Wisconsin v. Constantineau/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice BLACKMUN joins, dissenting.

I agree substantially with the dissent of THE CHIEF JUSTICE. 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 all 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 have 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, 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 abhorence that they forbade it in Art. I, § 9, of the Constitution. See, e.g., United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (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 modern 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 Supreme 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 have, 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 federal Administrative Procedure Act.

I realize that there are many cases where federal courts should not stay their hands to permit state courts to interpret state law. Compare Clay v. Sun Insurance Office, 363 U.S. 207, 213-227, 80 S.Ct. 1222, 1226-1234, 4 L.Ed.2d 1170 (1960) (Black, J., dissenting), with Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Here, however, no state court appears to have passed on this Act at all, and a state decision might well apply the body of other state law to require notice, hearing, and other necessary provisions to render the challenged Act constitutional.