Appeal from the United States District Court for the Southern District of Indiana - No. IP 73 C 99 Honorable James E. Noland, Judge.
Fairchild, Chief Judge, and Pell and Stevens, Circuit Judges.
This appeal was taken from an order of the district court abstaining from decision on the merits until the Indiana courts have had an opportunity to construe certain Indiana statutes. Plaintiffs (appellants) are the Indiana State Employees Association, Inc., and Phyllis Musgrave, a discharged highway commission employee. Defendants (appellees) are members and officials of the Indiana State Highway Commission. Plaintiffs brought this action as a class action. They sought damages on account of the Musgrave discharge, a declaratory judgment, injunction and attorney's fees. They claim that plaintiff Musgrave was dismissed from state employment in violation of a federal due process right to a pretermination hearing. On appeal they argue that the district court improperly invoked the doctrine of abstention.
We have recently held that an abstention order like this one, though not a dismissal, is appealable as a final judgment. Drexler v. Southwest Du Bois School Corporation, 504 F.2d 836, slip opinion, p. 3 (7th Cir. 1974).
After trial, the district court held that abstention was appropriate and declined to decide the merits "until the Indiana courts have had an opportunity to consider the applicability of and authoritatively construe the Bi-partisan Personnel System Act [Ind. Code 8-13-1.5 (1973)] and/or the Administrative Adjudication and Court Review Act [Ind. Code 4-22-1 (1973)] in determining whether employees of the Indiana State Highway Commission have a right to a pre-discharge hearing under Indiana law." Indiana State Employees Association, Inc. v. Boehning, 357 F. Supp. 1374, 1378 (S.D. Ind. 1973). For the reasons which follow, we reverse the decision to abstain and reach the merits.
The Administrative Adjudication and Court Review Act prescribes the procedure to be followed by state agencies, including notice and an opportunity to be heard and present evidence, in the course of "administrative adjudication." By definition "administrative adjudication" generally excludes "the dismissal or discharge of an officer or employee by a superior officer" except that it includes "hearings on discharge or dismissal of an officer or employee for cause where the law authorizes or directs such hearing."
The Bipartisan Personnel System Act applies to the State Highway Commission. Section 5 provides that the commission shall not have more than 60% of the employees in each pay classification, as adherents to any one political party, and "To meet the requirements of this section, the commission is hereby authorized to discharge at least twenty per cent [20%] of all employees employed under the provisions of this chapter at the beginning of each governor's administration." It also provides in Sec. 6 that any employee may be dismissed, demoted, suspended or laid off for cause (thereafter defined). The statute does not, in terms, authorize or direct a hearing for either type of dismissal, and therefore the motion and hearing provisions of the Administrative Adjudication Act do not apply. Defendants claim justification for discharge of Ms. Musgrave only under the "for cause" provision. She was denied a hearing.
Defendants point out that these statutes have not been construed by the Indiana courts, but they do not point out any area of doubtful meaning or outline an arguable construction of either or both Acts which would, as a matter of state law, entitle plaintiff to a hearing or a remedy for lack of one. If the action were brought in an Indiana court, that court would presumably address the question whether the due process clause of the Fourteenth Amendment would require a hearing, but that would be adjudication of the same claim of federal right advanced in this action, and not a resolution of any real question of state common, statutory, or constitutional law identified as such by the district court or by counsel.*fn1 As we read Sec. 5 of the Act, there may well be questions of construction as to exactly how it is designed to work in particular situations, and these, of course, are state law questions, but we do not perceive, nor have counsel suggested, how the resolution of those questions would affect the question of entitlement to notice and hearing as a matter of due process.
"Abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim." Zwickler v. Koota, 389 U.S. 241, 251, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967). Rights under the federal constitution are the proper subject of adjudication by federal courts. That jurisdiction may not be declined simply because the federal right may be asserted and vindicated in some other forum. McNeese v. Board of Education, 373 U.S. 668, 672, 10 L. Ed. 2d 622, 83 S. Ct. 1433 (1962).
Only in "special circumstances" may the federal court abstain from deciding a properly presented federal question. One set of such circumstances may possibly exist when a state statute is alleged to be unconstitutional. The susceptibility of the statute to a clarifying construction that would alter or eliminate the constitutional question might justify abstention by the federal court. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 510, 32 L. Ed. 2d 257, 92 S. Ct. 1749 (1972); Zwickler v. Koota, 389 U.S. 241, 249, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967). Another such set of circumstances may exist when a claimant asserts that the defendant's act is in violation of state law as well as federal constitutional law. The necessity for ruling on the constitutional question would be avoided if a definitive ruling on the state issue would resolve the controversy. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643; Reetz v. Bozanich, 397 U.S. 82, 25 L. Ed. 2d 68, 90 S. Ct. 788 (1970). "Thus our abstention cases have dealt with unresolved questions of state law which only a state tribunal could authoritatively construe." Wisconsin v. Constantineau, 400 U.S. 433, 438, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1971).
Where, as here, no such substantial question as to the applicable state law can be identified, "abstention is equivalent to an impermissible requirement of exhaustion of state remedies." Drexler, supra, at p. 839. The right to a hearing under the federal constitution is the question presented in this action, and the same question would be presented if plaintiffs were required to bring an action in an Indiana court. Under these circumstances, abstention by a ...