October 1, 1990
Subject:
Effective Date of Legislation; Ex Post Facto Laws
Requested By:
Senator Connie Wilson
N.C. General Assembly
Question:
May a bill which creates a new crime, but which specifies an effective date which is prior to the
date it was enacted, be enforced against persons who commit the crime after the date of enactment?
Conclusion:
Yes.
The House Substitute for S.B. 817 "A Bill To Be Entitled An Act To Provide That Possession Of Materials Containing A Visual Representation Of A Minor Engaged In Sexual Activities A Felony And To Expand The Definition Of Sexual Activity" was introduced during the 1989 Session of the General Assembly. Section 3 of that bill provided that the Act would become effective October 1, 1989. The bill did not pass during the 1989 Session but was subsequently considered and passed during the 1990 Session. The effective date of the Act, however, was not changed. Consequently, the bill was passed on July 27, 1990, with an October 1, 1989 effective date.
Article 1, Sec. 10, cl. 1 of the United States Constitution and Article I, Sec. 16 of the Constitution of North Carolina prohibit the General Assembly from enacting ex post facto laws. Consequently, that portion of the bill which provides that it is effective as of October 1, 1989, is unconstitutional and cannot be enforced. That defect, however, does not render the entire statute unconstitutional. A statute may be valid in part and invalid in part. If the parts are independent, or separable, the valid part is enforceable, provided it is complete in itself and capable of enforcement. State v. Smith, 265 N.C. 173, 179, 143 S.E.2d 293 (1965). In this case, the section of the bill which provides for the effective date is not necessary to the enforcement of the remainder of the bill. A bill which has no effective date is deemed effective from the first moment of the day of its enactment. State v. Miller, 276 N.C. 681, 689, 174 S.E.2d 481, 486 (1970). Therefore, the effect of passing the Act with an effective date prior to the date of passage is to make the Act effective the day it was passed.
LACY H. THORNBURG Attorney General
Thomas J. Ziko Special Deputy Attorney General