Permissive or Mandatory Statutory Procedure Test
In People v. McGee (1977), 19 Cal. 3d 948, the Supreme Court provided a comprehensive analysis a court should make when faced with deciding whether a particular statutory procedure is mandatory or directory. the analysis involves two levels of inquiry.
The first level involves the "mandatory-permissive" dichotomy. (Id. at p. 958.)
In this context "'the term "mandatory" refers to an obligatory [procedure] which a governmental entity is required to [follow] as opposed to a permissive [procedure] which a governmental entity may [follow] or not as it chooses.'" ( Id. at pp. 958-959.)
In McGee the issue involved interpretation of a provision formerly appearing in section 11483 which incorporated language from other sections stating that "restitution shall be sought ... prior to the bringing of a criminal action" against those who fraudulently obtain certain welfare benefits. the Supreme Court concluded that statutory requirement was mandatory, rather than permissive. (People v. McGee, supra, 19 Cal. 3d at p. 961.)
One of the reasons given by the court for its conclusion was that section 15, a general provision applicable to all sections of the code, stipulates that "'shall' is mandatory and 'may' is permissive."
Section 6601, subdivision (d) provides that "pursuant to subdivision (c) the person shall be evaluated by two" professionals.
The second level of inquiry described in McGee focuses on the consequences which flow from the failure to follow a prescribed procedure.
After discussing earlier decisions, the Supreme Court stated that "the pertinent question in the instant case is whether the statutory requirement at issue was intended to provide protection or benefit to those individuals accused of welfare fraud or was instead simply designed to serve some collateral, administrative purpose." (People v. McGee, supra, 19 Cal. 3d at p. 963.)
If the latter, the state's noncompliance with the procedure would not constitute a defense.
The court went on to conclude that "the statutory requirement at issue here was intended to provide a measure of protection to individuals suspected of welfare fraud." (Id. at p. 965.)
The state's failure to comply with the requirement could be raised by the defendant as a bar to prosecution. (People v. McGee, supra, at p. 966.)