by Thomas Morris

You may have noticed that some of the bills recently drafted by the Office of Legislative Legal Services have begun to use the word “must” in some instances where we previously would have used the word “shall”. What is the reason for this change and what does it mean for bills the Office will write in the future?

Just as it is useful to be able to use the word “gray” to describe something that’s in between black and white, so it is useful when writing a statute to be able use different words to distinguish between the following situations: (1) a person has a duty; and (2) a person or thing is subject to a condition but there is no duty to meet the condition.

Accordingly, during the last two years, one of the Office’s three drafting teams has used “shall” to mean that a person has a duty and “must” to mean that a person or thing is subject to a condition, but there is no duty to act. The results of this exercise were positive, so the Office sought the Colorado Bar Association’s feedback about adopting these changes Office-wide. The Bar informally supported the use of “must” and “shall” in this way.

The Office kept the Committee on Legal Services informed of its efforts. During its last meeting of the 2012 regular session, the Committee informally approved the Office’s proposal to update its drafting manual to use these new definitions of “must” and “shall”.

A few examples will illustrate how this change will play out in practice. A notice is a thing and cannot have a duty. So instead of writing “The notice shall contain information specified by the director”, we will write “The notice must contain information specified by the director”. Similarly, a candidate is a person and can have a duty, but there is no duty to become a candidate, so we would no longer write “A candidate shall reside in the district”. Rather, we would write something like “To be qualified as a candidate, a person must reside in the district”. (Note that it is often useful to state the consequence of not meeting a condition.)

Finally, if a statute is written in the passive voice (because the actors are unknown, unmistakable, or are too numerous to list) and the context indicates a legislative intent that a person has a duty, we will continue to use “shall”, even though the subject of the sentence is a thing. For example:

The votes must be recorded within twenty-four hours after being cast. (This implies that a machine automatically records the votes, or at least that no person has a duty to record the votes.)

The votes shall be recorded within twenty-four hours after being cast. (This implies that a person records the votes and has a duty to do so.)

Starting this session, then, the whole Office will be drafting bills and amendments using these new definitions. But we will not do so in a mechanical fashion. In particular, the new definitions are not intended to alter the interpretation of previously enacted statutes. When amending existing law (as opposed to creating an entirely new statute), the Office will consider the context in which “shall” was used to determine whether the General Assembly wanted to impose a duty or a condition. As always, the Office will try to achieve the intent of the bill or amendment sponsor.

At its meeting on Nov. 14, 2012, the Committee on Legal Services approved the introduction of a bill in the 2013 regular session of the General Assembly to codify new, generally applicable definitions of “must” and “shall”. The definitions explicitly apply only to new statutory language. The definitions are as follows:

 2-4-401.  Definitions.  The following definitions apply to every statute, unless the context otherwise requires:
(6.5) (a)  “Must” means that a person or thing is required to meet a condition for a consequence to apply. “Must” does not mean that a person has a duty.
(b)  This subsection (6.5):
(I)  Is not intended to alter the interpretation of a statute enacted before the effective date of this subsection (6.5); and
(II)  Applies to statutes enacted on or after the effective date of this subsection (6.5) but only with regard to language that appears in small capital font in the session laws published pursuant to section 24-70-233, C.R.S.
(13.7) (a)  “Shall” means that a person has a duty.
(b)  This subsection (13.7):
(I)  Is not intended to alter the interpretation of a statute enacted before the effective date of this subsection (13.7); and
(II)  Applies to statutes enacted on or after the effective date of this subsection (13.7) but only with regard to language that appears in small capital font in the session laws published pursuant to section 24-70-233, C.R.S.

So you’ll be seeing quite a bit more “must”, and little less “shall”, in the General Assembly’s bills in the near future!