When the term “shall” is directory: The Illinois Supreme Court reinforces the presumption that statutory language that issues a procedural command to a government official is directory, rather than mandatory

In three recent decisions, In re M.I., 2013 IL 113776, In re James W, 2014 IL 114483, and In re Rita P., 2014 IL 115798, the Illinois Supreme Court has reinforced the presumption that statutory language that issues a procedural command to a government official, in these cases circuit courts, is directory, rather than mandatory. These opinions are noteworthy because even though all three cases reviewed statutes utilizing the term “shall,” the Court found the statutes directory.

In re M.I. - The Supreme Court in In re M.I., 2013 IL 113776, addressed the holding of a hearing on a motion to designate a juvenile proceeding as an extended jurisdiction juvenile prosecution. The Court held that the language of section 5-810(2) of the Juvenile Court Act of 1987, requiring that “the court shall commence a hearing [on the motion] within 30 days of the filing of the motion for designation, unless good cause is shown * * * as to why the hearing could not be held within this time period. If * * * good cause has been demonstrated, then the hearing shall be held within 60 days of the filing of the motion” (708 ILCS 405/5-810 (West 2008)), is directory. ¶¶14, 28.

Regarding a mandatory/directory reading, a statute is automatically mandatory for a government official if the “legislature dictates a particular consequence for failure to comply with the provision.” ¶16 (citations omitted). Statutes that have no specified consequence for the government official’s noncompliance, such as dismissal of a cause of action, are considered directory. ¶16. The Court then summarized the presumption for a directory reading:

With respect to the mandatory/directory dichotomy, we presume that language issuing a procedural command to a government official indicates an intent that the statute is directory.› [Citations omitted.] This presumption is overcome, and the provision will be read as mandatory, under either of two conditions: (1) when there is negative language prohibiting further action in the case of noncompliance or (2) when the right the provision is designed to protect would generally be injured under a directory reading. ¶17. (Citations omitted.)

The Court found that neither condition applied, because section 5-810 does not contain specific consequences for noncompliance with its 60-day limit in holding the motion hearing (¶18) and because the respondent did not show “how having the hearing occur outside the 60-day limit, but before trial, prejudiced him in any way.” ¶27.

Although section 5-810 used the term “shall,” the Court noted that “in no case regarding the mandatory/directory dichotomy has ‘shall’ controlled the outcome. Whenever the mandatory/ directory dichotomy is at issue, as in this case, the word “shall” is not determinative.” ¶19. (Citations omitted.)

In re James W. - Following In re M.I., the Supreme Court found another statute directory, this time section 3-800(b) of the Mental Health and Developmental Disabilities Code (the Mental Health Code). In re James W., 2014 IL 114483, (Petition for Rehearing denied May 27, 2014), ¶¶ 1, 49; 405 ILCS 5/3-800(b) (West 2010). The Supreme Court reversed the Fifth District Appellate Court’s opinion that found that the circuit court’s setting the jury trial for an involuntary commitment 96 days later violates section 3-800(b) of the Mental Health Code (which requires a continuance of no more than 15 days). ¶¶ 1, 49; 405 ILCS 5/3-800(b) (West 2010).

The Supreme Court found the statute concerning the setting requirement directory in that:

[t]he proposition that failure [by the circuit court] to strictly adhere to section 3-800(b)’s 15-day limitation does not, in itself, render the circuit court’s judgment invalid is consistent with this court’s recent decision in In re M.I., 2013 IL 113776 regarding the difference between statutory commands which are mandatory and those which are directory. As we explained in that case, the law presumes that statutory language issuing a procedural command to a government official is directory rather than mandatory, meaning that the failure to comply with a particular procedural step will not have the effect of invalidating the governmental action to which the procedural requirement relates. That presumption can be overcome under either of two conditions: (1) when there is negative language prohibiting further action in the case of noncompliance or (2) when the right the provision is designed to protect would generally be injured under a directory reading * * * Neither circumstance, however, is present here. ¶35. (Citations omitted.)

In re Rita P. - The Supreme Court, in In re Rita P. (2014 IL 115798), also reaffirmed the directory/mandatory analysis utilized in In re M.I. (2013 IL 113776). Applying and citing to In re M.I., the Court found that section 3-816(a) of the Mental Health Code, which stated that mental health orders “shall be in writing and shall be accompanied by a statement on the record of the court’s finding of fact and conclusions of law” (405 ILCS 5/3-816(a) (West 2010)), directory on circuit courts. ¶¶42, 44, 52.

Citing to In re M.I. (2013 IL 113776), the Court found that section 3-816(a) directory because it failed to satisfy either of the conditions to make it a mandatory requirement on the courts. First, 3-816(a) failed to list any specific consequence in case of noncompliance. ¶45. Likewise, the Court found that the second condition for a mandatory reading (injury to the designed right) is also not satisfied for there is “no reason to conclude that a respondent’s appeal rights or liberty interests will generally be injured through a directory reading of section 3-816(a).” ¶68. Specifically the Court rejected the arguments that section 3-816(a) would injured the respondent’s appellate rights, liberty interest, or right to notice of the circuit court’s reasoning. ¶68. Because it found this section directory, the Court reversed the appellate court’s finding that the circuit court violated section 3-816(a) by not providing in the mental health order findings of fact and conclusions of law.

In light of these decisions, a trial court litigator must consider prejudice when arguing about a procedural violation of a statute. Further, appellate attorneys should also consider this precedent in defending an alleged procedural violation by a governmental official. It will be interesting to see if the Supreme Court further expands this application of a directory reading in future cases. ■