Stephen Sultenfuss, Charles McMulling v. Wayne Snow, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, Michael J. Bowers

CARNES, Circuit Judge,

dissenting:

I dissent from the Court’s failure to certify to the Georgia Supreme Court the unsettled questions of state law which control the disposition of this case.

The majority opinion and Judge Clark’s dissenting opinion disagree not so much about applicable federal constitutional law as about applicable state law. The disagreement is over whether the relevant Georgia statutes permit the Parole Board to reserve to itself essentially unfettered discretion, which is what it has attempted to do with the adoption of Ga.R. ch. 475-3-.05 and Anne- *1504 xure 2 to the Parole Decision Guidelines System. The state law validity of those two Board-adopted provisions is a premise essential to the majority’s conclusion that the Georgia parole system has not created a liberty interest. Likewise, the state law invalidity of those two provisions is a premise essential to Judge Clark’s conclusion that a liberty interest has been created. The competing syllogisms are each logical: each one’s , conclusion follows from its premises. I agree with the majority that if the two provisions in question are valid under state law, so that the Board does have the substantial discretion it claims, then no liberty interest has been created. I also agree with Judge Clark that if the two provisions are not valid under state law, so that the Board lacks the substantial discretion it claims, then a liberty interest has been created.

It is the accuracy of the competing state law premises that is in dispute. Only one of them can be correct, and the case turns on which one is. The majority makes a strong argument that the Board’s adoption of Rule 475-3-.05 and Annexure 2 was within its authority under Georgia law. Judge Clark, joined by three other judges of this Court, makes an equally strong argument to the contrary. I do not know whether the majority or Judge Clark is right about the Georgia law question, but I do know where we can, and should, turn for the answer.

We have discretion to certify controlling but unanswered questions of Georgia law to the Georgia Supreme Court. See GA. CONST, art. VI, § 6, para. 4; O.C.G.A. § 15-2-9 (1994); GA.SUP.CT.lt. 37. We have not hesitated to do so in the past. In the last five years, we have certified state law questions to the Georgia Supreme Court in no fewer than 19 cases. * As our frequent resort to certification evidences, it is a useful adjudication tool. Only through certification can federal courts get definitive answers to unsettled state law questions. Only a state supreme court can provide what we can be assured are “correct” answers to state law questions, because a state’s highest court is the one true and final arbiter of state law. From our perspective, state law is what the state supreme court says it is, and a state supreme court’s pronouncements on the subject are binding on every state and federal judge. By contrast, when we write to a state law issue, we write in faint and disappearing ink: what we write does not bind any state court judge, and even as to the federal judges in this Circuit, once the state supreme court speaks the effect of anything we have written vanishes like the proverbial bat in daylight, only faster. For every reason that it is important to decide controlling issues correctly and definitively, certification of unsettled state law questions is important.

Certification is especially important here, because this case “presentís] difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in [this] case.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 814 , 96 S.Ct. 1236, 1244 , 47 L.Ed.2d 483 (1976). The difficulty of the unsettled state law questions in this case is evident from the fact that this Court is sharply divided over those questions. Six judges answer the state law questions one way, and four judges answer those *1505 questions the other way. Likewise, the public importance of the questions transcends the result in this one case. The inmate plaintiff has been released already, anyway, see majority op. at 1498 n. 5, but the decision in this case will determine when scores, if not hundreds, of other Georgia prison inmates will be released. The operation of the Georgia prison system — including the determination of which inmates will be released on parole and when — is a matter of utmost importance to the State of Georgia and all of its people.

The Court’s unwillingness to certify the important state law questions in this case stands in sharp contrast to its willingness to certify questions of far less public importance in previous cases. The following are some examples of questions this Court has thought sufficiently important to certify to the Georgia Supreme Court in recent cases:

Under the facts of this case, when the insurance policy application established the policy’s delivery to and acceptance by the applicant as a condition precedent to the formation of the insurance contract, but the issued policy specified a date certain on which coverage was said to be effective and from which future premium payments were to be calculated, is the failure of actual delivery of the policy of insurance fatal to contract formation so as to render the coverage ineffective?

Middle Georgia Neurological Specialists v. Southwestern Life Insurance Co., 946 F.2d 776, 779-80 (11th Cir.1991).

Whether the insured’s tardy forwarding of suit papers is cured by the plaintiffs voluntary dismissal and refiling of an identical lawsuit; or, can the insurer rely on the tardy forwarding in the first suit to avoid liability even though the insured immediately forwarded the papers served in the second suit.

Granite State Insurance Co. v. Nord Bitumi U.S., Inc., 959 F.2d 911, 915 (11th Cir.1992).

Whether, with respect to a automobile insurance policy which covers vehicles principally garaged and used in another state but which is sold and delivered to a resident of Georgia, O.C.G.A. § 38-7-11 acts to invalidate an underinsured coverage exclusion which attempts to limit coverage because the insured was injured in a vehicle not covered by the policy.

Amica Mutual Insurance Co. v. Bourgault, 979 F.2d 187, 190 (11th Cir.1992). Every case matters to the parties, and we should do our utmost to decide every case correctly. Even so, the state law questions involved in this case, and the proper decision of this ease, are of greater public import than most, if not all, of the questions that we have certified to the Georgia Supreme Court in the past.

Another reason we should allow the Georgia Supreme Court to answer the unsettled questions of state law upon which this case turns is that the questions involve the division of power and authority between the Georgia Legislature and the Georgia Board of Pardons and Paroles, an executive agency. The way in which a state allocates powers between the executive and legislative branches of its government is a decision of the most fundamental sort for that state; it goes to the very “‘heart of representative government.’ ” Gregory v. Ashcroft, 501 U.S. 452, 458-61 , 111 S.Ct. 2395, 2400-01 , 115 L.Ed.2d 410 (1991) (quoting Sugarman v. Dougall, 413 U.S. 634, 647 , 93 S.Ct. 2842, 2850 , 37 L.Ed.2d 853 (1973)). “Through the structure of its government, and the character of those who exercise governmental authority, a State defines itself as a sovereign.” Id. 501 U.S. at 460 , 111 S.Ct. at 2400 . We ought to leave to the Georgia Supreme Court the business of interpreting Georgia legislation that may, or may not, effectively curtail the power of an executive agency that is specifically provided for in the Georgia Constitution. We need not, and we should not, get involved in deciding how Georgia has distributed its sovereign powers among the branches of its government. The majority and the other dissenters do just that by venturing to answer unsettled questions about whether the two Board-adopted provisions conflict with the relevant statute, a matter which has implications sounding in Georgia constitutional law.

If the Georgia parole guidelines statute does prohibit the Board from adopting Rule 475-3-.05 and Annexure 2, as four members of this Court believe, then a question arises as to whether that legislative restriction on *1506 the Board’s discretion violates Georgia’s Constitution. The Georgia Constitution authorizes the Board to grant paroles, but allows the legislature to limit the Board’s discretion in certain enumerated circumstances, none of which are relevant here. GA. CONST, art. 4, § 2, ¶ 2. It may be that any other legislative limitation on the Board’s discretion, such as requiring it to adopt and employ a set of parole guidelines based on legislatively enumerated criteria, violates the separation of powers clauses of the Georgia Constitution. See id. art. 4, § 7, ¶2; id. art. 1, § 2, ¶3. Maybe not. The Georgia courts have not squarely addressed the constitutionality of the parole guidelines statute. Compare Charron v. State Bd. of Pardons & Paroles, 253 Ga. 274 , 319 S.E.2d 453, 455 (1984) (holding that “an independent Board of Pardons and Paroles is envisioned under our State Constitution,” and suggesting that substantive legislative limits on the Board’s discretion would be unconstitutional) and Stephens v. State, 207 Ga.App. 645 , 428 S.E.2d 661, 663 (1993) (holding that a sentencing court’s attempt to impose conditions on a criminal defendant’s parole unconstitutionally infringed on the Board’s authority) with Freeman v. State, 264 Ga. 27 , 440 S.E.2d 181, 184 (1994) (holding that a statute authorizing a sentence of “life without parole” did not unconstitutionally infringe on the Board’s discretion). The existence of that state constitutional question, which lurks in the shadows of this case, is another reason we should let the Georgia Supreme Court decide the state law issues.

To the casual reader it will appear that Sultenfuss, or the inmates for whom he is a proxy, are the losers in this case. They are, but they are not the only ones who have lost. The people of Georgia and the principles of federalism also have lost. The people of Georgia have lost some measure of their right to govern themselves, because close- and important issues of their state law have been decided not by the court they have established as supreme in such matters, but instead by a federal court which should have deferred to their supreme court. Federalism has lost because some well-meaning federal judges have determined important matters involving Georgia’s government that could and should have been left to the state and its supreme court. It sometimes seems as though we federal judges treat federalism like the flag. We salute it, pledge allegiance to it, and like to talk about how important it is. However, in popular parlance: it’s easy to talk the talk, but the time has come to walk the walk. Because the Court fails to do so, I dissent.

Echols v. Thomas, 33 F.3d 1277 (11th Cir.1994); Kitchen v. CSX Transp., Inc., 19 F.3d 601 (11th Cir.1994); Blackford v. Wal-Mart Stores, Inc., 17 F.3d 367 (11th Cir.1994); U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986 (11th Cir.1993); Hardaway Co. v. Amwest Sur. Ins. Co., 986 F.2d 1395 (11th Cir.1993); Gas Pump, Inc. v. General Cinema Beverages of N. Fla., Inc., 982 F.2d 478 (11th Cir.1993); Amica Mut. Ins. Co. v. Bourgault, 979 F.2d 187 (11th Cir.1992); Gonzalez v. Abbott, 967 F.2d 1499 (11th Cir.1992); Bradway v. American Nat'l Red Cross, 965 F.2d 991 (11th Cir.1992); Granite State Ins. Co. v. Nord Bitumi U.S., Inc., 959 F.2d 911 (11th Cir.1992); W.R. Grace & Co., Dearborn Div.-Conn. v. Mouyal, 959 F.2d 219 (11th Cir.1992); Florida Int’l Indem. Co. v. City of Metter, Ga., 952 F.2d 1297 (11th Cir.1992); Polston v. Boomershine Pontiac-GMC Truck, Inc., 952 F.2d 1304 (11th Cir.1992); Middle Ga. Neurological Specialists, P.C. v. Southwestern Life Ins. Co., 946 F.2d 776 (11th Cir.1991); Ryan v. State Farm Mut. Auto. Ins. Co., 934 F.2d 276 (11th Cir.1991); Miles v. Ashland Chem. Co., a Div. of Ashland Oil, 924 F.2d 1026 (11th Cir.1991); Prudential Commercial Ins. Co., a Subsidiary of Prudential Ins. Co. of Am. on Behalf of N.J. Auto. Full Ins. Underwriting Ass'n v. Michigan Mut. Ins. Co., 924 F.2d 199 (11th Cir.1991); Johnson Controls, Inc. v. Safeco Ins. Co. of Am., 913 F.2d 907 (11th Cir.1990); Browning v. Maytag Corp., 902 F.2d 882 (11th Cir.1990).