Legal: Are Virginia laws and local ordinances generally considered to be severable?

TFred · Jun 8, 2012

Or not? Is there any provision in the State Code or in a binding court opinion one way or the other on this?

Amusing hypothetical example:

Last year the General Assembly forced localities to adjust their BB gun laws, and if they did not bring them into compliance, the existing laws were declared to be invalid. "2. ...any local ordinance adopted [blah blah blah] shall be invalid."

So let's say that NorthHamtonShireOfTheWoods County has an ordinance which is something like this:

Section 34.56 Public Safety

A. No person shall shoot a BB gun anywhere within the boundaries of NorthHamtonShireOfTheWoods County.

B. The maximum speed limit in NorthHamtonShireOfTheWoods County shall be 32.5 miles per hour.

Until NorthHamtonShireOfTheWoods County fixes Section A, the Code of Virginia declares the ordinance to be invalid... But is Section B severable from Section A and would remain in effect, or is the entire ordinance invalid?

TFred

ProShooter · Jun 8, 2012

I could be wrong, but I believe that they are separate and apart.

The invalid ordinance would be listed as 32.56(A).

Now, if it said something like....

Section 34.56 Public Safety

No person shall shoot a BB gun anywhere within the boundaries of NorthHamtonShireOfTheWoods County. In addition, the maximum speed limit in NorthHamtonShireOfTheWoods County shall be 32.5 miles per hour.

Then the whole thing would be invalid, IMHO.

TFred · Jun 8, 2012

Now that I've had a few more minutes to think about it, I'm not sure my hypothetical example accurately conveys the real-world situation I'm thinking of anyway... but still... it is good to know the answer to this question, it is bound to be fairly important to us one day.

TFred

skidmark · Jun 8, 2012

But is "Public Safety" the place where speed limits are to be codified? Seems I remember something said at one of the last go-rounds of the Code Commission about not allowing folks to hide rules about one thing in sections reserved for another thing.

I can't remember where I read it, but an improperly written law is not supposed to be considered a valid law. See also http://bastiat.org/en/the_law.html#SECTION_G016

Perverted Law Causes Conflict

As long as it is admitted that the law may be diverted from its true purpose — that it may violate property instead of protecting it — then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious. To know this, it is hardly necessary to examine what transpires in the French and English legislatures; merely to understand the issue is to know the answer.
Is there any need to offer proof that this odious perversion of the law is a perpetual source of hatred and discord; that it tends to destroy society itself? If such proof is needed, look at the United States [in 1850]. There is no country in the world where the law is kept more within its proper domain: the protection of every person's liberty and property. As a consequence of this, there appears to be no country in the world where the social order rests on a firmer foundation. But even in the United States, there are two issues — and only two — that have always endangered the public peace.

Someone else can search Blackstone http://www.lonang.com/exlibris/blackstone/ for his commentary on hiding stuff in the wrong place.

stay safe.

TFred · Jun 8, 2012

skidmark said:
But is "Public Safety" the place where speed limits are to be codified? Seems I remember something said at one of the last go-rounds of the Code Commission about not allowing folks to hide rules about one thing in sections reserved for another thing.

You're off the fairway, into the rough... The point wasn't that the two sections are tricky and may not belong together, but rather, does one part of a section being in clear violation and subject to invalidation take with it the whole rest of the code that is otherwise proper.

I suspect that somewhere there is either a law or a precedent that tells us whether, in general, Virginia codes and ordinances are severable. Or not.

TFred

youngck · Jun 9, 2012

ProShooter said:
I could be wrong, but I believe that they are separate and apart.

The invalid ordinance would be listed as 32.56(A).

Now, if it said something like....

Section 34.56 Public Safety

No person shall shoot a BB gun anywhere within the boundaries of NorthHamtonShireOfTheWoods County. In addition, the maximum speed limit in NorthHamtonShireOfTheWoods County shall be 32.5 miles per hour.

Then the whole thing would be invalid, IMHO.

Your hypothetical seems to be about what would appear in the municipal codification, but your question is about the actual ordinance. There would likely have been two different ordinances, one about the speed limit, one about bb guns. It would have been unlikely to be codified as you suggested and the individual ordinances most likely would require a single subject, i.e. an ordinance to amend the speed limit of xxx County and an ordinance to control the use of bb guns. The codification takes place after the ordinance is passed.

TFred · Jun 9, 2012

youngck said:
Your hypothetical seems to be about what would appear in the municipal codification, but your question is about the actual ordinance. There would likely have been two different ordinances, one about the speed limit, one about bb guns. It would have been unlikely to be codified as you suggested and the individual ordinances most likely would require a single subject, i.e. an ordinance to amend the speed limit of xxx County and an ordinance to control the use of bb guns. The codification takes place after the ordinance is passed.

Good grief people... can we try to think not so literal... it's not that hard!

I picked a poor hypothetical example. I apologize.

Let me bring it closer to home.

The actual set of ordinances that I am thinking about say in essence, you can't shoot firearms in certain places within the county. And by the way, BB guns count as firearms.

The county has not fixed their ordinance to comply with 15.2-915.4.

You can see why I am interested in severability. If ordinances are not severable, then that means that the entire county is actually now wide open for shooting, because the ordinance has been declared to be invalid because of their refusal to fix in accordance with 15.2-915.4.

It is my guess that the way they have intertwined BB guns within the ordinance, there is no way to sever the invalid part out... but that's why I'm looking for sources that say so for sure.

I hope that clears up the question, but so far, other than an earnest guess or memory by ProShooter, no answers have been offered.

TFred

half_life1052 · Jun 9, 2012

TFred said:
Good grief people... can we try to think not so literal... it's not that hard! I picked a poor hypothetical example. I apologize.

Let me bring it closer to home.

The actual set of ordinances that I am thinking about say in essence, you can't shoot firearms in certain places within the county. And by the way, BB guns count as firearms.

The county has not fixed their ordinance to comply with 15.2-915.4.

You can see why I am interested in severability. If ordinances are not severable, then that means that the entire county is actually now wide open for shooting, because the ordinance has been declared to be invalid because of their refusal to fix in accordance with 15.2-915.4.

It is my guess that the way they have intertwined BB guns within the ordinance, there is no way to sever the invalid part out... but that's why I'm looking for sources that say so for sure.

I hope that clears up the question, but so far, other than an earnest guess or memory by ProShooter, no answers have been offered.

TFred

I think that the presumption is that the legislature knew what they wanted to accomplish and therefore discretion is used in invalidating only those parts that constitutionally fail. In short I think the two pieces are separable since they each stand on their own.

Link to some case law http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-205

half_life1052 · Jun 10, 2012

I think what is most informative about the linked case law is the Justice first attempted to find legal traction that did not involve invalidating existing laws. Since this is SCOTUS I tend to think that the same approach is used by lower courts. I find opinions like this one (that include the underlying legal reasoning) to be very educational. I have been hooked on reading SCOTUS opinions since reading "The Brethren" as a much younger man.

TFred · Jun 10, 2012

I did some Googling... most current material "out there" is related to the big case of the day, the SCOTUS review of ObamaCare, where severability is a huge part of the case, since the public mandate to buy insurance is pretty much the only way the rest of it will work. There was a lot of coverage early on about the fact that Congress did not include a severability clause anywhere in the ObamaCare legislation.

However, other sources that I was able to find indicate that for the most part, even if the legislating body does include a severability clause (indicating their desire for it to be one or the other) the courts deciding the issue pretty much do whatever they want for each case, often ignoring the original intent of the legislature.

Absent any further input, I'm inclined to conclude that the only way to find out if any particular law will be allowed to stand apart from the "invalid" sections is to take it to court and see what that judge says that day.

Not exactly the best way to run a legal system, IHMO...

TFred

Legal: Are Virginia laws and local ordinances generally considered to be severable?

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