Could Maryland voters petition to referendum just the handgun ban part of a 1988 law that also protected gun makers from lawsuits?

Plain-English summary

In June 1988, Governor William Donald Schaefer asked the Attorney General to sort out a legal puzzle created by that year's contentious handgun legislation, Chapter 533. The law was a political compromise: it banned the manufacture and sale of certain cheap "Saturday Night Special" handguns through a new Handgun Roster Board, and in the same breath it overturned the Court of Appeals' recent decision in Kelley v. R. G. Industries, Inc., which had held Saturday Night Special manufacturers strictly liable for gunshot injuries from criminal misuse of their products. Opponents of the handgun ban had circulated a referendum petition covering only the handgun control provisions, leaving out the strict liability repeal. The opinion concluded that the two halves of Chapter 533 were not severable from each other, since the legislative history showed each side of the debate agreed to its half only because the other side got its half too, but that the Maryland Constitution's referendum clause still allowed a petition on just "part of any Act," even a nonseverable part. The catch, the opinion concluded, was that because the two parts could not stand alone, suspending the handgun provisions by petition would also suspend the strict liability repeal, and if voters ultimately rejected the handgun provisions at the polls, the strict liability repeal would fall with it and the Kelley decision would remain Maryland law.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Were the handgun ban and the liability-shield provisions of Maryland's 1988 gun law legally tied together?
Yes, according to this opinion. It concluded from the bill's legislative history, including press accounts quoting the Speaker of the House and the bill's sponsors describing an explicit "quid pro quo," that the General Assembly would not have passed either half of Chapter 533 without the other, making the two halves legally inseparable even though the law included its own severability clause.

Could opponents of the handgun ban still bring just that part of the law to a public vote?
Yes. The opinion concluded that Article XVI of the Maryland Constitution, which lets voters petition "any Act, or part of any Act" to referendum, permitted a petition limited to the handgun control provisions, even though those provisions were not severable from the rest of Chapter 533, because no Maryland case had ever read a severability requirement into that constitutional language.

What would happen to the strict liability repeal if voters rejected the handgun ban at referendum?
The opinion concluded it would fall too. Because the two provisions were not severable, a successful referendum petition would suspend both provisions pending the vote, and if voters ultimately rejected the handgun control provisions, the abrogation of Kelley v. R.G. Industries would also become legally ineffective, leaving manufacturers of Saturday Night Specials subject to strict liability under Kelley once again.

Background and statutory framework

Chapter 533 combined two bills that had each stalled in the opposite chamber of the General Assembly: House Bill 1131, banning manufacture and sale of handguns not approved by a new Handgun Roster Board based on factors like concealability, detectability, and utility for legitimate sporting or law enforcement use, and Senate Bill 484, which would overturn Kelley v. R. G. Industries, Inc.'s strict liability holding for Saturday Night Special makers. Press accounts the opinion quoted at length, including the Speaker of the House's statement that "the only way to get them is to tie them together" and a sponsor's description of a "quid pro quo," established that the two provisions were joined specifically because neither could pass on its own.

Applying Maryland's severability framework under Article 1, §23 and the case-specific test from Turner v. State (whether the statute would still serve the dominant legislative intent without the invalid provision), the opinion found Chapter 533's own severability clause did not control, citing Sanza v. Maryland Board of Censors and a line of Court of Appeals cases (Board of Public Works v. Baltimore County, Wheeler v. State, State v. Schuller, Police Comm'r v. Siegel Enterprises, Inc., City of Baltimore v. A. S. Abell Co.) holding that a severability clause is "an aid merely, not an inexorable command." Citing the realistic view of legislative compromise the Court of Appeals took in Nutwell v. Anne Arundel County and Curtis v. Mactier, the opinion concluded it was "impossible to believe" the strict liability repeal would have passed without the handgun ban, making the two halves inseverable.

On the referendum question, the opinion read Article XVI, §1(a)'s guarantee that voters may refer "any Act, or part of any Act" broadly, finding no Maryland or out-of-state case holding that only a severable part of a law could be referred, and drawing on the North Dakota Supreme Court's closely analogous reasoning in Baird v. Burke County that the same severability principles applying to a court's invalidation of part of a law apply equally when voters excise part of a law by referendum. The opinion concluded that because striking the handgun provisions would be a "fundamental perversion" of the General Assembly's actual bargain, a valid referendum petition would suspend the entire Chapter 533, and a "no" vote on handgun control would nullify the Kelley repeal as well, even though the ballot question itself would not say so explicitly.

Citations and references

Statutes:

• Article XVI, §1(a)
• Article XVI, §3(a)
• Article XVI, §2
• Article XVI, §4
• Article XVI, §6
• Article 1, §23
• Article II, §17
• Article 27, §36-I(h)
• Article 27, §36-I(c) and (f)
• Article 27, §36J(b)(2)
• Article 27, §36J(f)(5)
• Article 33, §23-4
• Chapter 533 (House Bill 1131) of the Laws of Maryland 1988

Cases:

• Kelley v. R. G. Industries, Inc., 304 Md. 124, 157, 497 A.2d 1143 (1985)
• Turner v. State, 299 Md. 565, 576-580, 474 A.2d 1297 (1984)
• Sanza v. Maryland Board of Censors, 245 Md. 319, 338, 226 A.2d 317 (1967)
• Dorchy v. Kansas, 264 U.S. 286, 290 (1924)
• Board of Public Works v. Baltimore County, 288 Md. 678, 684, 421 A.2d 588 (1980)
• Wheeler v. State, 281 Md. 593, 608-09, 380 A.2d 1052 (1977)
• State v. Schuller, 280 Md. 305, 320-21, 372 A.2d 1076 (1977)
• Police Comm'r v. Siegel Enterprises, Inc., 223 Md. 110, 133-34, 162 A.2d 727 (1960)
• City of Baltimore v. A. S. Abell Co., 218 Md. 273, 290, 145 A.2d 111 (1958)
• Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987)
• Nutwell v. Anne Arundel County, 110 Md. 667, 672-73, 73 A. 710 (1909)
• Curtis v. Mactier, 115 Md. 386, 399, 80 A. 1066 (1911)
• McCorkle v. United States, 559 F.2d 1258, 1262 (4th Cir. 1977)
• Kelly v. Marylanders for Sports Sanity, 310 Md. 437, 530 A.2d 245 (1987)
• Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978)
• Baird v. Burke County, 205 N.W. 17, 23-24 (N.D. 1925)
• Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 225 (1980)
• Berlin v. Shockley, 174 Md. 442, 199 A. 500 (1938)
• Commonwealth v. Barnett, 48 A. 976, 978 (Pa. 1901)
• Nowell v. Harrington, 122 Md. 487, 492-93, 89 A. 1098 (1914)
• State v. Holder, 23 So. 643 (Miss. 1898)
• State ex rel. Wisconsin Telephone Co. v. Henry, 260 N.W. 486 (Wis. 1935)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

Referendum—Statutes—Severability—Handgun Control Part of Chapter 533 May Be Petitioned To Referendum, But Rejection of Handgun Control Part Will Render Strict Liability Part of Chapter 533 Ineffective As Well.

June 8, 1988

The Honorable William Donald Schaefer
Governor

You have requested our opinion on the legal effect of a referendum on only part of Chapter 533 (House Bill 1131) of the Laws of Maryland 1988. Chapter 533 contains two main components: provisions creating a mechanism under which the manufacture and sale of cheap "Saturday Night Specials" will be banned, and provisions overturning a Court of Appeals decision imposing strict liability on the manufacturers and sellers of Saturday Night Specials put to criminal use.

Your specific questions are as follows:

1. Are the handgun control and strict liability provisions of Chapter 533 severable?

2. If they are not severable, may the handgun control portions of the act nevertheless be petitioned to referendum separately? That is, if a petition seeks a referendum on only part of Chapter 533, is that petition valid?

3. If the handgun control portions of the act only may be petitioned to referendum, what is the legal effect of such a limited referendum? That is, would the filing of a valid referendum petition limited to the handgun control portions of Chapter 533 also result in the suspension of the strict liability portions of the act? If the referendum effort succeeded, and the handgun control provisions were rejected in November, would the strict liability provisions be legally effective?

For the reasons stated below, we conclude that the handgun control and strict liability provisions in Chapter 533 are not severable. The General Assembly would not have passed the one without the other.

Because the two sets of provisions are inseparable, a good argument could be made that neither component alone is subject to referendum. Nevertheless, the Referendum Amendment expressly allows "a part of any Act" to be referred. It does not say, and no court has yet held, that the phrase "part of any Act" in the Referendum Amendment means only a severable part. Without clear precedent, we are unable to conclude that this limitation on the people's right to referendum should be imposed. Hence, in response to your second question, we advise that the handgun control provisions of Chapter 533 may be petitioned to referendum, even if the strict liability provisions are not.

However, because the two parts of Chapter 533 are not severable, a referendum on the one will have an effect on the other comparable to the effect of a successful challenge in court. That is, the filing of a valid referendum petition limited to the handgun control provisions of Chapter 533 would suspend the effectiveness of not only those provisions but also the strict liability provisions. And, if the voters were to reject the handgun control provisions of Chapter 533 at referendum, the strict liability provisions would be legally ineffective as well.

I
The 1988 Handgun Legislation

The 1988 Session of the General Assembly was marked by a contentious debate over handguns. In a classic example of legislative compromise, two wholly disparate approaches to the problem were conjoined in the single piece of legislation that became Chapter 533. This political background is essential to an understanding of the legal issue.

On February 5, 1988, Delegate Hughes and many of his colleagues introduced House Bill 1131, the short title of which was "Handguns — Manufacture and Sale — Prohibition." As originally introduced, this bill would have required the Superintendent of the Maryland State Police to establish a handgun roster. The legislation intended that the Superintendent include in this roster handguns so constructed as to be of legitimate sporting, self-protection, or law enforcement use. Manufacture or sale of handguns not on the roster would be prohibited. Through this mechanism, handguns having some legitimate purpose could be differentiated from "Saturday Night Specials," the cheap handguns commonly used for criminal purposes. The bill also sought to prohibit the manufacture or sale of handguns with plastic components that could escape detection at airports and public buildings.

On February 3, 1988, Senator Beck and several of his colleagues introduced Senate Bill 484, the short title of which was "Civil Actions — Prohibition of Liability for Damages Caused by Certain Criminal Use of Firearms." This bill was intended to achieve a statutory abrogation of the main holding in Kelley v. R. G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985). In Kelley, the Court of Appeals concluded "that it is entirely consistent with public policy to hold the manufacturers and marketers of Saturday Night Special handguns strictly liable to innocent persons who suffer gunshot injuries from the criminal use of their products." 304 Md. at 157.1

Both bills were favorably reported out of their respective committees. House Bill 1131 passed the House on March 31 by a vote of 85-53. Senate Bill 484 passed the Senate on March 24 by a vote of 27-18.

Nevertheless, each of the two bills faced stiff opposition in the other body. Senate Bill 484 was stalled in the House Judiciary Committee, unlikely to be reported out. House Bill 1131 faced an uncertain vote in the Senate Judicial Proceedings Committee and a filibuster on the Senate floor at Session's end.

The proponents of House Bill 1131 then offered a compromise. As one newspaper described it: "They will agree to overturn a landmark court decision that established liability for the makers of inexpensive handguns in return for a bill to ban the sale of cheap Saturday night specials." Washington Post, April 7, 1988, at A38, col. 1. This account quoted Speaker of the House R. Clayton Mitchell as saying, of the two bills, "'I think the only way to get them is to tie them together.'" Id. at col. 3. See also Baltimore Sun, April 7, 1988, at 1A, col. 7.2

As press accounts make clear, both proponents and opponents of handgun control recognized the amalgamation of the two bills for what it was: a political compromise that gave both sides some, but not all, of what they wanted. According to the Baltimore Sun, "Gun control advocates on the committee hailed the bill's passage as 'historic,' although some gave decidedly mixed reactions to certain compromises that were made to get the bill to the Senate floor." April 9, 1988, at 9A, col. 4. The Washington Post reported that one gun control opponent "said part of the compromise included a promise from him and other opponents on the committee not to participate in a filibuster." April 9, 1988, at B4, col. 1-2. Senator Beck, the main sponsor of Senate Bill 484, was quoted as saying that "the compromise links the bills in a 'quid per quo' [sic] basis." Carroll County Times, April 8, 1988.

In short, there is no doubt that the following post-session summary is accurate: "The two seemingly contradictory provisions were joined in the same bill by legislators who knew there was little chance either would pass without support from both sides in the debate." Baltimore Sun, May 15, 1988, at 13A, col. 1.

Thus, as enacted and signed into law, Chapter 533 contains the two elements of the compromise. Through the mechanism of the Handgun Roster Board, the manufacture and sale of some handguns will be banned in Maryland.3 At the same time, the Kelley decision will be overturned by a provision, to be codified at Article 27, §36-I(h) of the Maryland Code, eliminating strict liability "for damages of any kind resulting from injuries to another person sustained as a result of the criminal use of any firearm by a third person, unless the person or entity conspired with the third person to commit, or willfully aided, abetted, or caused the commission of the criminal act in which the firearm was used."

II
The Referendum

Article XVI, §1(a) of the Maryland Constitution provides that:

"The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly ..."

A referendum question concerning any public general law is to be submitted to the voters at the next congressional election if a "referendum petition against an Act or part of an Act ... [is] signed by three percent of the qualified voters of the State of Maryland, calculated upon the whole number of votes cast for Governor at the last preceding Gubernatorial election, of whom not more than half are residents of Baltimore City, or of any one County." Article XVI, §3(a).4 Those seeking a referendum must file at least one-third of the required number of signatures with the Secretary of State before June 1. If the remaining signatures are filed by June 30, the referred law "shall not become a law or take effect until thirty days after its approval by a majority of the electors voting thereon ...." Article XVI, §2.

In reliance on the language that permits referral of "part of any Act," opponents of the handgun control portions of Chapter 533 have circulated a petition that would bring to referendum only those portions of the law.5 On May 31, the petitioners filed their initial set of petitions, purporting to bear the signatures of about 22,000 registered voters.6 These petitions do not include proposed Article 27, §36-I(h), the portion of Chapter 533 that would overturn the strict liability cause of action announced in Kelley v. R.G. Industries.7

III
Severability Principles and Chapter 533

In general, all Maryland statutes are presumed to be severable. Article 1, §23 of the Maryland Code provides as follows:

The provisions of all statutes enacted after July 1, 1973 are severable unless the statute specifically provides that its provisions are not severable. The finding by a court that some provision of a statute is unconstitutional and void does not affect the validity of the remaining portions of that statute, unless the court finds that the remaining valid provisions alone are incomplete and are incapable of being executed in accordance with the legislative intent.

Moreover, Chapter 533 itself contains a severability clause. Section 2 of the Act provides, "That if any provision of this Act or the application thereof to any person or circumstance is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions or any other application of this Act which can be given effect without the invalid provision or application, and for this purpose the provisions of this Act are declared severable."

This latter provision is a standard severability clause. Department of Legislative Reference, Legislative Drafting Manual 1987, at 56. The provision was in House Bill 1131 as introduced; it was not added as part of the compromise.

Neither the general nor the specific severability clause is itself determinative of the question of severability. Rather, the question of severability is in every case a question of legislative intent. Of course, the intent to be ascertained is not the actual legislative intent (which is always that the entire law should be effective), but what the General Assembly would have intended had it known that the statute could be only partially effective. Turner v. State, 299 Md. 565, 576, 474 A.2d 1297 (1984). In this regard, the presence of a severability clause in the statute raises a presumption that the statute was intended to be severable, "but the clause is merely declaratory of an established rule of construction; it is 'an aid merely, not an inexorable command.'" Sanza v. Maryland Board of Censors, 245 Md. 319, 338, 226 A.2d 317 (1967) (quoting Dorchy v. Kansas, 264 U.S. 286, 290 (1924) (Brandeis, J.)).

Thus, the presence of a severability clause is not conclusive. The Court of Appeals, in a number of cases, has held that unconstitutional provisions of a statute could not be severed from constitutional provisions, notwithstanding the presence in the statute of a severability clause. E.g., Board of Public Works v. Baltimore County, 288 Md. 678, 684, 421 A.2d 588 (1980); Wheeler v. State, 281 Md. 593, 608-09, 380 A.2d 1052 (1977); State v. Schuller, 280 Md. 305, 320-21, 372 A.2d 1076 (1977); Police Comm'r v. Siegel Enterprises, Inc., 223 Md. 110, 133-34, 162 A.2d 727 (1960). As the Court of Appeals put it in City of Baltimore v. A. S. Abell Co., 218 Md. 273, 290, 145 A.2d 111 (1958), a severability clause "does not operate to save provisions which clearly would not have been enacted into law except upon the assumption that the entire act was valid."

The true test of severability is whether, without the inoperable provision, the statute would still be effective to carry out the dominant legislative intent. Turner, 299 Md. at 577; Siegel Enterprises, Inc., 223 Md. at 134; A.S. Abell Co., 218 Md. at 290-91. In determining legislative intent in this regard, as in any other case, the statute must be considered in light of its context. That context includes legislative history and other external manifestations of the General Assembly's aim or purpose. Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987). Where the legislative history of a statute demonstrates that, without the inoperable provisions, the statute would have an effect contrary to the legislative intent, the conclusion must be that the General Assembly would not have enacted the statute without the inoperable provisions. In that case, the statute's provisions must be construed as nonseverable. See Turner, 299 Md. at 577-80 (reviewing legislative history of Female Sitters Law to conclude that statute was not severable).8

Truncating a statute would have an effect contrary to the legislative intent if doing so would upset the political compromise essential to the bill's passage. The Court of Appeals has been realistic in viewing the give-and-take that is often the key to a bill's enactment. For example, in Nutwell v. Anne Arundel County, 110 Md. 667, 73 A. 710 (1909), the Court of Appeals considered whether a vehicle licensing provision could be severed from an unconstitutional tax exemption for those vehicles. In holding that the two provisions were not severable, even though the licensing provision could have functioned independently, the Court wrote:

The tax exemption feature of this Act is one of its essential parts, and was no doubt intended to secure its passage. It is inseparably connected with the whole scheme of the Act. It is so important that it cannot be presumed the Act would have passed without it.

110 Md. at 672-73. In another case, the Court observed that "it would be impossible to believe ... that if the act had been presented to the legislature with the features eliminated which we have held invalid it would have been passed by the legislature ...." Curtis v. Mactier, 115 Md. 386, 399, 80 A. 1066 (1911). Cf. McCorkle v. United States, 559 F.2d 1258, 1262 (4th Cir. 1977).9 As the leading treatise summarizes the point, "where the invalid portion was the principal inducement for the passage of the statute, the whole statute must fail. In ruling that the legislature would not have enacted separately the valid part of a statute, courts describe the valid and invalid parts of the act as having been conditions, considerations, or compensations for each other." 2 Sutherland Statutory Construction §44.06, at 502 (4th ed. 1986).

Based on the legislative history, recounted in detail in Part I above, there can be no doubt that the portion of Chapter 533 overturning the Kelley decision on strict liability would not have been enacted if the General Assembly had known that the handgun control portions of the legislation would be rendered ineffective, whether because of a court decision or a referendum petition. Handgun control was "so important [to the compromise] that it cannot be presumed the act would have passed without it." Nutwell, 110 Md. at 673. To quote the Court's phrase from Mactier, it is "impossible to believe" that any provision to overturn Kelley would have passed the House of Delegates if the Senate had defeated the handgun control provisions. Therefore, the two provisions are not severable.

IV
The Right to Referendum on a Part of an Inseverable Law

Article XVI, §1 empowers those voters who are dissatisfied with "part of any Act" to take that part to referendum. Language elsewhere in the Referendum Amendment echoes this right reserved to the people, to look within an act to differentiate the part that they find objectionable from the part that is not. Article XVI, §§3(a) and 4.

Of course, the right to refer a part of a law is not unlimited. Neither the whole of, nor any part of, an "appropriation for the maintenance of State Government" may be referred, because that kind of legislation is not subject to referendum. Kelly v. Marylanders for Sports Sanity, 310 Md. 437, 530 A.2d 245 (1987); Bayne v. Secretary of State, 283 Md. 560, 392 A.2d 67 (1978).10

Moreover, one can imagine referendum attempts that so parse an enactment as to be misleading, too fragmentary, or otherwise beyond the permissible bounds of the referendum. A petition that seeks, through the device of a referendum, merely to tinker with legislative decisions is probably invalid. For instance, we doubt that a referendum petition could validly seek to transform a prohibition into an authorization by eliminating the word "not," or to change the General Assembly's decision on when to implement a law by referring only the section of an act providing for a delayed effective date. An effort of that kind would cross the line from the negative power of the referendum to affirmative legislation or initiative. "The reserved power, known as the referendum, is negative; it is entirely distinct and fundamentally different from that of the initiative." Baird v. Burke County, 205 N.W. 17, 23 (1925). Cf. Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 225 (1980).

However, no such extreme case is presented here. The petitioners are not trying to alter one or another aspect of the handgun control mechanism in Chapter 533; instead, they want to negate it altogether.

Thus, this situation presents the direct question of whether Article XVI permits a referendum on parts of an act that are not severable. We are aware of no case, in Maryland or elsewhere, that directly addresses this question.11

In another context, comparable constitutional language has been construed to forbid the negation of part of an inseparable law. Article II, §17 of the Constitution empowers the Governor "to disapprove of any item or items of any [appropriations] Bills ..., and the part or parts of the Bill approved shall be the law, and the item or items of appropriations disapproved shall be void unless repassed ... over the Executive veto." In 61 Opinions of the Attorney General 247 (1976), this office suggested that, if two items in an appropriation bill had "such manifest interdependence between them as to require both to fall if one is unable to stand," the Governor would not be empowered to veto one item but not the other. 61 Opinions of the Attorney General at 253.12 Cf. Commonwealth v. Barnett, 48 A. 976, 978 (Pa. 1901) ("part" means a "distinct and severable" part of an appropriation).

We recognize the force of the parallel argument that, when the General Assembly has enacted an inseparable law, the voters should be asked to approve or disapprove that legislative decision as a whole, not a piece of it, just as the Governor should. However, the fact remains that Article XVI has never been construed authoritatively to impose on the petitioners the duty to ascertain, as best they can and at their peril, whether disparate parts of an act are severable and, if the parts are not severable despite a severability clause, to petition the whole act to referendum whether they want to or not. Indeed, the one out-of-state case that dwells at length on the impact of a "partial" referendum of a nonseverable bill nowhere suggests that such a referendum is itself improper. Baird v. Burke County, 205 N.W. 17 (N.D. 1925) (discussed in detail in Part V below).

In short, absent authoritative guidance from the courts, we find it difficult to conclude that severability doctrine should be so fully read into the Referendum Amendment as to prevent part of Chapter 533 from going on the ballot. The power of referendum is "vital," this office has observed, one "which the People have solemnly and expressly reserved to themselves ...." 63 Opinions of the Attorney General 157, 163 (1978). In the final analysis, we think that doubts should be resolved in favor of the right to referendum.

Therefore, we conclude that the petitions seeking a referendum on only the handgun control portions of Chapter 533, if validated, are legally proper.

V
Effect of Partial Referendum

Our conclusion that the handgun control provisions of Chapter 533 alone may be petitioned to referendum does not resolve the question of what happens to the rest of the act if the petition is valid and if the voters reject the handgun control provisions. That is, if the petition results in the suspension of the handgun control provisions, which would otherwise become effective on July 1, will the strict liability abrogation in §36-I(h) also be suspended? If the referendum results in the negation of the handgun control provisions, will §36-I(h) also be negated? Based on the severability analysis set out above and the compelling reasoning of the one case directly on point discussed below, our answer to both of these questions is "Yes." If the handgun control provisions are rendered ineffective, temporarily or permanently, the Kelley repealer provision will also be ineffective.

In Baird v. Burke County, 205 N.W. 17 (N.D. 1925), the North Dakota Supreme Court applied the usual principles of severability in the context of that state's referendum provision. The North Dakota Legislature had enacted a law, one part of which levied retroactively a certain tax. Another part of the act ratified certain settlement agreements that had been reached during the period when the tax in question had mistakenly been repealed. Under a provision of the North Dakota Constitution allowing a referendum on a law or part of law, the voters of that state rejected the provision to ratify the settlements, which was the only section of the law petitioned to referendum. Thus, the question before the court was whether the provision applying the tax retroactively, which had not been put to referendum, could be given effect.

The North Dakota Supreme Court summarized as follows its rule of severability, substantially identical to that of the Maryland Court of Appeals: "If striking out a part of the law results in a substantial departure from the legislative purpose, or effects an object not within the contemplation of the lawmaking body when the law was passed, and it cannot be presumed that the law would have been passed without the void part, the entire statute falls." 205 N.W. at 23. The court then held that the same principle is to be applied when the excision of a part of a law is the result of a referendum, instead of a court decision:

It is strongly urged that the same result must follow when, through the referendum, the legislative purpose is completely frustrated or altered by striking a portion. Upon what sound principle can a distinction be drawn under the facts in this case? We see none.

Id. The court continued: "From the standpoint of the effect of an adverse referendum of a part of an enactment upon the legislative intention, it is difficult to discover any distinction in principle between excision of a section or a part of a law by the referendum and the same operation through the decision of a court that such section or part is void because unconstitutional." Id.

Finally, the court concluded that, because the provision defeated in the referendum was a main inducement to the enactment of the statute, the statute in its entirety could not survive the excision of that provision:

We conclude that if the result of striking from a law an item, a part, clause, or section, be to take from it the principal inducement that led to its passage in the Legislature, and to leave a portion which, standing alone, in reality is a fundamental perversion of the purpose the lawmaking body intended to effect when the whole was enacted, the effect of such a referendum is to nullify the whole act as if the statute had been disapproved by the people in its entirety.

205 N.W. at 24.

We believe that the Court of Appeals would adopt the same approach. In any realistic assessment of the process that led to the enactment of Chapter 533, a court would find it a "fundamental perversion" of legislative intent if handgun control were nullified but the Kelley repealer survived. Hence, if the referendum process suspends or nullifies the one, it will have the same effect on the other. The filing of a valid petition will suspend all of Chapter 533.13 Therefore, a plaintiff will continue to have a cause of action under Kelley until the referendum. If the referendum results in the rejection of handgun control, Kelley will remain part of this State's common law.

We recognize that this outcome presents the voters with a question that is incomplete, in an important sense. A voter who votes against handgun control is also voting, in effect, against the abrogation of Kelley. However, one can envision other situations in which a referendum would have important collateral consequences not stated in the ballot question itself. For example, suppose that a newly enacted State statute were a prerequisite to the receipt of millions of dollars in federal aid. A successful referendum on that statute would result in the loss of the money — a collateral consequence of major importance nowhere reflected in the wording of the referendum.

A referendum on part of Chapter 533 will inevitably be influenced by factors that go beyond the ballot question itself, one of which might be the collateral effect on the Kelley decision. In this instance as in others, the referendum process works well only if the debate about a question educates the voters fully and fairly. See Article 33, §23-4 of the Maryland Code.

V
Conclusion

In summary, it is our opinion that:

1. Although Chapter 533 of the Laws of Maryland 1988 comprises two strikingly different elements, the two are not severable. The manifest legislative intent was to fashion a compromise in which handgun control and the abrogation of Kelley v. R.G. Industries would stand or fall together.

2. Although the issue is not free from doubt, Article XVI, §1 of the Maryland Constitution should be read to permit a petition to refer only the handgun control provisions of Chapter 533, despite the inseverability of that provision from the act's other provisions.

3. Because no part of Chapter 533 is severable, if the handgun control provisions are suspended through the filing of a referendum petition, the entire act — including the abrogation of Kelley's strict liability holding — will be suspended. If the handgun control provisions are nullified at referendum, the entire act will be nullified.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note: The referendum petition discussed in this opinion was found to be sufficient, and so Chapter 533 was suspended. However, on November 8, 1988, the voters overwhelmingly approved Chapter 533. Hence, it became effective 30 days later.

1 Similar bills were introduced in 1986 and 1987. However, none of those bills were adopted by the General Assembly.

2 The compromise also changed the mechanism for the handgun roster. Instead of leaving the decision about the roster to the Superintendent of State Police alone, the compromise amended House Bill 1131 to create a Handgun Roster Board, comprising law enforcement officials, a gun control advocate, a gun user, a gun manufacturer, and three citizen members.

3 The Board is to consider the following characteristics in deciding whether to authorize the manufacture and sale of a handgun: "(i) Concealability; (ii) Ballistic accuracy; (iii) Weight; (iv) Quality of materials; (v) Quality of manufacture; (vi) Reliability as to safety; (vii) Caliber; (viii) Detectability by the standard security equipment commonly used at airports or courthouses and approved by the Federal Aviation Administration for use at airports in the United States; and (ix) Utility for legitimate sporting activities, self-protection, or law enforcement." Proposed Article 27, §36J(b)(2). A party aggrieved by the Board's final decision about a handgun's inclusion on the roster has a right to judicial review. §36J(f)(5).

4 The three percent figure at present is 33,044.

5 Article XVI, §4 provides, in pertinent part, that: "A petition may consist of several papers, but each paper shall contain the full text, or an accurate summary approved by the Attorney General of the Act or part of Act petitioned upon." These petitions purport to contain "the full text ... of the ... part of Act petitioned upon."

6 The Secretary of State accepted the petitions provisionally, pending the issuance of this opinion.

7 Two other substantive provisions of Chapter 533 were omitted from the petition: a prohibition on the manufacture or sale of handguns on which an identification mark or number has been altered, and a savings clause having to do with the manufacture and sale of rifles. See proposed Article 27, §36-I(c) and (f).

8 This principle is most commonly applied by the courts where an exception to a prohibition is found to be unconstitutional. If the prohibition and exception were enacted together, severing the exception would extend the prohibition to a class that the General Assembly manifestly did not intend to include. E.g., Turner, 299 Md. at 577 and 580. Under those circumstances, the courts conclude that the General Assembly would not have enacted one provision without the other.

9 In McCorkle, the Fourth Circuit held that a legislative veto provision essential to the passage of a "compromise bill" on salaries was not severable. Although later case law suggests that unconstitutional legislative veto provisions are generally severable, the court's realism in analyzing the role of the provision in the congressional compromise parallels that of the Court of Appeals.

10 In 22 Opinions of the Attorney General 240 (1937), this office considered the validity of a petition seeking to refer part of a law dealing with alcoholic beverages. The opinion concluded that the Referendum Amendment's provision for petitions on "part of a law" should be construed "to permit a referendum on part of a law, only in cases where the law as an entirety is capable of referendum." 22 Opinions of the Attorney General at 242. Since the entire law in question dealt with a subject excepted from referendum by Article XVI, §6, no part of it could be petitioned to a vote. This conclusion was upheld in Berlin v. Shockley, 174 Md. 442, 199 A. 500 (1938).

11 In 22 Opinions of the Attorney General 240, discussed in note 10 above, Attorney General O'Conor observed, rather cryptically, as follows: "Aside from the technical question of constitutional and statutory construction, it would seem that the reference of part of an Act should not be readily implied, for the reason that in the absence of a separability clause in the Act, the burden rests upon the party challenging the same to establish separability." 22 Opinions of the Attorney General at 242-43. Given that the Constitution expressly provides for reference of part of an act, we do not see how that right is "implied." Rather, the question is whether the constitutional language implies a limit on that right, when a bill is not severable. Since Chapter 533 does contain a severability clause, presumably the passing comment in the opinion about the petitioners' burden would not apply here in any event.

12 The items in question were found to be severable, so the problem was not squarely posed. See also Nowell v. Harrington, 122 Md. 487, 492-93, 89 A. 1098 (1914) (expressing no opinion on whether the Governor could approve a part and disapprove a part of an inseparable item). Cases from other states tend to view the problem not in terms of a limit on a governor's veto power but rather in terms of the legal consequences after a governor vetoes part of an inseparable unit. See, e.g., State v. Holder, 23 So. 643 (Miss. 1898). But see State ex rel. Wisconsin Telephone Co. v. Henry, 260 N.W. 486, 99 A.L.R. 1267, 1275 (Wis. 1935) ("It may well be that section 10, Art. 5, Wis. Const., was not intended to empower the governor in vetoing parts of an appropriation bill to dissever or dismember a single piece of legislation which is not severable or so as to leave provisions which are not a complete or fitting subject for a separate enactment by the Legislature.").

13 Significantly, Article XVI does not contain language, comparable to that in referendum provisions of other state constitutions adopted contemporaneously, creating a special rule of severability when part of a law is put to referendum. For example, Article II, §1(d) of the Washington Constitution provides that: "The filing of a referendum petition against one or more items, sections or parts of any act, law or bill shall not delay the remainder of the measure from becoming operative." See also Kentucky Constitution, §171; North Dakota Constitution, Article II, §25; Ohio Constitution, Article II, §1c.