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Posted By AugustinD on 03/04/2019 3:23 PM
Some discussion in the vein of what the OP said, regarding "shall" being construed as "may":
https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/
A Wisconsin case where the state supreme court interpreted a "shall" to mean "may":
https://www.wiappellatelaw.com/2015/03/02/when-shall-means-may-wisconsin-court-of-appeals-allows-mortgage-lenders-to-slow-the-foreclosure-sale-process/
A 2019 Georgia brief (non-HOA) discussing "shall" vs. "may" in Georgia law:
http://www.accg.org/docs/legal/ACCG%20Amicus%20Brief%20Final.pdf
What's the only word that means mandatory? Here's what law and policy say about "shall, will, may and must."
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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."
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The Prissel case involved two foreclosure actions brought by Bank of America, consolidated for appeal. In each case, the bank had elected to proceed under § 846.101, which applies to owner-occupied one- to four-family residences where the mortgagee has not sought deficiency. The statute provides that notice of sale “shall be given” within the six-month redemption period. In contrast, the other four sections pertaining to foreclosure sales provide that notice of the sale “may commence” during the redemption period. The question in Prissel was whether a mortgagee proceeding under § 846.101 is required to commence advertising the sale before the redemption period expires.
The court answered with a resounding No. As in Carson, the court had to determine whether “shall” in the statute is mandatory or directory. The court performed a lengthy analysis under Karow v. Milwaukee County Civil Service Commission, 82 Wis. 2d 565, 263 N.W.2d 214 (1978), a case that the Supreme Court cites in Carson without following its prescribed analysis. Karow dictates that courts examine four factors when determining whether “shall” is mandatory or directory: (1) the omission from the statute of a prohibition or penalty; (2) the consequences resulting from one construction or the other; (3) the nature of the statute, the evil to be remedied, and the general object sought to be accomplished by the legislature; and (4) whether failure to act within the time limit works an injury or a wrong.
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It is well settled that the word “may” is generally permissive, while the word
“shall” is generally mandatory.33 Courts presume that the General Assembly is
fully apprised of the difference between the two terms, and that the General
Assembly’s choice to use one over the other is considered and meaningful.
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It does appear that words no longer have any fixed meaning(s).
War is peace.
Love is hate.
Shall = may, but, does shall not = may not?
What the Felix, ... Over
