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MARVIN MANDEL, Governor 3781
that the provisions are not to be severable or unless a
court, finding some provisions of the statute
unconstitutional or void, further concludes that "the
remaining valid provisions alone are incomplete and
incapable of being executed in accordance with the
legislative intent." As stated in Baltimore v. A.S.
Abell Co., 218 Md. 273 290 (1958):
"The true test of separability is the effectiveness
of an act to carry out, without its invalid portion,
the original legislative intent in enacting it; and
a saving clause will not be given effect where such
invalid provisions affect the dominant aim of the
whole statute." 4
The Court of Appeals gave effect to these general
principles in Blackwell v. State, supra, when it found
that the general penalty provisions mandating life
imprisonment for all first degree murder then found in
Art. 27, § 413(a) were severable from the mandatory death
penalty provisions of §§ 413(b) and (d). Applying the
above stated principles of severability, the Court of
Appeals of Maryland found that the unconstitutionality of
those provisions of §413 which mandated imposition of the
death penalty in certain circumstances did not affect the
legality of Blackwell's underlying first degree murder
convictions and thereupon imposed the only lawful
sentence under the statute, which was life imprisonment.
In essence, should a court conclude that any of the
provisions of Senate Bill 106 are unconstitutional or
otherwise invalid, those provisions could be severed and
the remaining portions of the Bill given effect only so
long as such remaining portions are effective to carry
out the original intent and dominant aim of the
Legislature. So long as the dominant aim of the whole
statute is not significantly undercut or frustrated by
the invalidation of a particular provision, then the
remaining portions may survive and be validly
implemented. Since we have expressed herein the opinion
that Senate Bill 106 is facially constitutional and since
we have not identified any particular feature of the Bill
which we believe is facially unconstitutional, or invalid
we do not undertake to apply these general principles of
severability to any particular provisions of the Bill.
However, since as is indicated in the discussion which
follows, we find in the critical sentencing procedure
portion of this legislation a significant number of
troublesome features and interpretive loose ends which
one would hope not to find in a bill of this importance,
we should add that if any significant portion of the
bifurcated sentencing proceeding provisions of the Bill
should be invalidated, the survival of the entire statute
might well be in jeopardy.
2. You have pointed out that Senate Bill 106
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