constitution was ap- proved in 1996 stating as follows:

No person may be elected to any state office or local gov- erning body who has served in that office, or at the expira- tion 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 Consti- tution.

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 pre- sumption against retroactivity when confronted with an ambiguity. A state constitutional amendment adopted in 1992 contained the follow- ing 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

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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 Sena- tor. ... A person may not serve more than 4 consecutive terms as a member of the state House of Representatives.”? 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 com- mences 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 elec- tion] and to all terms of office served by persons elected to serve thereafter.

Although the second sentence of this statement was phrased prospec- tively, 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 of- fice 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 per- sons then serving in the state legislature as “disqualified from service

+21-A Me. REV. STaT. ANN. § 553.

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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 re- mainder of the term is less than one-half of the full term of office.

(Emphasis added.) The second sentence quoted above, with the ex- ception 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. Su- perior Ct., 100 Cal.Rptr.2d 156, 164 n.11 (Cal.App. 2" 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 /east prospective application, there would be no need for the General Assembly to make express mention that an amend- ment was to be applied prospectively unless it meant prospectively only.

A retroactive interpretation of Section 44, under which the legis- lature 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 emer-

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gency 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 Sec- tion 44 were not present, however, the presumption against retroactiv- ity would lead us to the same conclusion. Peach v. 21 Brands Dis- tillery, supra.

Since the shortening of term limits in House Bill 1 is not retroac- tive, 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 eligi- ble.

Jack Conway
Attorney General

James M. Herrick
Assistant Attorney General

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