"Shall" = mandatory or directory

Discussion in 'GA Laws and Politics' started by kkennett, Feb 27, 2007.

  1. kkennett

    kkennett New Member

    2,139
    0
    0
    I'm not sure that I understand the legal distinction between mandatory and directory, but nevertheless the GA Sup Ct had this to say yesterday about the word "shall".

    Nonetheless, Parlor contends that the wording of OCGA § 15-12-40 (a)
    (1) that the jury list “shall†be updated at least biennially makes that task
    mandatory for the board of jury commissioners, rather than directory. However,
    the word “shall†was present in the statutes involved in this Court’s prior
    decisions, see Burney, supra; Haden, supra, and we remain convinced that the
    provision is directory.

    http://www.gasupreme.us/pdf/s06a1861.pdf

    This interpretation was used to reinstate an indictment that had been quashed by the trial court because it was issued by an unlawfully constituted grand jury, as a result of the jury list not having been revised in time.

    I am no particular scholar on the word "shall", but I can observe that we on this board place a great deal of importance on that word in the statute regarding licensure. It has been argued in GCO filings as well. I suppose what is perhaps concerning as well is that the GA Sup Ct refuses in this case to impose any penalties on the judiciary when it fails to abide by a "shall" in the code. What then is the impetus for bothering to update the grand jury list per the code, or to issue GFLs per the code for that matter?
     
  2. kkennett

    kkennett New Member

    2,139
    0
    0
    I realize, of course, that the statutory construction of "shall" has been interpreted otherwise in other cases (as argued in the GCO filings) relevant to other sections of the code. This is, perhaps, why the common man sometimes disdains the law. Why doesn't "shall" mean the same thing, whenever it is in the code? It certainly does when I say it to my children. Quoth Bill, "Depends on what the definition of 'is' is."

    While IANAL, I read all the GA Sup Ct decisions and I am convinced that they are becoming a rather 'results oriented' group.
     

  3. Gunstar1

    Gunstar1 Administrator

    8,460
    5
    38
    I don't understand it either. If the law says "shall", that should mean must. If the law says "may", that should mean optional.

    Courts have decided that shall can mean optional. So going by caselaw, what is the difference between shall and may? There unfortunatly is an argument to be made that GFL is may-issue.

    Which is why, if the code is to only be slightly amended, that everywhere "may" currently appears in 16-11-129 that should be changed to "shall" and that everywhere "shall" currently appears should be changed to "must, which means manditory, no you do not have a choice, no this is not directory, you really have to, before the deadline, every day after the deadline you will pay $1000 to the applicant until it is done".

    I figure that would end the confusion.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

    63,393
    395
    83
    =; Not so fast!

    Ever wonder why this argument that "shall" is merely directory has not been made by the probate courts?

    The circumstances in cases holding that shall is directory rather than mandatory involve letting criminal defendants go free if the "shall" was not met. In other words, in the words of kkennett - "Results-oriented." :wink:

    In fact, this particular case centered on the question of whether a malice murder indictment should be quashed because the board of jury commissioners had not reconstituted a list biannually, as the law required that they "shall" do.

    The trial court agreed and quashed the indictment. On appeal, the Supreme Court reversed.

    A little research will reveal all the cases are like this. The argument really has no application to the "shall" wording in a statute where one is suing to ask the court to make the probate court people do exactly what it is that the law says they "shall" do.

    Had this Supreme Court case been about a writ of mandamus forcing the board of jury commissioners to reconsitute the list, I suspect the plaintiff would win.

    In a case about quashing a malice murder indictment, or a DUI license suspension, or any of the others I have seen, the criminal defendant will lose.

    Two different types of cases; two very different arguments.
     
  5. kkennett

    kkennett New Member

    2,139
    0
    0
    Exactly! Shall means shall when it talks about some stuff, but not when it talks about other stuff. We are sure as hell not going to let murderers go free because they bother to point out that we don't follow the law. We don't like that. Oh, and someday we won't like giving 'assclowns (thank you Manassass, VA police)' licenses to carry guns either. I leave you with this thought: if this indictment was actually quashed and this murderer set free, every grand jury list in Georgia would be updated as per the code, as if someone's life depended on it (because it would). And don't then give me the "tell that to this guy's next victim" logic for this ruling, because that argument ends in vigilante justice ignoring all the protection of the 4th, 5th, 6th, and 8th amendments. Either the law is king, or the results. We have our answer.
     
  6. kkennett

    kkennett New Member

    2,139
    0
    0
    I have now, of course, revealed myself not as a 'nuanced', university-educated, self-actualized, sentient being capable of voting for John Kerry and seeing shades of gray in the world; but rather as a stupid bloke who is incapable of seeing the subtleties of life and thus mindlessly votes for aggressive hillbillies from southern states. Is it really good for guys like me and my 'assclown' friends to have guns? :D
     
  7. Gunstar1

    Gunstar1 Administrator

    8,460
    5
    38
    I am not saying it is a court winning argument. Just that the confusion it creates makes an argument for Probate Judges to give to non-lawyers about why they are not following/violating the law.

    I will refernce my own experience when I called the AG's office to inquire why they are letting probate courts violate the 60 day limit. The response was basically shall does not mean must, if I were a lawyer I would know that.

    While true regarding caselaw in total, it is not true regarding 16-11-129. Funny that if I were a lawyer I would know that "shall does not mean must", however at the same time if I were a lawyer I would have also known the reasons why shall does or does not mean must and known she was full of it.