By Jery Payne

Imagine you are a judge who is hearing a case. The case involves a 16-year-old applying for his first driver’s license. He fulfilled all the requirements to receive a driver’s license, but the clerk at the DMV counter refused to issue one. The clerk didn’t explain the refusal other than to point out that Colorado law says the following:

42-2-104. Licenses issued – denied. (1) Except as otherwise provided in this article, the department may license the following persons in the manner prescribed in this article:

(c) Any person sixteen years of age or older who has not reached his or her twenty-first birthday, as a minor driver.

The statute that authorizes the issuance of licenses says that the clerk “may” issue licenses. “May” is understood to mean that the clerk is authorized, but not required, to issue the licenses. “Therefore,” the clerk explains, “I don’t have to issue the license. Bye, now.”

It turns out that the applicant had been dating the clerk’s daughter, but they had recently broken up. You suspect the clerk is punishing the applicant.

As the judge, what do you do? The clerk’s explanation is more or less a correct understanding of the statute. The word “may” gives authority but does not normally impose a duty. Yet the clerk’s decision is clearly an abuse of authority. Do you apply the statute as written? Or do you hold that the statute requires the clerk to issue the license? Do you interpret “may” to mean “shall”?

Now, imagine you are the drafter writing this statute, and you only have the words “shall” and “may” in your drafter’s toolbox. The goal is to grant authority to the DMV to issue licenses, but you realize you might not want to use the word “shall” because one of the goals is to make sure the DMV also has the ability to deny licenses to unqualified applicants.

Another approach may be to focus on the applicant: “A person shall submit the following.” At first this seems to make sense, but then you realize that the law now requires people to submit the appropriate paperwork even if they don’t want a driver’s license. So this doesn’t quite work.

A third approach may be to focus on the applicant’s age: “An applicant shall be at least sixteen years of age.” At first, this also makes sense, but then you realize that you have just given people a duty to be a certain age. The applicant can’t control his or her age, so saying he or she has a duty to be at least sixteen years of age is a little weird. And this approach has caused quite a few problems. What you really want to say is that an applicant needs to be a certain age to be licensed. Therefore, these approaches that use “shall” don’t quite work.

At the same time, the word “may” can lead to a case such as the one imagined with the power-hungry clerk denying licensure to a qualified applicant. The word “may” doesn’t quite capture the goal, which is both for the DMV to issue licensees to qualified applicants and to make sure that applicants are qualified before being issued a license.

If neither “shall” nor “may” quite captures the intention, then you face a conundrum. Go back and read the statute. It is actually quite clever in how it communicates the intention with words that don’t quite work.

This is where the word “must” helps. Add this word to your toolbox. First, start with the DMV’s duty to issue licenses: “The department shall issue driver’s licenses to qualified applicants.” Now it is clear that the department has a duty to treat everybody fairly. Then, add a requirement (but not a duty) that the applicant meet the desired standards: “To be qualified, the applicant must be at least sixteen years of age.” The word “must” communicates a requirement, which is what the statute is trying to get at.

This is why the General Assembly added the word “must” to the drafter’s toolbox. “Must” doesn’t mean a person has a duty; it means something is necessary, and this, it seems to me, is exactly what the legislature meant when it enacted this statute.

Duprey v. Anderson is an actual case where a statutory “may” put the court in another type of conundrum. The case dealt with the purging of voter rolls. The statute provided for voter rolls to be purged of the names of people who didn’t vote in the last election. It also said that the county clerk “may” mail notices to purged voters.

Upon the purging of the names of registered electors who failed to vote in the preceding general election, the county clerk may mail postal cards to all such purged electors informing them that their names have been purged from the registration books of the county clerk for failure to vote at such general election.

The court faced the choice of declaring the statute unconstitutional or interpreting the “may” to mean “shall.”

Here’s why the constitution requires notice: Without notice, the person probably wouldn’t know that voting again means reregistering. The person could show up on election day and, because the person isn’t registered, be denied the ability to vote. The constitutional requirement of due process requires the government to give notice to a person when it acts in a way that may affect his or her rights. Otherwise, the person will not know to take steps necessary to avoid the loss of a right.

Unfortunately, the statute in this case used “may.” The statute allowed the clerk to decide not to send the notice, so it didn’t actually require the person be notified. To avoid the constitutional issue, the court chose to interpret the word “may” to mean “shall.”

Using the word “may” normally means that the affected person or entity is authorized to do something. It grants discretion. It shouldn’t be used for something that is necessary. Both the driver’s license and voter roll statutes used “may” for a requirement.

When working on a bill, the word “may” sometimes makes the stakeholders happy, but it might also put a court or state agency in a quandary. The court or agency might end up, in essence, rewriting the statute to make it work, and this can lead to unanticipated results.

So what’s the takeaway from these two examples? If the intent of a statute is to require a person or entity to do something, the statute should not use the word “may.” If the statute imposes a duty, it should use the word “shall”; if it imposes a requirement, it should use the word “must”; and if it simply authorizes an action, it should use the word “may.” The drafter has good reason for suggesting the bill use “must” or “shall” instead of “may.”