SIOUX FALLS, S.D. (KELO) — Do the words shall and must mean the same thing?
The question was raised Friday in the House Judiciary Committee during discussion of House Bill 1067. HB1067 says that shall and must will have the same meaning “As used in the South Dakota Codified Laws to direct any action.”
Bill sponsor Republican Rep. Tina Mulally said some have considered HB1067 as a light topic but it could have a deeper impact when it comes to interpretation of codified law.
South Dakota Code Counsel Justin Goetz said the Legislative Research Council is transitioning from the word shall to the word must in codified law. Until that transition is complete, shall and must have the same meaning.
“(Goetz) told us shall and must mean the same thing,” committee member Republican Rep. Will Mortenson said. And HB1067 makes sense during the transition from shall to must, he said.
HB1067 will go to the full House in a due pass vote of 13-0.
Committee chair Republican Rep. Mike Stevens told Mulally that he’s gotten many questions about HB1067 so some discussion with lawmakers will need to happen before the House addresses it. “It is much more in-depth than what it appears to be,” Stevens said.
Mulally said she proposed the bill after hearing from several lawyers and lobbyists over the past few years who said there could be confusion between shall and must.
Mulally said the LRC has been changing shall to must based on its drafting manual. Now, how should a lawyer, lobbyist or possibly the courts, interpret a codified law that says shall and one that says must, Mulally said.
Does shall mean that it is not a requirement, is one example of how it could be interpreted?
“It kind of makes me nervous when I see a shall changed to a must,” Mortenson said when he’s looking at versions of a bill. Mortenson, who is a lawyer, said that must make the directed action more clear to him.
