������Ƶ

As a first year law student I learned early on the difference between “may” and “shall” — may is permissive, as in “maybe I will and maybe I won’t,” while “shall” is an imperative, meaning “I must do this thing,” whatever it is.

Imagine my surprise, then, when the Maui County Planning Department presented a draft ordinance to the Lanai Planning Commission (of which I am a member) at amending certain titles of the Maui County Code relating to wetlands –  and all the “shalls” were deleted and “musts” inserted in their place!

When did “shall” become a problem, I wondered?

Since this seemed to substitute one word that’s a requirement (shall) for another that means the same thing (must) I asked staff why this was a pressing need the county felt pressed to address.

First Deputy Corp. Counsel Richelle Thomson told us that it was “actually the preference of the Office of Council Services, to change all ‘shalls’ in the County Code to ‘must,’ and it’s OCS’ opinion that that is more plain language and that it facilitates reading.”

Given the pressing needs actually facing Maui County, such as a dire in , polluted harbors and an abundance of needing replacement, I decided some follow-up was in order.

So I contacted David Raatz, OCS’ Deputy Director, who appears to be spearheading the endeavor to ditch all the shalls, and he told me in an email exchange that “plain-language fixes are being done on a piecemeal basis” at the county council’s discretion. He explained OCS is following the “lead of the City & County of Honolulu’s OCS in recommending a move away from the use of ‘shall.’”

I’m all for government making laws easier to understand – and such efforts have been around since — but why “shall” to “must”?

If I tell my 3-year-old grandson “You shall eat your dinner” I mean he must eat his dinner. And if I tell him “You must eat your dinner” I mean he shall do it.

So What’s The Dif?

Since I’m always vaguely offended by a suggestion that Oahu-centric solutions are somehow better than Maui County’s, I decided to skip Honolulu OCS and see if other legislatures have dealt with the thorny issue of “shall” vs. “must.” (Although I admit I asked usually-up-on-things Donna Wong, director of Hawaii’s Thousand Friends, about this and she said she was aware that “various Honolulu agencies have changed ‘shall’ to ‘must’ and when I complained, an attorney told me they mean the same. So if they mean the same, why the push to change it?”)

Colorado is one state that’s tackled the question: the legislature decided a few years ago to simply both words in statute. But according to Jery Payne, Office of Legislative Services for the Colorado Legislature — who has on this – there isn’t much difference. He thinks the difficulty is “that ‘shall’ is used like a magic word to make stuff happen,” but that “simply changing ‘shall’ to ‘must’ doesn’t really solve any problems.”

He believes a bigger challenge is that legislators may be “only writing half a rule,” and failing to identify the legal consequences for failing to act was the real snag. Once a lawmaker knows what consequence is in store, he or she “could probably write a reasonable provision regardless of which word is used.”

By this I think he means if I tell my grandson he “must eat his dinner, or he won’t get dessert” or I tell him he “shall eat his dinner, or he won’t get dessert” I’m saying essentially the same thing: an act is required either way and the consequence of not acting is clearly spelled out.

I wondered if everybody at the county level was on the same page here.

Raatz had assured me there was no pushback against scrapping the shalls from other county departments, county council or the administration.

Corp. Counsel Thomson, however, eloquently disagreed at the LPC meeting: “We don’t agree, our office doesn’t agree. I like shall, shall is my favorite word. It’s very clear to me from a legal standpoint ‘shall’ means ‘shall.’”

She said OCS’ preference trumped OCC’s preference “because council is going with that recommendation rather than ours.”

When I polled county council members, those who responded — council members Alice Lee, Keani Rawlins-Fernandez, Gabe Johnson and Tasha Kama (Kelly King is in Sweden) all said pretty much the same thing: the objective was to “use less legalese;” “shall” is susceptible to many different interpretations;” and “words like ‘shall’ have passed out of common usage.”

But Riki Hokama, Special Assistant to Mayor Mike Victorino’s administration, questioned why the county was making “useless revisions when we have bigger issues to work on?”

While some think “shall” is now a bad word, a of the county code shows there are currently 2,389 shalls that may be up for revision, so let’s look at one example where “shall” was recently replaced by “must” to see what effect was achieved.

Maui County Code Sec. (per (2021)) was amended to read, “Signs and advertisements (shall) must not be gaudy or excessive in size, and must comply with chapter 16.13 of this code.”

I don’t know about you, but I don’t think the real problem with this language is whether signs “shall” or “must” not be gaudy, the flaw is that gaudy is nowhere defined. Ligation anyone?

I think I must close now.  Yes, I shall — or I may not get my dessert.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation and the Fred Baldwin Memorial Foundation.