When "shall" can mean "may"

This morning, the Garden Island headline, "Rapozo asks court to define ‘shall’" caught my eye.

The County Charter states the Salary Commission “shall” do one thing, but the county attorney said “shall” could mean “may,” providing ammunition in a battle among Kaua‘i County Council members stuck between upholding the charter and freezing county officials’ salaries another year.

...

Rapozo filed a complaint with the Fifth Circuit Court, seeking a declaratory judgment on the five-letter word. Is “shall” mandatory or directory?

“If you start saying ‘shall’ is not mandatory it really weakens the charter,” said Rapozo, adding that to him the charter is just as important as the state and federal constitutions.

This is something the Hawaii appellate courts have addressed before. Under the case law, "shall" can mean "may" when

(1) it obviously doesn't mean "must" in the context of the statute's purpose;

(2) reading it as "must" would lead to unjust consequences; or

(3) reading it as "may" doesn't harm any public or private advantage, right, or benefit.

In State v. Shannon, 185 P.3d 200 (Haw. 2008), the Hawaii Supreme Court said,

[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).