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TO: Mayor Murphy and the City Council
CC: Mike Rock, City Manager
FROM: Tim Cox, City Attorney
DATE: May 6, 2008
SUBJECT: Ordinance No. O-2008-11 and "non-severability"
______________________________________________________________________
I have been asked to provide you all with background on the "non-severability" clause found in Ordinance No. O-2008-11, which the Council will consider on second reading on Monday, May 12, 2008.
It is not uncommon for ordinances to contain a "severability" clause,
which generally reads:
If any section, paragraph, clause or provision of this Ordinance shall for any
reason be held to be invalid or unenforceable, the invalidity or unenforceability
of such section, paragraph, clause or provision shall not affect any of the
remaining provisions of this Ordinance.
The purpose of a severability clause is to protect an ordinance from being invalidated
as a result of a court ruling that a single provision of the ordinance is deemed
unconstitutional or otherwise unenforceable. In the typical case, the severability
clause is inserted not because of any concern that a specific provision of the
ordinance is legally questionable, but instead to ensure that the Council will
not have to readopt an entire ordinance should one clause in the ordinance be
successfully challenged. Without such a clause, City ordinances, and particularly
complex and/or controversial ones, could be more vulnerable to legal attack.
Ordinance No. O-2008-11 contains a "non-severability" clause, which reads as follows:
This Ordinance is non-severable. If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, said invalidity or unenforceability shall render the entire Ordinance void and of no effect and any actions taken pursuant to this Ordinance shall be void and of no effect.
Like the more common "severability" clause, the "non-severability" clause was inserted in Ordinance No. O-2008-11 not because the City believes that any particular section of the Ordinance is likely to be challenged. On the contrary, City staff believes that such a challenge is unlikely and is confident that both the provision eliminating the sales tax on food for domestic home consumption and the provision rescinding the temporary waiver of the 1% sales tax increase at Colorado Mills and Wal-Mart at Creekside would in any event withstand any legal challenge.
Rather, the non-severability clause was inserted in Ordinance O-2008-11 because the substantive provisions of the Ordinance are interdependent. The ad hoc committee studying the proposed elimination of the sales tax on food for domestic home consumption recommended that the tax be eliminated only if an alternative source of revenue could be identified to offset the estimated $4.4 million annual loss of food tax revenue. Once it was determined that the City could make up some of the lost revenue by rescinding the temporary waiver of the 1% sales tax increase at Colorado Mills and Wal-Mart at Creekside, and do so without a TABOR election, City staff combined the two sales tax measures into one ordinance, and the non-severability clause was added to ensure that the two provisions would stand or fall as one.
Again, however, the City Attorney's Office is of the opinion that both the food tax repeal and the waiver of the temporary rescission are legally sound. In addition, we are aware of no specific threat to challenge either provision, and in fact the proponents of the initiative petition to repeal the food tax have told City officials that they would have no need to challenge any approval of the food tax repeal by the City Council or to proceed with the petition if the Ordinance is adopted. In summary, we believe the City's intent in inserting a non-severability clause in the Ordinance was merely to ensure that the revenue increase would not occur without the corresponding revenue reduction, and vice versa.
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