Thursday, July 16, 2015

"Shall" -- Mandatory or Directory?

Hon. John J. DiMotto

Legal Definition of "Shall"

     According to Black's Law Dictionary, the term "shall" is defined as follows:

"As used in statutes, contracts, or the like, this word is generally imperative or mandatory.  In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning:  denoting obligation.  It has a peremptory meaning, and it is generally imperative or mandatory.  It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears."

     If the reader stops reading at this point, the reader might think that "shall" must always mean "shall."  However, one must read on.  The definition goes on to say:

"But it may be construed as merely permissive or directory (as equivalent to "may"), to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense."
     So, "shall" does not always mean "shall."  "Shall sometimes means "may."

     In Wisconsin, the meaning of the word "shall" has been the subject of litigation.

Case Law Construction of "Shall"

     In Karow v. Milwaukee County Civil Service Commission, 82 Wis.2d 565 (1978), the Milwaukee County Sheriff filed a complaint against the plaintiff, a Milwaukee County Deputy Sheriff.  On the date the complaint was filed the plaintiff was suspended without pay.  A hearing was set before the Civil Service Commission within three weeks of the date of suspension to comply with sec. 63.10(2) which set forth that "The Commission shall appoint a time and place for the hearing of said charges, the time to be within 3 weeks after the filing of the same..."  Due to an illness suffered by the assistant corporation counsel representing the defendant, the County asked that the hearing be postponed beyond the three week time frame.  Over objection of the plaintiff, the hearing was adjourned beyond the three week time frame.  After the plaintiff filed for a writ of mandamus, the case was dismissed.  On appeal the defendant argued that the three week time limit on holding the hearing was merely directory because pursuant to its rule making power, the Commission had promulgated a rule which provided that for cause shown, the hearing could be beyond the three week statutory time limit.  The Wisconsin Supreme Court did not agree.  In its decision, the Court stated: 

1)   The general rule is that the word "shall' is presumed mandatory when it appears in a statute.
2)   When the words "shall" and "may" are used in the same section of a statute, one can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings.
3)   The word "shall" can be construed as directory if necessary to carry out the legislature's clear intent.
4)   Statutes setting time limits on various activities have often been held to be directory despite the use of the mandatory "shall," where such a construction is intended by the legislature.
5)   A statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of power after such time, or the nature of the act, or the statutory language, shows that the time was intended to be a limitation.  
6)  A time limit may be construed as directory when allowing something to be done after the time prescribed would not result in an injury.  But where the failure to act within the statutory time limit does work an injury or wrong, this court has construed the time limit as mandatory.

In addition to the above, the Court went on to address a number of other factors to be considered in determining the legislature's intent when presented with the word "shall" in the context of time limits. They include:

1)   Omission of a prohibition or penalty.
2)   Consequences resulting from one construction or another.
3)   The nature of the statute, the evil to be remedied and the general object sought to be accomplished by the legislature.


     When an issue arises as to the statutory construction of the word "shall," it is necessary to determine what the legislature intended.  In order to determine the clear intent of the legislature, one must resort to an application of the principles and factors set forth in Karow to the facts of the case in light of the language of the statute.  

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