Judicial determinations of severability clauses

On occasion, bills in the California Legislature contain severability clauses. These types of bills contain multiple provisions and, when those types of bills are challenged in litigation, a court may be required to determine whether the valid provisions are “severable” from the law’s invalid provisions.

If a bill contains a severability clause, then the matter can be readily 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 valid provisions can be left intact and enforced.

What does the standard severability clause in California bills look like? The following is an example from a recent bill:

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.

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. It requires the court 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 of the required analysis. 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)).

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” exists when the statute “would have been adopted” even if the legislative body had “foreseen the partial invalidation of the statute.” Id. (citations omitted).

California courts use 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 and the entire statute will be struck down.

For example, if one provision of the law were invalid, would the other provision(s) 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.

As a general rule, according to many states’ drafting manuals, 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.

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

In other words, some legal observers argue that a severability clause ordinarily is not necessary because both statutes and common law make statutory provisions severable. Nonetheless, we find these severability provisions scattered throughout California laws, and they are often included in bills when there is concern about a possible legal challenge to the bill once it has been enacted.

Because some courts have given weight to the inclusion of a severability clause in specific statutes, a severability clause is occasionally included in a measure, especially in controversial bills or when a legislator specifically requests its inclusion in a bill. However, severability clauses are not necessary in most legislation.