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CAN A NEW BYLAW BE RETROACTIVE ( TERM LIMITS APPLIED EX POST FACTO?)


star1441
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Hello-

Your  agreement is about adding a proviso? That sounds workable and reasonable :"  Starting with the 2022 Board election"?

But isn't there a general sentiment in the law to avoid ex post facto coverage?

Were Joe to know that in the future there'll be a three term limit, retroactive,  he may have sat the 2018 elections out? He did not, and now he is hit?

 

Thanks

 

yoram

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Bylaw amendments take effect immediately upon adoption.  I agree with Mr. Katz's interpretation on everything.  If it is desired that the new term limit not affect people currently in office, the proper way to handle that is with a proviso or with specific language in the bylaw amendment that it applies only to officers and directors first elected after a specified date.

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Agreeing with Mssrs. Katz and Brown, I would suggest that you make the proviso extremely clear. Rather than "Starting with the 2022 Board election", I would suggest something more explicit that makes clear that any service on the Board prior to 2022 does not count towards the term limit, or does count.

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8 hours ago, star1441 said:

Your  agreement is about adding a proviso? That sounds workable and reasonable :"  Starting with the 2022 Board election"?

But isn't there a general sentiment in the law to avoid ex post facto coverage?

Were Joe to know that in the future there'll be a three term limit, retroactive,  he may have sat the 2018 elections out? He did not, and now he is hit?

 

I suggest a very careful reading of what is said in RONR, 12th ed., 57:15-17. The new term limits in your bylaws will not be retroactive, but absent a proviso specifying a later date they will go into effect immediately upon their adoption.

For example, suppose your new bylaws provide that no member shall be eligible to serve three consecutive terms in the same office. Joe is serving in his third consecutive term as president when the new bylaws are adopted. Adoption of the new bylaws will not retroactively invalidate Joe's presidency or any actions taken by him as president during his third term in that office, but absent the adoption of a proviso as referred to above, will immediately remove Joe from the office of President. 

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9 hours ago, star1441 said:

Your  agreement is about adding a proviso? That sounds workable and reasonable :"  Starting with the 2022 Board election"?

 

Maybe, but I would take some care. I'm not sure quite what that phrase means, although in context maybe it works. And keep in mind (just in case) that a proviso does not go into the wording of the amendment. Rather, it goes into the motion adopting it. 

Perhaps something like "with the proviso that terms served prior to the 2022 term will not count towards this limit."

9 hours ago, star1441 said:

But isn't there a general sentiment in the law to avoid ex post facto coverage?

 

Yes, although I think that canon has been made broader than it should be. But there are two issues here. First, this is not a legal matter. Although we sometimes use terms like the common parliamentary law, parliamentary procedure is, in fact, not law. And, perhaps more to the point, this is not a retroactive change. Right here in the present a person has a status, such as having served 2 terms. Right here in the present, that status carries a meaning moving forward, and so we abide by that moving forward. We don't reach into the past and invalidate any actions, nor do we reach back to someone who served 4 terms and punish them in some way. No liability attaches to past actions. 

Now, would this be a problem nonetheless in law? Perhaps, if a governmental action were involved. There could be a due process clause argument, but it wouldn't be a retroactivity argument, nor would it likely be based on the canon against retroactivity. 

"[R]etroactivity is to be judged with regard to the act or event that the statute is meant to regulate." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 264 (2012). This rule is meant to regulate the holding of office after having held it a certain number of times in the past, not the first 3 holdings. It would only have retroactive effect if it applied where the 4th holding happened before it was adopted.

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10 hours ago, star1441 said:

Were Joe to know that in the future there'll be a three term limit, retroactive,  he may have sat the 2018 elections out? He did not, and now he is hit?

 

Forgot to respond to this one. That is true. As I said, were this a governmental action and were we doing a legal analysis, there could be a due process issue. But not a retroactivity issue. 
Note: This and the previous response do not consist of or contain legal advice, but rather hypothetical musings on the law that should not be used as guidance in any actual proceeding.

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