The other day I posted about the various split opinions in the Seventh Circuit en banc case of Marakadonatos — the $30 arrest fee case. One of the opinions I was going to write more about at the time was Judge Easterbrook’s brief assertion that the strong form of the canon of constitutional avoidance shouldn’t be applied to “save” state statutes from unconstitutionality, only federal statutes:

Judge Posner proposes to duck that question by holding that the fee is attributable, not to the arrest, but to a person’s release on bail. I agree with his approach to the extent of saying that, if a state court could save a statute by reasonably giving it a particular construction, a federal court ought not take the matter out of the state’s hands by peremptorily declaring the statute unconstitutional “on its face”—which is to say, in every possible application. But we cannot do the construing, after the fashion of Bond v. United States, 134 S.Ct. 2077 (2014), which recently indulged a strained reading of a federal statute in order to avoid a constitutional problem. Only a state court can give an authoritative limiting construction to a state statute.

I must say, when I first read that, I was extremely skeptical, but there may be more to it than I first thought. My first thought was — shouldn’t a federal court construe a state statute the same way the state’s courts would? And if so, shouldn’t Judge Easterbrook have looked to Illinois’s doctrine of constitutional avoidance?

But a quick bit of research suggests that Illinois may apply a somewhat limited version of the canon. See, e.g., People v. One 1998 GMC, 2011 IL 110236, 960 N.E.2d 1071, 1077 (“The rule is well settled in Illinois that our state courts may not rewrite legislation to avoid constitutional issues or create a remedy for a constitutional violation.”); In re Branning, 285 Ill. App. 3d 405, 410, 674 N.E.2d 463, 467 (1996) (“while useful in close cases, this rule is not a license for the judiciary to rewrite language enacted by the legislature.”) I’m not at all sure I’ve correctly understood Illinois law, but it did make me wonder if perhaps Judge Easterbrook had peeked into Illinois law before writing that paragraph of his opinion, even if he didn’t cite it.

I then pulled up Abbe Gluck’s marvelous article on interpreting state statutes in federal courts. And I was further surprised to discover that apparently quite a few federal courts take the Easterbrook position:

[T]here are other cases involving federal constitutional challenges to state statutes in which some federal courts appear to be making a conscious decision to adopt a different course entirely, looking neither to state law with respect to constitutional avoidance nor to their own familiar federal avoidance principles. In these cases, the federal courts seem to be concluding that, regardless of how the federal or state courts normally would handle avoidance on their own, in the special situation of federal-court constitutional review of state statutes, federal courts generally should not construe state statutes to avoid constitutional questions.

Now Gluck goes on to criticize the argument, arguing that constitutional avoidance should indeed be a question of state law, and that does generally seem right to me. But after learning that the contrary view is apparently somewhat widespread I am no longer as certain about the issue as I was before, and I found it interesting enough that I thought it would be worth sharing.

[None of this is meant to suggest that I think avoidance should have been applied in the specific Seventh Circuit case, where Judge Hamilton makes some very powerful arguments that avoidance is inapplicable, I’ve just been ruminating about the broader issue.]