Wisconsin v. Constantineau

Mr. Chief Justice Burger,

with whom Mr. Justice Blackmun joins,

dissenting.'

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.

*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, 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 Court.

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 haid acted. There, *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, said:

“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 lawyers. 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.’ Ibid.

“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. 228 , 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. 496 , should be applied only where ‘the issue of state law is uncertain.’ Harman v. Forssenius, 380 U. S. 528, 534 .” Reetz v. Bozanich, 397 U. S. 82, 86 (1970).

*442 This very wise doctrine is an essential one of policy and is a keystone of federalism. Previously this Court had underscored this concept, saying:

“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, 640-641 (1959).

See also Fornaris v. Ridge Tool Co., ante, p. 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 cannot be distinguished and I see no reason to depart from the principles it reaffirmed. 2

*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 resource — 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 jade 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, 175 Wis. 428 , 185 N. W. 554 (1921).

Here there is not the urgency presented by Reetz where our action in remanding for state court consideration effectively precluded appellees from securing a commercial fishing license for at least one more season. No such urgency is presented by the instant case.