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

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.

Byron R. White:

Now, I gather what you told us this scheme requires the police chief or some other official to make these findings before the note is sent?

Benjamin Southwick:

That is correct.

He makes them in his own mind because he doesn’t have to and this is a problem in the case before the court.

There is no provision for a hearing or for any saying forth that the standards were found.

Byron R. White:

Where does it (Inaudible) that he in fact made an appointment?

Benjamin Southwick:

Well, he made the finding in the sense that he did issue notice to the bartenders in the City of Hartford, Wisconsin.

William J. Brennan, Jr.:

We are therefore to assume that he must have made the necessary findings?

Benjamin Southwick:

That’s correct, that’s correct Mr. Justice Brennan.

William J. Brennan, Jr.:

You mean the findings are implicit in the conclusion?

Benjamin Southwick:

That’s correct Mr. Chief Justice.

The case —

William J. Brennan, Jr.:

Mr. Southwick, what —

Benjamin Southwick:

I beg —

Warren E. Burger:

What do you think is the purpose of the statute?

Benjamin Southwick:

The purpose of the statute is I think a very legitimate one which is to regulate and to delimit the noxious effects which alcoholic beverages can have upon individuals.

Harry A. Blackmun:

Do you think it is protective of the individual posted as well as the community?

Benjamin Southwick:

I would certainly say that that’s case Mr. Justice Blackmun, certainly of his family and of the community in which he resides as well.

Harry A. Blackmun:

Do you know of any other states which have a comparable statute?

Benjamin Southwick:

I have set them forth in the appendix (e) of my jurisdictional statement Mr. Justice Blackmun, there are 15 other states which have a similar statute which do not provide as this case does not — this statute in Wisconsin does not provide for a hearing or notice of intention posed to the individual.

When you are talking about findings, what you mean and would do it, do I understand it correctly, is the finding of wife or in this case who made the finding?

Benjamin Southwick:

The local official in this case Mr. Justice Harlan, the chief of police made the finding and as I say in his own mind he made the finding which is —

In his own mind?

Benjamin Southwick:

— which is shown by the fact that he sent the notice out to —

But if you take the adverse case, the wife could make the finding against her husband, isn’t it?

Benjamin Southwick:

That is correct yes.

Does the notice that a copy of the notice that’s required to be given, does that precede the posting of the —

Benjamin Southwick:

Well, that is the posting and I think the word posting is used is the sense of a mailing perhaps and not in the sense of posting on a bulletin board which is the point I hope to get to later.

But the recipient doesn’t get it before there is the notice in whatever legal effect that it has to take effect, is that it?

Benjamin Southwick:

The recipient gets it contemporaneously —

Would that be?

Benjamin Southwick:

— with all of the bartenders and of all owners.

Warren E. Burger:

Is an individual who has been thus posted guilty of any criminal act if he —

Benjamin Southwick:

No there are no criminal —

Warren E. Burger:

— presents himself to buying liquor?

Benjamin Southwick:

Mr. Chief Justice, there are no criminal penalty or whatsoever against the person who has been posted as I pointed out in the brief and as the statutes from the other state set forth in jurisdictional statement indicate that some of the other states do provide criminal penalties for the person posted but the Wisconsin statute is not of this nature.

William J. Brennan, Jr.:

(Inaudible)

Benjamin Southwick:

It appears, no, it does not appear Mr. Justice Brennan although the facts and the nature of the various circumstances do appear in the record in a deposition which was taken after this.

William J. Brennan, Jr.:

That is in the record?

Benjamin Southwick:

That is in the record yes but it has not been reprinted in the appendix and I beg the court’s pardon for that over say, a certain portion of it.

Thurgood Marshall:

Mr. Southwick what can the posted mean do once he gets the notice?

Benjamin Southwick:

What can —

Thurgood Marshall:

Once he gets the notice and everybody else gets the notice, what under the sun can he do?

Benjamin Southwick:

Well, he has —

Thurgood Marshall:

He is a tea toddler.

Benjamin Southwick:

He has numerous alternatives if the — Mr. Justice Marshall suggest there is a tea-toddler he can bring out an action as Mrs. Constantineau has done against the —

Thurgood Marshall:

In the federal court?

Benjamin Southwick:

In the federal courts or in the state courts.

Thurgood Marshall:

But there is no machinery set up by the state?

Benjamin Southwick:

There is no machinery in the statute for any sort of hearing and this of course —

Thurgood Marshall:

He has no due process at all?

Do you agree on that?

Benjamin Southwick:

That is correct your honor, Mr. Justice Marshall.

Thurgood Marshall:

And then once these are all mailed out, is there a way to get a mail back?

Benjamin Southwick:

Well, the two judges in the fellow district found a way of doing it and I don’t mean to be factitious Mr. Justice Marshall when I say that that there is no provision in the statute for un-posting someone.

Thurgood Marshall:

Is there anything in the statute that prevents the bartender from pasting this notice up on his mirror, in his bar so that guard and anybody else can see it?

Benjamin Southwick:

It is not at all by stated in the statute Mr. Justice Marshall what the person received and what he should do with it and of course this is the point I intend to make that the statute is a not on their face un-constitutional because they don’t provide, they merely provide for this notice to go to the various bartenders and not that they set them up on the wall or that they publish them in any way.

Thurgood Marshall:

But we’re all clear that there is no resemblance to due process in this at all.

Benjamin Southwick:

Absolutely.

Thurgood Marshall:

Before or after a man’s name is put up any place, anybody wants to put it up?

Benjamin Southwick:

I would vigorously contest the assumption of the question Mr. Justice Marshall that it is put up somewhere, the statutes don’t provide as I said earlier that this be published at all that merely sent for the —

Thurgood Marshall:

What I’m saying is there’s no protection clause–

Benjamin Southwick:

There’s no protection.

Thurgood Marshall:

— to present anybody?

Benjamin Southwick:

There’s no protection in the statute against the arbitrary.

Thurgood Marshall:

So, if a wife tells her husband you need to give me a mink coat Christmas or you get posted on January 1, he’s in trouble?

Benjamin Southwick:

He is in trouble —

Thurgood Marshall:

Isn’t that?

Benjamin Southwick:

— in the sense that the he could be posted by the wife that’s correct, but the situation of the wife —

Thurgood Marshall:

But she says if you don’t give one I’m going to have you posted?

She get —

Benjamin Southwick:

Well, there is a problem in the statute I think although one not raised by this case Mr. Justice Marshall that the wife is given powers which the husband is not but I don’t think along a similar vein Mr. Justice Marshall that the concept of empowering a private individual is — is at all unique in this situation in the whole area of the state’s regulation of alcoholic beverages and I cite the example of a bartender is forced to make a determination that an individual is of sufficient age to drink, that he’s 21 years old or in the case of the dram shop act mentioned by Mr. Justice Blackmun that the bartender is given, the onus of making the decisions of whether somebody is intoxicated or not, and I would suggest that this delegation to private individuals in this whole area of law regulating in the field of alcohol beverages is because these private individual are often the people who are closest to the problems and to the situations involved and this of course —

Thurgood Marshall:

We are talking about regulating the dram shops not the shoppees or the shoppers?

Benjamin Southwick:

Well I think this —

Thurgood Marshall:

But this goes to the shopper himself?

Benjamin Southwick:

That’s correct Mr. Justice Marshall and I think in the cases I really had to anticipated arguing this case purely from the analysis of looking at it in terms of the so called right to obtain alcoholic beverages because I think that is a very minimal right and I think the states have it to —

Thurgood Marshall:

It certainly can be greatly controlled?

Benjamin Southwick:

It certainly can be greatly controlled because I think the states have a great amount of power in these areas especially since the passage of the 21st Amendment.

And I think there is something in your brief that — you can call it that — you said that if the recipient in one of these notices, thought the findings so called was improvidently made, they can get it reviewed by a common law writ?

Benjamin Southwick:

By a common law writ of certiorari Mr. Justice Harlan.

In Wisconsin?

Benjamin Southwick:

That is correct but I will point out that this is not as discretionary will of Court to grant such a review.

Have you ever heard of one being written, is it a procedure that’s been utilized?

Benjamin Southwick:

I’ve never heard of any litigation under the statute prior this case.

Never?

Benjamin Southwick:

No.

Byron R. White:

(Inaudible)

Benjamin Southwick:

And that is correct Mr. Justice White.

Byron R. White:

Why would you call it a review?

I mean, why do you need to be limited to a review? Couldn’t you bring an independent action for an injunction?

Benjamin Southwick:

Yes.

Byron R. White:

In the Wisconsin State Courts and sue the police chief and tell him to revoke this?

Benjamin Southwick:

That is certainly true Mr. Justice White, that’s — and of course the appellee in this case has chosen Federal Court.

Byron R. White:

How could be as effective as a common moment certiorari to be more effective at least you get a decision on it.

Benjamin Southwick:

I would think that that would be more effective, yes, and of course the appellee Mrs. Constantineau in this case has chosen the federal form but she could as well chosen the state form and I don’t think the statute can contemplate really any arbitrary of malicious activity by a local officials or by a wife under the statute.

I don’t think that the fact of such activity could occur as to point to make this statute into a constitution.

Thurgood Marshall:

As a matter of fact, the rule on the statute on his face, isn’t it?

Benjamin Southwick:

That’s correct Mr. Justice Marshall.

Thurgood Marshall:

There should be, the rest is obvious and I think, they just said as I read they pin the statute on his face was unconstitutional period?

Benjamin Southwick:

That is what the court said Mr. Justice Marshall, yes.

Of course, what’s happened in this case is that Mrs. Constantineau has been posted by the chief of police for the state of the city of Hartford, Wisconsin.

Mrs. Constantineau brought an action in the federal court alleging two causes of action and the first cause of action which was against the chief of police for acting maliciously and arbitrarily.

This was the cause of action in which she mentioned and discussed her right of reputation and a right to be free from public defamation and the second cause of action which is the cause of action before this Court in which she sought an junction, the right of reputation was never mentioned, the right to be free from public defamation.

The state made motions to separate the two causes of action and to intervene as a party defendant and the motions were granted and at the hearing on the constitutionality of the statute, counsel for Mrs. Constantineau never mentioned the right of Mrs. Constantineau to be free from public defamation and to be free any reputation and the state sought to produce witnesses on this point and subpoenaed Mrs. Constantineau as the record shows but Judge Reynolds of the majority in the lower court refused the motion of the state to produce witnesses and in the questioning which appears in the appendix of page 113 of Judge Reynolds of the majority in the lower court, myself who was representing the state, Judge Reynolds said the fact and “the fact of being held up to ridicule for reasons which the party may not have any — may not know why”.

I think that is the right which has not been mentioned which bothers me more than anything else in this case.

Byron R. White:

(Inaudible)

Benjamin Southwick:

Well, that’s exactly my point in this Court your honor, Mr. Justice White, there’s nothing publicly defamatory about the actions which can be taken under the statute and that this —

Byron R. White:

Except with the — except the people to whom the notices are mailed and I suppose there’s more than one.

I know that the police, the chief has an opinion and here’s someone who shouldn’t drink.

Benjamin Southwick:

Well, all of the notice says and it does appear in the record, all of the notice says and I quote from the one sentence of the notice “you are hereby forbidden to sale, and so — I’m sorry I beg your pardon Mr. Chief Justice, to sale and give away to Grace Norma Constantineau any intoxicating liquors or whatsoever kind for a period of one year from date under pane of the penalty set forth in the various sections and that —

Byron R. White:

They know what the statute said?

Benjamin Southwick:

Well, the punitive section which applies to the recipient of a notice, the punitive section is not set forth in the notice or at least it was in this particular case.

Byron R. White:

But they know what triggers a notice like that?

I mean the recipients of that notice are aware of what triggers a notice like that?

Benjamin Southwick:

I don’t know whether there would be a — (Inaudible) on my part and as to whether a bartender in the State of Wisconsin would be familiar with the —

Byron R. White:

Well, I would think so.

Benjamin Southwick:

The sales into —

Potter Stewart:

They know their business.

Byron R. White:

What the statement of judgmental means Mr. Southwick?

I’m looking at page 115 of the appendix.

Benjamin Southwick:

Well, —

Byron R. White:

On January 23, defendant Grager(ph) in his capacity as the chief of police acting in so forth posted a notice in the retailed liquor outlets in the city of Hartford, Wisconsin?

Benjamin Southwick:

It’s my contention Mr. Justice White —

Byron R. White:

I mean, what did the judgmental do you think mean?

Benjamin Southwick:

I think that these statutes are familiarly known in Wisconsin as the alcoholic posting statutes and I think posting could mean mailing as opposed to posting in a bulletin board —

Byron R. White:

I see.

Benjamin Southwick:

Because the chief of police could easily serve as notice by mail I would think on the various bartenders and there’s no point in the statutes in which there is a requirement that they be put up on the bulletin board.

She is subject to a notice now —

Benjamin Southwick:

She is subjected only in the statutes to receiving a notice contemporaneously with the bartenders receiving the same notice.

What I mean is she is subjected to this original notice, the force of that’s expired, doesn’t it?

Benjamin Southwick:

Well, the lower court ordered that the notice is to be retracted Mr. Justice Harlan.

Warren E. Burger:

Mr. Southwick, what efforts were made to utilize state proceedings or administrative proceedings to deal with this problem by Mrs. Constantineau?

Benjamin Southwick:

Well, Mrs. Constantineau, Mr. Chief Justice chose the federal form —

Warren E. Burger:

You mean she didn’t try anywhere else?

Benjamin Southwick:

No Mr. Chief Justice, not to my knowledge.

She chose the federal form and brought the two causes of action, one for an injunction which is the cause of action here and the first cause of action is still pending for damages in the Eastern District.

The majority in the lower court in both sides in lower court took the so-called balancing test approach to this case which starts with the Joint Anti-Fascist Refugee Committee.

Mr. Justice Frankfurter’s concurring opinion and the later cases of Cafeteria Workers versus McElroy and Goldberg versus Kelly took this approach of balance in determining the requirements of due process to any given situation of balancing the interest of government under on the hand and the interest of the individual on the other hand and both the majority and the dissent in the lower court agreed that when we look at this case solely in terms of the right of the state to regulate alcoholic beverages, both the majority and the dissent agreed that clearly the statute was constitutional and the due process did not require any notice in hearing but the majority —

William J. Brennan, Jr.:

You mean the posting is Mr. Southwick, well I noticed in page 113.

Benjamin Southwick:

Of the appendix Mr. Justice Brennan?

William J. Brennan, Jr.:

Yes and the colloquy between you and Judge Reynolds.

You used — you said something about some admitted fact that the plaintiff has been drinking outside the city of Hartford and since January, on the date when she was posted.

Now, when you used the word, in what sense — did you use a synonym?

Benjamin Southwick:

I use it — and they are familiar, I think Mr. Justice Brennan because in the state of Wisconsin, these statutes are referred to as the alcoholic posting statute and I don’t think I was thinking —

William J. Brennan, Jr.:

Well, what I’m asking was if we’re using that term and it was Judge Reynolds also using it as a synonym for the word mailing?

Benjamin Southwick:

I would assume that’s the only explanation.

That’s the only explanation I would offer to this court.

Byron R. White:

You weren’t using it anyway in terms of some notice being posted in public places?

Benjamin Southwick:

Certainly not Mr. Justice White, certainly not.

If you won in this case, (Inaudible)

Benjamin Southwick:

Well, this —

It can last for a year though?

Benjamin Southwick:

That’s true but another section of the statute do provide Mr. Justice Harlan that the statutes can be renewed for an additional year.

(Inaudible)

Benjamin Southwick:

That’s correct yes, that’s correct.

In so far as this is notice is concerned, no matter what happens to this case to notice suspends?

Benjamin Southwick:

That’s correct but of course the state is concerned with the holding of the statutory scheme.

I know but what I’m raising is, are there any questions about the state just in case?

Benjamin Southwick:

I would not say, not Mr. Justice Harlan.

Why not?

Benjamin Southwick:

Because I think under the statute this lady could be reposted for any —

That’s his new notice?

Benjamin Southwick:

But the statutory scheme would still be up.

If she has become a tea toddler and she would — there would be any basis for (Inaudible)

Benjamin Southwick:

But he still could under the statute —

William J. Brennan, Jr.:

(Inaudible).

In any event, today she is perfectly free to buy all liquors she wants, am I right?

Benjamin Southwick:

Oh yes, Mr. Justice Brennan and its my contention in the lower court that she was perfectly free to buy them other than in the city of Hardston (voice overlap).

William J. Brennan, Jr.:

But you said — I’d rather she said that she was physically buying it outside?

Benjamin Southwick:

Well, I’ve just been frustrated Mr. Justice Brennan in my —

Byron R. White:

Was there an injunction entered against the enforcement of the statute?

Benjamin Southwick:

I beg your pardon Mr. Justice White?

Byron R. White:

Was there an injunction entered against the enforcement of the statute?

Benjamin Southwick:

That’s correct, yes, that order is a —

Warren E. Burger:

Generally or just as to Mrs. Constantineau?

Byron R. White:

It was declared as constitutional, wasn’t it?

Benjamin Southwick:

That’s correct yes and the order appears on page 124 of the appendix.

Warren E. Burger:

Well, isn’t that rather relevant to the mootness question?

Benjamin Southwick:

The lower Court found that the statutes were unconstitutional on their face.

Potter Stewart:

Well, more than that they —

Byron R. White:

Wouldn’t the police chief be in violation to this order if he posted anybody?

Potter Stewart:

They are enjoined from enforcing the provisions of the statute.

Benjamin Southwick:

I would have said that he enjoin in — if he posted anyone else that he would be, yes.

Potter Stewart:

Yes, its hardly moot then.

Benjamin Southwick:

It’s my contention if it pleases the court, in this Court and in the lower court that the whole question of the right of reputation to be free from public defamation was never — is not present in this balancing process between the rights and interest of the government on the one hand and the interest of the individual on the other hand.

Potter Stewart:

But the District Court didn’t reach that, didn’t they?

Benjamin Southwick:

Well, Mr. Justice Stewart, the only finding that we have in the lower court is the statement of Judge Reynolds of the majority in the lower opinion when he says the and I quote from page 119 of the appendix “it would be naïve not to recognize that such posting or characterization of an individual expose him to public embarrassment or ridicule”, so that despite the failure in this cause of action of Mrs. Constantineau to allege any damage to injury as a cause for the statutes to be unconstitutional on their face and despite the courts forbidding the states from calling any witnesses in this case, the judge made that assumption purely on his own that it would be naïve and if the submission of the state to this Court that this whole question of reputation in not present in the operation of this statute.

It’s not present in the record of this case and the deposition which is in the record in which I repeat, I’m embarrassed to say it was not reprinted in the appendix shows that the only point to which Mrs. Constantineau was hurt in the reputation was a statement that she made in the court in the deposition that she was embarrassed by the operation of the statute but later on she admits that she didn’t know her own reputation in this small city of Hartford for any matter except that she knew that people knew that she drink a lot, that’s only point on which she knew what her reputation was in the city and she didn’t know whether it changed or not since the posting and so I don’t think we have to —

Potter Stewart:

There were two causes for action here, weren’t they?

Benjamin Southwick:

Yes and it’s only the second cause of action which is before this court.

Potter Stewart:

(Inaudible)

Benjamin Southwick:

Against the chief of police for acting arbitrarily under the statute.

Potter Stewart:

It was not for declamation, not for causing her embarrassment or ridicule?

Benjamin Southwick:

Yes.

Reputation was mentioned in the seventh paragraph of the first cause of action.

Potter Stewart:

And that has not yet been tried or is —

Benjamin Southwick:

That’s correct, yes that cause of action is still pending in the Eastern District.

Potter Stewart:

I had understood this passage in the court’s opinion to which you referred simply to as a passing reference to some interest of Mrs. Constantineau being affected, the court currently realizing that the interest in drinking alcohol is not a very much or protected interest by virtue of the complete controls given by the States over that matter and it was necessary for the Court to identify some interest that was affected by this.

Benjamin Southwick:

I think the Court had to find some interest which was affected in order to find the statutes unconstitutional because it’s clear that if we look at this solely in terms of the regulation of alcoholic beverages, the statutes are constitutional.

So the state of the Court had to come up with something and I came up with this point of reputation.

And it’s my point to this Court, the state’s point, that this right to represent a reputation is not involved in this — in the operation of these statutes and should not be accounted for in the balancing test.

Potter Stewart:

Where does the first count stand now?

Benjamin Southwick:

The first count is still pending in the Courts, yes so it’s my point, if the Court are please before of this Court that this whole point of reputation, it should not be put on the balancing scale of due process if you please.

For the one reason that is not involved in the record of this case in any way that the statutes in their operation by their own terms in any way involve in the right of reputation.

And also as a matter of constitutional law if we look at the other cases, and I think you have Mr. Ramsey Clark the other day before this very court talking about reputation in here.

There he was talking about a case where the man had been severely damaged.

There has been no concrete showing of any sort that the economic future or economic interest of Mrs. Constantineau or have in way been affected by the operation of these statutes and that she does not have viable economic alternatives after as a result and after the posting which took place under these statutes.

Byron R. White:

What shoud entitled the state to deprive a person of wherever he goes to a bar to get without a notice in the hearing when the state can’t have a law which permits into the — deprive that his wages without it.

Benjamin Southwick:

Well I think wages are far important on the balancing scale of the prices.

That’s my point Mr. Justice White.

If we look at this balancing scale between the interest of the Government and the interest of the individual.

Benjamin Southwick:

If we look at it solely in terms of the right against —

Byron R. White:

The state can deprive and what the state thinks not important but what he might think is very important.

Benjamin Southwick:

Well not only the — Mr. Justice White, what the state thinks but in my opinion, what the other interest that are been affected in the other cases which I have cited in my brief which are far more substantial interest than it’s involved in this case, in the right to obtain alcoholic beverages.

And I used the word right, the so called right.

It’s not in the right privilege sense that I’m using it.

I think when we compare the balancing in this case, the due process balancing whether due process balancing which has occurred in other cases in which —

Byron R. White:

Do you think the state could just post a man and say a teller on the department stores in town, don’t sell this man any more shoes?

Benjamin Southwick:

I would say not shoes but I think the right.

Byron R. White:

Why not?

Benjamin Southwick:

The right of the individual to obtain.

Byron R. White:

Why not, are those so important?

Benjamin Southwick:

Well I think Mr. Justice White, that the — in this case, the right of the individual to obtain the alcoholic beverages has traditionally been a very frail one in the constitutional sense.

Byron R. White:

But what if you posted and send a notice and tell the stores “don’t sell this man anymore shot gun shells.”

Benjamin Southwick:

Well then we have to go through the balancing process all over again I think.

Byron R. White:

But what about it?

Benjamin Southwick:

All I think the state has a much diminished power to regulate shot gun shells and it does, Mr. Justice White, that it does to regulate —

Byron R. White:

So that you have the notice in the hearing before you could be deprived of — by a gun shot shell.

Benjamin Southwick:

Well, I think each commodity would have to go through this balancing test itself.

And I couldn’t say whether it’s not up to me say whether an alcoholic beverages are more less important than shot gun shell but I think the Courts here and the law traditionally, especially since the passage of the Twenty-first Amendment has shown, that the right of the individual to obtain alcoholic beverage is very frail right and that if we look at these statutes purely in those terms then clearly even the majority in the lower court agrees it.

Byron R. White:

Did you say you don’t know of anyone who has ever brought an action except this one?

Benjamin Southwick:

I couldn’t find any cases under the statute in this state or in the other states which we should talk about it in terms of due process.

Byron R. White:

Any in the state courts?

Benjamin Southwick:

Not to my familiarity Mr. Chief Justice, no.

Byron R. White:

Don’t you have to say that the right to regulate sale of liquor is absolute right in order to sustain your case?

Benjamin Southwick:

I don’t think so Mr. Chief Justice.

I think if we look in terms of this balancing test that I’ve been talking about, the power of the state to regulate it so great in the area of alcoholic beverages in the past.

Byron R. White:

You’ve got to be absolute if you don’t have to give any notice.

Benjamin Southwick:

I don’t think that the — Mr. Chief Justice please the other cases have shown that to be the case at all that and I’ve cited cases in the field of regulating a business interest, the right of a business to be free from competition and the right of public employee to continue in the job and the right of a public employee to continue in the job.

All of these things, all of these interests which I submit to the Court are much more significant interest that are involved in this case have been taken away without notice in the hearing.

And I think there are rights that can be taken away without a notice in the hearing.

Benjamin Southwick:

And this brings me to the point which I entered the brief on.

Thurgood Marshall:

Mr. Southwick, just one question on that point.

Suppose the statute says, that the Chief of Police has a right to set the following notice that Joe Stokes has been declared by me to be a public drunkard, for that reason you are ordered not to sell any intoxicated beverages.

Benjamin Southwick:

I think that would differ from this instance Mr. Justice Marshall.

Thurgood Marshall:

With the exemption of using the words declared by me a public drunkard, what is the difference?

Benjamin Southwick:

I think —

Thurgood Marshall:

It’s under a particular statute.

Can’t I assume that every liquor dealer knows what that statute says?

Benjamin Southwick:

I don’t know that you can make that assumption Mr. Justice Marshall.

Assuming not by the terms of the statute can you make that assumption.

The statute merely says —

Thurgood Marshall:

Well what are the reasons, the Chief of Police tells you that you can serve liquor that you don’t, what other possible reasons could it be?

Benjamin Southwick:

Assumingly, it would only be for the reason set forth, and the standard set forth in the statute.

Thurgood Marshall:

Well, that’s just what I saying it.

My whole question, this is not a question, regulating this man or this woman in this case drinking or regulating the selling of liquor to this man or woman, it’s the publishing of their names.

Benjamin Southwick:

I don’t know that the — Mr. Justice Marshall that a publishing takes place in the context which would in anyway be —

Thurgood Marshall:

It’s in the context of liable at slant, publishing it when you give it to some third person.

That’s publishing.

Benjamin Southwick:

I don’t —

Thurgood Marshall:

If you give it to these third persons who are all the liquor dealers.

Benjamin Southwick:

Mr. Justice Marshall, I don’t know that the notice that’s contemplated by these statutes in any way provides for any defamations in the sense that it merely says that they are forbidden to sell to this individual.

And now what conclusions or recipient might draw not within the terms of the statute itself.

You say that there’s no case but I understood you in the Wisconsin Courts dealt with any phase of the statute?

Benjamin Southwick:

I’m not familiar with any litigations in Wisconsin about.

Is there any suggestion made to the District Court to the Federal Court, if they are to sustain and send it back to get some kind of interpretation in the state courts used in the statute?

Benjamin Southwick:

There was no suggestion made to the Court to my knowledge, Mr. Justice Harlan.

Do you see any utility in that now?

And they were dealing blind here with the statute that you say is never even in the state litigation, we don’t know what the state courts would do.

Benjamin Southwick:

I think that the statute Mr. Justice Harlan by its terms is reasonably unambiguous.

Warren E. Burger:

Well that isn’t the point.

Warren E. Burger:

The question is whether Court, either with or without a suggestion ought to enter in to this case for the state courts have to take in to construe it.

Benjamin Southwick:

Well motions —

Warren E. Burger:

Or in what with the question why is this case here at all?

Benjamin Southwick:

Motions to dismiss were made for this district.

Warren E. Burger:

On that ground?

On the grounds that they should abstain?

Was it articulated in that way?

Benjamin Southwick:

I don’t believe it was articulated in that way although there are – I have only been counsel for one of the two causes of action Mr. Chief Justice.

I see that my time is expired.

Warren E. Burger:

Counsel, if you’d like to finish today, you might bear in mind that the hour is quite late.

S. A. Schapiro:

I will Mr. Chief Justice, may it please the Court.

My name is S. A. Schapiro.

I represent Mrs. Constantineau.

I’d like to just inform accordance to the facts.

The Chief of Police went out like a processor who went out and handed the notice to all the persons in town dealing with liquor.

We don’t know—

Warren E. Burger:

How many are they?

S. A. Schapiro:

There were about 17 taverns and about 20 or 15, 20 liquor stores in this community about five—

Warren E. Burger:

What would they do in Milwaukee when this arises, you probably have several thousand of them there.

S. A. Schapiro:

Yes, but I haven’t known of it arising in Milwaukee, it’s only used in the smaller communities where there is probably a more feasible means of controlling it.

Before the year ran out that this notice was posted for, the District Court stepped in and enjoined further action, we started this action in the federal court because we believe there was a substantial federal question.

There were rights of this lady under the Ninth Amendment or First Amendment and the Fourteenth Amendment Due Process clause.

Hugo L. Black:

What about the Twentieth Amendment?

S. A. Schapiro:

Pardon me your honor.

Hugo L. Black:

Wouldn’t you think the 21st Amendment had anything to do with this?

S. A. Schapiro:

If it did your honor Justice Black it won’t be in favor of our case and we did not plead anything with respect to the 21st Amendment, that would be, if it was relevant which the state has brought up would certainly be a factor on their behalf.

I think, the counsel has been focusing no matter on procedural due process but I think we should look at the nature of the states action.

Here, the state is moving against the citizen who is not a public figure nor a public official.

And the power to do this is vested in this people with merely discretionary powers, and administrative official, a ministerial official in this case is the chief of police, and his discretion is almost unrestricted.

A lessening of the estate is one of the reasons or the misspending of the estate is one of the reasons that he can do this to this lady and now —

Hugo L. Black:

Have you published the state law under which he claimed to exercise that power?

S. A. Schapiro:

Have we published a state law?

Hugo L. Black:

Did you publish in your brief?

S. A. Schapiro:

No, the state has done that in their appendix.

They have published the law in their appendix and in their brief.

That law is set out in full.

Warren E. Burger:

Among your constitutional right while we have here just pausing for a moment only last 1969 term, less than a year ago, important federal constitutional claims were raised by some people in the fishing business in Alaska and this Court said that the District Court should have abstained from considering it until the state courts construed, state courts of Alaska had construed their own statute, why shouldn’t the District Court here have abstained until the state courts of Wisconsin have decided to what this statute meant?

S. A. Schapiro:

Because your honor Mr. chief Justice, I think it’s well-established in a law when a substantial federal question is raised and a three-judge court has convened, that court can in its own discretion listen to the issues presented.

Warren E. Burger:

Well, but would you negate the abstention doctrine entirely?

S. A. Schapiro:

Well, I would not negate it entirely but I would rather put it in a discretionary manner with the United States District Courts especially when there’s a three-judge court.

You know we can always run into the matters that we’re going to the state court first, exhaust their remedies there and then move to the federal courts, it’s nothing but a revolving door process and the only one that’s getting exhausted is the petitioner or the plaintiff in the court not the state remedies.

So, to facilitate what might ultimately be the end result, we start out in the federal court where there is discretion and where this three-judge court and Judge Reynolds particularly saw the reason to exercise that discretion.

And there are cases which we cited in our brief to the lower court and motions to dismiss that support our position that it is a discretionary function of the three-judge District Court to hear the matter if there is a substantial federal question.

Warren E. Burger:

Sometime we think that they don’t exercise that discretion, should we enough, we give them some help lines.

S. A. Schapiro:

Yes your honor, I would go up with that statement.

But we have to look at the nature of the state action as one of being a stigmatic identification of a citizen who is not a public figure and not a public official.

And the effect on that is to single out the citizen in a spotlight with unfavorable connotation.

Warren E. Burger:

Would it make any difference if this were the mayor of the town of Hartford since you emphasized the public officials, does he have a different right from this lady?

S. A. Schapiro:

He would have — there would be a right to criticize his actions, his behavior because he is a public official under the New York Times rule.

Warren E. Burger:

Could you criticize him by posting him?

S. A. Schapiro:

That under this law the chief of police could if he dared to do so, but the liability of the chief of police might be different because the mayor is a public official.

Under the New York times rule, the public official is subject to criticism in any parts of his life which is a public matter.

Warren E. Burger:

And that might affect his right to collect damages but I can’t see what it would have to do with the constitutional issues involved here?

S. A. Schapiro:

Well, under the First Amendment we have to remember Mr. Chief Justice that free speech and with respect to the criticism of public officials is something that is almost — what is the last thing next to something that is absolute.

The only thing this Court has stated that only if the matter is done maliciously and with reckless disregard to the truth can criticism of the public officials be actionable.

But here we’re singling out our private citizen who has the right to live her own life in her own quite way and an assuming way.

And if that’s her expression of life, it’s a matter of invasion of that expression of living.

And that I submit is as an invasion of her privacy and her state of mind.

This Court recognized that in Map and it recognized in Stanley versus Georgia that the physical enclosure of a home is sacred.

And the state can’t go in there and here, the state is going beyond the enclosure.

S. A. Schapiro:

It’s going right into the heart and soul of the citizen herself.

It’s imposing a stigma on her, not only when she is in her home, it’s in her heart and in her soul and attached to her when she leaves her home.

Byron R. White:

Of course, aren’t there limitations to what you’ve just said that one can be committed for the most states anyway for being waster of his substance?

S. A. Schapiro:

Well, he can be prosecuted in Wisconsin for non-support.

If he is then of course he is given the due process protection of hearing before judicial form or the facts that are allowed and counsels present it.

There’s a hearing before any findings made cross examinations is permitted.

Warren E. Burger:

If the state had a statute, you say it was indicated in Wisconsin does not have the dram statute.

S. A. Schapiro:

That’s correct —-

Warren E. Burger:

But in the state which had the statute giving the bartender the power to decide that a given person has had enough or too much?

S. A. Schapiro:

Right.

Warren E. Burger:

Then hasn’t the state vested in that bartender not only the power but a duty to in effect stigmatize them by saying I’m not going to say to you anymore?

S. A. Schapiro:

Well it has —

Warren E. Burger:

Those statutes would fall too then wouldn’t they on your theory?

S. A. Schapiro:

Not unless a public declaration of the effect would be made because —-

Warren E. Burger:

It’s pretty public if he says it in the bar with 29 people that line up at the bar that, “I’m not going to let you have anymore drinks you have too much”?

S. A. Schapiro:

But then your honor, it’s the citizens own acts in becoming intoxicated that’s discredited himself not the bartender’s.

Here is a woman that’s a divorcee, she’s got four children.

She’s never been convicted of a crime.

She has never been convicted of being drunk.

And here the chief of police is going out on his own and trying to limit her rates without a notice and a hearing.

And in a matter calculated that caused her damaged with the rest of the community with whom she lives.

Now, the bartender if he says so the one that’s asking for the drink is responsible for his being refused by becoming intoxicated in the first place.

Here, the citizen is not responsible for doing anything wrong that brought about the particular action except insofar as her displeasure existed in the eyes of the chief of police.

You believe that the state under the 21st Amendment would pass a law saying that no liquors would be served to any woman who had children?

S. A. Schapiro:

I don’t think that that would be possible your honor Mr. Justice Harlan because that would deprive that woman of the equal protection of the laws whereas others and her family, others in her same position without children would be permitted to consume liquor and having children would not be a valid criteria for denying it to her.

So, it would be in my position that that would be a deprivation of —

Thurgood Marshall:

Mr. Schapiro, (Inaudible) posted.

As it appears in the statute and as it is used, what is your idea?

S. A. Schapiro:

My idea is that the notice since it was served in the manner of a process server serving a notice is that it appears on the wall of the taverns to give notice to all persons that they cannot sell or transfer.

Thurgood Marshall:

Is there anything in this record about being on the wall?

S. A. Schapiro:

No, there isn’t your honor Mr. Justice Marshall there isn’t.

Potter Stewart:

That does seem to be however what Judge Reynolds understood?

If you look at page 112 of the appendix, every city saloon in Madison, she could have your name on the wall?

S. A. Schapiro:

Well, you’re right Mr. Justice Stewart, if and when this case comes to trial, those facts will be established and made part of the record but —

But the case is over isn’t it?

S. A. Schapiro:

No your honor Mr. Justice William.

But your concern is over?

S. A. Schapiro:

It’s not over at all Mr. Justice.

Warren E. Burger:

Under constitutional issue?

S. A. Schapiro:

The constitutional issue has been decided and after —

Warren E. Burger:

The injunction has been there?

S. A. Schapiro:

Yes.

Warren E. Burger:

Well, that’s over.

S. A. Schapiro:

Yes, but the question of whether or not the notice was actually placed on the wall or whether it was just handed has not been decided.

Those are issues of facts which will be determined.

Byron R. White:

But why would you declare the statute would be unconstitutional on its face then until you find out how it’s been applied because on its face it doesn’t say anything about posting.

It says mailing a notice.

And I think it’s your intention is that you must construe that the statute was validly declared unconstitutional on its face because you must assume these notices go on the wall?

S. A. Schapiro:

Well, it can be invalid without them actually being put on the wall because the fact that they’re disseminated throughout the community, the person has no chance to meet the inferences before they’re disseminated.

Byron R. White:

But some people —

Harry A. Blackmun:

Mr. Schapiro, would you be content if Wisconsin statute now had incorporated in it a provision for hearing?

S. A. Schapiro:

No, I wouldn’t Mr Justice Blackmun for the reason that this statute is inherently aimed towards the poor in the community because they’re the ones who was — who would be the obvious ones who would be restricted because they are the ones who be lessening their estates and leaving others to support the wealthy in the community, who could spend all they wanted more and not having their state lessened and others in the family deprived of their support would not be touched by this law.

And therefore, I feel it’s discriminatory against the poor of the community.

Hugo L. Black:

Does this suggest that you’ve never placed a wealthy person under guardianship for tendencies of this kind?

S. A. Schapiro:

Well, a wealthy person your honor can be place on the guardianship but I think that in any such event there has to be a finding of incompetency by a tribunal with cross examination, the rights of counsel, hearing and notice.

William J. Brennan, Jr.:

Has there been some reason why this first account has not come to trial?

S. A. Schapiro:

Well, the reason your honor Mr. Justice Brennan is because the state appealed this case to this Court and staying the appeal of the case and the determination of the facts by this Court as to the constitutionality of the statute, that is the reason I feel the lower court has not further proceeded in this manner.

Byron R. White:

Well, even if the statute were constitutional I suppose that a damage action might be possible for the way it mannered in which its been administered?

S. A. Schapiro:

Yes Mr. Justice White.

It is our position that under those circumstances nevertheless, it is state action involved here and any state action would under the Civil Rights Act which this act is — which this case is proceeding and it give rise to a cause of action.

S. A. Schapiro:

There might be a difference if the law is unconstitutional and malicious or negligent posting of these notices, but the law of this case would nevertheless be allowed to proceed to trial.

It’s our position generally and as a closing comment that the rights of the plaintiff, the appellee here are rights of privacy and rights to her own name and reputation which couldn’t be included in the Ninth Amendment or on the 14th Amendment, due process cause alone or under the incorporation theory, under the First Amendment because her right to remain a non-public figure, to live her own life in her own quite way is generally an aspect of privacy and the state forcing her to become a public figure is a deprivation of her right of privacy.

And we likewise have the question of reputation involved in this matter because — and I just want to make this as my closing comment which I wanted to go in a detail but I’ll just say that the stigma attached to this creates an outcast group in society, and that outcast group is forbidden by its own nature to have any associations with other groups in society.

People will tend to shy away from this people.

And as a result, their rights of association are limited.

And this is not the right of association in a political group to petition of the government for a redress, this is a socio-basic right of association, that it would inherently cause the posted person to be unaffiliatable and unassociatable with all segments of society except those in the outcast group which she has involuntarily become a member of.

Potter Stewart:

Is there any indication in the record or out as to how many people in the town were posted?

S. A. Schapiro:

It’s not in the record but all of the record, this is a common practice by the chief of the police in this community.

There maybe seven or eight a year like this.

Potter Stewart:

I suppose he could post everybody in town?

S. A. Schapiro:

Certainly, the discretion is almost limited.

The only criteria is as applied to this case because this woman is not dangerous to the community which is one ground is the lessening of the state, the misspending of money.

Ansd I think that in the hands of a ministerial official without notice and hearing is one such instance of violation of not only procedural but substantive due process.

Potter Stewart:

Why didn’t you go under state court to get some relief?

S. A. Schapiro:

Well, we saw that there was no remedy by certiorari in the state courts.

I looked into that matter and certiorari would only be permitted to review the actions of an administrative tribunal.

You got a declaratory judgment procedure?

S. A. Schapiro:

Yes your honor Mr. Justice Harlan.

There is a declaratory judgment procedure but that would not cause the chief of police to take the notices down.

Byron R. White:

What about injunction?

S. A. Schapiro:

Injunction would —

Byron R. White:

And damage action?

S. A. Schapiro:

An injunction and damage action would cause the notice to be taken down but the likelihood of success in the damage action Mr. Justice White in the state courts would be much more difficult than it would under the Civil Rights Act where there is definite state action.

Under the state law that would probably be the requirements of probing matters beyond state action.

And as a result it was our position that it would be an easier damage action to prove in a federal action under the Civil Rights Act.

William J. Brennan, Jr.:

(Inaudible)?

S. A. Schapiro:

I don’t know.

He took that deposition Mr. Justice Brennan.

William J. Brennan, Jr.:

May I ask again?

S. A. Schapiro:

Yes, Mr. Justice Brennan, it is in the record downstairs.

Benjamin Southwick:

Thank you Mr. Schapiro.

William O. Douglas:

This posting is good for a year?

Benjamin Southwick:

Yes, Mr. Justice Douglas but the year was —

William O. Douglas:

Before the year is up, can the man who does the posting un-post it?

Benjamin Southwick:

He did in this case when the lower court ordered him to but whether or not he could, the statute doesn’t provide any mechanism for him to do so.

If it was it would be in his own discretion.

And I couldn’t answer the question further now.

Warren E. Burger:

Thank you Mr. Schapiro.

Thank you Attorney General.

The case is submitted.