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Form v. Substance #2: When Does “Shall” Not Mean “Shall”?

May 20, 2024 General News

In our last post we discussed the tension between form and substance when complying with statutory requirements. In Do v. Arizona Board of Regents, the Arizona Court of Appeals supported rigid adherence to statutory formalities. 539 P.3d 131 (App. 2023). However, in other circumstances, courts have held that satisfying the core substance of a statute may suffice. How do courts decide whether to prioritize form or substance?

The Do Court said it was confined to “the words of the Legislature”; service could not be done by email because the statute said it “shall be” done by certified mail. In Do, “shall means “shall!” But sometimes “shall” means something else. For example, one statute says no contractor shall bring suit to recover compensation without proving he was duly licensed when the dispute arose. A.R.S. § 32-1153. Under the approach of Do, any contractor whose license lapsed during a project would seem to be out of luck. However, the Arizona Supreme Court has held the statute does not apply to contractors who substantially comply with licensing requirements. Aesthetic Prop. Maint. Inc. v. Capitol Indem. Corp., 183 Ariz. 74, 77 (1995). In other words, the substance, not the form, of statutory requirements mattered more. The Court’s decision hardly seemed “confined” by “the words of the Legislature.”

If the Do Court used a substantial compliance test, then service by email likely would have been sufficient. What explains when “shall” means “substantially?” The Arizona Supreme Court said it’s a matter of which approach “promotes legislative purpose.” Aesthetic Prop. Maint. Inc., 183 Ariz. at 76. Sometimes only the substance of a statute needs to be satisfied to promote the spirit of the law. But in practice, it seems that courts just do what feels right to them.

In short, “shall” means “shall,” except for when it doesn’t.