Statutes Severability – Lead Poisoning Prevention – "Qualified Offer" Provisions of Reduction of Lead Risk in Housing Act are Not Severable from the Immunity Provisions Invalidated in Jackson v. Dackman

16 [102 Op. Att’y
STATUTES
SEVERABILITY – LEAD POISONING PREVENTION – “QUALIFIED
OFFER” PROVISIONS OF REDUCTION OF LEAD RISK IN
HOUSING ACT ARE NOT SEVERABLE FROM THE IMMUNITY
PROVISIONS INVALIDATED IN JACKSON V. DACKMAN
December 4, 2017
Patricia McLaine, DrPH, MPH, RN
Chair, Maryland Lead Poisoning Prevention Commission
On behalf of the Maryland Lead Poisoning Prevention
Commission, you have inquired about the continuing validity of the
qualified offer and insurance provisions of the Reduction of Lead
Risk in Housing Act (the “Act”) after the Court of Appeals, in
Jackson v. Dackman Co., 422 Md. 357 (2011), ruled that the
immunity provisions of the Act were unconstitutional. As
originally enacted, the Act granted to owners of certain types of
rental properties immunity from claims for lead-related injuries so
long as the owner (1) complied with various substantive
requirements intended to reduce the risk of lead poisoning, and (2)
made a so-called “qualified offer” to the person at risk of injury.
Md. Code Ann., Envir. §§ 6-828, 6-835, 6-836, 6-836.1.1 This
qualified offer, if accepted, would cover up to $17,000 in moving
expenses and medical bills for the person at risk. §§ 6-839, 6-840.
The Act also required insurers to offer owners coverage for
qualified offers, but insurers could exclude coverage for other lead-
related costs and injuries. Md. Code Ann., Ins. § 19-704.
Dackman held that the $17,000 available to a lead-poisoned
child under the Act was a “totally inadequate” substitute for a
personal injury claim and thus the immunity provided by the Act
violated Article 19 of the Maryland Declaration of Rights, 422 Md.
at 381, which guarantees “[t]hat every man, for any injury done to
him in his person or property, ought to have remedy by the course
of the Law of the land.” At the same time, however, the Court
determined that the “immunity provisions” of the Act “are
severable from those remaining portions of the Act which can be
given effect.” Id. at 383. You ask whether an owner may still make
1
Unless otherwise indicated, all statutory citations are to the current
version of the Environment Article, Annotated Code of Maryland. When
we cite to the version in place at the time Dackman was decided, we will
provide a full citation to the older version.
Gen. 16] 17
a qualified offer under the Act and, if so, whether an insurance
company would still be required under § 19-704 of the Insurance
Article to offer coverage for any accepted qualified offer.
The first question is the critical one. The Court of Appeals
did not address the provisions of the Act that are codified in the
Insurance Article, so if a qualified offer may still be made and
accepted, an insurance company would still be required to offer
coverage to owners. It is less clear, however, that a qualified offer
may still be made in the first place. Ultimately, we conclude that
the qualified offer provisions are so intertwined with the immunity
provisions that the General Assembly would not have intended
them to operate apart from one another. In our opinion, the
qualified offer provisions did not survive the decision in Dackman.
I
Background
A. The Reduction of Lead Risk in Housing Act
The General Assembly enacted the Reduction of Lead Risk in
Housing Act in 1994 to “reduce the incidence of childhood lead
poisoning, while maintaining the stock of available affordable
rental housing.” § 6-802; see also 1994 Md. Laws, ch. 114. As the
Court of Appeals has recognized, the Act “was generally based” on
the input of the Lead Paint Poisoning Commission, which provided
recommendations to the General Assembly in December 1993 and
issued a final report in May 1994. Dackman, 422 Md. at 361.
The Lead Paint Poisoning Commission concluded in its report
that “[c]hildhood lead poisoning is the number one preventable
environmental disease affecting children in the United States” and
that greater efforts needed to be made to prevent lead poisoning,
rather than merely react to it after it had already occurred. Report
of the Lead Paint Poisoning Commission at 2-3 (May 5, 1994). The
Commission also stated that most insurers since the “mid- to late-
1980s have excluded coverage of lead hazards from policies”
issued to owners of rental properties and that, in many cases, this
“absence of insurance” had prevented children from having a
“viable source of recovery for their injuries.” Id. at 5. To address
that problem, the Commission proposed legislation that would
require property owners to take affirmative steps to prevent lead
poisoning, provide immunity to owners under certain
circumstances if they took those affirmative steps, and require
insurance companies to offer a limited amount of coverage to
18 [102 Op. Att’y
owners for liability arising out of lead-related injuries. Id. at 7,
App. B (proposed legislation).
The General Assembly largely adopted the Commission’s
recommendations. As enacted, the Act required the owners of
rental properties constructed before 1950—referred to as “affected
properties,” § 6-801(b)—to register with the Department of the
Environment and to comply with other substantive requirements. 2
Most relevant here, owners were required to provide tenants with
educational materials about lead poisoning and to meet “risk
reduction” standards “designed to reduce the risk of exposure to
lead.” 82 Opinions of the Attorney General 180, 181 (1997)
(summarizing the statutory scheme); see also Envir. §§ 6-811–6-
823 (2007 Repl. Vol.). The owner of an affected property was (and
still is) subject to administrative penalties for failure to comply
with the Act’s registration requirements, § 6-849, and subject to
civil penalties for failure to comply with the Act’s other substantive
requirements, §§ 6-850, 7-266.
More importantly for our purposes, the Act also “place[d]
significant limitations on the right of plaintiffs affected by exposure
to lead to file a civil suit for damages.” 82 Opinions of the Attorney
General at 181. A plaintiff could not sue an owner for damages
unless and until the owner received notice that the relevant “person
at risk”—i.e., a child or pregnant woman who lived or regularly
spent more than 24 hours per week at the property, § 6-801(p)—
was suffering from an elevated blood lead (“EBL”) level above a
threshold set by the statute. § 6-828. Once the owner received
notice of an EBL level above the threshold limits in § 6-828, the
owner (or the owner’s agent or insurer) then had 30 days to make
a “qualified offer” to the person at risk. § 6-831(c)(1).
A qualified offer had to “include payment for reasonable
expenses and costs” of up to $9,500 for relocation of the household
of the person at risk and up to $7,500 for medical treatment not
2
The legislation focused on units constructed prior to 1950 because
they are more likely to have lead paint than units constructed thereafter.
See Maryland Department of the Environment, 2011 Lead Summer
Study Report at 9 (Dec. 31, 2011) (stating that the incidence of lead paint
drops from 95 percent in pre-1950 units to 80 percent for units built
between 1950 and 1960, and that the incidence of lead paint “drops off
rapidly until 1978,” when the federal Consumer Product Safety
Commission banned the residential use of lead-based paint); 42 Fed.
Reg. 44199 (Sept. 1, 1977) (promulgating federal ban, effective 180 days
thereafter).
Gen. 16] 19
otherwise covered by insurance or a medical assistance program.
§§ 6-839, 6-840. With limited exceptions, the money would be
paid to the entity providing the medical or relocation services, not
directly to the person at risk. Dackman, 422 Md. at 366 (citing
§ 6-840(b)). The owner had to submit the qualified offer on a form
that was provided by the Department, see COMAR 26.16.03.03A,
and that summarized the tenant’s rights, see COMAR 26.16.03.04.
The person at risk—or, if the person at risk was a child, a
parent or guardian—then had to choose whether to accept or reject
the qualified offer. Each choice had ramifications for both the
owner and the person at risk. If the person at risk accepted the
offer, the owner’s insurer was required to cover the amount of the
offer, even if the insurer otherwise excluded coverage for lead-
related injuries. Ins. § 19-704 (2011 Repl. Vol.). The claimant thus
was guaranteed recovery of up to $17,000 for relocation and
medical expenses. At the same time, however, acceptance of the
offer “discharge[d] and release[d] all potential liability” of the
owner and insurance company for any injuries or loss “caused by
the ingestion of lead by the person at risk in the affected property.”
§ 6-835.
If the person at risk rejected the offer, the owner still had
immunity from liability, but only if the owner had complied with
the registration requirements in Part III of the Act and the notice
and risk reduction requirements in Part IV. § 6-836; see also
COMAR 26.16.03.04 (“If your landlord did everything the law
requires him/her to do, you will not be able to sue your landlord for
any damages that may have been caused by lead, even if you do not
accept this Qualified Offer.”). Claimants could file suit to challenge
the owner’s entitlement to this immunity, in which case the statute
provided for a bifurcated proceeding. The court would first
determine whether the owner had complied with the statute’s
substantive requirements and thus was entitled to immunity and, if
necessary, hold a jury trial to resolve that issue. § 6-836.1. If the
court determined during this first stage that an owner was not in
compliance with any of the Act’s substantive requirements, the
case would proceed to the merits of the plaintiff’s personal injury
claim. At that point, an owner who had not complied with the
notice and risk reduction requirements in Part IV of the Act was
“presumed to have failed to exercise reasonable care with respect
to lead hazards.” Envir. § 6-838 (2007 Repl. Vol.).
20 [102 Op. Att’y
B. Dackman and its Aftermath
In Dackman, the Court of Appeals considered the
constitutionality of “the immunity granted . . . by §§ 6-828, 6-835,
6-836, and 6-836.1 of the Act.” 422 Md. at 380. The Court
explained that, although the Legislature may abolish a common-
law tort remedy and substitute a statutory remedy, the new remedy
must be “reasonable.” Id. According to the Court, the Act’s
remedy was not reasonable for two reasons: the $17,000
“maximum amount of compensation under a qualified offer is
miniscule” and “drastically inadequate,” and the Act operated to
bar the claims of minor children before they reached the age of
majority.3 Id. at 382. The Court therefore held that the immunity
provisions of the Act violated Article 19 of the Maryland
Declaration of Rights. Id. at 383.
Although the Court struck down the Act’s immunity
provisions, it concluded that the provisions “are severable from
those remaining portions of the Act which can be given effect.” Id.
The Court reasoned that “numerous remaining portions of the [Act]
are capable of being executed in accordance with the legislative
intent,” id., which was to “‘reduce the incidence of childhood lead
poisoning, while maintaining the stock of available affordable
rental housing.’” Id. at 384 (quoting § 6-802). The Court did not,
however, specify which of the “remaining portions” of the Act
could be given effect.
In the years since Dackman was decided, the Legislature has
neither repealed the provisions governing qualified offers nor
expressly clarified whether an owner may still make a qualified
offer. Although the General Assembly considered legislation to
revive the immunity provisions by increasing the amount of a
qualified offer, those efforts failed.4 The Legislature instead
3
In addition, a person at risk with a blood lead level below the
threshold likely would have been left without any remedy because he or
she would not have been able to receive a qualified offer and thus would
never have met the necessary prerequisites for filing suit. See Dackman,
422 Md. at 369 n.8 (discussing issue, but declining to resolve it because
the provision was unconstitutional in any event); see also id. at 381
(“Where no qualified offer is made, the plaintiffs have no remedy under
the statute.”).
4
See House Bill 1477 (2012) (replacing the $17,000 cap on liability
with an agency-devised formula for determining liability); House Bill
754 (2013) (increasing to $25,000 the amount provided under a qualified
Gen. 16] 21
amended the Act to repeal the statutory presumption that an owner
who failed to comply with the notice and risk reduction
requirements of the Part IV of the Act was presumed to have failed
to exercise reasonable care. In its place, the amendment added new
language providing merely that evidence of an owner’s compliance
or non-compliance with the standards of care in the Act is
admissible on the issue of whether the owner exercised reasonable
care. 2012 Md. Laws, ch. 387 (amending § 6-838).
That same legislation changed the statutory scheme in other
ways as well. Most significantly, the Legislature expanded the
scope of the Act to include rental properties built before 1978, not
just those built before 1950. § 6-801(b)(1)(ii) (revising definition
of “affected property”). The Legislature did not, however, amend
the provisions in the Insurance Article requiring insurers to offer
coverage for qualified offers; the definition of “affected property”
for those provisions is still limited to “residential rental property
constructed before 1950.” Ins. § 19-701(b)(1) (emphasis added).
II
Analysis
You ask whether, after Dackman, an owner may still make a
qualified offer under § 6-831 of the Environment Article and, if so,
whether an insurance company would still be required under § 19-
704 of the Insurance Article to offer coverage for a qualified offer.
In essence, your question is whether the qualified offer provisions
of the Act are severable from the immunity provisions of the Act
struck down by the Court of Appeals in Dackman.
Dackman itself resolved at least part of the severability
question at issue here. After striking down the Act’s immunity
provisions, the Court declined to invalidate the Act as a whole,
concluding that the “dominant purpose of the Act can be given
effect without the invalid immunity provisions.” Dackman, 422
Md. at 384 (internal quotation marks omitted). Because the Court
specifically identified the immunity provisions as §§ 6-828, 6-835,
6-836, and 6-836.1, id. at 380, and expressly invalidated only those
provisions as unconstitutional, one could conclude that all other
offer for relocation and medical expenses, providing an amount up to
$15,000 for supplemental educational expenses, and providing
additional amounts to compensate for lost earnings and the cost of living
with the risk of lead paint hazard).
22 [102 Op. Att’y
provisions of the Act—including § 6-831, which authorizes
property owners to make qualified offers—remain valid.
However, other considerations suggest that the Court
intended to leave open the possibility that some provisions of the
Act might not be severable from the immunity provisions. The
Court noted that “numerous remaining portions of the [Act],”
rather than all of them, “are capable of being executed in
accordance with the legislative intent,” and it concluded that the
immunity provisions “are severable from those remaining portions
of the Act which can be given effect.” Id. at 383 (emphases added;
brackets omitted). If the Court had intended to decide definitively
that every provision of the Act was severable from the immunity
provisions, it could have done so in language far more straight-
forward than this. Instead, the language seems carefully crafted to
accommodate the possibility that—in an appropriate case—other
provisions of the Act might be deemed non-severable. After all,
the Court in Dackman had no occasion to address the continuing
validity of qualified offers because the claimant had not received
one. Id. at 381. Given the posture of the case, the Court’s failure
to address the continuing validity of qualified offers does not
validate them by negative implication.5 We thus must resolve the
issue left open in Dackman: whether the provisions of the Act
governing qualified offers are among “those remaining portions of
the Act which can be given effect.”
“[T]he question of severability is in every case a question of
legislative intent.” 73 Opinions of the Attorney General 78, 83
(1988). “The intent to be ascertained, however, is not actual
legislative intent, as the Legislature obviously intended to enact the
statute as written in its entirety.” Turner v. State, 299 Md. 565, 576
(1984) (emphasis added). Instead, we must determine “what would
have been the intent of the legislative body, if it had known that the
statute could be only partially effective.” Id.; see also 73 Opinions
5
We recognize that, in a later case, the Court of Appeals stated in a
footnote that its “holding in Jackson v. Dackman Co. only found the
immunity provisions of the Lead Act invalid” and that it had “severed
the remainder of the Lead Act that did not speak to potential immunity
from the invalid portions.” Housing Auth. of Baltimore City v. Woodland,
438 Md. 415, 439 n.13 (2014). Although this later description of
Dackman could be read to mean that all other provisions of the Act—
including the qualified offer provisions—are severable, the Court still
had no occasion to decide that issue in Woodland; it was merely
correcting the lower court’s suggestion that Dackman had invalidated the
entire Lead Act, which obviously it did not do. See id. at 439.
Gen. 16] 23
of the Attorney General at 83. In determining this hypothetical
intent, we must presume that the Legislature intends its enactments
to be severed “whenever possible” so as to “separate the valid from
the invalid provisions.” Davis v. State, 294 Md. 370, 383 (1982).
The General Assembly has codified this presumption, declaring
that, “[e]xcept as otherwise provided, the provisions of all statutes
enacted after July 1, 1973, are severable.” Md. Code Ann., Gen.
Prov. § 1-210(a). Accordingly, “[t]he finding by a court that part
of a statute is unconstitutional or void does not affect the validity
of the remaining portions of the statute, unless the Court finds that
the remaining valid portions alone are incomplete and incapable of
being executed in accordance with legislative intent.” Id. § 1-
210(b).
The “principal test” for making this determination “is whether
the dominant purpose of an enactment may largely be carried out
notwithstanding the enactment’s partial invalidity.” Dackman, 422
Md. at 384 (internal quotation marks and brackets omitted); see
also 73 Opinions of the Attorney General at 84 (“The true test of
severability is whether, without the operative provision, the statute
would still be effective to carry out the dominant legislative
intent.”). If so, the remaining provisions of the statute should
generally be given effect.
But the remaining provisions will not be severed where it
would create “a situation which could not have been intended by
the Legislature.” Maryland Theatrical Corp. v. Brennan, 180 Md.
377, 386 (1942). For instance, otherwise valid provisions will not
be severed where they are “inextricably mingled” with the invalid
ones, Police Comm’r of Baltimore City v. Siegel Enters., Inc., 223
Md. 110, 133 (1960), where “the two sets of provisions [are]
‘inseparably connected in substance,’” Sugarloaf Citizens Ass’n v.
Gudis, 319 Md. 558, 576 (1990) (quoting Baltimore v. O’Conor,
147 Md. 639, 654 (1925)), where “those parts which might be held
valid become so inoperative and inexplicable as to deprive the Act
of its purposes and force,” Brennan, 180 Md. at 387, or where the
valid portions “are impractical and useless without the invalid
portions,” Heubeck v. City of Baltimore, 205 Md. 203, 212 (1954).6
6
The severability inquiry is not a binary choice between severing
only the invalid provisions or invalidating the entire act. See Kenneth A.
Klukowski, Severability Doctrine: How Much of A Statute Should
Federal Courts Invalidate?, 16 Tex. Rev. L. & Pol. 1, 28 (2011). A
statute instead may be partially severable, meaning that a court may
24 [102 Op. Att’y
In our view, the qualified offer provisions are not severable
from the immunity provisions. The two sets of provisions are
“inseparably connected in substance,” Sugarloaf Citizens Ass’n,
319 Md. at 576 (quoting O’Conor, 147 Md. at 654); they are
structurally, textually, and functionally interdependent.
Structurally, all of the immunity provisions fall within Part V of
the statute, which governs “Qualified Offers,” and which “applies
to all potential bases of liability,” § 6-827. Qualified offers are thus
an integral part of the liability limitation that Dackman
invalidated.7 Textually, the qualified offer provisions refer to, and
depend on, the invalidated immunity provisions. For example,
§ 6-831 authorizes the issuance of qualified offers and requires the
owner to make the qualified offer “within 30 days after the offeror
receives notice [of an EBL level] under § 6-828 of this subtitle.”
§ 6-831(c)(1). Section 6-828—which Dackman invalidated—
establishes the elevated blood lead levels at which the owner must
be provided notice and the “opportunity to make a qualified offer
under § 6-831.” One cannot read and make sense of one without
the other.
The two provisions are also functionally interdependent.
Continuing the comparison from the preceding paragraph, the
Court’s invalidation of § 6-828 means that the statute is silent on
what blood lead levels require the notice that triggers the owner’s
ability to make a qualified offer and silent on when he must make
such an offer. More importantly, the provisions that set forth the
Act’s liability restrictions necessarily hinge on whether a qualified
offer has been made. See § 6-835 (acceptance of qualified offer
“releases all potential liability”), § 6-836 (owner “not liable” under
certain circumstances where tenant rejects qualified offer). In the
wake of the Court’s invalidation of § 6-835, the Act no longer
addresses whether accepting a qualified offer would waive a
strike down some provisions of the statute as non-severable, while “still
retaining much of the statute at issue.” Id. (citing Planned Parenthood v.
Danforth, 428 U.S. 52 (1976), and Railroad Ret. Bd. v. Alton R.R., 295
U.S. 330, 361 (1935)); see also Bell v. Board of Comm’rs of Prince
George’s County, 195 Md. 21, 32 (1950) (stating that a court must “try
to uphold all parts of an act which can be put in force” without the invalid
provisions (emphasis added)); Schneider v. Duer, 170 Md. 326, 336
(1936) (noting that “a statute may be valid in part and void in part, even
when the two parts are contained in the same section”).
7
An exception is § 6-838, which was amended after Dackman to
adjust the evidentiary effect of an owner’s compliance with the risk
reduction standards in Part IV of the Act. See 2012 Md. Laws, ch. 387.
Gen. 16] 25
tenant’s claims—as would the acceptance of a settlement offer
more generally—or whether the invalidity of the immunity
provisions means that the tenant could bring a tort suit even after
accepting the offer. In this way, each provision is incomplete
without the other.
We find the Court of Appeals’ decision in Heubeck instructive
here. Heubeck involved a local rent control ordinance that (1)
capped the amount of rent the landlord could charge, and (2)
prohibited the eviction of a tenant who was holding over beyond
the end of his lease, as long as the tenant continued to pay rent. The
Court invalidated the non-eviction provision on the grounds that it
was preempted by public general law. 205 Md. at 210-11. The
Court then held that the rent control provision of the ordinance was
not severable because the legislative body considered “the problem
of evictions to be an integral part of the problem of rent regulation,”
and thus both provisions—rent control and eviction protection—
were “equally essential to the declared purpose” of the law. Id. at
212 (quoting F. T. B Realty Corp. v. Goodman, 300 N.Y. 140, 148
(1949)). The Court concluded:
To establish a maximum rent for a dwelling
unit without being able to prevent an eviction
upon the expiration of the tenant’s lease
despite his willingness to continue to pay the
prescribed rent would be a futile means indeed
to achieve the ends for which the ordinance
was enacted. As the valid portions of the
ordinance are impractical and useless without
the invalid portions, the entire ordinance must
fall.
Id.
Applying the rationale of Heubeck here suggests that the
qualified offer provisions must suffer the same fate as the
invalidated immunity provisions. Just as the rent control and
eviction-protection provisions were “integral” and “equally
essential” to the purposes of the statute at issue in Heubeck, id., the
qualified offer, immunity, and insurance provisions are essential
parts of an integrated legislative plan to “reduce the incidence of
childhood lead poisoning” while “maintaining the stock of
available affordable rental housing.” § 6-802. The qualified offer
and insurance requirements advance the first of these competing
goals by guaranteeing tenants with elevated blood levels the means
to move into lead-safe housing and to cover at least some of their
26 [102 Op. Att’y
medical expenses. The immunity provisions give owners the
incentive to make a qualified offer—thus advancing the Act’s
public health goal—while ensuring that the prospect of tort liability
does not drive owners from the affordable housing market—the
Act’s second goal. At the same time, the immunity provisions also
give affected tenants the incentive to accept the qualified offer,
because if they reject it, they might find themselves without any
recovery. See § 6-836. In these interrelated and mutually supporting
ways, all three provisions worked together to advance the Act’s
policy goals.
And just as the rent control provisions of the ordinance at
issue in Heubeck could not be meaningfully enforced without the
invalid eviction provisions, the qualified offer provisions of the Act
become “impractical and useless” without the invalid immunity
provisions. Owners now have little incentive to make qualified
offers when doing so will not protect them from potentially
crippling tort liability. And without the compulsive effect of § 6-
836—which, under certain conditions, gives an owner immunity
even if the tenant rejects the qualified offer—tenants have little
incentive to accept a qualified offer even if one were offered. In
fact, it appears that no qualified offers were made and accepted in
the five years after Dackman was decided. See Minutes of Lead
Poisoning Prevention Commission Meeting, at 3 (May 6, 2016).8
If the marketplace tells us anything, it is that the qualified offer
provisions are now considered “impractical and useless” to serve
the purposes for which they were enacted. Heubeck, 205 Md. at
212
The legislative history surrounding the bills introduced in the
wake of Dackman—House Bills 472, 644, and H.B. 1477 in the
2012 session, and House Bill 754 and in the 2013 session—
suggests that the Legislature too was operating under the
assumption that the qualified offer provisions were no longer
8
Even before Dackman, few qualified offers were made or accepted.
From the implementation of the Act in 1996 until the date of the
Dackman decision in 2011, landlords made 144 qualified offers, of
which 61—about four per year—were accepted. See Maryland Ins.
Admin., Report of the Workgroup on Lead Liability Protection for
Owners of Pre-1978 Rental Property at 6 (Nov. 2012). By contrast,
tenants filed 656 lead poisoning suits in 2011 alone. Id. Given how few
qualified offers were made and accepted when the immunity provisions
were in effect, it is not surprising that owners and tenants would find
them of little use in the absence of those provisions.
Gen. 16] 27
effective after Dackman. The written testimony submitted by
representatives of owners and tenants alike described Dackman as
having declared the Act’s qualified offer provisions
unconstitutional.9 There is no indication in the relevant bill files
that anyone—legislator or commenter—understood that qualified
offers continued to function as a viable part of the legislative
scheme after Dackman.
The two bills that were enacted by the General Assembly in
the wake of Dackman—H.B. 472 and H.B. 644—similarly reflect
the understanding that the Act’s qualified offer provisions did not
survive Dackman. As proposed, House Bill 472 would have
created a Lead Poisoning Compensation Fund from which the
owners of affected properties could draw up to $200,000 to cover
9
See, e.g., Hearing on H.B. 472 Before the House Environmental
Matters Committee, 2012 Leg., Reg. Sess. (Testimony of the Property
Owners Assn. of Maryland, Inc., stating that Dackman “ruled that the
Qualified Offer mechanism in its structure and operation violated Article
19 of Maryland’s Declaration of Rights and struck down Part V of
Maryland’s lead law in its entirety” (March 7, 2012)); id. (Testimony of
Greater Baltimore Board of Realtors, stating that Dackman “held that the
qualified offer provision of Maryland’s lead paint poisoning prevention
law was unconstitutional”); Hearing on H.B. 1477 Before the House
Environmental Matters Committee, 2012 Leg., Reg. Sess. (Testimony of
Maryland Multi-Housing Assn., Inc., urging the adoption of
amendments that would “reinstate the qualified offer provision”); id.
(Testimony of Insurance Inc., stating that “the Qualified Lead Offer Law
. . . was rendered moot by the Court of Appeals”); Hearing on H.B. 754
Before the House Environmental Matters Committee, 2013 Leg., Reg.
Sess. (Feb. 22, 2013) (Testimony of Public Justice Center, stating that
Dackman “found that the ‘Qualified Offer’ provision of the [Act]
violated Article 19,” and that the proposed bill “does not sufficiently fix
the unconstitutionality of the ‘Qualified Offer’”); id. (Testimony of Saul
E. Kerpelman & Assocs., stating that the firm represented Ms. Jackson
in the Dackman litigation and that the Court “overturn[ed] the qualified
offer system while leaving the safety provisions of the Act in effect”).
Documents prepared by the Department of Legislative Services focused
more on the invalidity of the immunity provisions, but still tied them to
the qualified offer provisions. See Fiscal and Policy Note on H.B. 472
(stating that the Act “provides liability protection, through a qualified
offer,” but that the Act’s “liability protection provisions . . . have been
rendered invalid”); Floor Report for H.B. 1477 (stating that Dackman
“held the limited liability provisions under [the Act] to be invalid under
Article 19 because a qualified offer does not provide a reasonable
remedy”).
28 [102 Op. Att’y
lead paint-related liabilities, but was amended to refer the issue of
liability protection to a newly-established workgroup. See generally
2012 Md. Laws, ch. 373. Qualified offers were not included in either
version of the bill, and language directing the workgroup to
consider the “feasibility of a modified qualified offer framework”
was deleted from the final version of the bill. Id. at p.16.10 The bill
contains no indication that the General Assembly understood that
qualified offers remained a viable source of compensation after
Dackman. Instead, it was designed to create an entirely new means
of protecting owners from the economic impact of tort liability.
House Bill 644, for its part, expanded the Act’s definition of
“affected property” to include properties constructed between 1950
and 1978, but left unchanged the definition of “affected property”
in the Insurance Article, which remains to this day “residential
rental property constructed before 1950.” 2012 Md. Laws, ch. 387;
Ins. § 19-701(b)(1). As a result, if qualified offers could still be
made after Dackman, the Act would require an insurer to cover
them for properties built before 1950, but not for properties built
between 1950 and 1978—a result that would effectively place
newer, less-contaminated properties in a worse position than older
properties. We see no evidence that the General Assembly made
such a policy choice.
Instead, if the General Assembly had thought that the
qualified offer provisions were still effective, it presumably would
have expanded the obligation of insurers to offer coverage for
qualified offers to all properties built before 1978. After all, the
statute, as enacted, provided owners with two incentives to make a
qualified offer: (1) immunity from liability; and (2) guaranteed
insurance coverage. Given that Dackman invalidated the Act’s
immunity provisions, it seems unlikely that the General Assembly,
if it believed qualified offers remained viable, would have failed to
include the only other statutory incentive to make one. The
Legislature’s failure to do so makes more sense if the qualified
offer provisions did not survive Dackman.
10
The legislatively-created workgroup ultimately concluded that a
compensation fund was not financially viable. See Maryland Ins.
Admin., Report of the Workgroup on Lead Liability Protection for
Owners of Pre-1978 Rental Property.
Gen. 16] 29
We recognize that there is at least a theoretical possibility that
a qualified offer might still be made and accepted.11 An owner
could conceivably choose to make such an offer, either out of a
genuine desire to re-locate and treat an at-risk child or out of self-
interest, with the expectation that removing and treating the child
would improve the child’s health and thus marginally reduce the
owner’s ultimate liability. It seems unlikely, however, that such a
marginal reduction would meaningfully help to “maintain[] the
stock of available affordable rental housing”—and thus satisfy one
part of the law’s dual purpose—if it does not simultaneously
immunize the owner from liability.
Heubeck is instructive here as well. In that case, the Court
concluded that the rent control provisions of the ordinance were not
severable from the provisions protecting tenants against eviction
even though holding down rents might benefit tenants during their
lease terms and thus fulfill at least part of the statute’s purpose. The
salient inquiry thus was not whether rent control might advance a
portion of the statutory purpose, but whether the Legislature had
enacted rent control as an “integral part” of a single, unitary policy
choice. 205 Md. at 212. Because the Court found that the General
Assembly had made such a unitary choice, “‘the one set of
restrictions cannot be separated from the other except by a
remodeling of the law on a scale which, as we believe, would be
beyond the judicial power.’” Id. (quoting Goodman, 300 N.Y. at
148 (invalidating both the rent control and eviction-protection
provisions of a New York City ordinance when they were “equally
essential to the declared purpose” of the law)).12
11
There is some indication that the Court does not consider the
theoretical usefulness of a provision in deciding whether to sever it from
the invalid provisions of a statute. For example, in Howard County
Metropolitan Commission v. Westphal, the Court found it “[o]bvious[]”
that a provision which allowed the Board of County Commissioners to
break a tie vote of a local commission was not severable from a provision
increasing the size of that commission from three to four members, 232
Md. 334, 342 (1963), even though it was at least theoretically possible
that a three-member commission might end up deadlocked if, for
example, one member abstained.
12
In addition to Goodman, the Court in Heubeck also found
noteworthy that the General Assembly had authorized the enactment of
local ordinances regulating “the conditions under which evictions from
housing accommodations may be made” to the same extent as its power
to authorize the State “regulation and control of rents of housing
30 [102 Op. Att’y
We also recognize that a qualified offer, if accepted, would
tend to “reduce the incidence of childhood lead poisoning”—and
thus advance the second part of the statute’s dual purpose, § 6-
802—by relocating at-risk children and covering a portion of their
medical expenses. That benefit, however, would come at the
significant risk that an unsophisticated tenant would believe he had
little choice but to accept the offer or lose the ability to recover
anything. After all, the qualified offer is supposed to come soon
after the owner receives notice, and the tenant has only 30 days in
which to decide whether to accept it. §§ 6-831, 6-834(b), (c). With
limited time and resources to consult counsel, there is a real
possibility that a tenant might accept a qualified offer without
understanding the consequences of doing so, especially when the
invalid immunity provisions are still codified in statute and
regulation.13 In our view, the risk of confusion about the effect of
a qualified offer on the owner’s liability outweighs any theoretical
possibility that an owner might make (and a tenant might accept) a
qualified offer.
In our view, the General Assembly intended that the
immunity, qualified offer, and insurance provisions would all
function interdependently to further the statute’s dual purpose of
addressing childhood lead-poisoning without driving landlords
from the market for low-income housing. They are of a piece, part
of a single legislative policy choice. See Outmezguine v. State, 335
Md. 20, 41 (1994) (“The plain language cannot be viewed in
isolation; rather, the entire statutory scheme must be analyzed as a
whole.”). Allowing the qualified offer and insurance parts of that
policy choice to remain in place without the immunity provisions
accommodations.” 205 Md. at 212 (citing Md. Ann. Code Ann., art.
44C, § 2(c) (1951).
13
The Court of Appeals did not have occasion to address whether a
tenant’s voluntary acceptance of a “qualified” offer outside of the Act’s
framework would resolve the owner’s common-law liability, or whether
a settlement based on a “totally inadequate and unreasonable” offer,
Dackman, 422 Md. at 381, would be void as against public policy. See
Maryland-Nat'l Capital Park & Planning Comm’n v. Washington Nat.
Arena, 282 Md. 588, 606 (1978) (stating that courts will void an
agreement as against public policy “only in those cases where the
challenged agreement is patently offensive to the public good, that is,
where ‘the common sense of the entire community would . . . pronounce
it’ invalid”) (quoting Estate of Woods, Week & Co., 52 Md. 520, 536
(1879)).
Gen. 16] 31
would constitute a “remodeling of the law on a scale which,” we
think, “would be beyond the judicial power,” Heubeck, 205 Md. at
212 (quoting Goodman, 300 N.Y. at 148), and well beyond our
interpretive role.
We thus conclude that the qualified offer provisions are not
severable from the immunity provisions and are no longer
effective.14 In doing so, we reiterate that there is a presumption in
favor of severability and that, in most cases, all of the provisions of
a particular statute will be severable from the invalid portions. See,
e.g., Davis, 294 Md. at 383. But severability is ultimately a
question of legislative intent, 73 Opinions of the Attorney General
at 83, and under the circumstances here, we believe that the
Legislature would not have intended the qualified offer and
insurance provisions to remain in effect without the related
immunity provisions. In light of our conclusion—and to prevent
confusion among tenants, landlords, and insurers—we recommend
that the Department of the Environment rescind its regulations
governing qualified offers and that the General Assembly enact
clarifying legislation repealing or revising the qualified offer
provisions.
III
Conclusion
In our opinion, the qualified offer and insurance provisions of
the Reduction of Lead Risk in Housing Act are not severable from
the immunity provisions invalidated by the Court of Appeals in
Dackman. A qualified offer thus may no longer be made under
§ 6-831 of the Act, and insurers no longer need to offer coverage
14
This does not mean that all of the provisions in Part V of the Act
are necessarily invalid. For instance, § 6-838 merely provides that
whether a property owner was or was not in compliance with the risk
reduction requirements in Part IV “is admissible as evidence” that the
owner either exercised reasonable care or failed to do so. This provision
is not inextricably intertwined with the invalid immunity provisions and
would be severable. We also have no doubt of the continuing validity of
the registration requirements in Part III of the Act and the notice and risk
reduction requirements in Part IV. Those substantive requirements
remain both practical and useful because the Department has the power
to enforce them: As noted above, if the owner of an “affected property”
fails to comply with these provisions, the owner is subject to
administrative or civil penalties. See §§ 6-849, 6-850, 7-266.
32 [102 Op. Att’y
to property owners for qualified offers under § 19-704 of the
Insurance Article.
Brian E. Frosh
Attorney General of Maryland
Patrick B. Hughes
Assistant Attorney General
Adam D. Snyder
Chief Counsel, Opinions & Advice