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WISCONSIN v. CONSTANTINEAU

decided: January 19, 1971.

WISCONSIN
v.
CONSTANTINEAU



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

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, post, p. 439. Black, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 443.

Author: Douglas

[ 400 U.S. Page 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.*fn1 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.*fn2

[ 400 U.S. Page 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

[ 400 U.S. Page 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 quasijudicial 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.S. 304. 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, 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, 339-342. Generalizations are ...


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