Town of Castle Rock v. Gonzales

Ann Althouse althouse at
Fri Nov 18 14:37:33 PST 2005

Michael, I sent your question to my son, John Althouse Cohen, because  
he is writing his student note on the topic, and he responded:

(1) Scalia said that the word "shall" is generally ambiguous (citing  
Bryan Garner).

(2) Since it's ambiguous, he looked to other Colorado statutes.
According to Scalia, Colorado statutes generally use "shall" to mean
something less than "absolutely must, with no discretion."

(3) He cites a footnote of dictum in Chicago v. Morales (a S.Ct. case
about an unrelated issue of criminal law) for the proposition that in
criminal statutes, the word "shall" never means it's strictly
mandatory. That footnote says it's just common sense.

(4) Scalia cites the ABA Standards of Criminal Justice for a similar
point to the one made in Chicago v. Morales footnote. (There's a Cato
Sup Ct Rev article by Roger Pilon that argues that the ABA Standards
don't really support that. Pilon agrees with Zimmer that Scalia
abandoned his usual textualist approach in Castle Rock.)


On Nov 18, 2005, at 1:29 PM, Michael Zimmer wrote:

> Why did Justice Scalia refuse to interpret the plain meaning of the  
> Colorado domestic violence restraining order statute -- that the  
> police "shall use every reasonable means to enforce a restraining  
> order"?  Assuming he doesn't think much of the  legal reactions to  
> the problem of domestic violence, ala Morrison, there were  
> available other ways to reach the result he desired without opening  
> himself to the criticism that his plain meaning approach to  
> statutory interpretation is used selectively in order to achieve  
> results he desires.
> Michael J. Zimmer
> Professor of Law
> Seton Hall Law School
> One Newark Center
> Newark, NJ 07102
> 973.642.8833
> 973.642.8194 fax
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