# California v. LaRue/Dissent Douglas

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* Dissenting Opinions Douglas Brennan Marshall
[p119] MR. JUSTICE DOUGLAS, dissenting.
This is an action for a declaratory judgment, challenging Rules and Regulations for the Department of Alcoholic Beverage Control of California. It is a challenge of the constitutionality of the rules on their face; no application of the rules has in fact been made to appellees by the institution of either civil or criminal proceedings. While the case meets the requirements of "case or controversy" within the meaning of Art. III of the Constitution and therefore complies with Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, the case does not mark the precise impact of these rules against licensees who sell alcoholic beverages in California. The opinion [p121] of the Court can, therefore, only deal with the rules in the abstract.
The line which the Court draws between "expression" and "conduct" is generally accurate; and it also accurately describes in general the reach of the police power of a State when "expression" and "conduct" are closely brigaded. But we still do not know how broadly or how narrowly these rules will be applied.
It is conceivable that a licensee might produce in a garden served by him a play—Shakespearean perhaps or one in a more modern setting—in which, for example, "fondling" in the sense of the rules appears. I cannot imagine that any such performance could constitutionally be punished or restrained, even though the police power of a State is now buttressed by the Twenty-first Amendment. For, as stated by the Court, that Amendment did not supersede all other constitutional provisions "in the area of liquor regulations." Certainly a play which passes muster under the First Amendment is not made illegal because it is performed in a beer garden.
Chief Justice Hughes stated the controlling principle in Electric Bond & Share Co. SEC, 303 U.S. 419, 443:
   "Defendants are not entitled to invoke the Federal Declaratory Judgment Act in order to obtain an advisory decree upon a hypothetical state of facts.... By the cross bill, defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become real. We are invited to enter into a speculative inquiry for the [p122] purpose of condemning statutory provisions the effect of which in concrete situations, not yet developed, cannot now be definitely perceived. We must decline that invitation...."
The same thought was expressed by Chief Justice Stone in Federation of Labor v. McAdory, 325 U.S. 450, 470-471. Some provisions of an Alabama law regulating labor relations were challenged as too vague and uncertain to meet constitutional requirements. The Chief Justice noted that state courts often construe state statutes so that in their application they are not open to constitutional objections. Id., at 471. He said that for us to decide the constitutional question "by anticipating such an authoritative construction" would be either "to decide the question unnecessarily or rest our decision on the unstable foundation of our own construction of the state statute which the state court would not be bound to follow." Ibid. He added:
   "In any event the parties are free to litigate in the state courts the validity of the statute when actually applied to any definite state of facts, with the right of appellate review in this Court. In the exercise of this Court's discretionary power to grant or withhold the declaratory judgment remedy it is of controlling significance that it is in the public interest to avoid the needless determination of constitutional questions and the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes." Ibid.
Those precedents suggest to me that it would have been more provident for the District Court to have [p123] declined to give a federal constitutional ruling, until and unless the generalized provisions of the rules were given particularized meaning.

## Notes

* ↑ Section 2 of the Twenty-first Amendment reads as follows: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
* ↑ Even in cases on direct appeal from a state court, when the decision below leaves unresolved questions of state law or procedure which bear on federal constitutional questions, we dismiss the appeal. Rescue Army v. Municipal Court, 331 U.S. 549.