Are severance clauses necessary in California bills?

Across the country, and at the federal level, there is an ongoing debate among legislative jurists about whether a severance clause should be included in legislation. If a bill contains a severability clause, then the question of whether the provisions contained in a bill are “severable” is easily resolved by a court. However, if a severance clause is not in place, a judge must determine whether the entire measure is void or whether any of the remaining provisions can be applied.

Basically, a severance clause allows valid provisions of a bill to remain in effect even if one or more other provisions of the same bill are found to be unenforceable. Accordingly, the severability clause is a statement of legislative intent that if a provision of a law is struck down by a court, the unconstitutional provision(s) do not invalidate the other provisions of the law and those provisions remain valid. in force. .

What does the standard California invoice severance clause look like? Here is an example from a recent bill:

The provisions of this bill are severable. If any provision of this Bill or its application is declared invalid, such invalidity shall not affect any other provision or application to which effect may be given without the invalid provision or application.

In California, courts generally follow a two-step analysis based on a California Supreme Court decision. The first step is relatively simple. The court seeks to determine whether the applicable law contains a severability clause. The presence of a severance clause “establishes a presumption in favor of separation”. Cal. Redevelopment Ass’n c. Matosantos, 53 Cal. 4th 231, 271 (2011) (citing Santa Barbara Sch. Dist. vs. Superior Court, 13 Cal. 3d 315, 331 (1975)).

Therefore, if a bill contains a severance clause, the court generally follows that wording. A severance clause can protect other valid provisions of a law. Or the clause may state that if one provision of the law is invalidated, the whole law is invalid.

On the other hand, if the bill does not contain a severance clause, then the court must proceed to the second stage. Basically, in the second step, the court determines whether the invalid provision(s) are functionally separable from other valid provisions of the law.

In other words, if a statute does not contain a severability clause, the reviewing court may nevertheless find that one or more parts of the statute are severable if that provision is “grammatically, functionally, and intentionally severable.” Matosantos, 53 Cal. 4th at 271 (citing Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821 (1989)).

So what does this second test mean? According to the California Supreme Court, “grammatical separability” considers whether the invalid portion of the statute can be removed “without affecting the wording” or consistency of what remains. » Identifier. (quoting Calferm, 48 Cal. 3d at 822). “Functional separability” depends on whether the rest of the law “is complete in itself”. Identifier. (quoting Sonoma County. Org. of Pub. Emp. c. Sonoma County, 23 cal. 3d 296, 320 (1979)). And “voluntary severability” occurs when the law “would have passed” even if the legislature had “provided for the partial invalidation of the law”. Identifier. (quotes omitted).

California courts use these three tests to determine whether invalid and valid provisions are functionally separable. If those provisions are not “functionally severable,” then the valid provisions cannot be severed from the rest of the bill and the entire measure is invalid.

Going back to the original question posed, is a severance clause necessary in California bills? As a general rule, a drafter of a bill should only use a severance clause when there is a possibility that a statute will be partially invalidated and it is not clear that the legislature’s intention is that the bill be severed.

However, others believe that a severance clause is unnecessary for legal purposes because many courts have repeatedly held that regardless of the presence or absence of a severance clause in a law, the courts will separate invalid parts of an otherwise valid law whenever possible as a judicial judge. based on the principle of statutory interpretation.

In other words, some commentators argue that a severance clause is generally unnecessary because statutes and the common law make statutory provisions severable. Nevertheless, we find these severance provisions scattered throughout California statutes.

Even the state constitution uses such a provision. For example, Article I, Section 31(h) provides, in part, that “any provision found to be invalid shall be severable from the other parts of this Section”. Similarly, Article XB, Section 16 states that “and for that purpose the provisions of this Article shall be severable”.

Additionally, many California statutes contain severance clauses. For example, Section 9906 of the Government Code, entitled “Severability”, provides the following: “If any provision of this chapter, or the application of such provision to any person or circumstances, is held to be invalid, the remainder of this Chapter insofar as effect may be given to, or the application of, any such provision to persons or circumstances other than those for which it is held invalid, shall not be affected, and for that purpose the provisions of this chapter are severable.

Because some courts have given weight to the inclusion of a severance clause in specific statutes, a severance clause is sometimes included in a measure, especially in long or controversial bills or when a legislator specifically calls for its inclusion in a bill. But such clauses are not necessary in most legislations.

Bernard P. Love