# Patricia Johnson Michael Au France v. City of Cincinnati

> Court of Appeals for the Sixth Circuit · January 2, 2003 · 310 F.3d 484

URL: https://www.frixlaw.com/law-library/cases/9495537

## Case

- **Full name:** Patricia JOHNSON; Michael Au France, Plaintiffs-Appellees, v. CITY OF CINCINNATI, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 2, 2003
- **Citations:** 310 F.3d 484
- **Precedential status:** Published
- **Opinion:** Dissent by Gilman
- **Judges:** Martin, Gilman, Edmunds
- **Cited by:** 142 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495537

## How later opinions describe it (automated extraction)

- holding that a grandparent has a due process right of familial association with her grandchildren if she participates in child-rearing, for instance as an active participant in the lives and activities of her grandchildren with the consent and support of the children’s mother,…
- holding that the associational right to participate in child rearing extends to grandparents; noting that “a family member’s right to participate in child rearing and education is one of the most basic and important assoeiational rights protected by the Constitution”
- finding that ordinance prohibiting those convicted of drug crimes from being present in designated “drug exclusion zones” violated the right to intrastate travel where the ordinance interfered with the "right to travel locally through public spaces and roadways”
- holding that the imposition of travel restrictions, without "additional restrictions designed to compel an ultimate court appearance, such as obligations to post bond, attend court hearings, and contact pretrial services" did not constitute a seizure
- holding the right of intimate association protected a client’s relationship with his attorney where the client was homeless and could not visit his volunteer attorney without risking criminal punishment for entering the neighborhood in which the attorney had his office

## Opinion text

GILMAN, Circuit Judge,
dissenting.
The majority has concluded that the ordinance in question violated the plaintiffs’ fundamental rights to intrastate travel and to freedom of association. To the contrary, I am of the opinion that this court has previously held that no fundamental right to intrastate travel exists. Moreover, I do not share the majority’s belief that the ordinance violated the plaintiffs’ rights to freedom of association. I therefore conclude that the ordinance did not infringe upon the plaintiffs’ fundamental rights. The ordinance was thus subject to the lower standard of rational basis review, which I believe it met. I also conclude that the ordinance did not violate the Double Jeopardy Clause of the Fifth Amendment, an issue that the majority had no need to reach. For all of these *507 reasons, I would reverse the judgment of the district court.
I. FUNDAMENTAL RIGHTS
The majority concludes that the ordinance infringed upon the rights of both Johnson and Au France to intrastate travel, Johnson’s right to assist in raising her grandchildren, and Au France’s right to visit his attorney. According to the majority, each of these rights constitutes a fundamental liberty interest. I respectfully disagree. Before discussing each of these purported rights in detail, I believe that a few general comments about substantive due process are warranted.
The Supreme Court’s approach to determining whether a particular right is protected by the Fourteenth Amendment’s Due Process Clause establishes the framework for my analysis:
Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Second, we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest.
Washington v. Glucksberg, 521 U.S. 702, 720-21 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 (1997) (internal quotation marks and citations omitted); see id. at 728 , 117 S.Ct. 2258 (holding that “the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause”).
This need for a “careful description of the asserted fundamental liberty interest” appears repeatedly in the Supreme Court’s decisions involving substantive due process. In Glucksberg , for example, the Court was faced with a challenge to a prohibition on physician-assisted suicide. The Court expressly rejected framing the issue in terms of whether individuals have “a liberty interest in determining the time and manner of one’s death,” “a right to die,” “a liberty to choose how to die,” or “a right to control of one’s final days.” Id. at 722 , 117 S.Ct. 2258 (internal quotation marks omitted). Instead, the Court explained that “the question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.” Id. at 723 , 117 S.Ct. 2258 .
The Supreme Court similarly rejected broad definitions of the asserted liberty interest in Reno v. Flores, 507 U.S. 292, 315 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993), where it upheld the constitutionality of regulations promulgated by the Immigration and Naturalization Service that addressed the circumstances and terms under which detained juvenile aliens could be released pending their deportation hearings. In particular, the Court framed the issue in terms of “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.” Id. at 302 , 113 S.Ct. 1439 . This language, rather than an asserted liberty interest in “[t]he freedom from physical restraint,” or “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives,” constituted the “careful description of the asserted right” that is necessary in the substantive- *508 due-process analysis. Id. (internal quotation marks omitted).
In addition to emphasizing the significance of the definition of the asserted fundamental interest implicated in a particular case, the Supreme Court “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992); see also Moore v. City of East Cleveland, 431 U.S. 494, 502 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (plurality opinion) (noting that “[substantive due process has at times been a treacherous field for this Court”). The Court has explained the reason for this hesitation as follows:
By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.
Glucksberg, 521 U.S. at 720 , 117 S.Ct. 2258 (internal quotation marks and citation omitted). I believe that this court, like the Supreme Court, must proceed with caution before expanding previously recognized liberty interests to encompass situations that have not yet been encountered.
A. Right to intrastate travel
As the majority recognizes, the Supreme Court has described the contours of the right to travel as follows:
The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.
Saenz v. Roe, 526 U.S. 489, 500 , 119 S.Ct. 1518 , 143 L.Ed.2d 689 (1999). Noticeably absent from this passage is a recognition of any right to intrastate travel. See generally Mem’l Hosp. v. Maricopa County, 415 U.S. 250, 255-56 , 94 S.Ct. 1076 , 39 L.Ed.2d 306 (1974) (declining to decide whether a constitutional distinction exists between interstate and intrastate travel).
Moreover, the Supreme Court explicitly differentiated between these two types of travel in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 , 113 S.Ct. 753 , 122 L.Ed.2d 34 (1993). The plaintiffs in Bray alleged that, by obstructing access to abortion clinics, the defendants violated 42 U.S.C. § 1985 (3) by interfering with the plaintiffs’ right to interstate travel. Bray, 506 U.S. at 266-67 , 113 S.Ct. 753 . In holding that the plaintiffs failed to show a conspiracy to violate their federal rights, the Court explained that the defendants’ proposed demonstrations would not implicate the right to interstate travel because the record established that the defendants’ actions would have restricted only intrastate travel:
As far as appears from this record, the only “actual barriers ... to movement” that would have resulted from petitioners’ proposed demonstrations would have been in the immediate vicinity of the abortion clinics, restricting movement from one portion of the Commonwealth of Virginia to another. Such a purely intrastate restriction does not implicate the right of interstate travel, even if it is applied intentionally against *509 travelers from other States, unless it is applied discriminatorily against them.
Id. at 276-77 , 113 S.Ct. 758 (alteration and emphasis in original). This language strongly suggests that no fundamental right to intrastate travel exists.
After acknowledging that the Supreme Court has not explicitly recognized a right to intrastate travel, the majority concludes that the “right to travel locally through public spaces and roadways” is a fundamental liberty interest. (Maj. Op. at 498) Unlike the majority, however, I believe that this court’s opinion in Wardwell v. Board of Education of Cincinnati, 529 F.2d 625 (6th Cir.1976), held that the right to intrastate travel is not entitled to heightened constitutional protection.
The plaintiff in Wardwell challenged the constitutionality of the Board of Education’s rule that required all teachers in the Cincinnati school system to reside within the city school district. Id. at 626 . Wardwell argued that the residency requirement infringed upon his right to intrastate travel. Id. at 627 . This court rejected his argument, concluding that the relevant Supreme Court decisions had dealt only with interstate travel. Id. (“We find no support for plaintiffs theory that the right to intrastate travel has been afforded federal constitutional protection.”). Equally important, this court held that “where, as in the present case, a continuing employee residency requirement affecting at most the right of intrastate travel is involved, the ‘rational basis’ test is the touchstone to determine its validity.” Id. at 628 (footnote omitted) (emphasis in original).
The majority in the present case interprets Wardwell to have established that the Supreme Court’s travel holdings (1) “applied only to interstate travel” and (2) “did not prohibit a school district’s residency requirement.” (Maj. Op. at 494) I have no quarrel with the majority’s analysis of Wardwell’s treatment of the relevant Supreme Court cases. But I disagree with the majority’s conclusion that Wardwell did nothing more than determine that the Supreme Court’s right-to-travel cases were not applicable to the residency requirement imposed by the Cincinnati Board of Education.
Instead, I believe that Wardwell’s holding that the rational-basis test applies to determine the constitutionality of a law affecting intrastate travel is necessarily based upon the conclusion that only the right to interstate travel, not the ability to travel within a single state, is a fundamental liberty interest entitled to heightened constitutional protection. See Hutchins v. Dist. of Columbia, 188 F.3d 531, 537-38 (D.C.Cir.1999) (en banc) (citing Wardwell for the proposition that the Sixth Circuit has rejected a fundamental right to intrastate travel). If the right to intrastate travel had been a fundamental liberty interest, this court would have been required to apply strict scrutiny, rather than the rational-basis standard of review that was in fact used, to evaluate the constitutionality of the residency requirement.
The majority acknowledges that “a prior published opinion of this court is binding unless either an intervening decision of the United States Supreme Court requires modification of the prior opinion or it is overruled by this court sitting en banc.” United States v. Roper, 266 F.3d 526, 530 (6th Cir.2001). Neither of these events has occurred since Wardwell was decided. I therefore believe that Wardwell prohibits us from reconsidering the issue of whether the right to intrastate travel, or the “right to travel locally through public spaces and roadways” as it is phrased by the majority, is a fundamental liberty interest. Moreover, where a subsequent opinion from this court conflicts with an older one, the earli *510 er decision remains the binding precedent. Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir.2001) (“[W]hen a later decision of this court conflicts with one of our prior published decisions, we are still bound by the holding of the earlier case.”). This rule requires us to adhere to Wardwell , even if the court in Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 521-22 (6th Cir.1997), believed (erroneously in my opinion) that the question of whether the right to intrastate travel is entitled to heightened constitutional protection was still unresolved in this circuit.
Wardwell thus refutes the plaintiffs’ argument that the ordinance infringed upon a fundamental right to freedom of movement in intrastate travel. As a result, I respectfully disagree with the majority’s conclusion that the right to intrastate travel is a fundamental liberty interest entitled to heightened constitutional protection.
B. Freedom of association
Both plaintiffs also claim that the ordinance infringed upon their freedom of association, allegedly because it interfered with their abilities to maintain intimate, interpersonal relationships. Johnson contends that, as a grandmother, she has a right to visit and assist in the raising of her grandchildren. Au France, on the other hand, claims that the ordinance interfered with his right to associate with the attorney of his choice and to meet with charitable organizations that help provide for his essential needs. The plaintiffs seek to derive these rights from the First Amendment’s guarantee of freedom of association and from the substantive component of the Due Process Clause of the Fourteenth Amendment.
Unlike the majority, I do not believe that the ordinance interfered with the plaintiffs’ freedom of intimate association, a right that is protected by the Due Process Clause. The majority does not address whether the ordinance infringed upon the plaintiffs’ freedom of expressive association, a right protected by the First Amendment. Nevertheless, because the plaintiffs mention both the First and the Fourteenth Amendments in their complaint, I will consider below each potential source of constitutionally protected associational rights.
1. First Amendment right to freedom of association
Although the plaintiffs’ complaint alleges that the ordinance interfered with their interpersonal relationships, the freedom of association guaranteed by the First Amendment has a more narrow focus. Roberts v. United States Jaycees, 468 U.S. 609, 618 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984) (noting that “the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion”). The thrust of the plaintiffs’ freedom-of-association challenge — that the ordinance interfered with their abilities to maintain interpersonal relationships — does not relate to these First Amendment rights. As a result, I am of the opinion that the First Amendment does not provide protection for participating in the relationships sought by the plaintiffs.
In reaching this conclusion, I recognize that Au France’s inability to visit his attorney’s office during his exclusion from Over the Rhine presents a closer question. Au France seeks to derive from the First Amendment a right to associate with the particular attorney of his choice in order to challenge the alleged violations of his legal rights. Although this asserted right is related to Au France’s desire to “petition the Government for a redress of griev- *511 anees,” U.S. Const, amend. I, the pertinent Supreme Court eases addressing the interplay between the First Amendment’s guarantees and the right to meet with an attorney all deal with the rights of organizations and their members. See, e.g., United Mine Workers of Am. v. Illinois State Bar Ass'n, 389 U.S. 217, 221-22 , 88 S.Ct. 353 , 19 L.Ed.2d 426 (1967) (holding that the union’s members had a First Amendment right to hire an attorney collectively to assist them in asserting their legal claims); Bhd. of R.R. Trainmen v. Virginia, ex rel. Virginia State Bar, 377 U.S. 1, 8 , 84 S.Ct. 1113 , 12 L.Ed.2d 89 (1964) (holding that the First Amendment protected the Brotherhood’s right to maintain a Department of Legal Counsel that referred the Brotherhood’s members and their families to. attorneys); NAACP v. Button, 371 U.S. 415, 428-29 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963) (holding that the First Amendment protected the right of the NAACP to recommend attorneys to prospective litigants seeking legal redress for the alleged violations of their rights).
None of these cases support the recognition of a First Amendment right to associate with a particular attorney. Rather, United Mine Workers dealt with a prohibition against collectively hiring an attorney, and both Brotherhood of Railroad Trainmen and Button involved laws proscribing particular methods of referring clients to attorneys. The Supreme Court, moreover, has noted that the First Amendment interest at stake in cases such as Brotherhood of Railroad Trainmen “was primarily the right to associate collectively for the common good.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 335 , 105 S.Ct. 3180 , 87 L.Ed.2d 220 (1985).
Even if the First Amendment were deemed to protect a person’s right to associate with a particular attorney, I would find that the ordinance did not infringe upon that right. Au France, for example, was free to meet with his attorney, Bernard Wong, away from Wong’s office, speak with Wong, on the telephone, and communicate with Wong through the mail. The majority expresses the view that such possibilities are meaningless for a homeless man who has no telephone or permanent address. But I believe that it stretches credulity to find that Wong and Au France would have been unable to meet at a coffee shop, a bookstore, or a public library convenient to both of them.
For all of these reasons, I conclude that the ordinance did not interfere with any First Amendment right that Au France might have to associate with a particular attorney.
2. Fundamental liberty interest in maintaining intimate personal relationships
The plaintiffs’ assertion that the ordinance infringed upon their fundamental right to form and maintain basic, intimate personal relationships has its foundation in the importance of these relationships in the nation’s democratic system of government. As the Supreme Court has explained,
choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty-
Roberts v. United States Jaycees, 468 U.S. 609, 617-18 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984). The Court proceeded to observe that the relationships that most clearly merit protection under the Fourteenth Amendment “are those that attend the *512 creation and sustenance of a family; — marriage, childbirth, the raising and education of children, arid cohabitation with one’s relatives.” Id. at 619 , 104 S.Ct. 3244 (citations omitted). These relationships, the Court noted, involve unique characteristics that distinguish them from other forms of association:
Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationships.
Id. at 619-20 , 104 S.Ct. 3244 .
The record, as the majority notes, establishes that Johnson helped care for her grandchildren and regularly took two of them to school. Because her grandchildren lived in Over the Rhine, however, Johnson was unable to continue these activities after receiving her exclusion notice. Johnson could have obtained a variance if she had been able to establish that she resided with her children in Over the Rhine, but she never applied for such a variance.
Confronted with these facts, the majority concludes that Johnson has “a fundamental freedom of association right to participate in the upbringing of her grandchildren.” (Maj. Op. at 501) I disagree. The key Supreme Court case of Moore v. City of East Cleveland, 431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977), in my view, not only fails to support Johnson’s asserted associational right, but also suggests that no such right exists. In'Moore, a plurality of the Supreme Court held that a city ordinance that limited occupancy of single dwelling units to members of one family, • and defined “family” in such a manner that prevented a grandmother from living with her grandchildren, violated the grandmother’s fundamental liberty interest in being able to live with them. Id. at 505-06 , 97 S.Ct. 1932 . The plaintiff in Moore was a grandmother who lived with her son and two grandsons. Only one of the grandsons was the child of the son living in the house; the other was the child of the son’s sibling. This living arrangement violated the city’s housing ordinance. Id. at 496-97 , 97 S.Ct. 1932 .
Throughout the plurality opinion in Moore , the Court emphasized the family and family living arrangements, not the rights of a grandparent to visit grandchildren. See Ellis v. Hamilton, 669 F.2d 510, 513 (7th Cir.1982) (concluding that the Court in Moore “was concerned with the impact on the family unit as a whole — that is, with the interests of the child as well as of the grandparent”). In explaining why rational-basis review was not appropriate, for instance, the Court noted that the ordinance “selects certain categories of relatives who may live together and declares that others may not,” thereby “slicing deeply into the family itself,” and that it “intrudes on choices concerning family living arrangements.” Moore, 431 U.S. at 498-99 , 97 S.Ct. 1932 (emphasis added).
The Court in Moore also framed the contours of the liberty interest at issue before it by emphasizing that “[t]he tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition as those of the nuclear family.” Id. at 504 , 97 S.Ct. 1932 (emphasis added). Finally, the Court recognized that “[decisions concerning child rearing, which Yoder, Meyer, Pierce and *513 other cases have recognized as entitled , to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household— indeed who may take on major responsibility for the rearing of the children.” Id. at 505 , 97 S.Ct. 1932 (emphasis added).
The federal courts of appeals that have considered the contours of the liberty interest recognized' in Moore have expressed a reluctance to extend it beyond grandparents living with their grandchildren. See Brown v. Ives, 129 F.3d 209, 211 (1st Cir.1997) (noting that cases raising the possibility of grandparents having “some constitutionally protected rights in relation to their association with their grandchildren” involve grandparents residing with their grandchildren, and that the rights of nonresident grandparents “have an even slimmer pedigree in the case law”); Watterson v. Page, 987 F.2d 1 , 8 n. 6 (1st Cir.1993) (recognizing that “the scope and level of constitutional protection for the liberty interests of grandparents probably differs from that for parents’ interests,” but holding that grandparents who reside with their grandchildren have “interests at least sufficient to avoid dismissal of their § 1983 claims on grounds they have no constitutionally protected right at stake”); Ellis v. Hamilton, 669 F.2d 510, 513 (7th Cir.1982) (holding that a grandmother had due process rights in associating with her grandchildren where she acted in loco parentis to the children, claimed to have formal custody of the children when the defendants took them from her, and was “a great-aunt, an adoptive grandmother, and a de facto mother and father all rolled up into one”) (italics in original).
Moreover, in Troxel v. Granville, 530 U.S. 57 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), a plurality of the Supreme Court held that, as applied to the facts before it, a state law permitting “[a]ny person” to petition a state court for the right to visit a child, and authorizing the court to grant such rights whenever “visitation may serve the best interest of the child,” unconstitutionally interfered with the fundamental right of a mother to raise her own children. Id. at 60, 75 , 120 S.Ct. 2054 . Troxel involved the state court’s decision to allow grandparents visitation rights that exceeded the parent’s preference. Id. at 71 . Although the Court acknowledged the potential desirability of parents fostering strong relationships between grandparents and their grandchildren, it emphasized that “the decision whether such an intergenera-tional relationship would be beneficial in any specific case is for the parent to make in the first instance.” Id. at 70 .
Unlike the present case, Troxel involved a conflict between the desires of the parent and those of the grandparents. The plurality opinion nonetheless implicitly questions whether grandparents have a fundamental liberty interest, in being able to visit their grandchildren. To be sure, the lack of any discussion of the grandparents’ interest may be due to the holding that the trial judge unconstitutionally infringed on the mother’s right to raise her children by refusing to give the mother’s interest any special weight. Id. at 72 , 120 S.Ct. 2054 . But the fact that grandparents were seeking visitation rights, combined with the Court’s analysis of the statute as applied to the case before it, accentuates the absence of even a passing acknowledgment of any fundamental right that grandparents might have to visit their grandchildren. I therefore believe that Troxel not only, distinguishes between the rights of a parent as opposed to a grandparent to raise children and grandchildren, but also casts serious doubt on Johnson’s asserted liberty interest.
For these reasons, I conclude that nonresident grandparents lack a fundamental *514 legal right to visit their grandchildren. In reaching this conclusion, I recognize the valuable role that grandparents often play in the lives of their grandchildren. But parents retain the fundamental right to raise their own children. Where grandparents reside with their grandchildren, as was the case in Moore , the circumstances are such that recognizing the grandparents’ right to live in that household is a logical outgrowth of relevant Supreme Court precedent. Recognizing the right to visit grandchildren as a fundamental liberty interest, in contrast, represents an expansion of previously recognized fundamental rights and presents the risk of imposing this court’s policy preferences in the guise of the Due Process Clause. Washington v. Glucksberg, 521 U.S. 702, 720 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 (1997).
The preceding discussion explains why I believe that noncustodial grandparents lack a fundamental legal right to visit their grandchildren. Agreeing with this principle, the majority recognizes that if the issue were a purported right to visit grandchildren rather than a right to participate in their education and rearing, we would be bound by the holding in Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir.2001), that “Thompson has no fundamental right to visit his family members on [the public housing authority’s] property.” (Maj. Op. at 501-502) But the majority nevertheless concludes that Johnson has a fundamental right to visit her grandchildren in order to assist in their upbringing.
In support of its position, the majority relies upon both Moore and a series of Supreme Court cases recognizing that parents or guardians have a fundamental right “to direct the education and upbringing of one’s children.” Glucksberg, 521 U.S. at 720 , 117 S.Ct. 2258 ; see also M.L.B. v. S.L.J., 519 U.S. 102, 116 , 117 S.Ct. 555 , 136 L.Ed.2d 473 (1996) (recognizing that “[cjhoices about ... the upbringing of children are among associational rights this Court has ranked as of basic importance in our society”) (internal quotation marks omitted). None of the pertinent Supreme Court cases, however, involve the right of nonresident grandparents to contribute to the raising of their grandchildren. Pierce v. Society of Sisters, 268 U.S. 510, 534-35 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925) (holding that Oregon’s requirement that all children between the ages of 8 and 16 attend public schools “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer v. Nebraska, 262 U.S. 390, 400-01 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923) (holding that a Nebraska statute restricting the instruction of foreign languages violated the fundamental right of parents to engage a teacher to instruct their children in those languages). Moore , as noted above, focused on the possibility that grandparents who live with their grandchildren might assist in raising them, but it did not address the rights of a nonresident grandparent.
Johnson neither lived with nor acted as the guardian of her grandchildren. The relationship that she had with her grandchildren is therefore distinguishable from the situations that actually existed or were contemplated in Moore, Pierce, Meyer, and the other cases upon which the majority relies. Moreover, nothing in the ordinance prevented Johnson from maintaining continuing contact with her grandchildren. They could meet outside Over the Rhine, communicate on the telephone, and correspond through the mail. Johnson could therefore continue to participate in the upbringing of her grandchildren, the very right that the majority identifies as the fundamental associational right at issue in the present case. The fact that such par *515 ticipation became less convenient during her exclusion is not a factor in determining whether Johnson’s asserted right is a fundamental liberty interest.
As for Au France, he contends that the right “to enter into and maintain certain intimate human relationships,” Roberts v. United States Jaycees, 468 U.S. 609, 617 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984), protects his right to associate with his chosen attorney and with supportive persons and organizations in Over the Rhine. The majority find this argument persuasive. I disagree.
In Roberts , the Supreme Court held that a state law requiring the Jaycees to accept women as members did not violate the male members’ constitutional rights of free speech and association. Id. at 623-29 , 104 S.Ct. 3244 . Although the law infringed on the members’ right of expressive association, the Court concluded that the state offered compelling interests to justify the interference and that the law was the least restrictive means for achieving those goals. Id. The Court also held that the law did not infringe on the members’ freedom of intimate association, because the Jaycees lacked the characteristics necessary for this type of constitutional protection to apply. Id. at 620-21 , 104 S.Ct. 3244 . As the Court explained, the reason for recognizing a constitutional right to form certain intimate relationships is that they provide “emotional enrichment” to the lives of the persons involved. Id. at 619 , 104 S.Ct. 3244 (“[T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others.”). “Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty.” Id. The examples of such intimate relationships given by the Court “are those that attend the creation and sustenance of a family— marriage, childbirth, the raising and education of children, and cohabitation with one’s relatives.” Id. (citations omitted).
Although the attorney-client relationship shares many of the characteristics of families, including “relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship,” I reject the notion that these traits alone are sufficient to justify finding that “freedom of association as an intrinsic element of personal liberty” attaches to the attorney-client relationship. Id. at 620 , 104 S.Ct. 3244 . Neither a client nor an attorney are typically seeking “emotional enrichment” from their association. Nor does the relationship contribute to a client’s ability to define his or her identity. Furthermore, the tie between an attorney and his or her client does not represent the “kinds of personal bonds [that] have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs ....’’Id. at 618-19, 104 S.Ct. 3244 .
The preceding analysis of the attorney-client relationship is even more applicable to associations between individuals and charitable organizations. Although a recipient and the provider of social services may develop close ties, the relationship is by no means necessarily one of intimacy. Emotional enrichment and self-development, moreover, are not the primary goals or products of these associations.
For all of these reasons, I conclude that the ordinance did not interfere with Au France’s Fourteenth Amendment right to freedom of association.
II. RATIONAL BASIS REVIEW
In addition to not infringing upon the plaintiffs’ fundamental rights, the ordi *516 nance did not involve any suspect classifications. As a result, the ordinance is constitutional so long as it is “rationally related to legitimate government interests.” Washington v. Glucksberg, 521 U.S. 702, 728 , 117 S.Ct. 2258 , 138 L.Ed.2d 772 (1997) (explaining the applicable standard for reviewing a law that does not involve a fundamental liberty interest); Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir.2001) (applying rational basis review to a policy that limited individuals’ mobility but did not affect fundamental rights or involve suspect classifications).
The majority recognizes that the City’s goal of eradicating the blight of drug-infested neighborhoods constitutes a compelling governmental interest. (Maj. Op. at 502-04) This purpose in enacting the ordinance necessarily satisfies the more lenient test of being a legitimate interest. Moreover, preventing individuals who are arrested for or convicted of committing drug offenses in drug-exclusion zones from entering those neighborhoods is, in my view, rationally related to achieving the City’s interest. See Thompson, 250 F.3d at 407 (concluding that banning individuals who have criminal histories from entering the public housing authority’s premises was rationally related to the goal of suppressing and preventing crime on the premises). I am therefore of the opinion that the ordinance would have survived rational basis review.
III. DOUBLE JEOPARDY
The plaintiffs’ final argument, which the majority had no reason to address, is that the ordinance violated the Double Jeopardy Clause of the Fifth Amendment. This clause “protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense.” Monge v. California, 524 U.S. 721, 727-28 , 118 S.Ct. 2246 , 141 L.Ed.2d 615 (1998). According to the plaintiffs, the sanctions imposed by the ordinance are so punitive that they amount to extra-judicial punishment, rather than a remedial civil effort by the City to rehabilitate neighborhoods that experience disproportionately high rates of drug-abuse crimes.
Determining whether a particular punishment is criminal or civil for purposes of the Double Jeopardy Clause first requires an examination of the legislation that imposes the sanction at issue. Hudson v. United States, 522 U.S. 93, 99 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997) (“Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.”). The first step in this inquiry is to determine “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. (internal quotation marks omitted).
Even if the legislature indicates its desire to establish a civil penalty, a second step in the analysis is necessary. A court must determine “whether the statutory scheme was so punitive either in purpose or effect as to transfor[m] what was clearly intended as a civil remedy into a criminal penalty.” Id. (internal quotation marks and citation omitted) (alternation in original). The Supreme Court has identified seven factors that “provide useful guideposts” for answering this question:
(1) [wjhether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alter *517 native purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Id. at 99-100 , 118 S.Ct. 488 (alteration and italics in original) (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 , 83 S.Ct. 554 , 9 L.Ed.2d 644 (1963)).
Because these factors “may often point in differing directions,” no single factor is dispositive. Mendoza-Martinez, 372 U.S. at 169 , 83 S.Ct. 554 (1963). The Supreme Court has also determined that “these factors must be considered in relation to the statute on its face,” not in connection with individuals affected by the allegedly civil penalty. Id. Finally, “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson, 522 U.S. at 100 , 118 S.Ct. 488 (internal quotation marks omitted).
Neither party disputes that the ordinance was intended to be a civil remedy. The ordinance labels the restrictions that follow an arrest or conviction for a drug offense committed in a drug-exclusion zone as a “civil exclusion.” C.M.C. § 755-5. Furthermore, the ordinance provides that its purpose is to advance the City’s interest in “restoring the quality of life and protecting the health, safety, and welfare of citizens using the public ways” in neighborhoods with high incidents of drug-related offenses. Cincinnati, Ohio, Ordinance No. 229-1996, § 1(D) (Aug. 7, 1996). We can therefore proceed to the second step in order to determine whether the plaintiffs meet the high burden necessary to establish that the ordinance in fact constituted a criminal penalty under the above-stated factors.
With regard to the first factor, the ordinance clearly limits the freedom of movement of persons arrested or convicted for drug-related offenses that occur in exclusion zones. The City relies upon Hudson for the proposition that excluding someone from a limited geographic area is not “an affirmative disability or restraint.” In Hudson , the Supreme Court held that being barred from the banking profession is not a criminal penalty. Hudson, 522 U.S. at 105 , 118 S.Ct. 488 . The Court rejected the argument that the sanctions involved an “affirmative disability or restraint,” noting that “[w]hile petitioners have been prohibited from further participating in the banking industry, this is certainly nothing approaching the infamous punishment of imprisonment.” Id. at 104 , 118 S.Ct. 488 (internal quotation marks omitted).
Contrary to the City’s position, I do not believe that this language supports the conclusion that an “affirmative disability or restraint” occurs only where a person faces imprisonment or confinement. Instead, it simply recognizes that imprisonment is the clearest example of a restraint. The Supreme Court in Mendoza-Martinez and subsequent cases could have easily used the term “imprisonment” if it had intended to limit the first factor to that sanction. I therefore conclude that being banned from a drug-exclusion zone constitutes a form of restraint, albeit not of the most extreme type. The first factor thus provides a modicum of support for the plaintiffs’ argument that the ordinance imposed a criminal - penalty. Because the restraint is far from the “infamous punishment of imprisonment,” however, this factor, in my view, is not entitled to overwhelming weight.
To support their position that the second factor — the historical treatment of the sanction — is indicative of a criminal penalty, the plaintiffs contend that the ordinance effectively banished persons from Over the Rhine. The plaintiffs are correct that banishment has historically been re *518 garded as a punishment. Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 474 , 97 S.Ct. 2777 , 53 L.Ed.2d 867 (1977) (recognizing that banishment .is a punishment commonly included as one of the “pains and penalties” proscribed- by Article I, § 9 of the Constitution, which prohibits Bills of Attainder); Mendoza-Martinez, 372 U.S. at 169 n. 23, 83 S.Ct. 554 (stating that “forfeiture of citizenship and the related devices of banishment and exile..have throughout history been used as punishment”).
Equating the ordinance’s ninety-day and one-year exclusions with banishment, however, is problematic, because the ordinance provided for variances to individuals who reside in or who are employed by a lawful business located in an exclusion, zone. Registered social service agencies, moreover, could grant variances to individuals whom they assist. As a result, I do -not believe that the ordinance’s temporary exclusions were equivalent to what has been historically recognized as a form of punishment. Furthermore, although both the plaintiffs and the. district court considered the particular circumstances of Johnson and Au France, Hudson instructs that the inquiry should be limited to the face of the statute. Hudson, 522 U.S. at 100 , 118 S.Ct. 488 . The ordinance in question, when viewed as a whole, provided for the temporary exclusion of individuals who were arrested or convicted of a drug-related crime from designated high-crime neighborhoods, and it allowed for variances to prevent interference with such a person’s residence, employment, or ability to obtain crucial social services. Under these circumstances, I conclude that this sanction did not constitute a penalty that “has historically been regarded as a punishment.”
The third Mendoza-Martinez factor requires a determination of whether the sanction “comes into play only on a finding of scienter.” Because exclusion notices could be given to individuals arrested for drug crimes without any finding of mens rea, criminal intent is not required to impose the sanction. This factor favors the City’s position that the exclusion is a civil sanction rather than a criminal punishment.
With regard to the fourth factor, which focuses on whether the sanction serves a retributive or deterrent purpose, even the City concedes that the ordinance would have a deterrent effect. Deterrence, in fact, was the very purpose of the ordinance. But the likely deterrence “is insufficient to render a sanction criminal, as •deterrence may serve civil as well as criminal goals.” Hudson, 522 U.S. at 105 , 118 S.Ct. 488 (internal quotation marks omitted). Moreover, the existence of the variances counters any suggestion that the ordinance was designed as a means of retribution. I therefore find that this factor, although somewhat helpful to the plaintiffs, does not weigh heavily in their favor.
The fifth factor — “whether the behavior to which [the sanction] applies is already a crime” — does not support a conclusion that the ordinance imposed criminal penalties. Exclusion occurred only if a person was arrested or convicted of a drug offense in a drug-exclusion zone. In contrast, the criminal laws that such a person violated apply regardless of where the crime is committed. The particular behavior to which the ordinance applied, defined in this manner, was not a separate crime. Equally important, the fact that both criminal penalties and the ordinance’s sanctions could be imposed for the same underlying drug offenses was insufficient to make the exclusion criminally punitive. Hudson, 522 U.S. at 105 , 118 S.Ct. 488 (noting that a sanction is not necessarily punitive simply because the conduct for which it is *519 imposed is also a criminal offense); United States v. Ward, 448 U.S. 242, 249-51 , 100 S.Ct. 2636 , 65 L.Ed.2d 742 (1980) (holding that the imposition of a fine for violations of the Federal Water Pollution Control Act was a civil penalty even though the behavior to which the sanction applied was already a crime, noting that “Congress may impose both a criminal and a civil sanction in respect to the same act or omission”) (internal quotation marks omitted).
The plaintiffs concede that the sixth factor, which requires asking “whether an alternative purpose to which [the sanction] may rationally be connected is assignable for it,” does not support a conclusion that the ordinance imposed criminal sanctions. In particular, the City enacted the ordinance in an attempt to improve the quality of life within drug-exclusion zones and to protect the health, safety, and welfare of its citizens in those neighborhoods. This purpose is rationally related to the ordinance’s sanction of exclusion.
Finally, in considering the seventh factor’s focus on comparing the nature of the sanctions to the civil purpose or the ordinance, I do not find the exclusions excessive in relation to the legitimate governmental goals involved. As noted above, the potentially harsh effects of the ordinance are mitigated through the availability of variances.
The preceding analysis demonstrates that only the first and fourth factors— which focus upon whether the sanction involves an affirmative disability or restraint and whether the penalty serves a retributive or deterrent purpose — support a finding that the exclusion is a criminal punishment. But neither of these considerations provides especially strong support for the plaintiffs’ position. All of the other factors lead to the conclusion that the ordinance was not “so punitive either in purpose or effect as to transform] what was clearly intended as a civil remedy into a criminal penalty.” Hudson, 522 U.S. at 99 , 118 S.Ct. 488 (internal quotation marks and citations omitted) (alteration in original). I thus conclude that the plaintiffs have failed to sustain their high burden of presenting “the clearest proof’ that the ordinance was a criminal penalty notwithstanding its designation by the City as a civil remedy. Id. at 100 , 118 S.Ct. 488 . As a result, the ordinance’s sanctions did not violate the Double Jeopardy Clause. I would therefore reverse the judgment of the district court on this issue.
IV. CONCLUSION
The City of Cincinnati, as the majority recognizes, faces difficult challenges in its efforts to enhance the quality of life in drug-plagued neighborhoods and to protect the health, safety, and welfare of its citizens in those areas. In my opinions, the ordinance was a constitutionally permissible means to reach that goal. I therefore respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495537. Public record. Not legal advice.