Shall we? We must!

by Jery Payne

Imagine you are judging a court case. The Wildlife Commission held a hearing to award a grant for an endangered species. Both the Whooping Crane Association and the Black-Footed Ferret Foundation applied. The commission gave the grant to the ferret folks, but it didn’t have a legally required quorum. The crane crew sues to make the ferret folks repay the grant.

The crane crew cites a law: “The commission shall have a quorum to do business.” Because the grant was made illegally, they want it repaid. They argue that the grant is invalid because the commission didn’t have a quorum.

The ferret folks argue that “shall” is well established as a command. This means that the commission had a duty to follow the law. If the commission broke the law, then the commission, not the ferret folks, have to make it right.

The crane crew replies that this makes the law meaningless because it doesn’t punish a violation or even require restitution. Failing to do your duty must have consequences.

How do you decide? Under Standard English, the ferret folks are right. The commission violated its duty and should suffer the consequences. But most people intuitively think that the legislature intended to withhold authority, not punish the commission. Do you apply the law as written or as probably intended?

This is merely one of many kinds of problems caused by using “shall” as a magic word to make things happen. So a law was passed during the 2013 session to help us avoid these problems. First, it defines the word “shall” to mean that “a person has a duty.” Second, it defines the word “must” to mean that “a person or thing is required to meet a condition for a consequence to apply.” And to keep the distinction clear, it adds “‘must’ does not mean that a person has a duty.”

How does this help? It is the foundation for a set of practices that help the legislature draft clearly. Here’s how it works:

We won’t use “shall” unless it can be replaced with the phrase “has a duty to.” This works well for some problems, such as “You shall not steal,” which becomes “You have a duty to not steal.” Then we add a punishment, and it works. A court will know what to do when somebody steals.

But this doesn’t work: “The application shall be written in red ink.” An application is a thing; if it can’t do, it can’t have a duty. So we need to either (1) decide who has the duty and punish violators or (2) establish consequences. The first may not be practical. Do you really want to punish somebody for messing up an application? Maybe it would be better to reject the application.

This is when the word “must” helps. It is used to establish a requirement: “To be valid, the application must be written in red ink.” If the ink isn’t red, you won’t get what you’re applying for. That’s probably better than a punishment.

The important thing is to be clear about what happens when the law’s requirements aren’t met. The crane-ferret case could be avoided by writing “The actions of the commission are void unless a majority of the commission votes in favor of the act.” Then, the court wouldn’t have to choose between the law as written and as intended.

The law was passed as House Bill 13-1029, and the new provisions are codified at 2-4-401 (6.5) and (13.7), Colorado Revised Statutes.