SHALL Does Not Have Any Real Meaning In The Legal Sense Of The WordRickey Stokes
Posted by: RStokes
Date: Dec 27 2017 4:40 PM
DOTHAN: Always thought the word "shall" meant, "you must". There were no options, you "shall"...
When a Judge gives someone a bond the Judge instructs the defendant that he or she "shall" do certain things. When the person is placed on probation, the Judge instructs the person on different conditions of probation, normally instructing them that they "shall" do and not do certain things.
When I read the law in the Dothan saga on the appointment of Acting Municipal Judges, the law read " the Mayor of a Municipality shall...". Legal authorities explained that to me as the Mayor could not delegate that authority.
Judge Conaway ruled that the idiot ( my first hand opinion ) of which Dothan City Manager appointed, Carl Chamblee from Trussville, as Acting Municipal Judge was legal "under the color of law". Which I felt BS, that is the way government covers for their screw ups.
Then the Alabama Court of Criminal Appeals refused to change it, again saying, no matter how Chamblee( the idiot ) was appointed he looked like a Judge therefore he was a Judge. Again, my thoughts were government covering for government.
So I studied the issue more.
So now I learn that, when a Judge, Police Officer or anyone of authority tells you, you "SHALL" ... Nearly every jurisdiction has held that the word "shall" is confusing because it can also mean "may, will or must."
So??? what does shall really mean? Apparently nothing in the law!
Section 12-14-34 CODE OF ALABAMA
Acting municipal judges.
In the event of the absence from the municipality, death, disability or disqualification of a municipal judge for any reason, the mayor of the municipality shall have the authority to designate a person, licensed to practice law in the state and a qualified elector of the state, not otherwise employed in any capacity by the municipality, to serve as acting municipal judge with all power and authority of a duly appointed municipal judge. No such acting judge may serve for more than 30 successive days or a total of 60 days in any calendar year; provided, that when the duly appointed municipal judge is disqualified pursuant to the Constitution, the time of service limitations for acting judges shall not apply during such disqualification.
(Acts 1975, No. 1205, p. 2384, §8-111.)
What’s the only word that means mandatory? Here’s what law and policy say about "shall, will, may and must."
We call "must" and "must not" words of obligation. "Must" is the only word that imposes a legal obligation on your readers to tell them something is mandatory. Also, "must not" are the only words you can use to say something is prohibited. Who says so and why?
Nearly every jurisdiction has held that the word "shall" is confusing because it can also mean "may, will or must." Legal reference books like the Federal Rules of Civil Procedure no longer use the word "shall." Even the Supreme Court ruled that when the word "shall" appears in statutes, it means "may."
Bryan Garner, the legal writing scholar and editor of Black’s Law Dictionary wrote that "In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language."