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Wednesday, September 28, 2011
Ind. Law - Use of "may" and "shall" ... with repect to the issue of what "may not" means
Re the Sept. 25th ILB entry headed "Names on the ballot, and the 'may' issue":
The current version of the Indiana General Assembly's bill drafting manual provides, in Chapter 2, Drafting Rules:
From the Constitution. The phrase "may not" appears in the Indiana Constitution in 8 instances:C. Rules
(10) Commanding, Authorizing, Forbidding, and Negating
[From: Dickerson, F.R., Legal Drafting, West Publishing Company (1981), p.182]
- To create a right, say "is entitled to".
- To create discretionary authority, say "may".
- To create a duty, say "shall".
- To create a condition precedent, say "must".
- To negate a right, say "is not entitled to".
- To negate discretionary authority, say "may not".
- To negate a duty or a mere condition precedent, say "is not required to".
- To create a duty not to act, say "shall not".
Avoid false imperatives. Avoid using hortatory qualifiers such as "will", "should", and "ought" in the text of a legislative measure.
- Art. 2, Sec. 2 (b) A citizen may not be disenfranchised under subsection (a), if the citizen is entitled to vote in a precinct under subsection (c) or federal law.
- Art. 4, Sec. 17. ... without whose advice and consent the Governor may not grant pardons, in any case, except those left to his sole power by law.
- Art. 10, Sec. 1(f)(1) A taxpayer's property tax liability on tangible property described in subsection (c)(4) may not exceed one percent (1%) of the gross assessed value of the property that is the basis for the determination of property taxes.
- See similar uses in the same section at (f)(2), (f)(3), (f)(4), and (f)(5).
- Art. 10, Sec. 1(h)... Such a law may not apply after December 31, 2019.
Posted by Marcia Oddi on September 28, 2011 09:53 AM
Posted to Indiana Law