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City of Devils Lake v. Corrigan2/1/1999
ses are viewed the morning after the arrest, usually between 7:00 and 8:00 a.m. and bond is then set."
[ ] Corrigan argues N.D.C.C. § 29-08-02 requires municipal Judges to avoid the usual criminal procedures, such as bail hearings, in traffic cases by setting a bond schedule for DUI arrests. Section 29-08-02, N.D.C.C., says:
"Admission to bail defined - Delegation of authority by magistrate. Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon an undertaking with sufficient sureties for his appearance. Any magistrate or municipal Judge in this state may in his discretion designate, authorize, and appoint an additional person or persons to arrange, receive, and approve bail in cases involving traffic violations."
[ ] In interpreting this section of code, we have said the language of the statute "allows a magistrate or a municipal Judge to appoint persons to `arrange, receive, and approve bail' for traffic violations." City of Fargo v. Stutlien, 505 N.W.2d 738, 742 (N.D. 1993) (emphasis added). Much of the statutory language was:
"enacted in 1969 at the same time as N.D.C.C. § 29-08-21, was amended to allow the court to treat the forfeiture of bail as a final Disposition of a traffic violation. 1969 N.D.Laws ch. 300. The purpose of the amendments to N.D.C.C. §§ 29-08-02 and 29-08-21, was to allow a court to establish a bail forfeiture schedule to accommodate the administrative Disposition of traffic violations. The effect of those amendments was to allow for the expedited release of individuals arrested for traffic violations without triggering the usual criminal procedures; it was not to permit municipal courts to authorize "minimum periods of detention, prior to release pending trial." Id.
[ ] Neither in Stutlien, nor in any other case, have we said the statute requires a magistrate to act. The word "shall" in a statute ordinarily creates a mandatory duty. In Interest of C.J.A., 473 N.W.2d 439, 442 (N.D. 1991). "The word `shall' is `generally imperative or mandatory . . . excluding the idea of discretion, and . . . operating to impose a duty', although `it may be construed as merely permissive or directory (as equivalent to `may'), to carry out the legislative intention.'" Homer Township v. Zimney, 490 N.W.2d 256, 259 (N.D. 1992) (quoting Black's Law Dictionary, 1375 (6th ed. 1990)). The word "may," however, does not create such a duty. The " ord `may' usually is employed to imply permissive, optional or discretional, and not mandatory action or conduct." Black's Law Dictionary, 979 (6th ed. 1990).
[ ] The language of N.D.C.C. § 29-08-02 states a magistrate "may"-not "shall"-set a bond schedule. We hold the word "may" in the statute is permissive and does not require action. It is within the discretion of the municipal Judge or magistrate to set up a bond schedule and avoid the usual criminal procedures in DUI cases. In Devils Lake, the municipal Judge has decided not to do so, and that is permitted under the statute.
[ ] Because this issue is dispositive of this appeal, the other issues are without merit.
[ ] Grosz, Richard W., D.J., sitting in place of VandeWalle, C.J., disqualified.
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