Wisconsin v. Constantineau

PETITIONER: Wisconsin
RESPONDENT: Constantineau
LOCATION: Eastern District Court of Pennsylvania

DOCKET NO.: 95
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 400 US 433 (1971)
ARGUED: Dec 10, 1970
DECIDED: Jan 19, 1971

Facts of the case

Question

Media for Wisconsin v. Constantineau

Audio Transcription for Oral Argument - December 10, 1970 in Wisconsin v. Constantineau

Warren E. Burger:

We’ll hear arguments in Number 95, Wisconsin against Constantineau.

Mr. Southwick, you may proceed whenever you’re ready.

Benjamin Southwick:

Mr. Chief Justice and may it please the Court.

My name is Benjamin Southwick and I’m an Assistant Attorney General of the State of Wisconsin and I am here today representing the State of Wisconsin in this case which came up from a decision of a three-judge panel in the Eastern District of Wisconsin and the issue before this Court is whether a certain sections of the Wisconsin statute which I will discuss in a moment, meet the requirements of procedural due process.

The lower court decided this question in a two to one decision against the state, that the statutes were in fact unconstitutional with a dissent by the United States Senior Circuit Judge F. Ryan Duffy.

These statutes which are sections 176.26 and 176.28 sub (1) of the Wisconsin statute state which are set forth in pages 116 and 117 of the appendix, state in essence that a series of local officials including the wife of any individual and including the Chief of Police of any city that these series of local official which are set forth in the statute, when they make a finding according to certain standards which are set forth in the statutes and these standards essentially relate to the exposing of an individual to or his family to want or the town or village in which he lives to liability for a support or the injuring of the individual's health or the endangering of the personal safety and comfort of any member of his family or the endangering the security of the property of any person or becoming dangerous to the peace of a community.

When any of these local officials including the wife of an individual make a finding and this finding is made without notice of intention to make it and without a hearing, when these standards are met, then these empowered local officials can send a notice to the effect to any person and is normally persons within their jurisdiction that the person against whom this standard is found is forbidden to purchase alcoholic beverages or to be given alcoholic beverages for a period of one year and all the statute provides that a copy of this notice shall be sent to the person who has been what we call posted and the punitive Section 176.28 sub (1) provides that any person who knowingly serves an individual alcoholic beverages who has been self posted shall be subjected to certain criminal penalties.

Hugo L. Black:

Mr. Southwick.

Benjamin Southwick:

Mr. Justice Black?

Hugo L. Black:

The plaintiff here is a woman.

I fail to note the presence of the word husband in the statute although the word wife is there, under the Wisconsin system could a husband post his wife?

Benjamin Southwick:

Not under the statute your honor.

Hugo L. Black:

Does this raise an equal protection argument?

Benjamin Southwick:

I think there maybe some problems with that but I don’t believe that they’re present in this case.

Hugo L. Black:

May I ask whether am I correct in my impression that Wisconsin has a dram shop statute?

Benjamin Southwick:

Not to my knowledge your honor.

I’m not well -- terribly well versed in other aspects of the Wisconsin regulation.

I thought --

Harry A. Blackmun:

I was fairly certain it did have one and my question was that, you know what a dram shop statute is in the mid western sense anyway, it --

Benjamin Southwick:

I believe that imposes liability on a bartender?

Harry A. Blackmun:

Yes, for sale to one obviously intoxicated, usually arises in the automobile accident context.

Benjamin Southwick:

It’s my opinion that Wisconsin Mr. Justice Blackmun does not have such a statute.

Harry A. Blackmun:

Did not have one?

Benjamin Southwick:

Yes.

This case arose if I may continue until -- did I hear another question Mr. Justice White?

Byron R. White:

I just want to -- are there any other findings here as to this petitioner has said must precede (inaudible).

Benjamin Southwick:

The findings are not set forth, no.

There’s no --

Byron R. White:

There’s no where in the record?

Benjamin Southwick:

There is nothing in the record although the deposition was taken later on of the lady, the appellee Mrs. Constantineau who was a -- who these standards were found.