Robert T. Huggins v. John Isenbarger, Chairman, Indiana Parole Board , 798 F.2d 203 ( 1986 )

EASTERBROOK, Circuit Judge,

concurring.

Ind.Code § 11-13-3-3 is a state law, and as in so many diversity cases our job is to figure out the meaning of a state’s law while the state courts remain silent. That we must interpret the law is a consequence of litigation under § 1983. The exhaustion of state remedies required prior to a petition for habeas corpus would have given Indiana’s courts an opportunity to construe the new statute. I doubt that cases of this sort should be brought under § 1983. Huggins wants out, sooner or later; just as a criminal defendant seeking a new trial must use habeas corpus, so a prisoner seeking a new parole hearing should. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Hanson v. Heckel, 791 F.2d 93 (7th Cir.1986); United States ex rel. Johnson v. McGinnis, 734 F.2d 1193 (7th Cir.1984). But while Walker governs, § 1983 is an available avenue, and we are driven to construe state law without the guidance of the state’s courts.

What should we make of the new statute? No court of Indiana has decided whether the new statute restricts the parole officials’ discretion. Indiana could interpret its law as Huggins does. We held in Scott that a similar statute creates a liberty or property interest. The legislative history in Indiana might show that the parole officials are to grant release whenever release is not forbidden. There is no inevitable reading of a complex statute. Context and history tell the story, which is why statutory construction is an art rather than a science.

Our task is affected by the fact that although diversity litigation usually is between private parties, with the state as neutral lawgiver, this suit is against the state. We do not have an interpretation of § 11-13-3-3 from the Judicial Branch of Indiana, but we have an interpretation from the state’s Executive Branch. The parole officials interpret § 11-13-3-3 to give them discretion to deny parole based on the seriousness of the offense, a criterion not listed in § ll-13-3~3(j), which demonstrates that they do not read that statute as directing release whenever release is not forbidden. The Attorney General of Indiana interprets the new statute as granting parole officials the same unbridled discretion as the old one did. The Attorney General’s brief in this court states that neither the new statute nor any of its implementing regulations constrains the board to grant parole under any set of facts.

If the Supreme Court of Indiana had come to this conclusion, our case would be as easy as Averhart was. To what extent does the Attorney General’s interpretation of § 11-13-3-3 fill the gap? We cannot proceed as if the matter were open to utterly independent consideration. No rule of federal law requires states to confide certain powers to the judicial branch alone. However Indiana wishes to distribute its powers internally, this is no concern of the federal government unless the distribution denies the state a republican form of government. See Whalen v. United States, 445 U.S. 684, 689 n. 4, 100 S.Ct. 1432, 1436 n. 4, 63 L.Ed.2d 715 (1980); Mayor of Philadelphia v. Educational Equal Opportunity League, 415 U.S. 605, 615 n. 13, 94 S.Ct. 1323, 1330 n. 13, 39 L.Ed.2d 630 (1974); Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908); Dreyer v. Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79 (1902); United Beverage Co. of South Bend v. Indiana Alcoholic Beverage Commission, 760 F.2d 155 (7th Cir. 1985) . Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 359-62, 97 S.Ct. 2691, 2696-98, 53 L.Ed.2d 810 (1977) (recognizing that state courts may exercise legislative powers); University of Tennessee v. Elliott, — U.S. —, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (findings of fact made by states’ executive agencies have preclusive effect in federal civil rights litigation). The allocation is for the state to decide under domestic law, and it may give the Executive Branch powers that overlap those of the Judicial Branch. See Felder v. Estelle, 693 F.2d 549, 554-55 (5th Cir.1982) (Higginbotham, J., concurring); cf. Barrera v. Young, 794 F.2d 1264, 1268-70 (7th Cir. 1986).

The Executive Branch of. any government has the authority to interpret the law, if only to the extent necessary to decide how to execute that law. The authority of judges to interpret and sometimes decline to enforce a statute is implied from the need to decide cases that are properly before them and from the hierarchy of rules that applies. See Marbury v. Madison, 1 Cranch (5 U.S.) 137, 170-80, 2 L.Ed. 60 (1803). The announcement of legal rules is a byproduct of the process of adjudication. The interpretation of the law is a principal function of judges, but it is also an important function of other branches of government. Each branch of the government interprets the law, with equal authority, when necessary for resolution of the problem at hand — adjudication in the case of judges, implementation in the case of executive officials. See Learned Hand, The Bill of Rights 3-18, 27-30 (1958). We have held that in interpreting the law executive officials share the attributes of judges and are entitled to absolute immunity. Carson v. Block, 790 F.2d 562, 565 (7th Cir.1986); Henderson v. Lopez, 790 F.2d 44, 46-47 (7th Cir.1986); Mother Goose Nursery Schools, Inc. v. Sendak, 770 F.2d 668 (7th Cir.1985), cert. denied, — U.S.—, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986). Ours is not a case of immunity, but the underlying question is the same: When do executive officials have the authority to interpret the law on behalf of their jurisdiction?

That the Attorney General comes before us as an advocate does not diminish his role. The nature of the judicial system forces the Attorney General to advocate as well as to interpret, but a federal court is not authorized on that account to give the Attorney General’s views lesser weight than they would receive if they appeared in a bound volume of legal opinions. The statements of law in his brief are the views of the highest responsible official of the Executive Branch of Indiana. Some views expressed in briefs may be poorly considered, but some views expressed in judicial opinions also are poorly considered. Cases get reversed, and briefs may have a more complete exposition of the law than do judicial opinions. Indiana could adopt a principle of domestic law under which briefs are treated solely as advocacy; this is the rule the federal courts use when a lawyer (as opposed to an administrative agency in opinions or regulations) tries to explain the basis of a decision. SEC v. Chenery Corp., 318 U.S. 80, 92-95, 63 S.Ct. 454, 461-63, 87 L.Ed. 626 (1943). But the Supreme Court often gives special consideration to the statutory analysis in the Opinions of the Attorney General or the brief of the Solicitor General representing agencies of the Executive Branch. E.g., Japan Whaling Ass’n v. American Cetacean Society, — U.S. —,—-—, 106 S.Ct. 2860, 2867-68, 92 L.Ed.2d 166 (1986); Haig v. Agee, 453 U.S. 280, 291, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1981). That the first complete elaboration of the legal position is presented in a brief does not authorize a court to sneeze at the position. Officials often formulate legal positions in the course of litigation, as the bearing of a particular statute becomes evident. A state should be entitled to decide for itself the status of legal interpretations contained in briefs. At all events, the Attorney General’s views were not formulated only for use in this litigation. The Attorney General appears on behalf of the Indiana Parole Board, which adopted in its regulations the legal view that it has unfettered discretion under § 11-13-3-3. This existing view is authoritative under state law, at least for the moment.

In Indiana, as in the federal system and the other states, judicial interpretations of the law by the highest court supersede the executive interpretations. Cf. United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (interpretations of law by lower federal courts bind the Executive Branch only with respect to the litigants involved). If the Supreme Court of Indiana had spoken on the meaning of § 11-13-3-3, we would follow its decisions. It has not, however, and until it does the prevailing construction is the one of the Executive Branch of Indiana’s government. Any position that disregarded the executive’s views would raise profound questions in a federal system, one in which states rather than the national government establish the meaning of state law. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II), which concluded that principles of sovereign immunity implicit in the federal structure of our nation prevent a federal court from granting injunctive relief against state officials based on an interpretation of state law that differs from the interpretation placed on that law by the state’s Executive Branch (the defendant in Pennhurst II). Pennhurst II was a strong case for interpretation of state law by a federal court. The Supreme Court of Pennsylvania had construed the state’s law differently from the construction defended by the Executive Branch of the state; moreover, a decision based on the state court’s construction of state law would have enabled the federal court to avoid a question of federal constitutional law. Still, the Court concluded, the federal court must not grant a remedy against the state based on its own construction of state law. In our case, by contrast, no state court has spoken, and accepting the Executive Branch’s construction of state law will enable us to avoid a constitutional question.

Because in Indiana the views of the Supreme Court trump the views of the Attorney General, the Executive Branch does not always speak for the state. This suggests the same sort of caution a federal court exercises when determining whether the Supreme Court of a state would adopt a legal position articulated by a lower court. See King v. Order of Travelers, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608 (1948) (in diversity cases federal courts are not absolutely bound by the construction of an intermediate state court); Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern National Insurance Group, 750 F.2d 619, 624-25 (7th Cir.1984). So, too, when a state’s construction of its domestic law (by any branch of its government) affects the enforcement of federal rights, there is a second inquiry: whether the state’s construction is reasoned, consistent, and sufficient to justify the effect on the federal interest. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982); James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). But the interpretation of § 11-13-3-3 does not undercut a federal interest. If the statute means what the Attorney General says it does, there is no federal interest at all.

The Attorney General’s understanding of Indiana law is not so far out of line that the Supreme Court of Indiana is certain to go the other way. The court discusses the statute and its implementing regulations. These do not compel a conclusion that the parole board has unfettered discretion, but they permit such a conclusion. Similar indicia would lead a court to accept the interpretation given to a law by a federal agency. E.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); Watkins v. Blinzinger, 789 F.2d 474, 478 (7th Cir.1986). A federal court owes still greater respect for a state agency’s construction of state law. So to the extent a federal court is authorized to venture an independent opinion, I think it likely that the Supreme Court of Indiana will support the Attorney General’s view that the new statute and regulations leave the parole board with discretion. Parole in Indiana does not depend on the application of rules to facts; a prisoner’s appeal is to discretion rather than to legitimate claims of entitlement; the statute and regulation therefore do not establish a liberty or property interest.

The court is able to resolve today’s case without deciding the appropriate treatment of the considered views of the Executive Branch of a state’s government. Similarly, I have outlined some views without suggesting a firm answer to the question how federal courts should deal with the Executive Branch’s views. I hope, however, that avoidance in this case does not mean inattention in the future. Neither the district court nor the parties discussed the question. Pennhurst II has put federal courts out of the business of issuing relief against state officials based on state law, but this case shows that questions of state law are inescapable, because the entitlements established by state law become the basis of claims under the Constitution. I should think it regrettable if a federal court were to order a state to change its practices on the ground that its Executive Branch does not understand state law — even though the formal basis for the order is the due process clause of the fourteenth amendment. Both the parties and the courts should take care in tomorrow’s cases to consider the role a state’s construction of its own law plays in constitutional litigation.