(607 P.2d 981)
No. C-1591, No. C-1690Supreme Court of Colorado.
Decided December 3, 1979. Rehearing denied December 24, 1979.
Two cases consolidated concerning the interpretation and application of a Denver municipal ordinance, hereinafter referred to as the 911 Ordinance, which was designed to classify and license various forms of amusements. Certiorari to review decisions of the superior court in both cases which held that certain provisions of ordinance dealing with adult entertainment establishments were severable from other provisions which have been declared unconstitutional.
Rulings Reversed and Remanded
1. STATUTES — Severability — Determination — Valid Provisions — Complete — Balance. The proper inquiry for determining the severability of specific provisions in a statutory scheme focuses on whether the constitutionally valid provisions are complete in themselves and can, in turn, be given legal effect; thus, in pursuing this inquiry, courts must balance the obligation to construe statutes as constitutional and valid whenever possible against the duty to avoid judicially rewriting statutes in derogation of legislative intent.
2. Invalid Portions — Essential — Remaining Portions — Independent — Negative. In general, if the invalid portions of a statutory scheme are essential and pervasive parts of that scheme, the remaining portions inevitably fail to reflect legislative intent and therefore cannot be given independent legal effect by the judiciary.
3. MUNICIPAL CORPORATIONS — Ordinance — Valid Portions — Not Severable — Standards — Unconstitutional — Dismissal of Charges. Where constitutionally valid portions of the municipal ordinance were not severable, and where the discretionary standards were declared unconstitutional, held, under these circumstances, the entire ordinance must be struck down as unconstitutional; accordingly, the rulings of the superior court are reversed, and the causes are remanded with instructions to dismiss the charges.
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Certiorari to the Superior Court City and County of Denver, Honorable Charles E. Bennett, Judge.
Arthur M. Schwartz, P.C., Neil Ayervais, for petitioners.
Max P. Zall, City Attorney, Lee G. Rallis, Assistant, Andrew C. Snyder, Assistant, for respondent.
En Banc.
JUSTICE ROVIRA delivered the opinion of the Court.
We granted certiorari to review decisions of the Superior Court in criminal cases C-1591 and C-1690. These consolidated cases are concerned with the interpretation and application of a Denver municipal ordinance, hereinafter referred to as the 911 Ordinance, which was designed to classify and license various forms of amusements.
In case C-1591, the petitioners were arrested for operating an adult movie theater without a license in violation of section 911.3-1[1] of the Revised Municipal Code of the City and County of Denver. They instituted an action in Denver District Court challenging certain licensing standards in the 911 Ordinance. As a result of that action, District Court Judge Weinshienk declared subsections 911.7-2(1)(a),[2]
911.7-2(1)(a)(iii),[3] and 911.7-2(2)[4] to be unconstitutional for
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overbreadth, vagueness, and prior restraint, although the trial court attempted to save the ordinance by construing the word “may” in subsection 911.7-2[5] to read “shall.” Based on Judge Weinshienk’s rulings, the Denver County Court dismissed the criminal charges against petitioners.
In case C-1690, the petitioners, employees of Jolly Books, Inc., were arrested for operating an adult book store and arcade without a license — again, in violation of section 911.3-1. They, too, brought an action in Denver District Court challenging the licensing provisions set forth in sections 911.3-3,[6] 911.13-1,[7] and 911.14-1.[8] Pursuant to that action, Judge Goldberg of the Denver District Court declared those provisions to be unconstitutional for vagueness. Based on his ruling, the Denver County Court dismissed the charges against the petitioners.
The Denver Superior Court reversed both decisions of the county court and reinstated the charges against the defendants. The basis for its ruling was that section 911.3-1 of the 911 Ordinance is independent and severable from the unconstitutional provision. We granted certiorari in both cases in order to review this ruling.
The petitioners dispute two aspects of the superior court’s ruling: (1) whether the constitutionally valid provisions of the 911 Ordinance were properly considered severable, and (2) assuming the provisions are severable, whether the prosecution of petitioners can proceed under what is, effectively, a judicially reconstructed statute. Our resolution of the first issue is dispositive of both cases; we therefore need not address the second issue.
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[1,2] The proper inquiry for determining the severability of specific provisions in a statutory scheme focuses on whether the constitutionally valid provisions are complete in themselves and can, in turn, be given legal effect. Shroyer v. Sokol, 191 Colo. 32, 550 P.2d 309 (1976); Pike, et al. v. School District No. 11, 172 Colo. 413, 474 P.2d 162 (1970); section 2-4-204, C.R.S. 1973. In pursuing this inquiry, courts must balance the obligation to construe statutes as constitutional and valid whenever possible against the duty to avoid judicially rewriting statutes in derogation of legislative intent. See Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (1973). In general, if the invalid portions of a statutory scheme are essential and pervasive parts of that scheme, the remaining portions inevitably fail to reflect legislative intent and therefore cannot be given independent legal effect by the judiciary. See Four-County Metropolitan Improvement District v. Board of County Commissioners, 149 Colo. 284, 369 P.2d 67 (1962).
[3] Turning to the facts of these cases, it is evident from a reading of the 911 Ordinance that the issuance of amusement licenses was not intended to follow automatically upon the applicant’s compliance with the zoning, fire safety, sanitation, and building regulations embodied in the ordinance. On the contrary, the Manager of Safety and Excise was expected to give consideration to the “reasonable requirements of the neighborhood,” the “good character” of the applicant, and the potentially “immoral or dangerous” nature of the proposed form of entertainment before approving a license application. See sections 911.3-3, 911.7-2(1)(a), and 911.7-2(1)(a)(iii).
The great lengths to which the city council went to authorize this exercise of discretion compels us to conclude that these provisions were essential — and clearly pervasive — portions of the licensing scheme. To hold that the nondiscretionary standards — i.e., the zoning, fire safety, sanitation, and building requirements — represent the sole criteria by which amusement licenses are to be issued would be to judicially rewrite the 911 Ordinance in clear disregard of legislative intent. This we cannot do.
Accordingly, we hold that the constitutionally valid portions of the 911 Ordinance are not severable and, since the discretionary standards were declared unconstitutional,[9] The entire ordinance from section 911.3-1 on must be struck down as unconstitutional.
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The rulings of the superior court are therefore reversed, and the causes are remanded with instructions to dismiss the charges.