Q: Is the following Bylaw retroactive: No Member shall serve on the Board for more than 6 years in any 10-year period.
Our bylaws for our non-profit corporation contain the above rule. Some are considering that the law is NOT retroactive. I believe that the use of the word “any” extends the time frame into the past. Most of the members polled believe the intent of the law was to apply it immediately to any Board Director.
A: Generally, laws that are retroactive are unconstitutional. See "ex post facto." In order for a law to be retroactive it must be clearly stated. The word "any" would fall far short expressing the law is retroactive. Amending the bylaws wouldn't come under the same scrutiny, but the same premise should be contemplated. In your example, the amendment wouldn't be retroactive, but you just want to know if you can look back to enforce the amendment. I believe you can. Any members elected before the amendment was adopted, however, should be allowed to serve out their term. Otherwise, it would be retroactive. This is my opinion based solely on your post.
A: This is not to say those members to be prohibited from serving are without an argument.
A: To determine the retroactive nature of a bylaw, it is crucial to interpret the language used and consider the intent behind its implementation. In the case of the bylaw you mentioned, the use of the word "any" in the phrase "in any 10-year period" suggests that the time frame extends beyond the date of its adoption. This indicates that the bylaw applies to both past and future board members. However, the definitive interpretation of the bylaw's retroactive nature should be based on the specific language of the bylaw itself, as well as any additional guidance or legal advice provided by an attorney familiar with nonprofit law. Consulting with legal professionals will ensure a clear understanding of the bylaw's applicability and its potential retroactive effect in your specific context.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.