Mandatory v. Directory Usage of the Word "Shall" in Connecticut Statutes and Municipal Charters
Words do not always mean what they appear to mean. A case in point is the use of the word “shall” in a statute or municipal charter. As the Connecticut Supreme Court observed in Tramontano v. Dilieto, “[t]he use of the word “shall,” though significant, does not invariably create a mandatory duty because statutes must be construed as a whole to ascertain legislative intention. 192 Conn. 426, 434-34 (1984). But sometimes it does. So the question remains, when does the word “shall,” mean “shall,” and when does it not? There are different factors to consider.
The Court has said “[i]t is of course difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or imperative, but, of all the rules mentioned, the test most satisfactory and conclusive is, whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates whether it relates to matter material or immaterial – to matter of convenience or of substance.” Gallup v. Smith, 59 Conn. 353, 358 (1890); see Engle v. Personnel Appeal Board, 175 Conn 127, 130 (1978).
But how do you know if the word “shall” relates to a matter that is “material” or “immaterial,” a matter of “convenience” or “substance”?
It has been said that “provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory. 2A Sutherland, Statutory Construction (4th Ed. Sands) § 57.19. Unless, of course, “there is reason to believe that the legislature intended that the duty not be performed at all except within the time prescribed or that the time restriction should be considered a limitation upon the power of the tardy officer...” Id. What?
Is there no end to this madness?
Another way of expressing the general rule can be found in Winslow v. Zoning Board of Stamford, “[l]egislative provisions designed to secure order, system and dispatch in proceedings are ordinarily held to be directory where, as here, they are stated in affirmative terms or, to express it differently, are unaccompanied by negative words.” 143 Conn. 381, 387-88 (1956), citing International Brotherhood v. Shapiro, 138 Conn. 57, 67; Nielson v. Board of Appeals on Zoning, 129 Conn. 285, 287; 50 Am. Jur. 51, § 29. Well, that is a little better anyway.
A clearer exposition of the rule, however, is found in Lauer v. Zoning Commission: “A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.” 246 Conn. 251, 262 (1998).
A logical extension of this principle can be found in an earlier decision of the Superior Court. “Time limits have been held to be mandatory , ‘so that a land use agency’s failure to comply with it results in the automatic approval of the application in three situations: (1) the statute contains express language invalidating belated action by the agency or automatically approving an application not acted upon within the requisite time period; (2) the statute contains a provision requiring an applicant’s consent for an extension of the statutory time period;… and (3) the statute incorporates by reference another statute that contains automatic approval or consent to extension language, thereby creating an express administrative linkage to the mandatory requirement.” Winters v. Board of Representatives, 1993 Conn. Super. LEXIS 772, *7-8 (Conn. Super. Ct. Mar. 29, 1993) citing Karen v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273-74 (1992).
In concluding that a Mayor of a Connecticut City did not have independent power to appoint a Corporation Counsel where the City Charter reserved appointment power to the City Council using the following language “the City Council shall appoint and may remove a Corporation Counsel…,” the Court found that the relevant section of the charter must be read in conjunction with its other provisions. Demayo v. Quinn, 315 Conn. 37, 42 (2014). “’In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws.’” Id. citing Fennel v. Hartford, 238 Conn. 809, 826 (1996), and Broadnax v. New Haven, 270 Conn. 133, 161 (2004). In DeMayo, the relevant City Charter had an additional provision which called for the mayor to make recommendations to the City Council for certain positions. “The Mayor shall recommend any and all appointments.” Therefore, taken together with the express use of the word “shall” in the specific section referencing the office of Corporation Counsel, the word “shall” was taken to be mandatory.
The result in DeMayo makes considerable sense when looking at the nature of the appointment process of certain city offices and the division of power between the executive branch of municipal power, the Mayor, with the legislative branch, the City Council. The Charter created a blending of a fundamentally executive power, the appointment of executive officers, with a legislative organ of municipal government. This is much like the shared responsibility of appointing officers at the federal level. The President nominates federal officers to the Senate, and appoints upon the Senate’s confirmation. Again, this makes sense and mimics the federal constitution. Reading the specific municipal Charter in its entirety clearly indicated this intent to the Court.
But in DeMayo, the Connecticut Supreme Court went on to observe that “[i]n interpreting statutory text, this court has often stated that “’the use of the word “shall,” though significant, does not invariably create a mandatory duty… The usual rule, however, is that [t]he … use of the word “shall” generally evidences an intent that the statute be interpreted as mandatory.’” Id. at 43, (emphasis added), citing Stewart v. Tunxis Service Center, 237 Conn. 71, 78 (1996). This last emphasized phrase seems unnecessary, and not completely accurate given the high number of instances where the word “shall” has been found to be directory.
So we are now full circle, and back to where we started. We all think we know where we are, but all is yet still a little hazy when it comes to our understanding of the precise “legal” meaning of the word “shall” in a statute or municipal charter.
Maybe the best way to look at it is the following: use of the word “shall” is mandatory when it is deemed to be necessary, and it is directory when deemed necessary. Just remember, however, that careful jurisprudence never allows a Court to write opinions that are results oriented. Never.
Good luck with this one!