Summary
stating that a court will not sever an invalid provision if doing so contravenes the intent of the legislature
Summary of this case from Town of Cheswold v. Cent. Del. Bus. ParkOpinion
C.A. No. 17583-NC
Date Submitted: July 16, 2003
Date Decided: November 17, 2003
Arthur G. Connolly, Jr., Esquire, M. Edward Danberg, Esquire and Max B. Walton, Esquire of Connolly Bove Lodge Hutz LLP, Wilmington, Delaware, Attorneys for Plaintiffs.
Kevin J. Connors, Esquire of Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
I. Introduction
By memorandum opinion, dated June 13, 2003, the Court concluded that two ordinances of Defendant City of Newark (the "City") regulating student housing conflict with state law. Specifically, the Court found that City Ordinance 99-14 ("99-14") discriminated on the basis of marital status in violation of the Delaware Fair Housing Act (the "DFHA") and that City Ordinance 99-10 ("99-10") was unenforceable because it vitiated certain procedural provisions of the Delaware Residential Landlord-Tenant Code. Plaintiffs are landlords to students within the City and the landlords' representative association.
Newark Landlord Ass'n v. City of Newark, 2003 WL 21448560 (Del. Ch. June 13, 2003) ("NLA I").
6 Del. C. Ch. 46.
25 Del. C. Ch. 51 — 59.
The parties now address the question of severabilty, an issue expressly reserved in NLA I. Although the parties agree that the contested language of 99-10 may not be severed, they differ as to the severability of 99-14. The City claims that, by striking the offending language of the ordinance, the discriminatory effect will be eliminated, while leaving intact the intent of the City Council. The Plaintiffs, on the other hand, argue that it is not severable because removing the offending language would broaden the scope of the ordinance beyond the legislative intent.
See NLA I, at *15 n. 104.
II. Background
The factual background is set forth more fully in NLA I.
The City, through 99-14, sought to impose various housing or zoning restrictions on certain student rental units through a new classification known as the "Student Home" which was defined as:
A living arrangement in a single-family detached dwelling comprised of post-secondary students, unrelated by blood, marriage, or legal adoption attending or about to attend a college or university or who are on a semester, winter, or summer break from studies at a college or university, or any combination of such persons. Student homes shall not include RM zoning-permitted boarding houses, rooming houses, fratermties, and sororities; nor shall they include the taking of nonstudent nontransient boarders or roomers in any residence district; nor shall they include dwellings with one occupant only . . .
City of Newark, Delaware, Ordinance 99-14 (emphasis added).
In NLA I, the Court concluded that the definition of a living arrangement as "a single-family detached dwelling comprised of post-secondary students, unrelated by . . . marriage" operated, in conjunction with other provisions of the City's zoning code, to discriminate on the basis of marital status and, thus, constituted a discriminatory housing practice under the DFHA. The City now contends, and the Plaintiffs dispute, that 99-14's infirmities may be cured by excising "marriage," in order that the restrictions resulting from 99-14 would apply not just to unmarried students but, instead, to all students, whether married or not.
III. Analysis
A. Legislative Intent
In Delaware, ordinances "enjoy the same presumption of validity as statutes and will not be declared void except on unescapable grounds." When an ordinance or statute faces constitutional or statutory challenges, a Court may preserve its valid portions if the offending language can lawfully be severed. The reason for this is that "`[a] court should refrain from invalidating more of a statute than is necessary. . . .'"
Langley v. Elsmere Assocs., 1994 WL 149256, at *1 (Del.Super. Feb. 23, 1994) (citing Tucker v. Crawford, 315 A.2d 737, 741 (Del. 1974)).
See id.; State v. Dickerson, 298 A.2d 761, 766 (Del. 1973); Reese v. Hartnett, 73 A.2d 782, 784 (Del.Super. 1950).
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)).
The general rule for severability has been articulated by the United States Supreme Court: "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." The basic inquiry for severability, accordingly, is "whether the statute will function in a manner consistent with the intent of Congress."
Champlin Refining Co. v. Corp. Comm'n of Okla., 286 U.S. 210, 234 (1932).
Alaska Airlines, 480 U.S at 685.
As in the federal courts, the issue of severability in Delaware is governed by the legislative intent behind the statute or ordinance if it can be ascertained with reasonable certainty. This analysis also requires that two additional questions be answered in the affirmative in order for the Court to sever the unlawful portion:
Langley, 1994 WL 149256, at *1.
1. Is the unobjectionable part, standing alone, capable of enforcement?
2. Did the legislature intend the objectionable part to stand alone in case the other part should fall?
Id. at *2. No one disputes that 99-14, if the exclusion for married students were removed, would remain "capable of enforcement." Thus, the Court's severability analysis necessarily focuses on legislative intent.
Severability will not be deemed appropriate if the unconstitutional (or otherwise unenforceable) part of a statute or ordinance is so connected with the other portions that they are mutually dependent and complementary. In such a case the reasonable conclusion is that the legislative body must have intended all portions of the statute to rise and fall together. The valid segment of the statute or ordinance may stand alone, however, when severance of the invalid provision results in "a residual component having separate purpose and independent legislative significance."
Matter of Oberly, 524 A.2d 1176, 1182 (Del. 1987); State ex rel. James v. Schorr, 65 A.2d 810, 822 (Del. 1948).
Matter of Oberly, 524 A.2d at 1182; Schorr, 65 A.2d at 822.
Matter of Oberly, 524 A.2d at 1182. See also Stiftel v. Malarky, 384 A.2d 9, 17 — 18 (Del. 1977).
The dominant purpose of 99-14 is clear. The City Council wished to limit the availability of rental housing for students, except in certain specified areas, in order to address various problems resulting from disorderly student behavior. While choosing to limit students' housing options, the City Council made some very specific exclusions — those students related by blood or adoption, and married students. The City Council's reasons for exempting married students have not been developed in the record. That the exclusion for married students violated the DFHA does not necessarily mean that it can now be severed from the ordinance and the law made applicable to married students. This would violate the will of the City Council as evidenced by its clearly expressed decision to exempt married students. It is difficult to see how a provision in a law excluding certain persons from its reach is not a portion of the law that was intended to rise and fall with the rest of the law.
It may, of course, be that the exemption reflects a perception that married students are more settled in their ways and less likely to be disruptive.
The City now contends that the record before the City Council did not support (i.e., did not provide any rationale for) the exclusion of married students. See Mem. of Law, City of Newark, Re: Severability of Ordinance 99-14, The Student Housing Ordinance ("City Mem.") at 7-9. Although it may be unusual for the City's Counsel to attack the rationality and wisdom of the City Council, the City's argument misses the point. That the City Council consciously decided to exclude married students (and others) is itself evidence of legislative intent.
This conclusion is in accord with the approach of most other courts that have considered legislative enactments containing invalid limitations or exceptions — they have struck down the entire act instead of merely severing the offending portion. The general rule has been framed:
2 SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION ("SUTHERLAND") § 44.13 (6th ed. 2001). For venerable precedent espousing this view, see Grambling v. Maxwell, 52 F.2d 256 (D.N.C. 1931); Felts v. Linton, 289 S.W. 312 (Ky. 1926); Kapaun v. Federal Land Bank, 269 N.W. 564 (S.D. 1936). The City's argument that the decisions "are distinguishable because the challenged enactments contain specific subsections wherein the legislature expressly stated that the ordinance either applied or did not apply and the enactments could clearly not stand as severed because they would contravene an express legislative intent" (City Mem. at 7) is unpersuasive for two reasons. First, in these cases, the courts noted that the intent of the legislature was the main reason for not severing the statutes, not the fact that the exclusion was contained in its own subsection. Second, whether the exclusion is found within the text of the ordinance or in its own subsection does not change the fact that the legislative intent to exclude certain individuals is contravened by removing the exclusion and broadening the scope of the law. This holds even more weight, where as here, the exclusion is found in a definitional portion of the ordinance. To change the definition of "student home" by removing the exclusion for married students would materially alter the application of the ordinance in a way the legislative body did not intend or foresee and, thus, the Court cannot conclude that the City Council intended for 99-14 to stand without the married student exclusion. Modern case law also supports this view as well. See, e.g., State v. Wofford, 34 S.W.2d 671, 682 (Tex.App. 2000); Guard v. Jackson, 921 P.2d 544, 548 (Wash.App. 1996).
Where an exception, exemption, proviso, or any clause which limits the scope of an act's applicability is found to be invalid, the entire act may be void on the theory that by striking out the invalid exception the scope of the act has been widened and therefore cannot possibly represent the legislative intent. To extend the scope of an act's operation by invalidating a provision of limitation while allowing the remainder to continue in effect invites criticism on the ground that it amounts to judicial legislation.
2 SUTHERLAND § 44.13 (footnotes omitted). The United States Supreme Court applied this rule as early as 1886 in the case of Spraigue v. Thompson, 118 U.S. 90 (1886). In rejecting the Supreme Court of Georgia's severing of a state statute, the Court noted that "by rejecting the exceptions intended by the legislature of Georgia, the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what every one can say it would have enacted in view of the illegality of the exceptions." Id. at 95. See also Roe v. Wade, 410 U.S. 113, 116 (1973).
Similarly, the Maryland Court of Appeals formulated the standard as follows:
[W]hen the General Assembly enacts a prohibition with an excepted class that is subsequently found to be constitutionally infirm, ordinarily it will not be presumed that the General Assembly would have enacted the prohibition without the exception. Such a presumption would extend the prohibition to a class of persons whom the General Assembly clearly intended should not be reached.
Turner v. State, 474 A.2d 1297, 1303 (Md. 1974).
With these general rules in mind, the Court concludes that 99-14 cannot be severed as the City seeks here. The express exclusion of married students from the ordinance's reach is a clear manifestation of legislative intent. To hold otherwise would be to expand the scope of 99-14 beyond the City Council's intent when it enacted the ordinance. While the reasons the legislative body chose to exclude married students may not be clear, the Court will not override the express choice to exclude them and expand the scope of the ordinance by severing this unlawful exclusion from the rest of the ordinance.
The City relies upon Equitable Life Assurance Society of the United States v. Murphy, which invalidated an exemption to a municipal real estate transfer tax, as an example of a finding of severability that increased the scope of the invalid ordinance. Transfers of "real estate corporations" were subject to real estate transfer tax. The legislative exemption from the transfer tax where less than one percent of the ownership of the real estate corporation was transferred was deemed to violate the constitutional mandate of uniformity in the imposition of taxes. The Court concluded that the exclusion could be stricken from the ordinance with the result that small transfers, which had previously been exempt, would thereafter be subject to the transfer tax. In substance, the tax was then assessed on a broader basis as a result of the Court's holding that the offending provision was severable. The Court concluded that the overriding legislative intent was preservation of the transfer tax revenue stream and that exemption for de minimis, 1% transfers did not reflect any particular concern of the legislative body to provide special protection for those transfers. In contrast here, the City Council chose to exclude married students from the reach of 99-14 as the product of an apparent policy judgment that imposing the burdens on married students was not justified.
621 A.2d 1078 (Pa.Cmwlth. 1993).
Thus, as set forth above, the Court concludes that 99-14 may not be severed because, if the offending language were removed, the remaining portion would impose new and significant burdens on the housing choices available to married students, a group to which the City Council intended to award special status.
B. The Severability Provision
The City's last argument is that the severability provision of the Newark Municipal Code mandates that the City Council's intent be seen as adopting the ordinance without the challenged language:
SEC. 1-10. SEVERABILITY OF PARTS OF THE CODE
It is the intention of the council that the sections, paragraphs, sentences, clauses and words of this code are severable, and if any word, clause, sentence, paragraph or section of this code shall be declared unconstitutional or otherwise invalid by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining words, clauses, sentences, paragraphs and sections of this code, since the same would have been enacted by the council without the incorporation in this code of any such unconstitutional or otherwise invalid word, clause, sentence, paragraph, or section.
This provision, § 1-10 of the City's Municipal Code, is set forth in City Mem. at 9.
The City's Zoning Code has a different severability provision which provides:
Should any section or provision of this chapter be decided by the court, to be unconstitutional or invalid, such decision shall not affect the validity of this chapter as a whole or any part thereof other than the parts decided to be unconstitutional or invalid.
City's Zoning Code, § 32-83, as set forth in the Letter of Kevin J. Connors, Esq., dated July 16, 2003, at 1.
In its Memorandum in Support of the Severability of 99-14, the City relies exclusively upon Section 1-10 of the Newark Municipal Code. Yet, 99-14 is an amendment of the Zoning Code which has a specific severability provision. Thus, 99-14 is, at least in some sense, subject to two separate severability provisions. The general severability provision of the Municipal Code focuses on "section, paragraph, sentences, clauses and words." This suggests a finely-tuned analysis. In contrast, the severability provision adopted for the zoning ordinance refers to "parts." While clauses, sentences and words may be "parts" of a provision, the zoning severability clause suggests a somewhat more flexible standard. Moreover, because 99-14 is part of the zoning code, one would assume that the severability provision specifically adopted for the zoning code would prevail. The Court, however, does not consider the differences between the two severability provisions material to the decision of the question before it.
City Mem. at 9.
NLA I, at 3 n. 8.
Severability statutes are generally treated "only as aids to interpretation and not as commands" Furthermore, less weight attaches to general severability provisions than specific severability clauses in enactments because a general act is questionable evidence of subsequent legislative intent. To quote Justice Brandeis, a severability provision "provides a rule of construction which may sometimes aid in determining [legislative] intent. But it is an aid merely; not an inexorable command."
2 SUTHERLAND § 44:11; see Stifiel v. Malarkey, 384 A.2d at 17.
2 SUTHERLAND § 44:11.
Dorchy v. Kansas, 264 U.S. 286, 290 (1926).
Even an enactment with a severability provision cannot be severed if doing so would contravene legislative intent. For instance, in Hublein, Inc. v. Department of Alcoholic Beverage Control, the Supreme Court of Virginia invalidated an entire act instead of just severing an exemption for Virginia wineries in spite of a severability clause in the statute. The court reasoned that severing the statute would "subject Virginia wineries to the provisions of the Act in the face of the General Assembly's express contrary intent" and impose burdensome "restrictions upon a group the General Assembly clearly intends to `promote.'" Similarly, to find 99-14 severable would result in restricting the housing choices of married students, a group which the City Council deemed worthy of special treatment.
See Felts v. Linton, 289 S.W 312, 314 (Ky. 1926); Kapaun v. Federal Land Bank of Omaha, 269 N.W. 564, 565 — 66 (S.D. 1936).
376 S.E.2d 77 (Va. 1989).
Id. at 81.
Id.
Furthermore, since the severability provisions were not a part of 99-14, they are entitled to less weight in determining the critical legislative intent than if either of them had been adopted with the ordinance.