Wisconsin v. Constantineau, 400 U.S. 433 (1971)

WISCONSIN v. CONSTANTINEAU

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

No. 95. Argued December 10, 1970—Decided January 19, 1971

The police chief of Hartford, Wisconsin, pursuant to a state statute, caused to be posted a notice in ail retail liquor outlets in Hartford that sales or gifts of liquor to appellee, a résident of that city, were forbidden for one year. The statute provides for such “posting,” without notice or hearing, with respect to any person who “by excessive drinking” produces certain conditions or exhibits specified traits, such as exposing himself or family “to want” or becoming “dangerous to the peace” of the community. On appellee’s suit seeking, inter alia, injunctive relief, a three-judge fédéral court held the statute unconstitutional as violative of procédural due process. Held:

1. The label or characterization given an individual by “posting,” though a mark of serious illness to some, is to others such a stigma or badge of disgrâce that procédural due process requires notice and an opportunity to be heard. Pp. 436-437.

2. Since here the state statute is unambiguous and there is no uncertain issue of state law, the fédéral court properly proceeded to détermine the fédéral constitutional claim. Zwickler v. Koota, 389 U. S. 241, 250-251. Pp. 437-439. 302 F. Supp. 861, affirmed.

Dougl as , J., delivered the opinion of the Court, in which Harl an , Bre nnan , Ste wart , White , and Mars hal l , JJ., joined. Burge r , C. J., filed a dissenting opinion, in which Bl ackm un , J., joined, post, p. 439. Bla ck , J., filed a dissenting opinion, in which Bla ck - mun , J., joined, post, p. 443.

Benjamin Southwick, Assistant Attorney General of Wisconsin, argued the cause for appellant. With him on the brief were Robert W. Warren, Attorney General, and Robert D. Martinson, Assistant Attorney General.

S. A. Schapiro argued the cause and filed a brief for appellee.

Mr . Justi ce Douglas delivered the opinion of the Court.

Appellee is an adult résident of Hartford, Wis. She brought suit in a fédéral district court in Wisconsin to hâve a Wisconsin statute declared unconstitutional.1 A three-judge court was convened, 28 U. S. C. § 2281. That court, by a divided vote, held the Act unconstitutional, 302 F. Supp. 861, and we noted probable jurisdiction. 397 U. S. 985.

The Act, Wis. Stat. § 176.26 (1967), provides that designated persons may in writing forbid the sale or gift of intoxicating liquors to one who “by excessive drinking” produces described conditions or exhibits specified traits, such as exposing himself or family “to want” or becoming “dangerous to the peace” of the community.2

128 U. S. C. § 1343 provides: “The district courts shall hâve original jurisdiction of any civil action authorized by law to be commenced by any person .... (3) To redress the deprivation, under color of any State law, statute, ordinance, régulation, custom or usage, of any right, privilège or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of ail persons within the jurisdiction of the United States.”

2 Section 176.26 reads as follows:

“(1) When any person shall by excessive drinking of intoxicating liquors, or fermented malt beverages misspend, waste or lessen his estate so as to expose himself or family to want, or the town, city, village or county to which he belongs to liability for the support of himself or family, or so as thereby to injure his health, endanger the loss thereof, or to endanger the personal safety and comfort of his family or any member thereof, or the safety of any other person, or the security of the property of any other person, or when any person shall, on account of the use of intoxicating liquors or fermented malt beverages, become dangerous to the peace of any community, the wife of such person, the supervisors of such town, the mayor, chief of police or aldermen of such city, the trustées of such village, the county superintendent of the poor of such county, the chairman of the county board of supervisors of such county, the

The chief of police of Hartford, without notice or hearing to appellee, caused to be posted a notice in ail retail liquor outlets in Hartford that sales or gifts of liquors to appellee were forbidden for one year. Thereupon this suit was brought against the chief of police claiming damages and asking for injunctive relief. The State of Wisconsin intervened as a défendant on the injunctive phase of the case and that was the only issue tried and decided, the three-judge court holding the Act unconstitutional on its face and enjoining its enforcement. The court said:

“In ‘posting’ an individual, the particular city official or spouse is doing more than denying him the ability to purchase alcoholic beverages within

district attorney of such county or any of them, may, in writing signed by her, him or them, forbid ail persons knowingly to sell or give away to such person any intoxicating liquors or fermented malt beverages, for the space of one year and in like manner may forbid the selling, furnishing, or giving away of any such liquors or fermented malt beverages, knowingly to such person by any person in any town, city or village to which such person may resort for the same. A copy of said writing so signed shall be personally served upon the person so intended to be prohibited from obtaining any such liquor or beverage.

“(2) And the wife of such person, the supervisors of any town, the aldermen of any city, the trustées of any village, the county superintendent of the poor of such county, the mayor of any city, the chairman of the county board of supervisors of such county, the district attorney or sheriff of such county, may, by a notice made and signed as aforesaid, in like manner forbid ail persons in such town, city or village, to sell or give away intoxicating liquors or drinks or fermented malt beverages to any person given to the excessive use of such liquors, drinks or beverages, specifying such person, and such notice shall hâve the same force and effect when such specified person is a nonresident as is herein provided when such specified person is a résident of said town, city or village.”

Section 176.28 makes the sale or gift of liquor to such a person a misdemeanor.

the city limits. In essence, he is giving notice to the public that he has found the particular individual’s behavior to fall within one of the categories enumerated in the statutes. It would be naive not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule, and it is our opinion that procédural due process requires that before one acting pursuant to State statute can make such a quasi-judicial détermination, the individual involved must be given notice of the intent to post and an opportunity to présent his side of the matter.” 302 F. Supp., at 864.

We hâve no doubt as to the power of a State to deal with the evils described in the Act. The police power of the States over intoxicating liquors was extremely broad even prior to the Twenty-first Amendment. Crâne v. Campbell, 245 U. S. 304. The only issue présent here is whether the label or characterization given a person by “posting,” though a mark of serious illness to some, is to others such a stigma or badge of disgrâce that procédural due process requires notice and an opportunity to be heard. We agréé with the District Court that the private interest is such that those requirements of procédural due process must be met.

It is significant that most of the provisions of the Bill of Rights are procédural, for it is procedure that marks much of the différence between rule by law and rule by fiat.

Where a person’s good name, réputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. “Posting” under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person. The label is a degrading one. Under the Wisconsin Act, a résident of Hartford is given no process at ail. This appellee was not afforded a chance to defend herself. She may hâve been the victim of an official’s caprice. Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.

It is suggested that the three-judge court should hâve stayed its hand while the aggrieved person repaired to the state courts to obtain a construction of the Act or relief from it. The fact that Wisconsin does not raise the point does not, of course, mean that it lacks merit. Yet the suggestion is not in keeping with the precedents.

Congress could, of course, hâve routed ail fédéral constitutional questions through the state court Systems, saving to this Court the final say when it came to review of the state court judgments. But our First Congress3 resolved differently and created the fédéral court System and in time granted the fédéral courts various heads of

3 The first Judiciary Act is in 1 Stat. 73.

jurisdiction,4 which today involve most fédéral constitutional rights. Once that jurisdiction was granted, the fédéral courts resolved those questions even when they were enmeshed with state law questions. In 1941 we gave vigor to the so-called abstention doctrine in Railroad Commission v. Pullman Co., 312 U. S. 496. In that case an authoritative resolution of a knotty state law question might end the litigation and not give rise to any fédéral constitutional claim. Id., at 501. We, therefore, directed the District Court to retain the suit pending a détermination by a state court of the underlying state law question. We applied the abstention doctrine most recently in Fornaris v. Ridge Tool Co., ante, p. 41, where a relatively new Puerto Rican statute, which had not been authoritatively construed by the Commonwealth’s courts, “might be judicially confined to a more narrow ambit which would avoid ail constitutional questions.” We ordered the fédéral courts to stay their hands until the Puerto Rican courts had spoken. Speaking of Reetz v. Bozanich, 397 U. S. 82, we noted that the “three-judge fédéral court should not hâve proceeded to strike down an Alaska law which, if construed by the Alaska Suprême Court, might be so confined as not to hâve any constitutional infirmity.” Ante, at 43. But the abstention rule only applies where “the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534. Thus our abstention cases hâve dealt with unresolved questions of state law which only a state tribunal could authoritatively construe. Reetz v. Bozanich, supra; City

4 28 U. S. C. § 1343 (3) involved in the présent case came into the statutes in 1871. 17 Stat. 13. In 1875 Congress enlarged fédéral jurisdiction by authorizing the “fédéral question” jurisdiction presently contained in 28 U. S. C. § 1331. See 18 Stat. 470. We recently reviewed this history in Zwickler v. Koota, 389 U. S. 241, 245-248.

433 Burge r , C. J., dissenting

of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639.

In the présent case the Wisconsin Act does not contain any provision whatsoever for notice and hearing. There is no ambiguity in the state statute. There are no provisions which could fairly be taken to mean that notice and hearing might be given under some circumstances or under some construction but not under others. The Act on its face gives the chief of police the power to do what he did to the appellee. Hence the naked question, uncomplicated by an unresolved state law, is whether that Act on its face is unconstitutional. As we said in Zwickler v. Koota, 389 U. S. 241, 251, abstention should not be ordered merely to await an attempt to vindicate the claim in a state court. Where there is no ambiguity in the state statute, the fédéral court should not abstain but should proceed to décidé the fédéral constitutional claim. Id., at 250-251. We would negate the history of the enlargement of the jurisdiction of the fédéral district courts,5 if we held the fédéral court should stay its hand and not décidé the question before the state courts decided it.

Mr . Chief Justice Burge r , with whom Mr . Just ice Blackmu n joins, dissenting.

The Court today strikes down, as unconstitutional, a Wisconsin statute that has never been challenged or tested in the Wisconsin state courts. The judges of Wisconsin probably will be taken by surprise by our summary action since few, if any, hâve ever heard of this case.

5 See n. 4, supra.

Burg er , C. J., dissenting 400 U. S.

Very likely we reach a correct resuit since the Wisconsin statute appears, on its face and in its application, to be in conflict with accepted concepts of due process.

The reason for my dissent is that it seems to me a very odd business to strike down a state statute, on the books for almost 40 years, without any opportunity for the state courts to dispose of the problem either under the Wisconsin Constitution or the U. S. Constitution. For ail we know, the state courts would find this statute invalid under the State Constitution,1 but no one on either side of the case thought to discuss this or exhibit any interest in the subject. Since no one could reasonably think that the judges of Wisconsin hâve less fidelity to due process requirements of the Fédéral Constitution than we do, this case is, for me, a classic illustration of one in which we should décliné to act until resort to state courts has been exhausted. At oral argument counsel for Mrs. Constantineau was candid in saying that he had deliberately avoided resort to the state courts because he could secure, and indeed did secure, a three-judge fédéral district court to décidé the issue and, in that posture, appeal would lie directly to this Court.

as here, the statute’s challenger wanted to use the “short eut” Congress has authorized. As here, the “short eut” was to convene a three-judge fédéral district court which held the Alaska statute invalid. Notwithstanding that the license applicants presented a sound claim, Mr . Jus - tice Douglas , speaking for a unanimous Court, said:

“We are advised that the provisions of the Alaska Constitution at issue hâve never been interpreted by an Alaska court. The District Court, feeling sure of its grounds on the merits, held, however, that this was not a proper case for abstention, saying that ‘if the question had been presented to an Alaska court, it would hâve shared our conviction that the challenged gear licensing scheme is not supportable.’ 297 F. Supp., at 304. The three-judge panel was a distinguished one, two being former Alaska lawyers. And they felt that prompt decision was necessary to avoid the ‘grave and irréparable’ injury to the ‘économie livelihood’ of the appellees which would resuit, if they could not engage in their occupation ‘during this year’s fortheoming fishing season.’ Ibid.

“It is, of course, true that abstention is not necessary whenever a fédéral court is faced with a question of local law, the classic case being Meredith v. Winter Haven, 320 U. S. 228, where fédéral jurisdiction was based on diversity only. Abstention certainly involves duplication of effort and expense and an attendant delay. See England v. Louisiana State Board, 375 U. S. 411. That is why we hâve said that this judicially created rule which stems from Railroad Comm’n n . Pullman Co., 312 U. S. 496, should be applied only where ‘the issue of state law is uncertain.’ Harman v. Forssenius, 380 U. S. 528, 534.” Reetz n . Bozamch, 397 U. S. 82, 86 (1970).

Burger , C. J., dissenting 400 U. S.

This very wise doctrine is an essential one of policy and is a keystone of federalism. Previously this Court had underscored this concept, saying:

“Proper exercise of fédéral jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a fédéral court’s considération of the underlying fédéral constitutional questions. ... In such a case, when the state court’s interprétation of the statute or évaluation of its validity under the state constitution may obviate any need to consider its validity under the Fédéral Constitution, the fédéral court should hold its hand, lest it render a constitutional decision unnecessarily.” City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639, 640-641 (1959). See also Fornaris v. Ridge Tool Co., ante, p. 41.

It is no answer to contend that there is no ambiguity in the Wisconsin statute and hence no need to abstain; in Reetz the Alaska statute could not hâve been more plain, or less susceptible of a limiting construction. Yet, in furtherance of this Court’s firm policy to steer around head-on collisions with the States by avoiding unnecessary constitutional decisions, we reversed the District Court and remanded with instructions to stay its hand while the litigants exhausted state court remedies for resolution of their challenge to the statute. See also Fornaris v. Ridge Tool Co., supra. Reetz cannot be distinguished and I see no reason to départ from the principles it reaffirmed.2

I quite agréé that there is no absolute duty to abstain—to stay our hand—until the state courts hâve at least been asked to construe their own statute, but for me it is the négation of sound judicial administration—and an unwarranted use of a limited judicial resource—to impose this kind of case on a three-judge fédéral district court, and then, by direct appeal, on this Court. Indeed, in my view, a three-judge district court would be well advised in cases such as this, involving no urgency or question of large import, to décliné to act.

This Court has an abundance of important work to do, which, if it is to be done well, should not be subject to the added pressures of non-urgent state cases which the state courts hâve never been called on to résolve. Neither the historié rôle of this Court nor any reasonable duty placed on us, calls for our direct intervention when no reason for expedited review is shown. Here we hâve an example of an unwise statute making direct review prima fade available, and an unwillingness by the Court to follow its own precedents by declining to pass on the Wisconsin statute before Wisconsin courts do so. We should remand this case with directions to the three-judge court to refrain from acting until the Wisconsin courts hâve acted.

Mr . Justice Black , with whom Mr . Justice Black - mun joins, dissenting.

I agréé substantially with the dissent of The Chief Justi ce . I would vacate the District Court’s judgment and remand with directions to withhold its proceedings to enable appellee to file a declaratory judgment or other state court action challenging the police chief’s posting of notices in ail Hartford retail liquor outlets forbidding sales or gifts of liquors to appellee for one year. As the

Court’s opinion, the cases there cited, and The Chief Justice ’s dissent point out, such a course of action is justified “where the issue of state law is uncertain” and where the state court might confine the state law’s meaning so “as not to hâve any constitutional infirmity.” The Wisconsin Act appears on its face to grant authority to a man’s wife, a mayor, a town’s supervisors, the county superintendent of the poor, a sheriff, or a district attorney to post notices forbidding liquor establishments from giving or selling any alcoholic beverages to the person so posted. The effect of such sweeping powers, if there is nothing else in the State’s law to limit them, is practically the same as that of an old common-law bill of attainder, against which our forebears had such an abhorrence that they forbade it in Art. I, § 9, of the Constitution. See, e. g., United States v. Lovett, 328 U. S. 303 (1946). And here the Wisconsin law purports on its face to place such arbitrary and tyrannical power in the hands of minor officers and others that these modem bills of attainder can be issued ex parte, without notice or hearing of any kind or character. It is impossible for me to believe that the Suprême Court of Wisconsin would uphold any such boundless power over the lives and liberties of its citizens. It seems to me therefore wholly uncertain that the state law has the meaning it purports to hâve, and I believe it is unfair to Wisconsin to permit its courts to be denied the opportunity of confining this law within its proper limits if it could be shown that there are other state law provisions that could provide such boundaries. For example, notice and hearing might be provided by principles of state administrative procedure law similar to the fédéral Administrative Procedure Act.