Croker Sack

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." — Henry Louis Mencken (1880-1956)

Sunday, February 13, 2005

SecState and AG: What do you think "must" means?

House Bill 1604 contains an amusing bit of language.

For ages, the word "shall," when stated in the third person, has been used in the law to state a mandate, obligation or requirement. "The secretary of state shall..." means the secretary of state has no authority to do otherwise than to obey the direction stated in that sentence.

When a government official is authorized to exercise discretion, the word "may" is typically used to express that fact.

Now, not all such directions -- when disobeyed -- require that the action of the officials subject to the order be treated as void or voidable. Thus, not every bureaucrat's failure to obey the rules which govern his job will justify throwing out whatever it was the bureaucrat chose to do rather than obey the law.

Since not all such disobedience voids the bureaucrat's action, some so-called lawyers think "shall" doesn't really mean "shall." They cannot grasp the difference between an obligation to follow the law and a remedy which may be available when a bureaucrat doesn't read or follow the law governing his performance of official duties.

Recall that an Evergreen Freedom Foundation of Washington press release noted an odd reply from a member of the Secretary of State's elections division:

Williams also noted that all eleven proposed rules fail to cite the current law (RCW 29A). Many of the changes suggested by EFF are required by law under the 2003 election reform package, yet the SOS apparently views them as optional.

“We’ve been told by the AG’s office that ‘shall’ really doesn’t mean ‘shall,’” said SOS representative Sheryl Moss, who manages the Certification and Training Program in the State Elections Division.

In HB 1604, this language is included twice:

The secretary of state must adjust his or her rules in accordance with this section.

Ms. Moss, would you please ask those sophists in the Attorney General's office what they believe the word "must" means?

If they claim that neither "shall" nor "must" states a mandate which you have to obey, would you ask them if there is a word which they would acknowledge as stating a mandate?


Blogger north clark county said...

Of course the AG's office is under new management now. Will the new management will render a new opinion?

February 13, 2005 9:10 PM  

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