Friday, January 18, 2013

House Judiciary Committee discusses definitions, decides that "shall" is not the same as "must"

Must we know what the word "shall" means? Shall we, finally, understand the definition of "must?"

Those questions were answered "yes" by a House committee Thursday as a bill to clarify the legal import of the two words, which are common in statutes, was approved by a unanimous vote.

The problem is that the meanings of the words are sometimes confused by lawyers and judges. The word "shall" is generally used in statutes to specify an obligation that a person or an entity must carry out. In other words, the word implies that an action or inaction is mandatory.

"Must" is sometimes used the same way - to indicate a duty.

The measure sponsored by Reps. Claire Levy, D-Boulder, and Bob Gardner, R-Colorado Springs, would clear up that confusion.

HB 13-1029 specifies that the word "must," as used in a statute, would mean that a person or entity has to fulfill a certain condition or conditions before some consequence that flows from the condition or conditions would become effective. By contrast, according to the bill, "shall" would mean, in all statutes subsequently enacted, that a person or entity has a duty to do or not do something.

If they become law the definitions provided by the bill would not be retroactive to statutes enacted in prior years.

That may mean there will be arguments in later cases about whether the 2013 definition of "shall" or "must" applies or whether a more archaic understanding of the terms should be invoked.

The measure is sponsored in the Senate by Democrat Gail Schwartz of Snowmass Village and Republican Ellen Roberts of Durango.