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How Do Courts Determine Whether a Bill’s Provisions Are Severable?

Multiple provisions in bills can lead to litigation

By Chris Micheli, May 2, 2022 6:26 am

Bills in the California Legislature often contain multiple provisions and, when those types of bills are challenged in litigation, a court must determine whether those provisions are “severable.” If a bill contains a severability clause, then the matter can be resolved. If such a clause is not in place, then a judge must determine whether the entire measure is void, or if any of the remaining provisions can be enforced.

Basically, a severability clause allows the remaining provisions of a bill to remain in effect even if one or more other provisions in the same bill are found to be unenforceable. So, 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) does not invalidate the remaining provisions of the law.

In California, how do the courts handle the issue of severability in legislation? In general, the courts in this state follow a two-step analysis based upon a California Supreme Court decision. The first step is relatively straight-forward. The court looks to determine whether the enacting legislation contains a severability clause. The presence of a severability clause “establishes a presumption in favor of severance.” Cal. Redevelopment Ass’n v. Matosantos, 53 Cal. 4th 231, 271 (2011) (citing Santa Barbara Sch. Dist. v. Superior Court, 13 Cal. 3d 315, 331 (1975)).

As a result, if a bill contains a severability clause, the court follows that language. A severability clause can protect the remaining, valid provisions of a law. Or the clause can state that, if any of the law’s provisions are struck down, then the entire act is invalid.

If the bill does not contain a severability clause, then the court must proceed to the second step. Basically, in the second step, the court determines whether the invalid provision(s) are functionally separable from the remaining, valid provisions of the law. In other words, if a statute does not contain a severability clause, the reviewing court may nevertheless find a portion(s) of the statute severable if that provision is “grammatically, functionally, and volitionally separable.” 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 stricken “‘without affecting the wording’ or coherence of what remains.” Id. (quoting Calfarm, 48 Cal. 3d at 822). “Functional separability” turns on whether the rest of the statute “is complete in itself.” Id. (quoting Sonoma Cty. Org. of Pub. Emps. v. County of Sonoma, 23 Cal. 3d 296, 320 (1979)). And “volitional separability” obtains when the statute “would have been adopted” even if the legislative body had “foreseen the partial invalidation of the statute.” Id. (citations omitted).

The court uses these three tests to make a determination whether the invalid and valid provisions are functionally separable. If these provisions are not “functionally separable,” then the valid provisions cannot be severed from the rest of the bill. For example, if one provision of the law were invalid, would the other still work to achieve its intended purpose?

On the other hand, if the challenged provision were invalid and the other remaining provision(s) would not function as intended, then the provisions could not be severed and the entire act would fail to be enforced by the court.

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