author: Mr. Justice Douglas Mr. Chief Justice Burger, Mr. Justice Black,

text:
    WISCONSIN v. CONSTANTINEAU
    No. 95.
    Argued December 10, 1970
    Decided January 19, 1971
    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. Blach, J., filed a dissenting opinion, in which Black-mun, J., joined, post, p. 443.

      Benjamin Southwick, Assistant Attorney General of Wisconsin, argued the cause for appellant. With him on the brief were Robert W. Warren, Attorney General, and Robert D. Martinson, Assistant Attorney General.
    & A. Schapiro argued the cause and filed a brief for appellee.
   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. • 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 speci-’ fied traits, such as exposing himself or family “to want” or becoming “dangerous to the peace” of the community.

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 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. 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, 896, the nature of the various “private interest^]” 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 hazardous as some state and federal administrative procedures are summary 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. S. 183, 191. “[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. S. 123, 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 prevented.

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 precedents.

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 resolved differently and created the federal court system and in time granted the federal courts various heads of jurisdiction, 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. S. 496. In that ease an authoritative resolution of a knotty state law question might end the litigation and not give rise to any federal constitutional claim. Id., at 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 doctriné most recently in Fornaris v. Ridge Tool Co., ante, p. 41, where 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, we noted that the “three-judge federal court should not have proceeded to strike down ah Alaská law which, if construed by the Alaska Supreme Court, might be so confined as not to have any constitutional infirmity.” Ante, at 43. But the abstention rule only applies where “the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 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; City 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, 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 thé state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim, id., at 250-251. We would negate the history of the enlargement of the jurisdiction of the federal district courts, if we held the federal court should stay its hand and not decide the question before the state courts decided it.

Affirmed.

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.

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, 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, 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).

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.

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.

Mr. Justice Black,

with whom Mr. Justice Black-mun 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 s? tendent 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 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 óf confining this law within its proper limits if it could bé 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 (I960) (Black, J., dissenting), with Burford v. Sun Oil Co., 319 U. S. 315 (1943). Here, however, no state court appears to have passed ón 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.

       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 States.” '

      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 eounty, 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 beverage.
      “(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 village.”
      Section 176.28 makes the sale or gift of liquor to such a person a misdemeanor.

       The first Judiciary Act is in 1 Stat. 73.

       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 5n ,28 U. S. C. § 1331. See 18 Stat. 470. We recently reviewed this history in Zwickler v. Koota, 389 U. S. 241, 245-248.

       See n. 4, supra.

       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.


source: Caselaw Access Project

author: Me. Justice Stewart

license: Public Domain

text:
    PROCUNIER, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS v. ATCHLEY
    No. 44.
    Argued November 18, 1970
    Decided January 19, 1971
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, HarlaN, Brennan, White, Marshall, and Blackmun, JJ., joined. Black, J., filed a concurring statement, post, p. 454.

      Robert R. Granucci, Deputy Attorney General of California, "argued the cause for petitioner. With him on the briefs were Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and William D. Stein, Deputy Attorney General.

      Charles M Legge argued the cause and filed-a brief for respondent.
   Me. Justice Stewart

delivered the opinión of the Court.

In 1959 a jury in. a California trial court found the respondent guilty of murdering his wife by firing six bullets into her body at close range. A key prosecution witness at the trial was Ray Travers,' an insurance, agent. Two days after the respondent’s wife was killed, Travers visited the respondent in jail at the latter’s request, and the two conversed regarding an insurance policy on the life of the decedent. During the course of this conversation the respondent told Travers his version of how his wife had been killed, admitting that, he had lain in wait for her with a gun, but insisting that hér shooting had been accidental. As he was leaving the jail, Travers told the sheriff’s officers about the respondent’s statement. They asked him if he would be willing to have his next conversation with the respondent electronically recorded, and, since he planned to return to get additional information for the insurance company, he agreed. Later the same day Travers returned to the jail and had anothér conversation with the respondent, in the course of which the respondent again gave Travers substantially the same account of the circumstances of his wife’s death. This conversation was recorded. Over the objection of defense counsel, the recording of the second conversation was admitted in evidence at the trial. Travers in detailed testimony verified the authenticity of • the recording, and orally recounted the two conversations he had had with the respondent. The accuracy of the recording and of Travers’ testimony was ' not questioned; indeed, when the respondent took the stand he gave substantially the' same account of how his wife had been killed that he had given to Travers.

On appeal to the Supreme Court of California,, the respondent contended that the second conversation with Travers was an involuntary confession, and that the record of the conversation and Travers’ supporting testimony had, therefore, been wrongly admitted in evidence at the trial. The state'appellate court unanimously rejected this contention and affirmed the conviction. People v. Atchley, 53 Cal. 2d 160, 346 P. 2d 764. Proceeding upon the proposition that “any statement by an accused relative to the offense charged is inadmissible against him if made involuntarily,” Justice Traynor’s opinion for the Supreme Court of California reasoned as follows:

“Travers testified that no threats were made, that no inducements were offered, and that in an earlier conversation defendant had volunteered substantially the same statements without being asked. Defendant at no time contradicted this testimony or suggested that any of his recorded statements were untrue. Moreover, the recorded conversation demonstrates that Travers referred to the insurance policy to explain why he was asking questions and not as an inducement for any particular answers. The trial court listened to the tape in chambers before ruling on its admissibility. There is therefore no merit in defendant’s contention that the recording was admitted without a proper showing that his statements were made voluntarily.
“Defendant also contends that the recording was' obtained by such fraud that its use as evidence was inconsistent with due process. He relies primarily on Leyra v. Denno, 347 U. S. 556. . . . Although there was a similar deception in the present case, there was no comparable mental coercion. The deception itself does not render defendant’s statements inadmissible, for it was not of a type reasonably likely to procure an untrue statement. . . .
“While cross-examining Travers as to the volun-tariness of defendant’s recorded statements, defense counsel attempted to ask whether defendant had complained to Travers of not being permitted by the police, despite numerous requests, to talk to a lawyer. The trial court sustained an objection to this question and explained to the jury that the answer would have' no bearing on the question of volun-tariness. Defendant correctly contends that this ruling was erroneous, but fails to show that it was prejudicial. Although a refusal to permit defendant' to talk to counsel suggests an intent to coerce, it seems highly improbable that either the trial judge or the jury would have inferred coercion from such a refusal alone in the light of the substantial and uncontradicted evidence that no coercion occurred.” 53 Cal. 2d, at 170-171, 346 P. 2d, at 769-770.

This Court granted certiorari. After hearing argument, we disposed of the case as follows:

“After hearing oral argument and fully examining the record, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed.”

In 1967 the respondent initiated the present habeas corpus proceeding in the United States District Court for the" Northern District of California. He contended that decisions of this Court rendered subsequent to his direct appeal had established that the recording of his conversation with Travers had been unconstitutionally introduced into evidence, and that he was accordingly entitled to a new trial. It was asserted that his statements were involuntary under the criteria stated in Johnson v. New Jersey, 384 U. S. 719, because he had been denied access to a lawyer and because he had not been advised of his right to remain silent; and that in any event the procedures used to determine the voluntariness of these statements were constitutionally inadequate .under the criteria stated in Jackson v. Denno, 378 U. S. 368.

The District Court, although making clear that .it was not “presently able to say thát the confession wa.s involuntary,” nonetheless concluded that the respondent was entitled to relief because the state trial court had “excluded relevant and perhaps crucial evidence on the issue of whether-the confession was voluntary” and thus “did not reliably determine whether Atchley’s confession, was voluntary or involuntary.” 300 F. Supp. 68, 71, 72. The excluded evidence that the District Court thought “relevant and perhaps crucial” had to do with what the police had said to Travers before the recorded interview, whether the respondent had been trying to obtain a lawyer, whether Travers had deceived the respondent about his motives and feigned sympathy, whether the respondent knew that the conversation was being recorded, and, finally, with the respondent’s intellectual and educational qualifications. ' Because inquiry into these matters had been restricted, the federal court held that the-wrong standard of voluntariness had been applied in the state trial proceeding. Accordingly, the District Court ruled ■that the respondent was entitled to a new hearing in the state courts on the issue of voluntariness and, in the event that the statements should be found involuntary, to a new trial. The Court of Appeals affirmed on the opinion of the District Court, Judge Barnes dissenting, and we granted certiorari.

In Jackson, the Coürt held that to commit the determination of the voluntariness of a confession solely to the same jury that decided guilt was inconsistent with the constitutional requirement that the .procedures used to determine voluntariness be reliable. Concern for the reliability of the procedures utilized to decide the volun-tariness issue was also reflected in Townsend v. Sain, 372 U. S. 293, where it was held that a state trial court’s resolution of a disputed issue of historical fact , could hot be dispositive in a later federal habeas corpus proceeding unless the petitioner had had a “full and fair hearing” on that issue in the trial court.

But those decisions did not establish that an applicant for federal habeas corpus is entitled to a new hearing on the voluntariness issue, in either the federal or state courts, merely because he can point to shortcomings in the procedures used to decide the issue of voluntariness in the state courts. Our decisions make clear that- he must also show that his version of events, if true, would require the conclusion that his confession was involuntary. Thus in Townsend v. Sain, supra, we did not reach the question whether a hearing was required until we had determined, as a threshold matter, that the application for habeas corpus alleged facts which, if true, would establish that the petitioner had been deprived of constitutional rights by the use of an involuntary confession. 372 U. S., at 309. We said that “the Federal District Court could not conclude that the state trial judge admitted the confession because he disbelieved the evidence which would show that it was involuntary.” Id., at 321. And in Jackson v. Denno, supra, we did not jump -from the premise that the procedures used to determine ■ voluntariness were inadequate, to the conclusion that the petitioner was entitled to a new hearing. Instead, we pointed out:

“This is not a case where the facts concerning the circumstances surrounding the confession are undisputed and the task is only to judge the voluntariness of the confession based upon the clearly established facts and in accordance with proper constitutional standards. Here there are substantial facts in dispute .... Whether Jackson is entitled to relief depends upon how these facts are resolved, for if the State is to be believed we cannot say that Jackson’s confession was involuntary, whereas if Jackson’s version of the facts is accepted the confession was involuntary and inadmissible.” 378 U. S., at 391-392.

The reason for this approach is obvious. Unless the result of the habeas corpus proceeding turns on disputed issues of historical fact, a rehearing on the issue of the involuntariness of a defendant’s incriminating statement woúld be an exercise in futility, since the applicant for federal habeas, would not be entitled to relief even if his allegations of historical fact should be found to be true. Yet the District Court in this case quite evidently failed to make the threshold determination that the respondent would be entitled to relief if his allegations were believed. Rather the court, disavowing any present ability to say whether the respondent’s statement was involuntary, said only that “the trial court could have more competently determined whether [the respondent’s] will was overborne” had the circumstances surrounding the statement been more fully explored. 300 F. Supp., at 72.

The respondent’s trial took place several years before the decisions of the Court in Escobedo v. Illinois, 378

U. S. 478, and Miranda v. Arizona, 384 U. S. 436, and those decisions have not been given retroactive effect. Johnson v. New Jersey, 384 U. S. 719. The admissibility of the respondent’s statement as a constitutional matter was governed, therefore, by the contemporary case law elaborating the due process standard of voluntariness. The question was whether the will of the defendant had been overborne so that the statement was not his free and voluntary act, and that question was to be resolved in light of the totality of the circumstances. See, e. g., Davis v. North Carolina, 384 U. S. 737; Haynes v. Washington, 373 U. S. 503, 513-516; Spano v. New York, 360 U. S. 315, 323; Ashcraft v. Tennessee, 322 U. S. 143, 147-148.

There is no reason to infer that the Supreme Court of California did not apply the correct constitutional criteria in reviewing the issue, and the court quite clearly assumed the truth of the respondent’s version of the historical facts still in dispute, in holding that his statement was not involuntary.

The respondent contended that his confession was involuntary because he had been denied a lawyer, because he had not been advised of his right to remain silent, because he had thought he was giving Travers information that Travers needed to obtain the insurance money, because he had thought that what he told Travers would be held in confidence, because he had not known that his conversation with Travers was being recorded, and because he was lower than average in intelligence and educational attainments. Of these six assertedly coercive factors, three went only to the weight to be given other evidence of actual coercion. Low intelligence, denial of the right to counsel, and failure to advise of the right to remain silent were not in themselves coercive. Rather they were relevant only in establishing a setting in which actual coercion might have been exerted to overcome the will of the suspect. See Darwin v. Connecticut, 391 U. S. 346; Greenwald v. Wisconsin, 390 U. S. 519; Davis v. North Carolina, supra. The circumstance that the conversation was recorded without the respondent's knowledge did not tend to show either actual coercion or a potentially coercive setting. The factual issue whether the respondent thought his statements to Travers would be held in confidence was resolved in. the trial court. Travers testified that he advised the respondent that what he said would havé to be reported to the-. insurance company and that the respondent knew it would be a matter of record. .This testimony was not contradicted, and there was no reason for the . California Supreme Court to disturb the finding, implicit in the trial record, that the respondent had had no reason to believe that Travers would not repeat what he had been told. See Townsend v. Sain, 372 U. S. 293, 314. The remaining contention was that the respondent’s statement was improperly .induced by the suggestion that Travers needed the information in order to obtain insurance money for Atchley’s children and stepchildren. The California Supreme Court properly found that “the recorded conversation demonstrates that Travers referred to the insurance policy to explain why he was asking questions and not as an inducement for any particular answers.”

It is clear that the California courts gave full consideration to the issue of the voluntariness of the respondent’s statement, and that they applied correct standards of constitutional'law in upholding its admission in evidence. Accordingly, the District Court was in error in requiring a new trial of claims that were long ago. fully, fairly, and correctly determined in the courts of California. .

The judgment is reversed.

Mr. Justice Black concurs in the judgment and substantially all of the opinion.

      No charges had been filed against the respondent at the time of these conversations. Cf. Massiah v. United States, 377 U. S. 201.

       362 U. S. 987.

       366 U. S. 207.

       412 F. 2d 230.

       397 U. S. 905.

       Congress in 1966 amended 28 U. S. C. § 2254 (see 1964 ed., Supp. V), so as substantially to codify most of the habeas corpus criteria set out in Townsend v. Sain.


author: Mr. Justice Douglas Mr. Chief Justice Buegee, Mr. Justice Harlan,

text:
    MAYBERRY v. PENNSYLVANIA
    No. 121.
    Argued December 17, 1970
    Decided January 20, 1971
    Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, White, Marshall, and Blackmun, ■ JJ., joined. Burger, C. J., post, p. 466, and HarlaN, J., post, p. 469, filed concurring opinions. Black,' J., filed a separate statement, post, p. 466.

      Curtis R. Reitz, by appointment of the Court, 398 U. S. 902, argued the cause and filed a brief for petitioner.

      Carol Mary Los argued the cause for respondent, pro hac vice. With her on the brief was Robert W. Duggan.

   Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner and two codefendants were tried in a state court for prison breach and holding hostages in a penal institution. While they had appointed' counsel as advisers, they represented themselves. The trial ended with a jury verdict of guilty of both charges on the 21st day, which was a Friday. The defendants were brought in for sentencing on the following Monday. Before imposing sentence on the verdicts the judge pronounced them guilty of criminal contempt. He found that petitioner had committed one or more contempts on 11 of the 21 days of trial and sentenced him to not less than one nor more than two years for each of the II contempts ór a total of 11 to 22 years.

The Supreme Court of Pennsylvania affirmed by a divided vote. 434 Pa. 478, 255 A. 2d 131. The case is here on a petition for writ of certiorari. 397 U. S. 1020.

Petitioner’s, conduct at the trial comes as a shock to those raised in the Western tradition that considers a courtroom a hallowed place of quiet dignity as far removed as possible from the emotions of the street.

(1) On the first day of the trial petitioner came to the side bar to make suggestions and obtain rulings on trial procedures. Petitioner said: “It seems like the court has the'intentions of railroading us” and moved to disqualify the judge. The motion was denied. Petitioner’s other motions, including his request that the deputy sheriffs in the courtroom be dressed as civilians, were also denied. Then came the' following colloquy:

“Mr. Mayberry: I would like to have a fair trial of this case and like to be granted a fair trial under the Sixth Amendment.
“The Court: You will get a fair trial.
“Mr. Mayberry: It doesn’t appear that I am going to get one the way you are overruling, all our motions and that, and being like a hatchet man for the State.
“The Court: This side bar is over.
“Mr. Mayberry: Wait a minute, Your Honor.
“The Court: It is over.
“Mr. Mayberry: You dirty sonofabitch.”

(2) The second episode took place on the eighth day of the trial. A codefendant was cross-examining a prison guard and the court sustained objections to certain questions:

“Mr. Codispoti: Are you trying to protect the prison authorities, Your Honor? Is that your reason?
“The Court: You are out of order, Mr. Codispoti. I don’t want any outbursts like that again. This is á court of justice. You don’t know how to ask questions.
“Mr. Mayberry: Possibly Your. Honor doesn’t know how to rule on them..
“The Court: You keep quiet.
“Mr, Mayberry: You ought to be Gilbert and Sullivan the way you sustain the district attorney every time he objects to the questions.
“The Court: Are you through? When your time comes you can ask questions and not make speeches.”

(3) The next charge stemmed from the examination of an inmate about a riot in prison in which petitioner apparently was implicated. There were many questions asked and many objections sustained. At one point the following outburst occurred:

“Mr. Mayberry rTSTow, I’m going to produce my defense in this case and not be railroaded into any life sentence by any dirty, tyrannical old dog like yourself.
“The Court: You may proceed with your questioning, Mr. Mayberry.”

(4) The fourth charge grew out of an examination of another defense witness:

“By Mr. Mayberry:
“Q. I ask you, Mr. Nardi, is that area, the hand-, ball court, is it open to any prisoner who wants to play handball, who cares to go to that area to play • handball?'
“A. Yes..
“Q. Did you understand the prior question when I asked you if it was freely open and accessible area?
“The Court: He answered your qúestion. Let’s go on.
“Mr. Mayberry: I am asking Jiim now if he understands-
“The Court: He answered it. Now, let’s go on.
“Mr. Mayberry: I ask Your Honor to keep your mouth shut while I’m questioning my own witness. Will you do that for me?
“The Court: I wish you would do the same. Proceed with your questioning.”

(5) The fifth charge relates to a protest which the defendants made^that at the end of each trial day they were denied access to their legal documents — a condition which the trial judge shortly remedied. The following ensued:

“Mr. Mayberry: You’re a judge first. What are you working for? The prison authorities, you bum?
“Mr. Livingston: I have a motion pending before Your Honor.
“The Court: I would suggest-
“Mr. Mayberry: Go to hell. I don’t give a good God damn what you suggest, you stumbling dog.’-’

Meanwhile one. defendant told the judge if he did not get access to his papers at night he’d “blow • your' head off.” Another defendant said he would not sit still and be “kowtowed and be railroaded into a life imprisonment.” Then the following transpired:

“Mr. Mayberry: You started all this bullshit in the beginning.
“The Court: You keep quiet.
“Mr. Mayberry: Wait a minute.
“The Court: You keep quiet.
“Mr. Mayberry: I am my own counsel.
“The Court: You keep quiet.
“Mr. Mayberry. Are you going to gag me?
“The Court: Take these prisoners out of here. We will take a ten minute recess, members of the jury.”

(6) The sixth episode happened when two of the defendants wanted to have some time to-talk to a witness whom they had called. The two of them had had a heated exchange with the judge when the following happened:

“Mr. Mayberry: Just one moment, Your Honor.
“The Court: This is not your witness, Mr. May-berry. Keep quiet.
“Mr. Mayberry: Oh, yes, he is my witness, too. He is my witness, also. Now, we are at the penitentiary and in seclusion. We can’t talk to any of our witnesses prior to putting them on the stand like the District Attorney obviously has the opportunity, and as he obviously made use of the opportunity to talk to his witnesses. Now-
“The Court: Now, I have ruled, Mr. Mayberry.
“Mr. Mayberry: I don’t care what you ruled. That is unimportant. The fact is-
“The Court: You will remain quiet, sir, and finish the examination of this witness.'
“Mr. Mayberry: No, I won’t be quiet while you try .to deny me the right to a fair trial. The only way I will be quiet is if you have me gagged. Now, if you want to do that, that is up to you; but in the meantime I am going to say what I have to say. Now, we have the right to speak to our witnesses prior to putting them on the stand. This is an accepted fact of law. It is nothing new or unusual. Now, you are going to try to force us to have our witness testify to facts that he has only a hazy recollection of that happened back in 1965. Now, I believe we have the right to confer with our witness prior to putting him on the stand.
“The Court: Are you finished?
“Mr. Mayberry: I am finished.
“The Court: Proceed with your examination.”

(7) The seventh charge grew out of an examination of a codefendant by petitioner. The following outburst took place:

“By Mr. Mayberry:
“Q. No. Don’t state a conclusion because Gilbert is going to object and Sullivan will sustain. Give me facts. What leads you to say that?”

Later petitioner said:

“Mr. Mayberry: My witness isn’t being in' an inquisition, you know. This isn’t the Spanish Inquisition.”

Following other exchanges with the court, petitioner said:

“Mr. Mayberry: Now, just what' do you calí proper? I have asked questions, numerous questions and everyone you said is improper. Í have asked questions that my adviser has given me, and I have repeated these questions verbatim as they came out of my adviser’s mouth, and you said they are improper. Now just what do you consider proper?
“The Court: I am not here to educate you, Mr. Mayberry.
“Mr. Mayberry: No. I know you are not. But you’re not here to railroad me into no life bit, either.
“Mr. CodispOti: To protect the record-
“The Court: Do you have any other questions to ask this witness?
“Mr. Mayberry: You need to have some kind of psychiatric treatment, I think. You’re some kind of a nut. I know you’re trying to do a good job for that Warden Maroney back there, but let’s keep it looking decent anyway, you know. Don’t make it so obvious, Your Honor.” '

(8) A codefendant was removed from the courtroom and when he returned petitioner asked for a severance.

“Mr. Mayberry: I have to ask for a severance.
“The Court: I have heard that before. It is denied again. Let’s go on.”

(Exception noted.)

“Mr. Mayberry: This is the craziest trial I have ever seen.
“The Court: You may call your next witness, Mr. Mayberry.”

Petitioner wanted to call witnesses-from the penitentiary whose' names had not been' submitted earlier and for whom no subpoenas were issued. The court restricted the witnesses to the list of those subpoenaed:

“Mr. Mayberry: Before I get to that I wish to have a ruling, and I don’t care if it is contempt or whatever you want to call it, but I want a ruling for the record that I am being denied these witnesses ’ that I asked for months before this trial ever began.”

(9) The ninth charge arose out of a ruling by the court on a question concerning the availability of tools to prisoners in their cells.

“The Court: I have ruled on that, Mr. Mayberry. Now proceed with your questioning, and don’t argue.
“Mr. Mayberry: You’re arguing. I’m not arguing, not arguing with fools.”

(10) The court near the end of the trial had petitioner ejected from the courtroom several times. The contempt charge was phrased as follows by the court:

“On December 7, 1966, you have created a despicable scene in refusing to continue calling your witnesses and in creating such consternation and uproar as to cause a termination of theArial.”

(1.1) As the court prepared to charge the jury, petitioner said:

“Before Your Honor begins the charge to the jury defendant Mayberry wishes to place his objection on the record to the charge and to the whole proceedings from now on, and he wishes to make it known to the Court now that he has no intention of remaining silent while the Court charges the jury, and that he is going to continually object to the charge of the Court to the jury throughout the entire charge, and he is not going to remain silent. He is going to disrupt the proceedings verbally throughout the entire charge of the Court, and also he is going to be objecting to being forced to terminate his defense before he was finished.”

The court thereupon had petitioner removed from the courtroom and later returned gagged. But petitioner caused such a commotion under gag that the court had him removed to an adjacent room where a loudspeaker system made the courtroom proceedings audible. The court phrased this contempt charge as follows:

“On December 9, 1966, you have constantly, boisterously, and insolently interrupted the Court during its attempts to charge the jury, thereby creating an atmosphere of utter confusion and chaos.”

These brazen efforts to denounce, insult, and slander the court and to paralyze the trial are at war with the concept of justice under law. Laymen, foolishly trying to defend themselves, may understandably create awkward and embarrassing scenes. Yet that is not the character of the record revealed here. We have here downright insults of a trial judge, and tactics taken from street brawls and transported to the courtroom. This is conduct not “befitting an American courtroom,” as we said in Illinois v. Allen, 397 U. S. 337, 346; and criminal contempt is one appropriate remedy. Id., at 344-345.

As these separate acts or outbursts took place, the • arsenal of authority described in Allen was available to the trial judge to keep order in the courtroom. He could, with propriety, have instantly acted, holding petitioner in contempt, or excluding him from the courtroom, or otherwise insulating his vulgarity from the courtroom. . The Court noted in Sacher v. United States, 343 U. S. 1, 10, that, while instant action may be taken against a lawyer who is guilty of contempt, to. pronounce him guilty of contempt is “not unlikely to prejudice his client.” Those considerations are not pertinent here where petitioner undertook to represent himself. In Sacher. the "trial judge waited until the end of the trial to impose.punishment for contempt, the Court saying:

“If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should bé a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.” Id., at 11.

Generalizations are difficult. Instant treatment of contempt where lawyers are involved may greatly prejudice their clients but it may be the only wise course where others are involved. .Moreover, we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a- case. Where, however, he does not act the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place. What Chief Justice-Taft said in Cooke v. United States, 267 U. S. 517, 539, is relevant here:

“The power of contémpt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole-matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.”

We conclude that that course should have been followed here, as marked personal feelings were present on both sides.

Whether the trial be federal or state, the concern of due process is with the fair administration of justice. At times a judge has not been the image of “the impersonal authority of law” (Offutt v. United States, 348 U. S. 11, 17) but has become so “personally embroiled” with a lawyer in the trial as to make the judge unfit to sit in judgment on the contempt charge.

“The vital point is that in sitting in judgment on such a misbehaving lawyer the judge should not himself give vent to personal spleen or respond to a personal grievance. These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice.” Id.,, at 14.

Offutt does not fit this case, for the state judge in the instant controversy was not an activist seeking combat. Rather, he was the target of petitioner’s insolence. Yet a judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy. Ño one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication. In re Murchison, 349 U. S. 133, was a case where a judge acted under state law as a one-man grand jury and later tried witnesses for contempt who refused, to. answer questions propounded by the “judge-grand jury.” We held that since the judge who sat as a one-man grand jury was part of the accusatory process he “cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those. accused.” Id., at 137. “Fair trials are too important a part of our free society to, let prosecuting judges be trial judges of the charges they prefer.” Ibid.

It is, of course, not every attack on a judge that disqualifies him from sitting. In Ungar v. Sarafite, 376 U. S. 575, we ruled that a lawyer’s challenge, though “disruptive, recalcitrant and disagreeable commentary,’’ was still not “an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.” Id., at 584. Many of the words leveled at the judge in the instant case were highly personal aspersions, even “fighting words” — “dirty sonofabitch,” “dirty tyrannical old dog,” “stumbling dog,” and “fool.” He was charged with running a Spanish Inquisition and told to “Go to hell” and “Keep your mouth shut.” Insults of that kind are apt to strike “at the most vulnerable and human qualities of a judge’s temperament.” Bloom v. Illinois, 391 U. S. 194, 202.

Our conclusion is that by reason of the Due Process Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor. See In re Oliver, 333 U. S. 257. In the present case that requirement can be satisfied only if the judgment of contempt is vacated so that on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law, sits in judgment on the conduct of petitioner as shown by the record.

Vacated and remanded.

Me. Justice Black concurs in the judgment and with all the opinion except that part which indicates that the judge without a jury could have convicted Mayberry of contempt instantaneously with the outburst.

Mr. Chief Justice Buegee,

concurring.

I concur in the Court’s opinion and add these additional observations chiefly for emphasis. Certain aspects of the problem of maintaining in courtrooms the indispensable atmosphere of quiet orderliness are crucial. Without order and quiet, the adversary process must fail. Three factors should be noted: (1) as Me. Justice Douglas has said, the trial was conducted without the guidance afforded by Mr. Justice Black’s opinion for the Court in Illinois v. Allen, 397 U. S. 337; (2) although the accused was afforded counsel at his trial he asserted a right to act as his own counsel and the court permitted him to do so; (3) we are hot informed whether Pennsylvania has a statute covering obstruction of justice that would reach the conduct of the accused shown by this record.

(1)

As the Court’s opinion suggests, the standards of ■ Illinois v. Allen, supra, would have enabled the trial judge to remove the accused from the courtroom after his first outrageous actions and words, and to summarily punish him for contempt. The contempt power, however, is of limited utility in dealing with an incorrigible, a cunning psychopath, or an accused bent on frustrating the particular trial or undermining the processes of justice. For such as these, summary removal from the courtroom is the really effective remedy. Indeed it is one, as this case shows, where removal could well be a benefit to the accused in the sense that one episode of contemptuous conduct would be less likely to turn a jury against him than 11 episodes. As noted by Mr. Justice Black in Illinois v. Allen, and Mr. Justice Douglas here,, a fixed .rule to fit every situation is not feasible; plainly summary removal is the most salutary remedy in cases such as this.

(2)

Here the accused was acting as his own counsel but had a court-appointed lawyer as well. This suggests the wisdom of the-trial judge in having counsel remain in the case even in the limited role of a consultant. When a defendant refuses counsel, as he did here, or seeks to discharge him, a trial judge is well advised — as so many do-to have such “standby counsel” to perform all the services a trained advocate would perform ordinarily by examination and cross-examination of witnesses, objecting to evidence and making closing argument. No circumstance that comes to mind allows an accused to interfere with the absolute right of a trial judge to have such “standby counsel” to protect the rights of accused persons “foolishly trying to defend themselves,” as Mr. Justice Douglas so aptly described it. In every trial there is more at stake than just the interests of the ac- ' cused; the integrity of the process warrants a trial judge’s , exercising his discretion to have counsel participate in the defense even when rejected. A criminal trial is not a private matter; the public interest is so great that the presence and participation of counsel, even when opposed by the accused, is warranted in order to vindicate the process itself. The value of the precaution of having independent counsel, even if unwanted, is underscored by situations where the accused is removed from the courtroom under Illinois v. Allen. The presence of counsel familiar with the case would- at the very least blunt Sixth Amendment claims, assuming they would have merit, when the accused has refused legal assistance and then brought about his own removal from the proceedings.

(3)

There are other means to cope with grave misconduct in the courtroom, whether that of the accused, his counsel, spectators, or others. Statutes defining obstruction of. justice have long been in force in many States, with penálties measured in years of confinement. Such statutes, where available, are an obvious response to those who seek to frustrate a particular trial or undermine, the processes of justice generally.

A review of this record warrants a closing comment on the exemplary patience of the trial judge under provocation few human beings could accept with equanimity. Our holding that contempt cases with penalties of the magnitude imposed here should be heard by another judge does not reflect on his performance; it relates rather to a question of procedure.

Mr. Justice Harlan,

concurring.

I concur in the judgment of reversal solely on the ground that these contempt convictions must be regarded as infected by the fact that the unprecedented long sentence of 22 years which they carried was imposed by a judge who himself had been the victim of petitioner’s shockingly abusive conduct. That circumstance seems to me to deprive, the contempt proceeding of the appearance of evenhanded justice which, is at the core of due process. For this reason I think the contempt convictions must be set aside, leaving the State free to try the contempt specifications before another judge or to proceed otherwise against this petitioner.

It is unfortunate that this Court’s decision in Illinois v. Allen, 397 U. S. 337 (1970), was not on the books at the time the criminal case against this petitioner was on trial. The courses which that decision lays open to trial judges for coping with outrageous courtroom tactics of the sort engaged in by this petitioner would doubtless have enabled Judge Fiok to deal with .the petitioner in a manner that would have obviated the regrettable necessity for setting aside this contempt conviction.

      Petitioner was sentenced for contempt December 12, 1966. The Pennsylvania Supreme Court affirmed on April 23, 1969. Wé decided Illinois v. Allen on March 31, 1970.