Of course, everyone’s first guess is, mandatory. But, in his Legal Writing in Plain English, Bryan Garner devotes a section to the word “shall” in which he recommends that legal drafters not use it – first of all, because it is not plain English, but also because “the vast majority of drafters don’t know how shifty to word is.”
In State v. Shannon, 185 P.3d 200 (Haw. 2008), the Hawaii Supreme Court took up the question when interpreting HRS § 706-624(3) regarding conditions of probation, in which is stated:
The defendant shall be given a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity to enable the defendant to comply with the conditions accordingly.
In declining the state’s invitation to adopt an “actual notice” rule in which “receipt of actual, oral notice” of the conditions at a hearing would be sufficient, the court provided the following analysis:
[I]t is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. See Gray v. Admin. Dir. of the Court, 84 Hawai`i 138, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997) (observing that “[t]he word `shall’ is generally construed as mandatory in legal acceptation”); Voellmy v. Broderick, 91 Hawai`i 125, 129-30, 980 P.2d 999, 1003-04 (App.1999) (declaring that “[t]he word `shall’ `must be given a compulsory meaning . . . and is inconsistent with a concept of discretion’” (quoting Black’s Law Dictionary 1375 (6th ed.1990) (other citation omitted))); but see Narmore v. Kawafuchi, 112 Hawai`i 69, 83, 143 P.3d 1271, 1285 (2006) (noting that “[w]hile the word `shall’ is generally regarded as mandatory, in certain situations it may properly be given a directory meaning” (quoting Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269 (1978) (citation omitted)))…
Additionally, this court has interpreted the word “shall” as “directory” rather than mandatory only where a three part test has been satisfied.
In Perry [v. Planning Comm'n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980)], this court articulated a three-prong test for determining when the word “shall” may be interpreted as directory. First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.” Id. at 677, 619 P.2d at 103.
Leslie v. Bd. of Appeals of County of Hawai`i, 109 Hawai`i 384, 394, 126 P.3d 1071, 1081 (2006) (emphases added).