Interesting Severability Clause

In reviewing bills that were pending on the Governor’s Desk at the conclusion of the 2022 Legislative Session, a few bills contain a severability clause. What is the purpose of such a clause?

Basically, a severability clause is a statement by the Legislature that, if a part of a law that is enacted is subsequently held to be unconstitutional, then the unconstitutional provision(s) does not invalidate the rest of the law.

As a result, the general rule developed and applied by the courts is that, if a portion of a statute is invalid or unconstitutional, then the remaining portions of the statute are valid and enforceable if they stand on their own. On the other hand, if the remaining portions are completely dependent on the stricken portions, then the remaining portions are also invalid.

As a general rule, a bill drafter should only use a severability clause when there is a possibility of a statute being partially invalidated and it is not clear that the intention of the Legislature is that the bill be severed or the entire bill fail if any portion is held invalid.

However, others believe a severability clause is unnecessary for legal purposes because the courts have repeatedly ruled that, regardless of the presence or absence of a severability clause in a statute, the courts will usually sever invalid portions from an otherwise valid law, whenever possible.

An example of the standard language found in California legislation is the following:

The provisions of this bill are severable. If any provision of this bill or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

The following is an example of a unique severability clause contained in recent legislation that made its way to the Governor’s Desk:

Article 5. Severability

The provisions of subdivision (c) of Section 65912.131 concerning health care expenditure are distinct and severable from the remaining provisions of this chapter. However, Article 4 (commencing with Section 65912.130) is a material and integral part of this chapter and is not severable. If any provision of Article 4 (commencing with Section 65912.130) or its application, exclusive of those included in subdivision (c) of Section 65912.131, is held invalid, this entire chapter shall be null and void.

Why is this language unique? First, this language explicitly provides that certain provisions of the bill are “distinct and severable” from the remaining provisions of the bill. Second, this language specifies that other provisions are a “material and integral part” of the act and are “not severable.” Third, this language provides that, if any provision of a specified area of law is held invalid, then “this entire chapter shall be null and void.”