148; New York State Superfund Coalition v. New York State
Department of Envtl. Conservation, 75 N.Y.2d 88, 550 N.Y.S.2d
879, 881, 550 N.E.2d 155, 157 (1989). In sum, in a typical case
the court either invalidates only a peripheral provision and
preserves the core, or invalidates both because one cannot
logically be separated from the other.
Here, however, the Court is presented with what appears to be
a novel situation: the State Defendants would have the Court in
effect invalidate the dog, while preserving the tail. The lag
payroll law as enacted was intended to generate a savings of $7
million.*fn2 See Association of Surrogates, 940 F.2d at 769.
In fact, a total savings of $9.7 million was realized.
Rewritten to exclude application to represented employees, the
lag payroll law would produce savings of only $980,000, or
ninety percent less than as enacted; the unrepresented
employees constitute only seven percent of those affected.*fn3
Def. Crosson's Mem. in Supp. at 11.
Revision concededly is not impossible: while the statute
makes no differentiation between represented and unrepresented
employees, Def. Crosson's Mem. in Supp. at 10, its terms could
easily be amended to apply to unrepresented employees alone. As
Judge Cardozo stated, "Severance does not depend upon the
separation of the good from the bad by paragraphs or sentences
in the text of the enactment. The principle of division is not
a principle of form. It is a principle of function." Alpha
Portland Cement, 129 N.E. at 207 (citation omitted).
Furthermore, the intent of the legislature in enacting the lag
payroll law would in a general way be preserved by severance,
since the State would thereby save at least some revenues.
At the same time, it is significant that in the numerous
cases in which statutes were severed, the valid portion of the
statute preserved by the court comprised the core or essence of
the legislation. Indeed, in Alpha Portland Cement Judge Cardozo
distinguished the tax scheme before him, where the "erroneously
included" item could be "eliminated from the income with little
disarrangement of the average results," from a federal income
tax case in which "to eliminate the items unlawfully included
would mean the loss of `by far the largest part of the
anticipated revenue.'" Id. at 206-07 (quoting Pollock v.
Farmers' Loan & Trust Co., 158 U.S. 601, 636-37, 15 S.Ct. 912,
920, 39 L.Ed. 1108 (1895)).
The latter situation precisely describes that before this
Court. The invalid portion of the lag payroll law is clearly
not merely peripheral. While excision might not "pervert" the
intention of the legislature, this is not a case where "all the
world can see what sensible legislators in such a contingency
would wish that we should do." Id. at 208. Moreover, the other
factors that normally persuade a court to sever a statute are
absent here. The lag payroll law contains no severability
clause; indeed, its application to both represented and
unrepresented employees without differentiation indicates that
the issue of severability was not even contemplated. The New
York Legislature has enacted lag payroll statutes on two other
occasions, and neither of those statutes applied only to
unrepresented employees. Def. Crosson's Reply Mem. in Supp. at
7. Refusal to sever the statute will not have a "disastrous"
financial effect, since the Second Circuit ruling already
requires excision of at least 93% of the employees originally
covered. Finally, while the easing of New York's fiscal crisis
is clearly an important goal, there is nothing about this
particular means to that end that mandates its preservation.
In Alpha Portland Cement, Judge Cardozo advised that in
considering whether to
sever a statute "[t]he answer must be reached pragmatically, .
. . by considering how the statutory rule will function if the
knife is laid to the branch instead of at the roots." 129 N.E.
at 207. In this case, however, to sever New York's lag payroll
statute as proposed by the State Defendants would be to lay the
knife to the roots and to leave only a branch. This Court is
persuaded that the legislature would not have enacted the lag
payroll law had it foreseen such a consequence.
For the foregoing reasons, Defendant Crosson's motion is
granted, and this Court's Order and Judgment of August 29, 1991
is clarified to require implementation for unrepresented as
well as represented employees.
IT IS SO ORDERED.