# Stevie Cole v. Warren Young, Superintendent and the Attorney General of the State of Wisconsin

> Court of Appeals for the Seventh Circuit · June 8, 1987 · 817 F.2d 412

URL: https://www.frixlaw.com/law-library/cases/9476130

## Case

- **Full name:** Stevie COLE, Petitioner-Appellant, v. Warren YOUNG, Superintendent and the Attorney General of the State of Wisconsin, Respondents-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** June 8, 1987
- **Citations:** 817 F.2d 412
- **Precedential status:** Published
- **Opinion:** Dissent by Easterbrook
- **Judges:** Flaum, Easterbrook, Will
- **Cited by:** 76 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476130

## How later opinions describe it (automated extraction)

- holding that omission of an instruction on one of the elements of the offense is a due process violation

## Opinion text

EASTERBROOK, Circuit Judge,
dissenting.
The court holds that the instruction defining mayhem omitted an element required by Wisconsin law, and that this violates the Constitution. Both premise and conclusion are faulty. A federal court may not hold that a state court misunderstands state law. The state court’s judgment defines state law for our purposes. And failure to follow state law does not violate the Constitution; the two are distinct.
I
Wisc.Stat. § 940.21, the mayhem statute, provides:
Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another, is guilty of a Class B felony.
Cole was charged with mayhem. The jury received an instruction tracking the language of the statute. The instruction came from the book of pattern jury instructions then used in Wisconsin. It told the jury that “cutting or mutilation” with intent to “disable or disfigure” are elements of the crime, but it did not ask the jury to determine whether Cole had caused “great bodily harm”. Cole’s lawyer did not object to the instruction.
The first protest occurred during collateral review within the Wisconsin system. The court of first instance rejected the claim that the instruction was erroneous. The court of appeals affirmed, concluding:
The defendant argues that the jury was not properly instructed on the essential elements of mayhem. The trial court gave the pattern jury instruction, which includes the essential elements of the crime. The defendant did not object to the instruction as given. Although the trial court did refer to intent to “cut or disable” instead of “disable or disfigure” twice during the instruction, in four other places within that instruction it properly referred to intent to disable or disfigure. We conclude that the instructions in their entirety properly informed the jury of the element of intent.
Wisconsin v. Cole, No. 81-1938-CR (Wis.App. July 20, 1982), slip op. 3-4 [ 108 Wis. 779 , 324 N.W.2d 829 (table)] (footnotes omitted). The Supreme Court of Wisconsin declined to review this decision, and the district court denied Cole’s petition for a writ of habeas corpus.
The centerpiece of the majority’s holding is that mayhem includes great bodily harm. “Great bodily harm” is not mentioned in the statute. The phrase was introduced to the law of mayhem by Kirby v. State, 86 Wis.2d 292, 300-02 , 272 N.W.2d 113, 116-17 (App.1978). Kirby held that “injury by conduct regardless of life” is a lesser included offense of mayhem. In order to conclude that mayhem comprises all elements of the endangerment offense, the court said that mayhem includes “great bodily harm.” Kirby was the principal basis of Cole’s argument in the Wisconsin courts, to which the prosecutor responded that this part of Kirby was wrongly decided, dictum, or both. The court of appeals concluded that the instructions in Cole’s case “include[d] the essential elements of the crime.” This means that the court thought Kirby wrongly decided, dictum, or both. The opinion in Wisconsin v. Cole was written by Chief Judge Decker, the author of Kirby .
As we know from Wisconsin v. Webie, (Wis.App.1987) [_ Wis.2d _, 405 N.W.2d 83 (table)], the court of appeals thinks Kirby wrong. Webie held that “endangering safety by conduct regardless of life” is not a lesser included offense of mayhem, overruling Kirby in the process. The court stated in Webie that the reasoning in Kirby had two *429 links, of which the first “is the addition of the ‘great bodily harm’ requirement to the ‘cutting or mutilation’ element of mayhem.” Webie , slip op. 7, emphasis added. Webie cast doubt on the “addition” of this element but stated, in light of its overruling of Kirby’s holding: “we need not decide whether mayhem continues to incorporate the unexpressed great bodily harm requirement.” Id. at 8, footnote omitted.
So the majority’s basis for holding that the instruction in Cole’s case violated state law is an overruled state decision containing language the validity of which is an open question in Wisconsin. This is not a secure foundation for saying that the decision of the Court of Appeals of Wisconsin in Wisconsin v. Cole is wrong. Even if we were convinced that the court of appeals goofed in construing the statute, our view of the meaning of state law would be irrelevant. The state courts’ views define state law. “[W]e are bound by the Wisconsin Court of Appeals’ interpretation of state law.” Burras v. Young, 808 F.2d 578, 581 (7th Cir.1986). Cole and the state contested the meaning of state law in state court; the decision of the court of appeals is binding under principles of issue preclusion (collateral estoppel). Restatement (Second) of Judgments § 85(l)(a) (1982). The habeas corpus jurisdiction allows relitigation of issues of federal law, but no statute allows a federal court in a collateral attack on a criminal judgment to review an issue of state law already determined between the parties to the case. United States ex rel. Hoover v. Franzen, 669 F.2d 433, 436-37 (7th Cir.1982) (neither the habeas corpus statutes nor principles of pendent jurisdiction allow collateral review of questions of state law).
Principles of preclusion do not bar successive applications for habeas corpus. Salinger v. Loisel, 265 U.S. 224, 230 , 44 S.Ct. 519, 521 , 68 L.Ed. 989 (1924); Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963). And the modem institution of collateral attack supposes the propriety of a federal court’s reexamining issues of federal law decided by a state court. Brown v. Allen, 344 U.S. 443 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953). See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963) (questioning Brown); Phelps v. Duckworth, 772 F.2d 1410, 1417-18 (7th Cir.1985) (en banc) (concurring opinion). Yet until today no American court has denied that rulings on issues of state law, fully litigated in state court, are conclusive in subsequent federal collateral litigation.
A judgment of a state court on a question of state law “conclusively establishe[s]” the meaning of that law. Bute v. Illinois, 333 U.S. 640, 668 , 68 S.Ct. 763, 778 , 92 L.Ed. 986 (1948). “[I]t is for the [state] courts to say under its law what duty or discretion the court may have had.... We are not at liberty to conjecture that the trial court acted under an interpretation of the state law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied. We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.” Gryger v. Burke, 334 U.S. 728, 731 , 68 S.Ct. 1256, 1257 , 92 L.Ed. 1683 (1948). “Whether state statutes shall be construed one way or another is a state question, the final decision of which rests with the courts of the State. The due process clause in the Fourteenth Amendment does not take up the statutes of the several States and make them the test of what it requires; nor does it enable this Court to revise the decisions of the state courts on questions of state law.” Hebert v. Louisiana, 272 U.S. 312, 316 , 47 S.Ct. 103, 104 , 71 L.Ed. 270 (1926). “We are of course bound by a State’s interpretation of its own statute and will not substitute our judgment for that of the State’s when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court.” Garner v. Louisiana, 368 U.S. 157, 166 , 82 S.Ct. 248, 253 , 7 L.Ed.2d 207 (1961). “[W]e have no power to revise judgments on questions of state law.” Henry v. Mississippi, 379 U.S. 443, *430 447 , 85 S.Ct. 564, 567 , 13 L.Ed.2d 408 (1965). See also Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 , 101 S.Ct. 2176, 2180 , 68 L.Ed.2d 671 (1981) (a judgment of an intermediate state court, unaccompanied by a reasoned opinion, is a construction of state law “that is binding upon us”); United States ex rel. Garcia v. O’Grady, 812 F.2d 347, 355-57 (7th Cir.1987) (concurring opinion); Hoover, 669 F.2d at 436-37 .
My colleagues reply (422-23 n. 7) that they are just following the decisions of state courts — in particular, Kirby . This misses the point. Bute, Gryger, and many similar cases presented claims of the kind Cole presses. The defendant, who had lost on a point of state law, claimed that the state court misunderstood state law, and that reference to the authentic state law— established in some other state case— would demonstrate his entitlement to relief. The Supreme Court held that it may not look outside the case under review to find the meaning of state law. That is, state law had been established by the decision at hand. The Supreme Court rejected exactly the sort of claim my colleagues accept. 1 See also, e.g., Patterson v. Colorado, 205 U.S. 454 , 27 S.Ct. 556 , 51 L.Ed. 879 (1907). Patterson was convicted of contempt. He sued out a writ of error, arguing that his conviction was inconsistent with authoritative precedent. The Court rejected the argument, stating (id. at 459-61, 27 S.Ct. at 556-58 ):
The difficulties with [the claims] most pressed is that they raise questions of local law, which are not open to reexamination here. The requirement in the Fourteenth Amendment of due process of law does not take up the special provisions of the state constitution and laws into the Fourteenth Amendment for the purposes of the case, and in that way subject a state decision that they have been complied with to revision by this court____ It is argued that the decisions ... in the present case, were contrary to well-settled previous adjudications in the same court, and this allegation is regarded as giving some sort of constitutional right to the plaintiff in error____ There is no constitutional right to have all general propositions of law once adopted remain unchanged. Even if it be true, as the plaintiff in error says, that the Supreme Court of Colorado departed from earlier and well-established precedents to *431 meet the exigencies of the case, whatever might be thought the justice or wisdom of such a step, the Constitution of the United States is not infringed____ [T]he decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the Fourteenth Amendment merely because it is wrong or because earlier decisions are reversed.
Patterson is functionally identical to our case. The state court decided without discussing the cases on which the defendant had relied; the defendant asserted that the decision conflicted with these earlier, authoritative expressions of state law. To this the Supreme Court replied: So what? We should do the same.
The cases I have been discussing were direct appeals. In such cases the Court’s power is at its zenith; the Court probably has the constitutional power to decide all issues, including state issues, in cases within its appellate jurisdiction. See Charles Warren, 2 The Supreme Court in United States History 682 (rev. ed. 1926); Richard A. Matasar & Gregory S. Burch, Procedural Common Law, Federal Jurisdictional Policy, and Abandonment of the Adequate and Independent State Grounds Doctrine, 86 Colum.L.Rev. 1291 (1986). But the Court disclaimed a power of inquiry nonetheless. Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 , 22 L.Ed. 429 (1875). Whether the case be criminal or civil within the appellate jurisdiction, the rule is identical. E.g., Herb v. Pitcairn, 324 U.S. 117, 125-26 , 65 S.Ct. 459, 462-63 , 89 L.Ed. 789 (1945); Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 , 680 n. 7, 50 S.Ct. 451 , 454 n. 7, 74 L.Ed. 1107 (1930) (collecting cases dealing with alterations in the interpretation of state law). A federal court may not disagree with a state official’s interpretation of state law and use its own view as a basis of relief against the officials, even if no state court has spoken, see Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984). “[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Id. at 106 , 104 S.Ct. at 911 . Cf. Huggins v. Isenbarger, 798 F.2d 203, 207-09 (7th Cir.1986) (concurring opinion). But ours is not even a case on direct review. It is a case on collateral review. If the Supreme Court has foresworn review of state issues on direct appeal, it must follow that the inferior courts may not hear the same issues on collateral review. When a state court has addressed the merits and resolved the disputed question of state law between the very parties to the federal litigation, and its decision has become final, that decision is conclusive.
A belief that a decision is wrong is not a ground on which to disregard it. Whether a decision is right or even reasoned is irrelevant for purposes of determining its preclusive effect. The judgment, not the opinion, supplies the preclusion. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 480 , 102 S.Ct. 1883, 1896 , 72 L.Ed.2d 262 (1982) (a state court’s judgment necessarily conclusively establishes propositions of state law, even though the court did not write an opinion); Harris Trust & Savings Bank v. Ellis, 810 F.2d 700, 705 (7th Cir.1987) (giving preclusive effect to a “perfunctory” and unreasoned finding, because it was essential to the judgment); Barrington Press, Inc. v. Morey, 816 F.2d 341 (7th Cir.1987); Restatement (Second) of Judgments § 27 and comment d (1982). We may not reexamine a decision of a state court on the ground that it is inconsistent with some earlier case; forbidding such inquiry is what preclusion is all about. Principles of preclusion apply even after it has been authoritatively established that a decision was wrong. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398-400 , 101 S.Ct. 2424, 2427-29 , 69 L.Ed.2d 103 (1981). If error were enough to allow relitigation, doctrines of preclusion would be gone. Button v. Harden, 814 F.2d 382, 385 (7th Cir.1987). Cf. Sanders, 373 U.S. at 17 , 83 S.Ct. at 1078 , and United States v. Mazak, 789 F.2d 580 (7th Cir.1986), both holding that only an intervening change of law allows a federal court to redetermine even a federal issue in collateral proceedings.
*432 My colleagues do not cite any case for the proposition that a federal court may revisit an issue of state law litigated and decided in state court. We have held that it may not. E.g., Hoover, 669 F.2d at 436-37 . Perforce they have not found a case saying that an inadequate discussion of the state issue allows a federal court to find its decision to be erroneous. Other courts of appeals have held that collateral attack may not be used to question the state court’s disposition of an issue of state law even after it has been held erroneous within the state system. For example, in Willard v. California, 812 F.2d 461, 463 (9th Cir.1987), the state court gave the jury an instruction that, the Supreme Court of California later held in a different case, was a violation of state law because it cast the offense as a general rather than a specific intent crime. The court of appeals held that even this specific holding by the state’s highest court did not allow the federal court to say that the instruction was erroneous under state law — and it proceeded to decide that a general-intent instruction was constitutionally sufficient.
My colleagues reply (422-23 n. 7) that they need not offer authority because they are not doing what I believe they are doing. As they describe things, they are deciding an issue of state law, so far undetermined between these parties, in the way an opinion of a state court requires that it be decided. This does not dispense with the need for authority, however; my colleagues do not identify a statute or case establishing that a federal court may decide an issue of state law on collateral review, whether or not the issue had previously been decided, by a state court. Hoover and Willard among recent appellate cases look the other way, as do the Supreme Court’s decisions collected above.
Moreover, my colleagues’ characterization is accurate only if deciding an issue is the same thing as providing a rationale. The judge who presided at Cole’s trial made a decision of state law when he gave the instruction; the court reaffirmed that decision on collateral attack when it rejected a contention that the instruction is erroneous; Cole took an appeal based largely on Kirby , and the Court of Appeals of Wisconsin affirmed, explaining that the instruction “includes the essential elements of the crime”, thus deciding the issue for a third time; the Supreme Court of Wisconsin declined to disturb the judgment. Matters on which a judgment depends are “decided” no matter what the court writes or omits. 2 And here the state court was not silent; it was explicit. My colleagues’ point is not that the issue lies undecided; it is that the appellate opinion did not include a sufficient explanation. This is all the difference in the world under ordinary principles of preclusion. When this court says “We have considered appellant’s other arguments and conclude that they lack merit”, or when the Fifth Circuit’s whole discussion is “Affirmed. See Local Rule 21”, or when the Supreme Court says “The appeal is dismissed for want of a substantial federal question”, it is deciding the merits. Hicks v. Miranda, 422 U.S. 332, 342-46 , 95 S.Ct. 2281, 2288-90 , 45 L.Ed.2d 223 (1975). The decision has slight precedential effect, Mandel v. Bradley, 432 U.S. 173, 176-77 , 97 S.Ct. 2238, 2240-41 , 53 L.Ed.2d 199 (1977), but it is conclusive for the parties. The majority confuses the precedential effect of a decision with its preclusive effect. Whether the instruction accurately states the elements of mayhem was decided in State v. Cole, and my colleagues are reviewing (and disagreeing with) that decision. Such review is both unprecedented and unauthorized.
The only cases that come close are those dealing with “inadequate” state procedural *433 grounds, those invoked randomly or with hostility to the federal interest at stake. See Henry; James v. Kentucky, 466 U.S. 341 , 104 S.Ct. 1830 , 80 L.Ed.2d 346 (1984). See also Terrance Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup.Ct.Rev. 187; Lea Brilmayer, State Forfeiture Rules and Federal Review of State Criminal Convictions, 49 U.Chi.L. Rev. 741, 759-63 (1982). The doctrine of the “inadequate” state ground does not allow a federal court to redetermine the accuracy of the state court’s decision on a matter of state law; it is limited to a decision that the state procedural ground does not prevent consideration of the substantive federal issue. No one says that the Court of Appeals of Wisconsin cooked up a state ground to avoid a legitimate federal claim; there is no federal claim independent of Cole’s argument that the state court erred in construing the state’s substantive law. And that claim is beyond the power of any federal court to consider.
II
If there were any room for a federal court to review a state court’s conclusions of state law, we could not proceed in the majority’s fashion. My colleagues say that we may decide the issue of state law because the Court of Appeals of Wisconsin did not discuss Kirby . The majority writes as if the state court were a federal administrative agency and we were reviewing its decision under the Administrative Procedure Act. Agencies must follow their precedents or explain why not. E.g., Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42, 57 , 103 S.Ct. 2856, 2866, 2874 , 77 L.Ed.2d 443 (1983); Automobile Workers v. NLRB, 802 F.2d 969 , 974 (7th Cir.1986). This doctrine has never been applied to courts. The law develops through subtle changes, many unarticulated or even denied. Automobile Workers, 802 F.2d at 974. Perhaps courts ought to be candid about what they are doing and supply complete explanations, but candor and completeness, however desirable, are not things a federal court can demand of a state court. See Patterson v. Colorado, rejecting a claim of the sort my colleagues accept. The federal courts do not demand complete explanation of themselves. 3 More than a few Justices, including some of the greatest, have been known for epigrammatic assertion or declamatory certitude rather than detailed exposition.
It is easy to understand, at all events, why the state court omitted a complete explanation. It did not publish the opinion, so it was writing only for the parties. Doubtless the court of appeals would have explained things more fully had it decided to publish the opinion. My colleagues reason that the judges who joined Wisconsin *434 v. Cole could not have intended to “change” the law established in a published opinion. This begs the question. Perhaps there was nothing to change. The majority reasons: (1) the statement in Kirby is holding rather than dictum; (2) Cole did not purport to change the holding of Kirby ; therefore (3) “great bodily harm” is an element of mayhem, and Cole is wrong. Why not the following, more respectful approach?: (1) Cole held that an instruction omitting “great bodily harm” complies with Wisconsin law; (2) courts of Wisconsin are at least as good as we at interpreting Wisconsin law; therefore (3) the “great bodily harm” language in Kirby is dictum. This approach reconciles the two cases rather than destroying one of them. Considering that the same judge wrote both opinions, we ought to be able to reconcile them.
Perhaps Kirby and Cole are simply irreconcilable. In that event our task (if we have one) is to find out which case is right, not to say that first in time is first in right. When we are authorized to consider issues of state law, in diversity cases, we may encounter divergent appellate decisions. We would not say that the first decision is right and any later decision wrong. We would ask, instead, which decision is most strongly supported by the language, structure, and history of the statute; we would look at opinions of the supreme court of the state in question and of other states, to find out how similar problems have been resolved. E.g., Enis v. Continental Illinois National Bank, 795 F.2d 39 (7th Cir.1986); Katapodis v. Koppers Co., 770 F.2d 655 (7th Cir.1985). See King v. Order of Travelers, 333 U.S. 153, 158 , 68 S.Ct. 488, 491 , 92 L.Ed. 608 (1948) (in diversity cases federal courts are not always bound by the decisions of intermediate state courts); Williams, McCarthy, Kinley, Rudy & Picha v. Northwestern National Insurance Group, 750 F.2d 619, 624-25 (7th Cir.1984). The one thing we would not do in a diversity case is what the majority does today— assume that the first decision is right and ask only whether the second is consistent with the first. If sequence matters, it ought to be the other way ’round. Hudgens v. NLRB, 424 U.S. 507, 517-18 , 96 S.Ct. 1029, 1035-36 , 47 L.Ed.2d 196 (1976) (later decision establishes legal rule); cf. Restatement (Second) of Judgments § 15 (1982) (“When in two actions inconsistent final judgments are rendered, it is the later, not the earlier, judgment that is accorded conclusive effect in a third action under the rules of res judicata.”); Ruth Bader Ginsburg, Judgments in Search of Full Faith and Credit: The Last-in-Time Rule for Conflicting Judgments, 82 Harv. L.Rev. 798 (1969). We could not follow the first opinion as a general matter, and certainly we may not do this after the first decision has been overruled.
If we are to assess state decisions for “error”, why give such primacy to a decision of an intermediate court? Why not say that only the decision of the supreme court of the state allows a federal court to call the decision of an appellate court “wrong”? Our failure to observe the hierarchy within Wisconsin courts — to give any weight to the fact that Kirby and Cole were rendered by the same court, indeed were written by the same judge — contributes to the majority’s error. 4
*435 I would be less concerned if I thought today’s decision a sport, governing only the interaction between overruled and unpublished opinions. It is not, however. It establishes the proposition that state courts are just like administrative agencies. They must justify all departures from precedent. We do not demand this in diversity cases, where we may have to decide whether an intermediate state court understands state law. In both Katapodis and Enis we dealt with conflicting state authority that did not cross-cite, and we did not suggest that one court’s failure to cite an earlier case made the later case “wrong”. Yet under the majority’s approach, if a state court does not reconcile its decision with some earlier opinion, then it is “wrong”, and the judgment may be set aside on collateral attack by a federal court. Every time decisions within a state court system conflict — which is to say, frequently — the state is in danger of having a federal court upset its judgments. No case in the history of the Republic supports such intrusive review of a state court’s decisions.
Ill
Let us now suppose that the omission of the instruction was an error of state law. This case is here under 28 U.S.C. § 2254 (a), which states that a court shall entertain a petition for habeas corpus “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” “A federal court may not issue the writ on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 , 104 S.Ct. 871, 875 , 79 L.Ed.2d 29 (1984). See also, e.g., Smith v. Phillips, 455 U.S. 209, 221 , 102 S.Ct. 940, 948 , 71 L.Ed.2d 78 (1982); Mosley v. Moran, 798 F.2d 182, 185 (7th Cir.1986); Nichols v. Gagnon, 710 F.2d 1267, 1269 (7th Cir.1983); Hoover, 669 F.2d at 436-37 .
The majority responds with the following syllogism: (1) the Constitution requires that every element of the offense be established beyond a reasonable doubt; (2) an instruction that omits an element of the offense, as state law enumerates the elements, allows a conviction without that element’s being established beyond a reasonable doubt; therefore (3) the error of state law violates the Constitution. This would be a more impressive syllogism had it not been rejected by the Supreme Court in Engle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982). 5
The three defendants in Engle were charged with violent crimes under the law of Ohio. Each pleaded self-defense. The judge in each gave an instruction assigning to the defendant the burden of proving self-defense. The Supreme Court of Ohio later held that this particular instruction was erroneous as a matter of state law. The state courts nonetheless refused to give the defendants the benefit of that decision. The defendants maintained that this violated the Constitution in light of In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), which holds that the prosecution must establish every element of the offense beyond a reasonable doubt. According to the Supreme Court of Ohio, the state had to show lack of self-defense, *436 making it an element of each offense; therefore, the defendants insisted, they were entitled to relief. The Supreme Court of the United States rejected this argument on the merits, holding that it is not even based on the Constitution. 456 U.S. at 119-21, 102 S.Ct. at 1567-68.
The Court treated the argument as one under state law. It gave two reasons. First, it held, the state need not treat the absence of self-defense as an “element” of the offense. In that event, an error in assigning the burden is not one to which Winship applies. 456 U.S. at 120-21, 102 S.Ct. at 1567-68. Second, it declared that errors of state law do not violate the due process clause — relying on Gryger and several other cases, including United States ex rel. Burnett v. Illinois, 619 F.2d 668, 670-71 (7th Cir.1980). 456 U.S. at 121 n. 21, 102 S.Ct. at 1568 n. 21. See also Willard, 812 F.2d at 463 ; Hoover, 669 F.2d at 436-37 ; United States ex rel. Waters v. Bensinger, 507 F.2d 103, 104-05 (7th Cir.1974). The constitutional question, as the Court saw it, was whether the state had to assume the burden on the absence of self-defense, or whether instead the Constitution allowed the state to shift that burden to the accused. 456 U.S. at 121-22, 102 S.Ct. at 1568-69. It then held that the defendants had neglected to preserve that claim in state court, id. at 123-35, 102 S.Ct. at 1569-76. (The Court recently answered the reserved question, holding that a state may assign to the accused the burden of establishing self-defense. Martin v. Ohio, _ U.S. _, 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987).)
Our case is in much the same posture. If the question is whether “great bodily harm” is an element of mayhem, the response is that that is a question of state law. If the question is whether “great bodily harm” must be an element of mayhem, the answer is No. The state may define as a “Class B felony” the offense of cutting or mutilating the “tongue, eye, ear, nose, lip, limb or other bodily member” of a person “with intent to disable or disfigure”. A state with the power to condemn on this basis also could, if it chose, define an offense of cutting with intent to disfigure, subject to an affirmative defense that the cut had not caused great bodily harm. If the Constitution allows this option, then it is hard to say that Winship requires the state to prove “beyond a reasonable doubt” that Cole inflicted “great bodily harm”. See Patterson v. New York, 432 U.S. 197, 201-02 , 97 S.Ct. 2319, 2322-23 , 53 L.Ed.2d 281 (1977); McMillan v. Pennsylvania, _ U.S. _, 106 S.Ct. 2411, 2416-19 , 91 L.Ed.2d 67 (1986); Martin v. Ohio, 107 S.Ct. at 1102-03 ; John Calvin Jeffries & Paul B. Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 , 1333-56 (1979); Deborah A. Jones, Federal Review of the Evidence Supporting State Convictions, 79 Colum.L.Rev. 1577, 1585-89 (1979).
The strongest case for my colleagues’ position is Henderson v. Kibbe, 431 U.S. 145 , 97 S.Ct. 1730 , 52 L.Ed.2d 203 (1977). Kibbe was convicted of murder for robbing a drunkard and leaving him in the road, where he was struck and killed by a truck. Murder is intentional conduct that causes the death of another. The case was submitted to the jury on an instruction that recited the statutory language but neglected to define “cause” — a potentially dispositive question when there may have been an intervening cause. On collateral review, the state apparently conceded that an instruction required by state law had been omitted. The Second Circuit thought this required the issuance of the writ of habeas corpus; the Supreme Court did not. The Court first asked whether the evidence satisfied the Winship test and concluded that it did; the jury must have found causation even on the instructions given. 431 U.S. at 153-54 , 97 S.Ct. at 1736-37. Then it asked whether the omitted instruction “so infected the entire trial that the resulting conviction violates due process”, id. at 154, 97 S.Ct. at 1737, quoting Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973). To this it answered no, because “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than [is] a misstatement of the law.” 431 U.S. at 155 , 97 S.Ct. at 1737. Because the omission “escaped notice” (ibid.) in the *437 state system, the Court thought it unlikely to have made the trial fundamentally unfair.
The answers here are the same as in Kibbe . Was the evidence sufficient to permit a rational jury to find “great bodily harm”? See Jackson v. Virginia, 443 U.S. 307, 324 , 99 S.Ct. 2781, 2791 , 61 L.Ed.2d 560 (1979). I think so. The cuts were deep and caused a lingering disability. See Wisc.Stat. § 939.22(14) (great bodily harm, a term that appears in the battery sections of the state’s code, means among other things injury “which causes a permanent or protracted loss or impairment of the function of any bodily member or organ”). How great that impairment must be to amount to “great bodily harm” is itself a question of state law, see Garner v. Louisiana. Was the trial fundamentally unfair? I think not, for just as in Kibbe the “great bodily harm” business was so insignificant that no one noticed it — not the trial judge, not the prosecutor, not the defense lawyer, not the appellate court, not even the drafters of Wisconsin’s pattern jury instructions. There is a good reason (beside the pattern jury instructions) why no one paid it any heed. The definition of the offense — cutting the face or limb with intent to disable or disfigure — implies great injury in the run of cases. True, some knife-wielding attackers fail of their purpose, but the course of mayhem cases must be a skein of substantial, ugly wounds. The lawyers, judge, and jury in a mayhem case might think “great bodily harm” redundant in the run of cases. (This is, after all, the ground on which Kirby thought the element must be in the statute, even though not mentioned in its text.)
Because Kibbe supports the state, I need not ask whether it survived Engle — or even whether the inquiries in Kibbe are the only ones. The state won Kibbe , so the Court had no occasion to determine what the prisoner must demonstrate to obtain the writ of habeas corpus. Kibbe was an easier case for the defendant because the state not only made causation an element of the offense but also may have had to do so. Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), holds that at least some elements of any offense are there because the Constitution limits the powér of states to redefine the minimum standards of criminal culpability. The Court did not discuss in Kibbe whether causation or some substitute (such as conspiracy with others whose acts caused the death) is an essential element of murder under Mullaney , but the Justices apparently assumed that it is. See also McMillan, 106 S.Ct. at 2417 ; Engle, 456 U.S. at 122 n. 22, 102 S.Ct. at 1568 n. 22; Jeffries & Stephan, 88 Yale L.J. at 1267-71.
Ever since Mullaney the Court has had trouble deciding just what are the minimum elements of criminal offenses and how the state may arrange the burden on these and others it elects to add. A number of cases proclaim that the Constitution assigns either the element or the burden to the state. E.g., Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979). The Court attributes these decisions to Winship , which holds that the state must establish beyond a reasonable doubt the elements it chooses to denote as criminal. Yet at the same time the Court holds that the state may require the defendant to bear the burden on items important to culpability, so long as the state declares that the items are not “elements” of the offense. Martin v. Ohio, which allows the state to shift the burden on self-defense to the accused, is the latest in this line. The defendant insisted that the absence of self-defense really was an “element” of the offense for the purpose of Winship and Mullaney because the state required the prosecution to show “criminal intent”, which, according to Martin, meant the absence of a legitimate motive (such as self-defense). The Court replied ( 107 S.Ct. at 1103 ):
It is true that unlawfulness is essential for conviction, but the Ohio courts hold that unlawfulness in cases like this is the conduct satisfying the elements of aggravated murder — an interpretation of state law that we are not in a position to dispute. The same is true of the claim that it is necessary to prove a “criminal” intent to convict for serious crimes, *438 which cannot occur if self-defense is shown: the necessary mental state for aggravated murder under Ohio law is the specific purpose to take life pursuant to prior calculation and design.
The upshot apparently is that if Ohio had made the absence of self-defense an “element” of the crime, then the prosecutor would have had to prove that element beyond a reasonable doubt, but because Ohio called the absence of self-defense something else, it was free to shift the burden to the accused. A regime that makes substance turn on nomenclature has little to recommend it, cf. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 23-24 , 96 S.Ct. 2882, 2896-97 , 49 L.Ed.2d 752 (1976), which makes me wonder whether the Court really uses the state’s designation of the factual issue (as “element” or not) as the fulcrum of the constitutional inquiry.
The allocation of burdens, no less than the identification of “elements”, is important to the identification of the conduct that is to be condemned. Consider, for example, the interaction of the “element” of intent and the “defense” of insanity. The terms on which a defendant will be deemed insane are best understood as a modification of the mental element of the offense. “[CJhoice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility.” Leland v. Oregon, 343 U.S. 790, 801 , 72 S.Ct. 1002, 1008 , 96 L.Ed. 1302 (1952) (note omitted). Leland held that a state may require the defendant to prove his insanity beyond a reasonable doubt. This holding has been assailed as inconsistent with Winship and Mullaney , see Rivera v. Delaware, 429 U.S. 877, 878-80 , 97 S.Ct. 226, 227 , 50 L.Ed.2d 160 (1976) (Brennan, J., dissenting), and in a fundamental sense it is. Yet Rivera reaffirmed Leland, and these two cases were the foundations for Patterson and Martin .
The best way to reconcile the Winship-Mullaney-Sandstrom line of cases with the Leland-Patterson-Martin line is to limit Mullaney (and perforce Winship) to elements of the offense that the Constitution puts beyond the state’s control. If the state is free to include some “element” or not — or if the state is free to call a factual inquiry an affirmative defense or otherwise make it a “non-element” — then it may assign the burden of persuasion as it pleases. The state’s ability to decide whether a particular fact or conclusion is an essential ingredient of criminal culpability implies the ability to select a lesser standard of proof. Martin so holds, at least provided the state calls the disputed issue an “affirmative defense”. Nomenclature should be irrelevant; if the state calls the same disputed issue an “element” it should have the same control. The ability to impose criminal condemnation on the basis of these acts minus the element implies the power to impose criminal condemnation on the same acts, with a different burden. Cf. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, _ U.S. _, 106 S.Ct. 2968, 2979 , 92 L.Ed.2d 266 (1986). (The “unconstitutional conditions” response to this “greater-power-includes-the-lesser” argument was a lot more powerful in Posadas de Puerto Rico than it is here, yet the Court rejected it.)
Only when the Constitution makes the resolution (in the state’s favor) of some particular fact an essential ingredient of criminal condemnation does it make sense to hold that the state must prove this item “beyond a reasonable doubt” or that the instructions to the jury must elicit the jury’s determination of that item. The state may be hostile to elements that the Constitution imposes on it. Collateral review ensures honest application of elements or rules imposed by higher authority. The state will not be hostile to elements that are included at the state’s option. It is not necessary to use federal collateral attack to keep the state faithful to its own law — yet only questions of the state’s own law are at issue when the state has included as an “element” of the offense something that is constitutionally unnecessary as a foundation for criminal punishment. Professors Jeffries and Stephan, and Professor Jones conclude on this basis that Mullaney and Winship apply only to *439 elements that the Constitution places beyond the state’s control. Other elements may be modified or (as in this case) omitted without offending constitutional principles. This is essentially the path the Ninth Circuit followed in Willard, 812 F.2d at 463 , albeit without explicit discussion, in denying collateral relief to a state prisoner convicted of an offense after a charge to the jury that omitted a specific intent instruction required by state law.
We also should remember that the question at hand is not whether Cole committed a crime, but of which offenses he should be convicted. Whatever federal role there may be in ensuring that the states supply the minimum justification for some criminal punishment does not extend to patrolling the details of the offenses states choose to define. 6 It is undisputed for our purposes that Cole gratuitously hacked at the victim of his robbery with a knife, and that the cuts left permanent effects. If the cutting is not mayhem, then it is aggravated battery or some similar offense. A conviction for aggravated battery may be based on “bodily harm” (minus the “great”), if there was intent to cause bodily harm (a lesser standard than mayhem’s “intent to disable or disfigure”), Wisc.Stat. § 940.19(lm). See also Wisc.Stat. § 939.-63(l)(a), allowing an increased punishment when the offender uses a knife in the course of the battery — another fact not disputed. It is hard to appreciate the federal interest in requiring Wisconsin to recharacterize Cole’s conduct as a different crime, when the facts the prosecutor proved at trial are sufficient under both (any version of) Wisconsin law and the eighth amendment to support imprisonment.
The approach I have sketched does not foreclose all constitutional scrutiny. It may be, for example, that proof of a subset of the statutory elements of a crime would be insufficient in light or fifth or eighth amendment rules to justify punishment of the severity a defendant received. Cole, who received 12 years’ imprisonment for the mayhem component of his offense, does not make such an argument, however. 7 A further requirement, which may lead an error of state law to violate the Constitution as well, is that the state must supply “fair warning” of what it prohibits. A novel application of the criminal law may violate the Constitution. Bouie v. City of Columbia, 378 U.S. 347 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964); see also Marks v. United States, 430 U.S. 188 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977). This is not a power to undo judicial constructions on the ground that they are “wrong”; the judges of the state may do pretty much what they please with questions of state law, so long as the result is comprehensible. See Rose v. Locke, 423 U.S. 48 , 96 S.Ct. 243 , 46 L.Ed.2d 185 (1975). The federal court may determine only whether the construction of the state law took place in advance of the criminal conduct, supplying the necessary warning. Cole does not contend that he lacked fair warning that his conduct is illegal. Given the language and longstanding construction of the mayhem statute, reflected in the pattern jury instructions, he could not. Kirby was the novelty. See also note 4 above.
The proposition that the Constitution is different from the law defining the elements of the crime is a commonplace in collateral review. Consider Davis v. United States, 417 U.S. 333 , 94 S.Ct. 2298 , 41 *440 L.Ed.2d 109 (1974). Davis was convicted of failing to report for induction into the military, and the conviction was affirmed. A panel of the same court of appeals later concluded that the offense of failure to report for induction contained an element that had been missing from the charge to the jury in Davis’s case. If that was right, Davis had not committed any offense at all. The court of appeals refused to apply this rule to Davis on collateral review. The Supreme Court reversed — not because disagreement among panels about the elements of the offense is a constitutional problem, but because 28 U.S.C. § 2255 , under which Davis sought relief, allows the vindication of the “laws” of the United States. 417 U.S. at 343-45 , 94 S.Ct. at 2303-05. The Court could have held that conviction based on a misunderstanding of the elements of the offense is a constitutional error, but it did not; it felt compelled to decide whether a conviction unsupported by federal law could be attacked collaterally-
Davis did not reject the proposition my colleagues embrace, from which they take comfort. I suspect, though, that Davis was decided the way it was because the Justices thought it too plain for words that the failure to deal at trial with a statutory element of an offense is a statutory problem — even when the question was guilt versus innocence (as opposed to identifying the right crime). Many an error of law is constitutionally inoffensive, even though harmful to the accused. E.g., United States v. Addonizio, 442 U.S. 178 , 99 S.Ct. 2235 , 60 L.Ed.2d 805 (1979); United States v. Timmreck, 441 U.S. 780 , 99 S.Ct. 2085 , 60 L.Ed.2d 634 (1979); Hill v. United States, 368 U.S. 424 , 82 S.Ct. 468 , 7 L.Ed.2d 417 (1962); Johnson v. United States, 805 F.2d 1284, 1287-88 (7th Cir.1986); Kramer v. Jenkins, 806 F.2d 140, 142 (7th Cir.1986); United States v. Widgery, 778 F.2d 325, 329-30 (7th Cir.1985). If an error of Wisconsin law occurred during Cole’s trial, that error — too negligible for anyone present to notice, or for the Court of Appeals of Wisconsin to acknowledge after full briefing — did not violate the Constitution. Unless the Constitution subsumes all criminal law, the judgment in this case must be affirmed.
. Take Bute, for example. The defendant claimed that he was entitled to counsel and that the state court had not used the proper procedure in taking his plea. The Supreme Court of Illinois rejected the contentions in a brief opinion. People v. Bute, 396 Ill. 588 , 72 N.E.2d 813 (1947). Bute’s brief in the Supreme Court (No. 398, October Term, 1947, Pet. Br. 32-37) collected a great many cases of the Supreme Court of Illinois, none of which that court had cited (let alone distinguished), to support the proposition that the procedure at which the plea was taken was defective. Bute observed that Illinois cases did not require a judge taking a plea to ask the accused whether he wanted counsel and maintained that it must be presumed that the state courts had done the same this time around. The Supreme Court replied (333 U.S. at 668, 68 S.Ct. at 778, emphasis added): "The Supreme Court of Illinois has affirmed both sentences. It has thus conclusively esta nshed their compliance with Illinois law.” The Court then observed that Illinois had a statute requiring courts to notify defendants of their right to counsel and concluded that the affirmance of the judgment meant that this statute had been folowed — despite the lack of discussion of the subject by the state court, and despite earlier, seemingly contrary decisions of the state court. There was a similar line of argument in Gryger. The defendant, deprived of counsel at the sentencing hearing, argued that his need for a lawyer was demonstrated by the sentencing court’s many mistakes of law. For example, the transcript of the sentencing hearing suggested that the judge erroneously thought a life sentence mandatory, an impression counsel could have corrected. See No. 541, October Term, 1947, Pet. Br. 26, and the Transcript of Record 94-95 in the Supreme Court. The judge did not write an opinion, and neither did any appellate court. There was utter silence by the state’s judges on what seemed to be an egregious error of state law. About this the Supreme Court wrote: "It is said that the sentencing judge prejudiced the defendant by a mistake in construing the Pennsylvania Habitual Criminal Act in that he regarded as mandatory a sentence which is discretionary____ [It] is for the Pennsylvania courts to say under its law what discretion or duty the court may have had____ [The sentencing judge's] action has been affirmed by the highest court of the Commonwealth.” 334 U.S. at 731 , 68 S.Ct. at 1257. It was the fact of affirmance, and not the court’s explanation (for there was none) that established the decision’s compliance with state law.
. The court offered an alternative ground, that Cole's failure to object at trial forfeited the issue. Alternative grounds are preclusive on each branch of the reasoning. Jo Desha Lucas, The Direct and Collateral Estoppel Effects of Alternative Holdings, 50 U.Chi.L.Rev. 701, 703 & n. 15 (1983) (collecting cases); cf. Phillips v. Lane, 787 F.2d 208, 211-14 (7th Cir.1986); United States ex rel. Merneigh v. Greer, 772 F.2d 322, 325-28 (7th Cir.1985). I agree with my colleagues that under Barrera v. Young, 794 F.2d 1264 (7th Cir.1986), the state has forfeited reliance on a forfeiture argument. This does not detract from the preclusive effect of each distinct holding, however.
. Motor Vehicle Manufacturers illustrates the point. The Court announced the principle that administrative agencies must give reasons when they change course. It did not cite any statutory source for this requirement, and it is hard to find one. Yet in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 , 98 S.Ct. 1197 , 55 L.Ed.2d 460 (1978), the Court had held that the judiciary may not add to the procedures that statutes establish for the conduct of administrative agencies. By imposing an extra-statutory rule, the Court changed course without giving reasons, something it said agencies may not do. Is Motor Vehicle Manufacturers "wrong" because inconsistent with Vermont Yankee? Did it overrule or modify Vermont Yankee without mention? — something my colleagues seem to think impossible. Cf. Cass R. Sunstein, Deregulation and the Hard-Look Doctrine, 1983 Sup.Ct.Rev. 177, 184, 209-13. Authoritative decision without reasoned elaboration is common, as still another part of Motor Vehicle Manufacturers shows. The agency’s principal argument in the case was that the Administrative Procedure Act’s "arbitrary and capricious" standard of judicial review requires of an agency the same sort of justification that the due process and equal protection clauses require of legislatures. The Solicitor General’s brief supported this argument with an extensive discussion of the legislative history of the Administrative Procedure Act. The Court rejected the argument in a footnote, 463 U.S. at 43 n. 9, 103 S.Ct. at 2866 n. 9, neither discussing the legislative history nor giving any reason. The Court did not hold itself to the standard of reasoned elaboration it imposed on the agency. See also Santa Clara County v. Southern Pacific R.R., 118 U.S. 394, 396 , 6 S.Ct. 1132, 1148 , 30 L.Ed. 118 (1886) (declaring, without explanation, that corporations are "persons”). May we hold state courts to a higher standard?
. The hierarchy within Wisconsin also is a sufficient reply to the majority’s argument (420-21) that the due process clause would have inhibited Wisconsin’s courts from overruling Kirby in Cole's case. Kirby is a decision of an intermediate court. Suppose the judge at Cole’s trial had been aware of Kirby , had believed its articulation of the elements of mayhem wrong, and had given the pattern jury instruction, after which Cole had pursued the matter on direct appeal to the Supreme Court of Wisconsin. If the Supreme Court of Wisconsin had affirmed on the ground that Kirby misunderstood the elements of mayhem, Cole would not have had a claim under Bouie v. City of Columbia, 378 U.S. 347 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964). The Supreme Court of the United States has never suggested that the construction of a criminal statute by an intermediate state court requires the state to apply that decision to all crimes committed before the date of its reversal or overruling. If there were such an entitlement, every conflict among the circuits on the construction of a federal statute would vest in defendants throughout the country the right to receive the most favorable construction adopted by any circuit. The Supreme Court of the United States, however, regularly resolves conflicting interpretations of federal criminal law, in the process affirming (or reinstating) convic *435 tions that could not have been obtained under the law of one or more courts of appeals at the time the acts were committed. Bouie holds not that decisions of intermediate courts may not be altered retrospectively, but that the state’s law must give fair notice of what is prohibited. The mayhem statute gives this notice; Cole does not rely on Bouie . If a case were to delete an element of the offense listed in the statute or recognized by the highest court of the jurisdiction, there would be a serious claim, but neither of these things happened or could have happened in Cole .
. Glenn v. Dallman, 686 F.2d 418 (6th Cir.1982), the only appellate case that, according to the . majority, holds that omitting an instruction on an element required by state law violates the Constitution, does not discuss Engle. Glenn also does not stand for that proposition. The state trial judge gave an instruction that, the Supreme Court of Ohio later held, was erroneous. The only issue debated by the parties in the Sixth Circuit was harmless error, the state apparently having conceded that the omission was a constitutional problem. The Sixth Circuit therefore did not decide the question in ornease. The shared assumption in Glenn is not a holding on a contested issue. See United States v. House, 808 F.2d 508, 511 (7th Cir.1986); Glidden v. Chromalloy American Corp., 808 F.2d 621, 625 (7th Cir.1986).
. A proposition for which there is collateral support in the rule that for purposes of the double jeopardy clause greater and lesser versions of a crime are the "same offence". See Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161 , 97 S.Q. 2221, 53 L.Ed.2d 187 (1977).
. His package — 24 years for armed robbery, mayhem, and operating a vehicle without the owner's consent — is less than the sentence he could have received had the state characterized the offenses the way Cole desired. Armed robbery under Wisc.Stat. §§ 939.50 and 943.32(2) allows a maximum sentence of 20 years; aggravated battery under § 940.19(lm), with the enhancement under § 939.63(l)(a)(4), allows a maximum of five years; operating a vehicle without the owner’s consent, in violation of Wisc.Stat. § 943.23, allows a maximum sentence of two years; and Cole was charged with being an habitual criminal, which under Wise. Stat. § 939.62(l)(c) allows an extra 10 years to be added to his punishment. That is a total of 37 years, or 13 more than he received.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476130. Public record. Not legal advice.