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Local 514 Transport Workers Union of America v. Keating12/16/2003
law, in part, and the Court concluded that the proper state court should decide whether the remaining valid provisions of state law were severable.
State legislation is invalid "to the extent that it actually conflicts with federal law," Pacific Gas & Electric Co. v. Energy Resources Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983), and such a conflict has been demonstrated in this case. We leave to the New Jersey Supreme Court the state-law question whether, or to what extent, the nonpre-empted provisions of the statute are severable from the pre-empted provisions.
Exxon Corp. v. Hunt, 475 U.S. 355, 376, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986).
This Court has used a severability analysis and concluded that invalid language invalidated the entire provision in which the invalid language appeared. We have also used a severability analysis for severing the invalid portion and upholding the valid portion as legally effective.
The severability analysis includes both a facial challenge to the language used in a statute or constitutional provision as well its applications. One author explained the authority on this issue as follows:
" . . . the Supreme Court, the state courts, and secondary authorities all appear to agree that the invalidity of part of a law or of some of its applications will not affect the remainder (1) if the valid provisions or applications are capable of being given legal effect standing alone, and (2) if the legislature would have intended them to stand with the invalid provisions stricken out."
Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76 (1937), emphasis added.
That author further explained that courts use a severability analysis for problems of language as well as application
Questions of separability fall into two general classes. One relates to situations in which some applications of the same language in a statute are valid and other applications invalid; the other to statutes containing particular language - whether words, phrases, sentences or sections - which is invalid, and other language entirely constitutional. . . . The first will be described as the problem of separable applications; the second as the problem of separable language.
Id. 51 Harv. L. Rev. 78-79 (1937), emphasis in original and material omitted.
This view is consistent with our statute on severability. See, for example, Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1078, where we said that: "Section 11a of Title 75 also requires examining whether an act may be severable in application."
The method a court uses in making its conclusion is based upon the court's assessment that the valid portion is capable of being enforced absent the invalid part, and that the legislative body intended such. For example, one author explained that a separability analysis involving different applications of a statute requires a court to determine legislative intent - specifically whether "it is evident, from a contemplation of the statute and of the purpose to be accomplished by it, that it would not have been passed at all, except as an entirety, and that the general purpose of the legislature will be defeated if it shall be held valid as some cases and void as to others." 1 T. Cooley, Constitutional Limitations, 367 (8th ed.1927). The invalid parts of a legislative act, whether invalid by language or application, must be separable from the valid parts so that the valid may be enforced, otherwise the whole act is invalid: "In general where the different portions of the statute form 'inseparable parts of the same s
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