State Ex Rel. Morrison v. Sebelius

Johnson, J.,

concurring in part and dissenting in part: I agree that the judicial trigger provision of K.S.A. 21-4015(i) is invalid. However, I would find that the legislature’s intent with respect to the severability of that section to be plainly and explicitly stated in K.S.A. 21-4015(h), which provides:

“(h) If any provision of this section or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this section which can be given effect without the invalid provisions or application. To this end the provisions of this section are severable.”

I perceive that, after invalidating subsection (i), the remaining provisions of the Kansas Funeral Privacy Act contain all that is necessary to effect the intended purpose of the legislation, including the specific provision of section 6, which states: “This act shall take effect and be in force from and after its publication in the statute book.” L. 2007, ch. Ill, sec. 6. Given the stand-alone character of the remaining provisions of the Act, the expressed legislative intent is for the invalidated subsection (i) to be severed, rather than for the entire Act to be invalidated. I would take the legislature at its word and sever the judicial trigger provision of subsection (i).