The New 7.5 Yr. Reporting Period!

I figured you'd say that. I'm surprised it took this long.

This thread is about "SHALL", and statutory interpretation, not criminology.



lol

 

Thanks PR. It would seem rather obvious wouldn't it? lol

.

Most common modal auxiliaries:
The following are known as "Modal Auxiliary Verbs". Modal verbs can have different meanings depending on the way (mode) in which the verb is to be interpreted.

will, shall, can, may, need (to), dare, would, should, could, might, must, ought (to)

-

No more eloquent an example exists than the Presidential Election fiasco of 2000. If you recall Gore lost the Electoral Votes in Fla. by only a few hundred votes. His campaign bosses sought to suppress votes which may have gone in favor of Bush, and accentuate those which may have gone in Gores favor. He did so by demanding numerous manual recounts of those 'ballots' in 4 highly democratic counties, Valusia, Broward, Dade, and West Palm Beach.

Ultimately this argument failed because it violates the equal protection clause of the Constitution. Having failed at this component of the fight, Gore desperately turned his argument to the time frames involved.

The law says:

• Statute:
  
  102.112 Deadline for submission of county
  returns to the Department of State.â??
  
  (2) Returns 'must' be filed by 5 p.m. on the 7th day following a primary election and by 5 p.m. on the 11th day following the general election.

This mandatory statute dictates that "Returns 'must' be filed by 5 p.m. on the 7th day following a primary election". Another section says the deadline "may" be extended in the event of, for example, a natural disaster such as a hurricane, or an act of God, making it impossible to comply.

The election was held on Nov. 7th. This brings the Drop-Dead Date to Nov. 14th

-

My Reply:

• In 102.112 (2) they meant must, so they used must.
  
  If Congress had meant "must" in [§ 605 (C) (1)] they would have surely used the word "must", but they didn't mean must, they meant "shall", so that IS the word they used.
  
  (Besides, Congress doesn't choose the language. Drafters do. But I digress)

When a statute is unarguably/positively "mandatory" the word must is used.

Having already counted ALL the "votes", four times, Gore believed he might prevail if things could be forced to CONTINUE long enough for the voters "INTENT" to be DISCERNED, under the auspices that "all the votes should be counted."

In question specifically, were some 9,000 additional "ballots" which were under-votes or over-votes. Recall that even though a Chad may still be hanging, (which, by the way, disqualifies a ballot card from becoming a vote) "we should never-the-less try to 'discern' the 'voters intent'", so insisted the Gore team.

Since the mandatory "drop dead" date is November, 14 2000, and knowing all the recounts couldn't be done in time, Gore files with the Florida Supreme Court (FSC) to force an extension of time to allow for the recounts to occur, and to force the acceptance of them. (The intent, of course, was to count only those "votes" in the 4 heavily democratic counties mind you. The overseas ballots from our service members, far more than 9,000, which would have weighed heavily to Bush, were to be excluded because of insufficient postage). So much for the "every vote must count" crap.

Award winning commentator Hostetler puts it succinctly:

• Bob Hostetler
  
  [The following commentary aired on WUMB, and was the 2001 Recipient of the Ohio Associated Press Award for Broadcast Commentary]
  
  Words: What Do You Mean?
  
  â?¦ the question arose as to whether Florida's secretary of state could or should extend the statutory deadline of 5 p.m. on the seventh day following the election for counties to report their vote counts, it was discovered that the section of the statute referring to the secretary of state indicated that she "may" extend the deadline in the event of unforeseeable circumstances, such as a hurricane.
  
  Immediately, Democrats and reporters (sometimes the distinction was unnecessary) claimed victory for the Gore campaign, since in their minds this clearly obligated the secretary of state to wait as long as necessary for ballots to come in. But that depends on what the meaning of "may" is. To most English-speaking people, "may" means "may," not "must."

• The decision from the FSC:
  
  The Florida Supreme Court commanded that: "amended certifications must be filed with the Elections Canvassing Commission by 5:00 p.m. on Sunday, November 26, 2000 and the Secretary of State SHALL ACCEPT any such amended certifications received by 5:00 p.m. on Sunday, November 26, 2000".

Note: SHALL ACCEPT.


Somehow equating a few Fla. voters who couldn't manage to pull a Chad off the back of their ballot card, with a massive hurricane, or act of God making it impossible to comply, the dimwits on the FSC, in their own version of tortured logic, ordered the continuation of the recount, and actually RE-DATED/RE-AGED the drop-dead date from Nov. 14, to Nov. 26, 2000. So Gore appeared to win his way on the issue. At least temporarily.

Having suffered upon themselves (and the rest of us) this ridiculous, Unconstitutional indignity, Bush was finally forced to file in the US Supreme Court, seeking to stop this re-dating and re-counting nonsense, and adhere to Florida's Election Statutes, the Florida Constitution, decisions of the Fla. Legislature, and the US Constitution.

Over either of two separate issues the Bush team argued their case. One issue was this problematic deadline extension.

But the second issue, and in the alternative, became more paramount. The argument began to focus on whether or not the Florida Secretary of State (SOS), Katherine Harris, had the authority to "use her own discretion" as to whether or not she can, can't, could, couldn't, should, shouldn't, shall, may, might or must IGNORE or ACCEPT late counts anyway.

SOS Katherine Harris, you remember her don't you? While defending the law of the land, the Dem. 'politics of personal destruction machine' went into hyper-drive to destroy her. The press called her Cruella DeVille, made jokes about her make-up, her weight and even her wardrobe choices. I remember her once called "trailer trash". Harris, in her press conference, referred to the Nov. 14th deadline as the Drop-Dead Date. Here's just ONE headline: Katherine Harris Tells Florida Voters to "Drop Dead"!

This is how they act. Unable to compete in the market place of ideas, they can't beat you on merit so they first try to change the subject, or start the discussion all over again. Failing that, they attack you personally. (Or all of it at once). lol

-

• Statute:
  
  102.112 (3) If the returns are not received by the department by the time specified, such returns shall be ignored and the results on file at that time shall be certified by the department.

If it could be decided that Harris COULD use her discretion, the time frame would become IRRELEVANT since she could ignore late arrivals anyway. Conversely, if she could be forced to accept the late arrivals, it was theorized, Gore might win.

NOW - the entire argument hinges on the "SHALL" interpretation.

DID YOU HEAR WHAT I JUST SAID? THE ENTIRE ELECTION FIASCO OF 2000, AT LEAST IN PART, HUNG IN THE BALANCE ON THE INTERPRETATION OF "SHALL" !!!!!

• Hostetler again:
  Similarly, another part of the statute indicated that if county returns were received after the statutory deadline, the election commission "shall" ignore such returns and "shall" revert to whatever counts were on file. â?¦ But that all depends on what the meaning of "shall" is. â?¦

Continued:

 

Continued:

Bush argued that Harris, has discretion to either accept or ignore additional late arrivals. Therefore, regardless of the FSC's unconstitutional re-aging of the drop-dead date, she can/may ignore late arrivals anyway.

In fact, BOTH sides interpreted "shall" in this provision to mean "MAY". (notwithstanding other statutes)

• Gore - Since SHALL means she "MAY" ignore late arrivals, then she doesn't necessarily HAVE to ignore them and therefore, she shouldn't ignore them. (Which means they should be accepted).
  
  Bush - Since SHALL means Harris "MAY" ignore late arrivals, then she is not required to accept them, and therefore she should ignore them. (Which means they should NOT be accepted).

So now, not only does shall not mean may or must, but the argument turns on whether Harris, shouldn't (as in Gores argument), or should (as in Bush's argument), ignore late arrivals.

Thank God, we are finally in a place where we can cut a very long and complicated story short by simply reminding you of who won, not only the USSC argument, but the Presidency. Stop and contemplate Gore's argument for a moment. They insisted that 'shall ignore' in 102.112, meant 'may ignore'. Therefore she should NOT ignore them.

The USSC ruled it IS within her discretion, that shall means may. The "SHALL's" in Bush v. Gore were not mandatory.

Having her discretion re-affirmed, Harris exercised it, and ignored the late arrivals. She did so in order to uphold the Florida Legislatures mandatory drop-dead date. (Which is NOT discretionary)

Ergo - Bush won the election.

The rest is history.

-

"SHALL" in statutes are merely presumed to be mandatory unless a contrary intent is either indicated, or becomes necessary to achieve harmony.

This 'presumption', by the way, is the same one which allows a CA to 'assume' your debt is valid if you fail to dispute within 30 days. As you ALL already know this 'presumption' can easily be removed anytime.
(See What Is Validation!)

• 
  The 1925 trial of John T. Scopes v. Tennessee was called the trial of the century. It was also called the Monkey Trial. It was the trial that argued the difference between evolutionism, and creationism. They even made a movie about it, "Inherit the wind".
  
  Scopes v. Tennessee: This court shall take Judicial notice of: "16 Am Jur 2d CONSTITUTIONAL LAW, Sec. 92 --- "Shall." "The use of the word "shall" in a constitutional provision is generally considered as an indication of the mandatory character of the provision, although it has been held that in the constitution of a constitution, "the word 'shall' may receive a permissive interpretation when necessary to carry out the true intent of the provision in which that word is found."

Put simply, if there's a good reason why "SHALL" should mean "MAY" instead of "WILL", or "MUST", it will be so interpreted. Moreover, each "shall" is to be considered separately, on a Case-by-Case basis. ("the word 'shall' may receive a permissive interpretation when necessary to carry out the true intent of the provision in which that word is found.")

So we are commanded to examine the consequences of the various interpretations;

• 
  They even argue in Malaysia:
  
  An examination of the relevant authorities, the leading textbooks and the numerous authorities to which they refer confirm the limitations of applying a solely mandatory/directory classification (see Wade and Forsyth, Administrative Law, 1994, 7th Edn, p 255. Supperstone and Goudie, Judicial Review, 1997,2nd Edn, Chapter 4 and de Smith, Woolf and Jowell Judicial Review of Administrative Action, 1995, 5th Edn, pp 265-271).
  
  Frequently the investigation involves doing no more than deciding the sense in which the word 'shall' has been used as part of a particular procedural requirement. As the word 'shall' is normally inserted to show that something is required to be done, the exercise tends to be an unrewarding one.
  
  Much more important is to focus on the consequences of non-compliance. Here the authorities show no constant pattern. This is the result of courts in those cases focusing on the issue of whether or not a requirement is mandatory and ignoring or failing to pay sufficient attention to the issue of the consequences of non-compliance with, in particular, a mandatory requirement.

Thus, it is "more important is to focus on the consequences" of a "SHALL" means "MUST", or "MAY" interpretation.

-

So - was there a good reason in Gore v. Bush for "SHALL" to mean "MAY"?

Let's look at the consequences of "may", or "must";

If Harris were to be FORCED to accept late returns, it would have to be done beyond the statutorily mandated deadline of Nov. 14th.. An internal conflict between provisions would be created.

Namely, a conflict between the statutory deadline, Nov. 14 2000, and the new deadline set by FSC, Nov. 26th, and/or whether or not she should be forced to accept late arrivals, beyond Nov 14th..

Continued:

 

Continued:

The Solicitor General of the United States represents the White House whenever there is an issue to be argued before the US Supreme Court. A highly technical and specialized field of law.

Special Council Ted Olson, argued the final oral arguments in Bush v. Gore, before the USSC, (He later became the Solicitor General for the White House. Horribly Mr. Olson lost his wife Barbara, on flight 93 over Pennsylvania, on 9/11/01. Devastated, he eventually stepped down.)

Below is a snip of the transcript of oral argument. It's a bit hard to follow, because oral argument with the Supreme Court is an orgy of interruptions, (sometimes loud ones) and weird questions that seem to come from nowhere. All the questions below are from one of the 9 Justices.

It's a nine against one meat grinder, and they are not in the mood to play around.

I've underlined the important parts, and I have a few notes, in red, to try and clarify;

• QUESTION: Is there any circumstance in which she would be compelled to accept a late return?
  
  MR. OLSON: I don't know of any. I haven't thought of any, Justice Stevens.
  
  QUESTION: Well, you are arguing in effect that it's a mandatory deadline. I wonder if you really mean it's mandatory.
  
  MR. OLSON: What we are saying is that either it's mandatory, in which case she could not accept them. â?¦
  
  QUESTION: But you don't know whether it's mandatory or not?
  
  MR. OLSON: Well, the Florida Supreme Court and what the circuit court did in that case, it said that it wasn't mandatory -- and we'll accept this for purposes of this argument that it wasn't -- I think that we can answer that this way, is that whether it was shall ignore or may ignore. It was not must accept.
  
  QUESTION: Under any circumstance it was not must?
  
  MR. OLSON: No, under no circumstances was it must accept.
  ... I think that it has to be looked at in the context in which that was done when the state supreme court so constrained and says in its opinion shall accept these late returns until 5 p.m. on November 26th, and in this context there was no discretion left for the Secretary of State at all. The FSC cannot remove Harris's discretion granted by the discretionary, "shall ignore" statute.
  
  Here's the question that most interested the justices. The 'internal conflict'. The consequences, if you will.
  QUESTION: Mr. Olson, may I ask you, because you've been skipping over what I thought was a key piece of the Florida legislation. The Florida Supreme Court said, there's the deadline, Nov. 26th.. but that conflicts with another provision of this law. ...
  
  MR. OLSON: Up to. â?¦ Nov. 14th.. Not beyond it.
  
  QUESTION: â?¦ The Florida Supreme Court said, it's right in its opinion, but there are two conflicts, and the first one, â?¦ is that there has to be a reconciliation between these, yes, there can be recounts and, yes, there's a deadline. So they are trying to reconcile these two provisions.
  
  
  LQQK it up ->

But remember this: ONE MAY NOT DRAW AN INTERPRETATION THAT CREATES AN INTERNAL CONFLICT BETWEEN STATUTORY PROVISIONS!!!

• The Shall in 102.112, (Shall Ignore) does not mean must ignore. It means may ignore
• The shall in the FSC decision, (Shall accept) does not mean must accept
• The shall in FCRA § 605 (C) (1), does not mean must begin, but "may begin"

Ultimately, the mandatory deadline of Nov 14th., could NOT be reconciled with the FSC's new Nov. 26th., deadline.

But even if it could be reconciled, as Olson stipulates, 'shall ignore' does NOT mean 'must ignore', it means 'may ignore'. Nor does 'shall accept' in the FSC decision mean 'must accept'. The USSC agreed the 'shall ignore' AND 'may extend' AND 'shall accept' statutes are ALL 'DISCRETIONARY.'

• MR. OLSON: Both of those statutes, both of those provisions say that the returns must be, or shall be filed by a certain deadline. The shall and the may provisions simply relate to the possible remedy. We submit that under either interpretation the Secretary of State of Florida either must or shall ignore those returns, or may set those aside in her discretion.

The Gore attempt to steal the Oval Office failed miserably, just as resoundingly as the "SHALL CAN NEVER MEAN MAY" argument collapses under a proper understanding of statutory interpretation.

-

When I first began this discussion, long ago, I pointed out, in the second post in this entire thread, where the whole problem begins. It ALL begins with our normal, everyday understanding of the word "shall". I even included a link to Webster's Dictionary, and asked everyone to go look it up.

• Hostetler again:
  But that all depends on what the meaning of "shall" is. To most of us, "shall" means "shall," not "may."

Here's what I said on July 20, 2003;

But â?¦ from there we went on the look at the legal interpretations and the ramifications thereof.

I couldn'a said it better myself. Nothing new here indeed.

I believe so too. And I'm the first one to post it. LOL


We're dealing with law, remember? WRONG DICTIONARY!

On my site, just under my picture, you'll find a link to the 'legal dictionary' at Law.com.

As PhD's. in 'plain language statutes' you should at the very least consult the correct dictionary. lol


Chasing ones own tail, or sidetracking a discussion into silly circles, certainly will not add clarity to an otherwise complex issue. Since neither of you have progressed even beyond the 2nd post, perhaps you should take your own advice and start over, rather than continue this adolescent 'who gets the last word' contest. Perhaps there's something in here for you to learn.

The reporting period in the FCRA § 605 (C) (1), CANNOT be BOTH 7 years and 7.5 years, (7 years PLUS 180 days) in duration.

A reconciliation between statutory provisions, especially within the same law, or Act, is NOT OPTIONAL.

So in FCRA § 605 (C) (1), "SHALL" not only could mean "may" it HAS to mean may. It's the ONLY way to reconcile these OTHERWISE DIAMETRICALLY OPPOSED provisions.

Continued:

 

In Conclusion:

It takes a long time to write like this and get it all formatted. I don't mind of course but my point is A LOT of notes are consulted and web pages reviewed. In the process here, I just caught something I'd somehow missed before.

Just as CDIA is the ultimate authority for the reporting industry, National Consumer Law Center, (NCLC) is the ultimate authority for us, the consumers and our lawyers. I have the NCLC Manuals which contain MANY thousands of pages of legal stuff and case law.

The Manual called "The Fair Credit Reporting Act", 5th addition, is a MUST have for any serious credit recovery student. It instructs lawyers on how to defend or prosecute their cases as they represent us, the consumers.

The freakin Table of Contents is 28 pages long, small type.


But before I show you what the NCLC Manual says, let me first remind everyone what the original disagreement was about. And then we can compare notes.

I said:

• 
  "Many believe that in all cases the time begins 7 years PLUS 180 days. A common misconception on a very complex issue. Actually the 7 years is fixed, but the 180 days is not. Otherwise we'd all be talking about a 7.5 year reporting period.

• The 7 year reporting MUST begin sometime WITHIN the 180 days. Big, BIG difference. "

• 
  This is referenced in the very first post in this thread.

In discussing the mysterious extra 180 days in FCRA § 605 (C) (1), I found the following tiny paragraph hiding quietly away on Page 204, last paragraph, left column. It's in section 8.3 Maximum Time Periods to Retain Adverse Information.


Here it is - word for word;

• "THE NET EFFECT OF THESE RULES IS THAT THE SEVEN-YEAR LIMITATION

• MAY BEGIN ANY TIME FROM THE DELINQUENCY ITSELF UNTIL 180 DAYS THEREAFTER, DEPENDING UPON WHEN THE DEBT WAS PLACED FOR COLLECTION, CHARGED OFF, OR SIMILAR ACTION".

Note: "may" and "anytime time from".


Anyone who has this manual can easily confirm.


Whether one is too bias to sit on the Florida Supreme Court, too dumb to follow posted instructions and pull a Chad off the back of a ballot card, (thus transforming it into a legally cast "vote") simply ill-informed, or just plain "ill-equipped" to even deal with the complexities of the "shall/may controversy" (Modal Auxiliary Verb) discussion, the underlying, UNMOVABLE fact remains EXACTLY the same.

If the reporting period is limited to 7 years, it cannot therefore be reported for 7.5 years.

**************

[Incedentally, this entry is NOT about Florida Election Law, or a discussion about politics.] lol

• Also - I have not exhaustively studied the election mess, so I may be slightly off on a few minor points. Mainly because the election of 2000, is not the point. The point is, as Justice Ginsberg put it, the 'shall/may controversy'. But I did try and make it interesting to read.

.

 

Re: Re: Re: The New 7.5 Yr. Reporting Period!

....

 

Re: Re: Re: The New 7.5 Yr. Reporting Period!

...

 

Terry Shindler-Schiavo's life hangs in the balance, to a very significant extent, on the "shall", "may", "must" or "will" controversy. (The permissive v. mandatory dilemma)

Stay tuned:

 

Obviously Terry Schiavo's case has gotten noticeably more complex in the past several days.

But thanks for yet another brilliant comment Sass.

lol

 

...

 

(You 2 sure are gluttons for punishment)

â?¦

As promised:

I started contemplating Terri's case as an example on the 18th, but soon had to drop it. Unfortunately Terri's case has gotten so complicated since then, this one component of it has been dwarfed by moral argument, and legal complexity. However, it does provide a classic example of the existence of the continuing confusion over the interpretation of "SHALL".

While I posted my comment [3/18] that "Terri's life hung in the balance over the "shall" means "may" controversy", a RAGING argument was happening right on the Senate floor. My concern was whether or not Congress would actually pass this unconstitutional CRAP.

Congress was trying to figure out a way to remove jurisdiction from the FL [Guardianship] court, (Greer) by imparting jurisdiction to the Federal Court, (Whittemyer). (and in so doing remove Michael in the process).

This characteristically well thought out, detailed logic speaks volumes.


Actually, the controversy over "shall" permeates more aspects of this case than I can even keep track of. Congress, Law Professors, Lawyers, Talking Heads, add nausea, have discussed this issue to the point of exhaustion, especially MY exhaustion. But you ain't seen nothing yet.

ALL one needs to do is try a little and you can find several instances where the interpretation of "shall" plays a pivotally critical role in this case.

---

• 
  S.686 A bill to provide for the relief of the parents of Theresa Marie Schiavo
  
  Sen Frist, William H. [TN] (introduced 3/20/2005) Cosponsors (2) Private bill Related Bills: H.RES.182, S.653 Latest Major Action: 3/21/2005 Signed by President. All Information (except text), Text of Legislation
  
  SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO. The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
  
  SEC. 2. PROCEDURE. Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.
  
  The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
  
  SEC. 3. RELIEF. After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

3/22/05: Schiavo ruling disappoints White House, DeLay

• â??Section two of the legislation we passed clearly requires the court determine â??de novoâ?? the merits of the case---or in laymanâ??s term, it requires a completely new and full review of the case. Section three requires the judge to grant a temporary restraining order because he cannot fulfill his or her recognized duty to review the case â??de novoâ?? without first keeping Terri Schiavo aliveâ?.

Rep Delay, and as much as it pains me to say so, his Republican friends, (indeed MY Republican friends) are manipulating language to suit their own purposes. The word "SHALL" does not necessarily REQUIRE anything.

From the Floor:

151 Cong. Rec. S3099-100 (daily ed. Mar. 20, 2005) (colloquy between Sens. Levin & Frist).

• Mr. LEVIN. Mr. President, I rise to seek clarification from the majority leader about one aspect of this bill, the issue of whether Congress has mandated that a Federal court issue a stay pending determination of the case.
  
  Mr. FRIST. I would be pleased to help clarify this issue.
  
  Mr. LEVIN. Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court "shall" issue a stay of State court proceedings pending determination of the Federal case. I was opposed to that provision because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and the other bill sponsors accepted my suggestion that the word "shall" in section 5 be changed to "may".

Butch: The "quote" marks ARE in the original text in the congressional record. Only the coloration (from black to red) is mine.

• Mr. LEVIN.The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a stay. I believe that reading is incorrect. The absence of any state [sic] provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate.
  
  Does the majority leader share my understanding of the bill?

• Mr. FRIST. I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary.

Butch: Thank you Frist for revealing the secret facts. The "shall' in the statute does not need to be changed to "may", ... because it already means "may".

It is NOT "mandatory". It is "discretionary"!

• Mr. LEVIN. In light of that assurance, I do not object to the unanimous consent agreement under which the bill will be considered by the Senate. I do not make the same assumption as the majority leader makes about what a Federal court will do. Because the discretion of the Federal court is left unrestricted in this bill, I will not exercise my right to block its consideration.

Not to put too fine a point on it but section 5 of Martinez bill was scrapped in favor of section 3 [above] of the new bill. The language remained the same.


As Senator Levin issued in his FINAL statement on 3/22/05:

• The court has discretion to issue a stay. It is not mandatory. . . .

So on 3/22 Rep. Tom Delay says "Section 2 REQUIRES a De Novo review". That same day Senator Levin says: "it's discretionary, NOT mandatory". So which is it?

My point here is not to argue the unconstitutionality of a "mandated" de novo review. The purpose HERE is simply to demonstrate that a genuine controversy regarding "shall" DOES IN FACT EXIST!!!

In short we can easily recap the argument against my primary thesis in this thread:

• "I know what you're thinking about," said Tweedledum, "but it isn't so, nohow."
  
  "Contrariwise," continued Tweedledee, "if it was so, it might be; and if it were so, it would be; but as it isn't, it ain't. That's logic."

• 
  
  Lewis Carroll
  Alice Through the Looking Glass
  1865

Whether Tweedles are just incapable of grasping the complexity, or too lazy to study for themselves, the underlying, as of yet undisputed fact remains; "SHALL" can, and often DOES, mean "MAY".

Having now suffered a fate worse than death, perhaps now's the time to pull the Tweedles feeding tube.

...

.