CITIZEN POTAWATOMI NATION, Plaintiff-Appellee, v. State of OKLAHOMA, Defendant-Appellant.
No. 16-6224
United States Court of Appeals, Tenth Circuit.
FILED February 6, 2018
Gregory M. Quinlan, Citizen Potawatomi Nation, Shawnee, Oklahoma, for Plaintiff-Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
Oklahoma and the Citizen Potawatomi Nation (the “Nation“) entered into a Tribal-State gaming compact (the “Compact“). See
This court must resolve how to treat the Compact‘s de novo review provision given the Supreme Court‘s decision in Hall Street Associates. The Nation asserts the appropriate course is to excise from the Compact the de novo review provision, leaving intact the parties’ binding obligation to engage in arbitration, subject only to limited judicial review under
The language of the Compact demonstrates that the de novo review provision is a material aspect of the parties’ agreement to arbitrate disputes arising thereunder. Because Hall Street Associates clearly indicates the Compact‘s de novo review provision is legally invalid, and because the obligation to arbitrate is contingent on the availability of de novo review, we conclude the obligation to arbitrate set out in Compact Part 12 is unenforceable. Thus, exercising jurisdiction pursuant to
II. BACKGROUND
A. The Compact
The Nation‘s Chairman signed the Compact on November 30, 2004. See
The Compact opens with a series of recitals, specifically noting the sovereign nature of the parties, the need for respectful government-to-government relations, and the “long recognized ... right” of the Nation to govern tribal lands. It then sets forth a comprehensive structure regarding Class III gaming on the Nation‘s lands and describes the parties’ rights and responsibilities with regard to that gaming. The Compact applies to “[f]acilit[ies],” which are defined as “any building of the tribe in which the covered games authorized by this Compact are conducted.” The Nation has two such facilities, the FireLake Grand Casino and the FireLake Entertainment Center. Particularly important for understanding the underlying arbitration proceedings that lead to this appeal, Part 5(I) of the Compact provides that the “sale and service of alcoholic beverages in a facility shall be in compliance with state, federal, [and] tribal law in regard to the licensing and sale of such beverages.” The Compact contains the following dispute resolution procedure:
In the event that either party to this Compact believes that the other party has failed to comply with any requirement of this Compact, or in the event of any dispute hereunder, including, but not limited to, a dispute over the proper interpretation of the terms and conditions of this Compact, the following procedures may be invoked:
...;
2. Subject to the limitation set forth in paragraph 3 of this Part, either party may refer a dispute arising under this Compact to arbitration under the rules of the American Arbitration Association (AAA), subject to enforcement or pursuant to review as provided by paragraph 3 of this Part by a federal district court. The remedies available through arbitration are limited to enforcement of the provisions of this Compact. The parties consent to the jurisdiction of such arbitration forum and court for such limited purposes and no other, and each waives immunity with respect thereto....
...; and
3. Notwithstanding any provision of law, either party to the Compact may bring an action against the other in a federal district court for the de novo review of any arbitration award under paragraph 2 of this Part. The decision of the court shall be subject to appeal. Each of the parties hereto waives immunity and consents to suit therein for such limited purposes, and agrees not to raise the Eleventh Amendment to the United States Constitution or comparable defense to the validity of such waiver.
See
B. The Underlying Dispute and Arbitration Proceedings
The dispute underlying the arbitration award and this appeal began with administrative proceedings before Oklahoma‘s alcohol (the Alcoholic Beverage Laws Enforcement Commission (“ABLE“)) and sales tax (the Oklahoma Tax Commission (“OTC“)) regulators. ABLE began proceedings against the Nation on the ground the Grand Casino was selling alcoholic beverages on Sundays, in violation of
While ABLE proceedings were ongoing, the OTC sent a request to the Nation as the holder of Oklahoma licenses and permits. According to the OTC:
4. As the holder of Sales Tax Permits, [the Nation] is required to report and remit sales tax due on transactions subject to Oklahoma Sales Tax.... [The Nation] has filed Oklahoma Sales Tax Returns on a semi-annual basis, commencing January 18, 2011....
5. ... [E]ach return filed by [the Nation] reported total sales and claimed exemptions in the exact amount of total sales, reporting a “zero” sales tax liability.
6. Pursuant to [OTC regulations], all gross receipts are presumed subject to tax, until shown to be tax exempt. The burden of proving that a sale is an exempt sale is on the vendor.
7. [The Nation‘s] returns ..., while claiming exemptions in the exact total amount of reported sales, fail to identify, much less establish that all sales were exempt.
In Oklahoma, businesses selling alcoholic beverages by the drink must obtain both an appropriate liquor license from ABLE and a matching tax permit from the OTC.
In the ABLE proceedings, the Nation claimed it did not have to submit to the prohibition on Sunday sales because that prohibition flowed from a county rule, not state law. It also asserted arbitration pursuant to Compact Part 12 was the only proper forum for resolving licensing disputes. An administrative law judge recommended that ABLE reject the Nation‘s first argument because (1) the county option as to sales of liquor by the drink flowed directly from state law and the Oklahoma Constitution and (2) the Nation had applied for and received state-granted liquor licenses, and federal law establishes that states have jurisdiction over liquor sales in “Indian Country.”3 The administrative law judge also reasoned that the overall structure of the Compact demonstrated the parties did not agree to resolve licensing disputes via the mechanism set out in Compact Part 12.
The administrative law judge issued his decision in the middle of the Nation‘s briefing schedule at the OTC. The Nation then invoked the Compact‘s arbitration provision and made Compact Part 5(I) central to its arbitration theory.4 According to
the Nation, disputes involving alcohol sales and licensing that might impact its gaming businesses were subject to arbitration under the Compact. In response, Oklahoma disputed the Nation‘s assertion arbitration was the proper forum for determining disputes that arise because of the Nation‘s failure to comply with laws and regulations governing sales tax and liquor licenses. Ultimately, for that very reason, Oklahoma filed a motion to dismiss the Nation‘s demand for arbitration, arguing regulatory disputes between the parties must be resolved through administrative proceedings, not arbitration. The arbitrator refused to dismiss the Nation‘s arbitration demand, reasoning that the Nation‘s theory (i.e., that Part 12 of the Compact was the exclusive means of enforcing the Nation‘s obligations under Part 5(I)) was substantively arbitrable.567
The arbitrator conducted a hearing. The Nation‘s Vice-Chairman, Linda Capps, and Tribal Counsel, Gregory Quinlan, testified as to the history of the interaction between the OTC and the Nation. As to the parties’ intended meaning of the Compact, the Nation presented the testimony of Oklahoma‘s ex-Governor, Brad Henry, and the Nation‘s Chairman, John A. Barrett. Governor Henry testified he directed and oversaw the model gaming compact negotiations. He testified the Compact provided for arbitration: (1) to resolve disputes more quickly and with less expense; and (2) to maintain each party‘s sovereignty by preventing Oklahoma from attempting to pull Native American tribes into state court to resolve claims. Governor Henry testified the Compact was authored by the state and offered to the Nation as a “take it or leave it” proposition. He further testified the Compact was not intended to subject the Nation to the taxation urged by Oklahoma.8
As to economic aspects of a federal preemption analysis,9 the Nation presented the testimony of, inter alia, Dr. Joseph P. Kalt, Professor Emeritus at the John F. Kennedy School of Government at Harvard University. Dr. Kalt testified there is an explicit federal policy regarding Native American self-determination and that:
[T]he federal government has been on a quite consistent path in which it is seeking to fulfill its trust responsibilities to tribes by letting the tribes hold the reins of self-government in order to hopefully make better decisions and begin to move tribes, both culturally and economically, politically forward under their own decision-making as tribal nations under self-rules of self-governance.
As to the Nation‘s provision of governmental functions and services, Dr. Kalt testified that: “[The Nation] is extremely well-known, actually, for its going well beyond its provision of services and performance of governmental functions than what would have been allowed by just the level of federal funding.” Dr. Kalt testified that given the Nation‘s millions of dollars of payments in Compact exclusivity fees and mixed beverage taxes, the incremental burdens on Oklahoma caused by the Nation‘s economy were not uncompensated, stating:
[T]he State of Oklahoma does not have any uncompensated burden. In fact, it‘s benefitting from a wealthy neighbor, or getting wealthier neighbor, that is producing its own GDP now, the [Nation], that benefits the State of Oklahoma. And there‘s no evidence that I can find that indicates that the State is suffering some uncompensated burden as a result of the Tribe‘s success in developing its own economy....
Two hundred and fifty million dollars spending by the [Nation] will generate five hundred million dollars, a little more
than five hundred million dollars, of economic activity overall in the region. Well, that level of economic activity will far outweigh any uncompensated burden that we could imagine. It‘s implausible to imagine that there‘s, you know, a quarter of a billion or half a billion dollars’ worth of uncompensated burden.
Oklahoma‘s only witness was former gubernatorial General Counsel, Steve Mullins. He maintained Oklahoma could attach any condition whatsoever, including taxation of activities unrelated to the sale of alcoholic beverages, to the Nation‘s alcoholic beverage sales license. Mullins testified he did not believe Oklahoma was seeking to compel the Nation to pay taxes, but that it sought to compel the Nation to file tax reports as a condition of maintaining alcoholic beverage permits at the facilities covered by the Compact. Oklahoma offered no testimony or other evidence material to a preemption analysis derived from White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980), or to the parties’ intended meaning of the Compact terms at issue.
The arbitrator issued an award in favor of the Nation. The award began by reiterating that the dispute between Oklahoma and the Nation was arbitrable. The arbitration award went on to declare that, under the test set out in Bracker, federal law preempts Oklahoma‘s ability to levy a tax on sales made within tribal jurisdiction by the nation to individuals that are not members of the Nation.10 Finally, the award enjoined Oklahoma from (1) taking any action to divest Compact facilities of the right to sell and serve alcoholic beverages or (2) “threaten[ing] other enforcement actions” against the Nation on the ground the Nation does not comply with Oklahoma‘s sales tax laws.
C. Confirmation Proceedings in the Federal District Court
The Nation moved to enforce the arbitration award by filing an action in the United States District Court for the Western District of Oklahoma.
After the parties engaged in further briefing, the district court entered an order enforcing the arbitration award. The district court began its analysis by recognizing that review of arbitration awards is among the narrowest known to the law. Cf. Litvak Packing Co. v. United Food & Commercial Workers, Local Union No. 7, 886 F.2d 275, 276 (10th Cir. 1989). With that standard in mind, the district court concluded the arbitrator‘s determination—that Oklahoma could not force the Nation to collect, record, or remit sales taxes for transactions on tribal lands involving individuals who are not members of the Nation—at least arguably drew its essence from the Compact. The district court also rejected Oklahoma‘s assertion the arbitrator recognized a right to serve alcoholic beverages that is not conferred by the Compact. According to the district court, “it is clear that the arbitrator was not suggesting or implying that some unfettered right exists to sell alcohol. Rather, it is clear from that surrounding language in the portions of the award where the term ‘right’ is used, that the arbitrator‘s intent was simply a manner of expressing the [Nation‘s] entitlement to sell alcohol without improper enforcement actions against it by [Oklahoma].” As to Oklahoma‘s asserted entitlement to de novo review, the district court concluded as follows:
[Oklahoma] requests that the Court conduct de novo review of the award, relying upon Part 12(3) of the Compact. As [the Nation] notes, [Oklahoma‘s] argument in this regard is foreclosed by the Supreme Court‘s ruling in Hall Street Assocs. ... There, the Supreme Court noted that the parties may not expand the grounds of review of an award beyond those set forth by the ... [FAA].... The Supreme Court made clear that the only grounds for vacating or modifying an arbitration award were those set forth in
§§ 10 or11 of the FAA. As [the Nation] notes, to engage in de novo review as requested by [Oklahoma] would improperly broaden the permissible grounds for setting aside the award. Thus, [Oklahoma‘s] argument is foreclosed by Supreme Court precedent.
The district court‘s decision does not contain a discussion of Oklahoma‘s properly raised assertion that the arbitration provision of Compact Part 12 was invalid if the de novo review provision was rendered unenforceable by Hall Street Associates.
III. ANALYSIS
On appeal, Oklahoma challenges, on two independent bases, the order of the district court confirming the arbitration award. Oklahoma asserts the district court erred in confirming the award because the award did not finally resolve all submitted issues,
Prudential concerns counsel in favor of resolving Oklahoma‘s appeal by reference to the validity of the Compact‘s requirement to engage in binding arbitration. As set out below, the decision in Hall Street Associates leaves no doubt that an attempt to alter the review standards set out in the FAA is legally invalid. Furthermore, the text of the Compact demonstrates the materiality of Part 12(3) to the parties’ agreement to engage in binding arbitration, leaving resolution of the appeal straight forward and providing Oklahoma with all the relief sought. Addressing this issue also has the salutary effect of resolving legal uncertainty. Oklahoma has entered into gaming compacts with many tribes, https://www.bia.gov/as-ia/oig/gaming-compacts (last visited Jan. 9, 2018). Because those compacts are all derived from Oklahoma‘s “model tribal gaming compact,”
On the other hand, beginning the analysis with an FAA
For all of the reasons set out above, the prudent course is for this court to resolve this appeal by reference to Oklahoma‘s argument that Compact Part 12(3)‘s de novo review provision is a material aspect of Part 12‘s requirement that the parties engage in binding arbitration and, assuming the legal invalidity of that provision, the arbitration provision must be severed from the Compact.
A. Compact Part 12(3)‘s De Novo Review Provision is Legally Invalid
This court can quickly dispose of Oklahoma‘s argument that even given the Supreme Court‘s decision in Hall Street Associates, the de novo review provision in Compact Part 12(3) is still valid and enforceable. Oklahoma concedes Hall Street Associates held that parties to an arbitration agreement cannot contract for any review other than the narrow review set out in
Oklahoma‘s arguments in support of the application of de novo review are unconvincing. It does not provide a single citation to authority in support of its contention that the policies underlying IGRA are more important than the policies underlying the FAA. Nor has this court found any such authorities. Furthermore, although it is true that IGRA provides a federal forum to litigate and vindicate interests related to gaming and gaming compacts,
Because Hall Street Associates makes clear the de novo review provision set out in Compact Part 12(3) is legally invalid, this court must turn to the question whether that provision is a material aspect of the parties’ agreement to engage in binding arbitration.
B. Materiality of Compact Part 12(3) to the Parties’ Agreement to Arbitrate
1. Hall Street Associates
Before turning to the language of the Compact and, at least potentially, the record evidence regarding the intent of the parties, it is necessary to resolve a predicate assertion on the part of the Nation. The Nation‘s brief on appeal could be read to suggest the decision in Hall Street Associates forecloses the relief sought by Oklahoma. See The Nation‘s Br. at 23 (“The Hall Street Court did not find that the infirm standard of review provision worked to invalidate the entire arbitration clause at issue in that matter. The District Court correctly found that the invalidity of the non-FAA standard of review provision likewise does not work to invalidate any other portion of the Compact.” (footnote omitted)). In so arguing, the Nation fails to recognize that the Court in Hall Street Associates made clear it was not passing on the question whether severability of the obligation to engage in binding arbitration was an appropriate response to the invalidity of a de novo review provision. 552 U.S. at 587 n.6, 128 S.Ct. 1396 (noting the Ninth Circuit ruled against Hall Street Associates on the issue of severability and Hall Street Associates did not seek certiorari on the issue, so the issue was not before the Court); see also Hall Street Assocs., L.L.C. v. Mattel Inc., 113 Fed.Appx. 272, 273 (9th Cir. 2004) (holding its decision in Kyocera Corp. v. Prudential-Bache Trade Services, Inc., 341 F.3d 987, 1000-02 (9th Cir. 2003) (en banc) mandated a determination that “terms of the arbitration agreement controlling the mode of judicial review are unenforceable and severable“); Kyocera, 341 F.3d at 1000-02 (en banc) (holding, as a matter of California state contract law, that invalid de novo review provisions in arbitration agreements would not render invalid the agreement to engage in binding arbitration). Thus, the decision in Hall Street Associates does not speak to the severability question currently before this court.
2. Severability Analysis
“[A]rbitration is a matter of contract.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). “The FAA ... places arbitration agreements on an equal footing with other contracts and requires courts to enforce them according to their terms. Like other contracts, however, they may be invalidated by generally applicable contract defenses....” Id. at 67-68, 130 S.Ct. 2772 (citations and quotation omitted). “A compact is a form of contract.” Pueblo of Santa Ana, 104 F.3d at 1556. It is a creation of IGRA, which determines a gaming compact‘s effectiveness and permissible scope. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48-49, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996);
Under federal contract principles, if the terms of a contract are not ambiguous, this court determines the parties’ intent from the language of the agreement itself. See Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993); see also Arizona v. Tohono O‘odham Nation, 818 F.3d 549, 560-61 (9th Cir. 2016) (“Federal common law follows the traditional approach for the parol evidence rule: A contract must be discerned within its four corners, extrinsic evidence being relevant only to resolve ambiguity in the contract.” (quotation and alterations omitted) ).19 Further, this court will construe the Compact to give meaning to every word or phrase. See United States v. Brye, 146 F.3d 1207, 1211 (10th Cir. 1998).
When considered as a whole, Compact Part 12 makes clear that the parties’ agreement to engage in binding arbitration was specifically conditioned on,
Importantly, the Compact links the parties’ waivers of sovereign immunity to the kind of judicial review available. Part 12(2) of the Compact authorizes arbitration subject to de novo review in federal court as provided in Part 12(3), while Part 12(3) states that the parties “waive[] immunity and consent[] to suit [in federal court] for such limited purposes.” Id. That is, the language of the Compact makes clear that the parties’ waiver of sovereign immunity is only for purposes of the type of de novo review contemplated in Part 12(3), not for suits to enforce an arbitration award under the limited review procedures set out in
In response to all this, the Nation does not argue Compact Part 12(3) or, for that matter, any portion of Compact Part 12 is ambiguous. Thus, its reliance on extrinsic evidence is inappropriate because, absent such ambiguity, there is no need to look beyond the four corners of the Compact to resolve the question of materiality. Anthony, 987 F.2d at 673. Even if extrinsic evidence were admissible, however, the extrinsic evidence offered by the Nation is simply not meaningfully relevant to the question of materiality. The Nation relies solely on Governor Henry‘s statement during arbitration proceedings that “the arbitration clause was included to resolve disputes straightaway and to preserve each party‘s sovereignty.” According to the Nation, this bare snippet of testimony “is harmonious with Hall Street‘s primary basis for declining to permit expansion of the FAA standard of review.” The Nation‘s Br. at 24. That the arbitration clause was included to “resolve disputes straightaway” says almost nothing about the parties’ insistence on including a de novo review provision in Part 12. We are unwilling to infer from the parties’ apparent desire to resolve disputes expeditiously a desire to arbitrate disputes at the expense of a spe-
Finally, the Nation speculates that invalidating the arbitration clause might result in enforcement problems when future disputes arise between it and Oklahoma. It is far from clear this is a viable consideration in assessing the materiality of Part 12(3) of the Compact. The Nation has not identified, and this court has not found, any precedent indicating federal courts are empowered to overlook material provisions of a contract, especially when those material provisions are intended to protect the sovereign interests of a tribe and a State, on the basis of what this court might perceive to be sound public policy.21
Because the availability of de novo review is a material aspect of the parties’ agreement to engage in binding arbitration, and because Hall Street Associates renders the de novo review provision legally unenforceable, the district court erred in refusing to sever Compact Part 12(2) from the Compact.
IV. CONCLUSION
For those reason set out above, the matter is REMANDED to the United States District Court for the Western District of Oklahoma to enter an order VACATING the arbitration award.
Notes
Finally, the Nation asserted the parties’ dispute over liquor licenses and/or permits arose under the Compact: “The Compact expressly covers a Compact facility‘s duties with respect to sale and service of alcoholic beverages. Part 5(I) states: ‘The sale and service of alcoholic beverages in a facility shall be in compliance with state, federal and tribal law in regard to the licensing and sale of such beverages.‘”Part 12 of the Compact provides unambiguous Dispute Resolution procedures in the event of a dispute. The preamble to Part 12 reads, in its entirety,
In the event that either party to this Compact believes that the other party has failed to comply with any requirement of this Compact, or in the event of any dispute hereunder, including, but not limited to, a dispute over the proper interpretation of the terms and conditions of this Compact, the following procedures may be invoked.
Any violation of any term of the Compact or disagreement about the scope or interpretation of the Compact engages Part 12.
The arbitration then progressed through discovery and an evidentiary hearing.The underlying dispute centers primarily on the Nation‘s contention that they have no obligation to accede to the State‘s demand for all of the Nation‘s businesses to collect, report and remit sales taxes on sales to non tribal members. The Nation‘s claim is arbitrable. The arbitration agreement in question is extremely broad. It is governed by the Federal Arbitration Act which embodies
a strong presumption that an arbitration clause applies and resolves any doubt arising from the contract language to favor arbitration.
The Nation contends that even if the State‘s Sales Tax Code purported to apply to the Nation‘s sales of goods and services to non-tribal members, it would be preempted under the federal balancing test applied in Indian Country, Indian Country, U.S.A. v. State of Oklahoma, 829 F.2d 967 (10th Cir, 1987) and White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980).... [W]hen the legal incidence of a tax falls on non-Indians, as it does here, no categorical bar prevents enforcement of the tax. Federal and tribal interests must be weighed against state interests. At the hearing, the Nation established (i) significant federal and tribal interests in the Nation‘s self-governance, economic self-sufficiency, and self-determination; (ii) the Nation alone invests value in the goods and services that it sells, does not derive such value through an exemption from State sales taxes, and imposes its own equivalent tribal sales tax on the sales; (iii) the State possesses no economic interest beyond a general quest for additional revenue in imposing a sales tax on the Nation‘s transactions and suffers no uncompensated economic burden arising therefrom; and (iv) the federal and tribal interests at stake predominate significantly over any possible State interest in the transactions upon which the State seeks to impose its sales tax. Accordingly, federal law protecting tribal sovereignty interests preempts and invalidates the State‘s sales tax on the Nation‘s sales in question....
552 U.S. at 582-84, 128 S.Ct. 1396 (footnote omitted). To be clear, both the Nation‘s motion to confirm the arbitration award and Oklahoma‘s motion to vacate that award were predicated on the provisions of the FAA. See id. at 590, 128 S.Ct. 1396 (noting that the holding applies only to motions to confirm or vacate an award under the FAA and declining to consider whether a party to an arbitration agreement can obtain “more searching review” “under state statutory or common law“).The [FAA] ... supplies mechanisms for enforcing arbitration awards: a judicial decree confirming an award, an order vacating it, or an order modifying or correcting it. [
9 U.S.C. §§ 9-11 ]. An application for any of these orders will get streamlined treatment as a motion, obviating the separate contract action that would usually be necessary to enforce or tinker with an arbitral award in court. [Id. § 6]. Under the terms of§ 9 , a court “must” confirm an arbitration award “unless” it is vacated, modified, or corrected “as prescribed” in§§ 10 and11 . Section 10 lists grounds for vacating an award, while § 11 names those for modifying or correcting one.... We now hold that
§§ 10 and11 respectively provide the FAA‘s exclusive grounds for expedited vacatur and modification.
552 U.S. at 585-86, 128 S.Ct. 1396 (quotation, alteration, and citations omitted).Hall Street says that the agreement to review for legal error ought to prevail simply because arbitration is a creature of contract, and the FAA is motivated, first and foremost, by a congressional desire to enforce agreements into which parties have entered. But, again, we think the argument comes up short. Hall Street is certainly right that the FAA lets parties tailor some, even many, features of arbitration by contract, including the way arbitrators are chosen, what their qualifications should be, which issues are arbitrable, along with procedure and choice of substantive law. But to rest this case on the general policy of treating arbitration agreements as enforceable as such would be to beg the question, which is whether the FAA has textual features at odds with enforcing a contract to expand judicial review following the arbitration.
Each provision, section, and subsection of this Compact shall stand separate and independent of every other provision, section, or subsection. In the event that a federal district court shall find any provision, section, or subsection of this Compact to be invalid, the remaining provisions, sections, and subsections of this Compact shall remain in full force and effect, unless the invalidated provision, section or subsection is material.