The police chief of Hartford, Wisconsin, pursuant to a state
statute, caused to be posted a notice in all retail liquor outlets
in Hartford that sales or gifts of liquor to appellee, a resident
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 federal court held the statute unconstitutional as
violative of procedural due process.
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 disgrace that procedural due process
requires notice and an opportunity to be heard. Pp. 400 U. S.
2. Since here the state statute is unambiguous and there is no
uncertain issue of state law, the federal court properly proceeded
to determine the federal constitutional claim. Zwickler v.
Koota, 389 U. S. 241
389 U. S.
-251. Pp. 400 U. S.
DOUGLAS, J., delivered the opinion of the Court, in which
HARLAN, BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. BURGER,
C.J., filed a dissenting opinion, in which BLACKMUN, J., joined,
p. 400 U.S.
. BLACK, J., filed a dissenting opinion, in which
BLACKMUN, J., joined, post,
p. 400 U. S.
Page 400 U. S. 434
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Appellee is an adult resident of Hartford, Wis. She brought suit
in a federal district court in Wisconsin to have a Wisconsin
statute declared unconstitutional. [Footnote 1
] A three-judge court was convened, 28 U.S.C. §
2281. That court, by a divided vote, held the Act unconstitutional,
, and we noted probable jurisdiction. 397 U.S.
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. [Footnote 2
Page 400 U. S. 435
The chief of police of Hartford, without notice or hearing to
appellee, caused to be posted a notice in all 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 defendant 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
Page 400 U. S. 436
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 procedural due process
requires that, before one acting pursuant to State statute can make
such a quasi-judicial determination, the individual involved must
be given notice of the intent to post and an opportunity to present
his side of the matter."
302 F. Supp. at 864.
We have 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. Crane v. Campbell, 245 U.
. The only issue present 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
disgrace that procedural due process requires notice and an
opportunity to be heard. We agree with the District Court that the
private interest is such that those requirements of procedural due
process must be met.
It is significant that most of the provisions of the Bill of
Rights are procedural, for it is procedure that marks much of the
difference between rule by law and rule by fiat.
We reviewed in Cafeteria Workers v. McElroy,
367 U. S. 886
367 U. S. 895
the nature of the various "private interest[s]" that have fallen on
one side or the other of the line. See also Sniadach v. Family
Finance Corp., 395 U. S. 337
395 U. S.
-342. Generalizations are hazardous, as some state
and federal administrative procedures are summary
Page 400 U. S. 437
by reason of necessity or history. Yet certainly where the State
attaches "a badge of infamy" to the citizen, due process comes into
play. Wieman v. Updegraff, 344 U.
, 344 U. S.
"[T]he right to be heard before being condemned to suffer
grievous loss of any kind, even though it may not involve the
stigma and hardships of a criminal conviction, is a principle basic
to our society."
Anti-Fascist Committee v. McGrath, 341 U.
, 341 U. S. 168
(Frankfurter, J., concurring).
Where a person's good name, reputation, 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 resident of Hartford is
given no process at all. This appellee was not afforded a chance to
defend herself. She may have 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
It is suggested that the three-judge court should have 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
Congress could, of course, have routed all federal
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 Congress [Footnote 3
] resolved differently, and created the federal
court system and in time granted the federal courts various heads
Page 400 U. S. 438
jurisdiction, [Footnote 4
which today involve most federal constitutional rights. Once that
jurisdiction was granted, the federal 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.
. In that case, an authoritative resolution of a
knotty state law question might end the litigation and not give
rise to any federal constitutional claim. Id.
312 U. S. 501
We therefore directed the District Court to retain the suit pending
a determination 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. 400 U. S. 41
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 all
constitutional questions." We ordered the federal courts to stay
their hands until the Puerto Rican courts had spoken. Speaking of
Reetz v. Bozanich, 397 U. S. 82
noted that the
"three-judge federal court should not have proceeded to strike
down an Alaska law which, if construed by the Alaska Supreme Court,
might be so confined as not to have any constitutional
at 400 U. S. 43
But the abstention rule only applies where "the issue of State law
is uncertain." Harman v. Forssenius, 380 U.
, 380 U. S. 534
Thus, our abstention cases have dealt with unresolved questions of
state law which only a state tribunal could authoritatively
construe. Reetz v. Bozanich, supra; 358 U.
S. S. 439�
of Meridian v. Southern Bell Tel. &
Tel. Co.,@ 358 U. S. 639
In the present 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
389 U. S. 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 federal court should not abstain, but
should proceed to decide the federal constitutional claim.
at 389 U. S.
-251. We would negate the history of the enlargement
of the jurisdiction of the federal district courts [Footnote 5
] if we held the federal court
should stay its hand and not decide the question before the state
courts decided it.
28 U.S.C. § 1343 provides:
"The district courts shall have 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, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United
States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United
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 trustees of such village, the county superintendent
of the poor of such county, the chairman of the county board of
supervisors of such county, the district attorney of such county or
any of them may, in writing signed by her, him or them, forbid all
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
"(2) And the wife of such person, the supervisors of any town,
the aldermen of any city, the trustees 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 all 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 have the same force and effect when
such specified person is a nonresident as is herein provided when
such specified person is a resident of said town, city or
Section 176.28 makes the sale or gift of liquor to such a person
The first Judiciary Act is in 1 Stat. 3.
28 U.S.C. § 1343(3), involved in the present case, came into the
statutes in 1871. 17 Stat. 13. In 1875, Congress enlarged federal
jurisdiction by authorizing the "federal 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
389 U. S.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN joins,
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, have ever heard
of this case.
Page 400 U. S. 440
Very likely we reach a correct result, 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 all we know, the state courts would find this
statute invalid under the State Constitution, [Footnote 2/1
] 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
have less fidelity to due process requirements of the Federal
Constitution than we do, this case is, for me, a classic
illustration of one in which we should decline 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 federal district court to decide
the issue and, in that posture, appeal would lie directly to this
Only recently, in the 1969 Term, we held unanimously that a
challenge, under the Equal Protection Clause of the Fourteenth
Amendment and under certain provisions of the Alaska Constitution,
to the constitutionality of a state statute restricting commercial
salmon fishing licenses should not have been decided by the federal
district court until the courts of Alaska had acted. There,
Page 400 U. S. 441
as here, the statute's challenger wanted to use the "short cut"
Congress has authorized. As here, the "short cut" was to convene a
three-judge federal district court which held the Alaska statute
invalid. Notwithstanding that the license applicants presented a
sound claim, MR. JUSTICE DOUGLAS, speaking for a unanimous Court,
"We are advised that the provisions of the Alaska Constitution
at issue have 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 have 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 lawyer. And
they felt that prompt decision was necessary to avoid the 'grave
and irreparable' injury to the 'economic livelihood' of the
appellees which would result, if they could not engage in their
occupation 'during this year's forthcoming fishing season.'
"It is, of course, true that abstention is not necessary
whenever a federal court is faced with a question of local law, the
classic case being Meredith v. Winter Haven, 320 U. S.
, where federal 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
have said that this judicially created rule which stems from
Railroad Comm'n v. Pullman Co., 312 U. S.
, should be applied only where 'the issue of state
law is uncertain.' Harman v. Forssenius, 380 U. S.
, 380 U. S. 534
Reetz v. Bozanich, 397 U. S. 82
397 U. S. 86
Page 400 U. S. 442
This very wise doctrine is an essential one of policy and is a
keystone of federalism. Previously this Court had underscored this
"Proper exercise of federal jurisdiction requires that
controversies involving unsettled questions of state law be decided
in the state tribunals preliminary to a federal court's
consideration of the underlying federal constitutional questions. .
. . In such a case, when the state court's interpretation of the
statute or evaluation of its validity under the state constitution
may obviate any need to consider its validity under the Federal
Constitution, the federal 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
358 U. S.
-641 (1959). See also Fornaris v. Ridge Tool Co.,
p. 400 U. S. 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 have 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
distinguished, and I see no reason to depart from the principles it
reaffirmed. [Footnote 2/2
Page 400 U. S. 443
I quite agree that there is no absolute duty to abstain -- to
stay our hand -- until the state courts have at least been asked to
construe their own statute, but for me it is the negation of sound
judicial administration -- and an unwarranted use of a limited
judicial resources -- to impose this kind of case on a three-judge
federal 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 decline 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 have never been
called on to resolve. Neither the historic role 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 have an
example of an unwise statute making direct review prima
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 have acted.
Although Wisconsin has no due process clause as such, Art. I, §
1, of the Wisconsin Constitution has been held by the Wisconsin
Supreme Court to be substantially equivalent to the limitation on
state action contained in the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Pauly v. Keebler,
Wis. 428, 185 N.W. 554 (1921).
Here there is not the urgency presented by Reetz,
our action in remanding for State court consideration effectively
precluded appellees from securing a commercial fishing license for
at least one more reason. No such urgency is presented by the
MR. JUSTICE BLACK, with whom MR. JUSTICE BLACKMUN joins,
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
Page 400 U. S. 444
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, 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 modern bills of attainder can be issued
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
I realize that there are many cases where federal court should
not stay their hands to permit state court to
Page 400 U. S. 445
interpret state law. Compare Clay v. Sun Insurance
Office, 363 U. S. 207
363 U. S.
-227 (1960) (BLACK, J., dissenting), with Burford
v. Sun Oil Co., 319 U. S. 315
(943). 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.