Maryland Attorney General Opinion 102OAG016

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originally enacted, the Act granted to owners of certain types of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 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