Appendix — Moore v. East Cleveland

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Supreme Cosrt, 6. $.

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JUN * 1976

APPENDIX

— ee BOON, SLE |

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-6289

INEZ MOORE,

Appellant

—Yyg—

CITY OF EAST CLEVELAND, OHIO,

Appellee

ON APPEAL FROM THE SUPREME COURT OF OHIO

FILED FEBRUARY 26, 1976

PROBABLE JURISDICTION NOTED APRIL 26, 1976

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-6289

INEZ MOORE,

Appellant

—v3s—

CiTy OF EAST CLEVELAND, OHIO,

Appellee

ON APPEAL FROM THE SUPREME COURT OF OHIO

INDEX

Page

Docket Entries (East Cleveland Municipal Court) —............... 1

Docket Entries (Court of Appeals of Ohio) ............................ 1

Docket Entries (Supreme Court of Ohio) ....................0.......- 1

eS Ge cenretretnnessiecneenidtineminmeneen 2

Motion to Dismiss (East Cleveland Municipal Court) ........... 3

Opinion and Journal Entry of Court of Appeals of Ohio,

SS STEIN TIPU auscitsinsnieihnsihinileeitceetteaitaariadetinitaasiatpnmantei 7

Journal Entry of the Supreme Court of Ohio ..................... 19

BD GE GD qcecneeiteinmntenienmnne 20

Order of the Supreme Court of the United States Granting

Motion for Leave to Proceed In Forma Pauperis ................ 22

Order of the Supreme Court of the United States Noting

IY I ii teil lalla elariins 23

RELEVANT DOCKET ENTRIES

THE MUNICIPAL COURT OF EAST CLEVELAND, OHIO

4-3-74 Criminal Complaint filed.

5-17-74 Motion to Dismi~< filed along with brief.

5-17-74 Motion to Dismiss based on unconstitutionality

of applicable ordinance was overruled. Finding of

Guilty upon stipulation of defense counsel. Defend-

ant was fined $25 fine and 5 days. Fine and days

suspended if condition corrected by 7-i-74. Execu-

tion stayed on condition defendant duly perfects

Appeal herein.

6-13-74 Notice of Appeal filed.

RELEVANT DOCKET ENTRIES

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

1-29-75 Notice of Appeal and Transcript and copies

of original papers from East Cleveland Municipal

Court filed.

7-28-75 Judgment of the East Cleveland Municipal

Court affirmed. Dissenting Opinion.

8-25-75 Notice of Appeal to the Supreme Court of Ohio

filed by Appellant.

RELEVANT DOCKET ENTRIES

SUPREME COURT OF OHIO

9-24-75 Notice of Appeal and Memorandum of Appel-

lant filed.

11-5-75 Memorandum of Appellee filed.

11-28-75 Motion to Certify overruled. Dismissed sua

sponte, no substantial constitutional question in-

volved.

2-20-76 Notice of Appeal to the U.S. Supreme Court

filed.

3-10-76 Certified transcript mailed to the U.S. Supreme

Court.

(1)

2

CRIMINAL COMPLAINT

THE MUNICIPAL COURT OF EAST CLEVELAND, OHIO

IN THE EAST CLEVELAND MUNICIPAL COURT

[DEFENDANT’S COPY]

COMPLAINT (City Ordinance)

THE STATE OF OHIO )

CUYAHOGA COUNTY ) ss.

CITY OF EAST CLEVELAND )

BEFORE ME, Esther W. Patch, Deputy Clerk of the

East Cleveland Municipal Court, personally came Raiford

Williams who being duly sworn according to law, deposes

and says, that on or about the 30th day of January,

A.D. 1974, at the City of East Cleveland, County of

Cuyahoga and State of Ohio, one Inez Moore being the

owner of premises at 1854-56 Garfield including a two

family dwelling structure, did unlawfully permit two

families to occupy a single family dwelling unit of said

structure contrary to the form of an Ordinance of said

City in such eases made and provided, to wit: Section

1351.02 of Ordinance 6010. Further deponent sayeth

not.

/s/ Raiford Williams

Sworn to and subscribed before me, this 3rd day of

April A.D. 1974.

/s/ Esther W. Patch

Deputy Clerk

of the East Cleveland

Municipal Court

3

MOTION TO DISMISS

THE MUNICIPAL CoURT OF EAST CLEVELAND, OHIO

Case No. 163 307

IN THE EAST CLEVELAND MUNICIPAL COURT

CUYAHOGA COUNTY, OHIO

CiTy OF EAST CLEVELAND

—v3s—

INEZ MOORE

MOTION TO DISMISS

Now comes the defendant and respectfully moves this

Court to dismiss the criminal complaint filed in the above

referenced case for the reasons stated in the attached

brief.

Respectfully submitted,

/s/ Frank Murtaugh

FRANK MURTAUGH

Attorney for Defendant

Legal Aid Society of Cleveland

2269 Professor Avenue

Cleveland, Ohio 44113

216-696-1560

SERVICE

A copy of this motion was served personally on the

Prosecutor of the City of East Cleveland on May 17,

1974.

/s/ Frank Murtaugh

FRANK MURTAUGH

4

BRIEF

THE ORDINANCES

Section 1351.02 of the Codified Ordinances of the

City of East Cleveland, Ohio limits the occupancy of a

dwelling unit to one family.

The Code defines family:

1341.08 Family.

“Family” means a number of individuals related to

the nominal head of the household or to the spouse

of the nominal head of the household living as a

single housekeeping unit in a single dwelling unit,

but limited to the following:

(a) Husband or wife of the nominal head of the

household.

(b) Unmarried children of the nominal head of

the household

or of the spouse of the nominal head of the

household, provided, however, that such un-

married children have no children residing

with them.

(c) Father or mother of the nominal head of the

household or of the spouse of the nominal

head of the household.

(d) Notwithstanding the provisions of subsection

(b) hereof, a family may include not more

than one dependent married or unmarried

child of the nominal head of the household

or of the spouse of the nominal head of the

household and the spouse and dependent chil-

dren of such dependent child. For the pur-

pose of this subsection, a dependent person

is one who has more than fifty percent of his

total support furnished for him by the nomi-

nal head of the household and the spouse of

the nominal head of the household.

(e) A family may consist of one individual.

(Ord. 5744. Passed 7-66).

5

FACTS

The defendant has stipulated that the following in-

dividuals reside in the dwelling unit in question: Inez

Moore, the defendant; John Moore Sr., the defendant’s

son; John Moore Jr., John Moore Sr.’s son; Dale Moore,

the defendant’s son; Dale Moore Jr., Dale Moore Sr.’s

son. The City of East Cleveland contends that these

five people, all blood relatives, are two families.

LEGAL CLAIMS

The City alleges that the Moore family’s living ar-

rangement violates Section 1351.02 ane 1341.08 of the

Codified Ordinances of the City of East Vieveland. The

Defendant, at this time, does not challenge the con-

stitutionality of Section 1351.02.

However, Section 1341.08 is unconstitutional on its

face. This section violates the defendant’s rights:

(a) To Due Process and Equal Protection of the laws

guaranteed by the Fourteenth Amendment to the

United States Constitution in that there is no

compelling interest or rational basis to limit oc-

cupancy to a “family” as defined in Section

1341.08; Nectow v. City of Cambridge, 277 US.

183, 188 48 S. Ct. 447, 448 (1928); Euclid v.

Ambler Realty Company, 272 U.S. 265, 47 S. Ct.

114 (1926).

(b) To Freedom of Association guaranteed by the

First and Fourteenth 4mendments to the United

States Constitution. Meyer v. Nebraska, 262 U.S.

390, 399 (1972).

(c) To travel and reside in the place of her choice

as guaranteed by the privileges and immunity

clause of Article IV, Section 2 of the United

States Constitution, and by the First and Four-

teenth Amendments to the United States Con-

stitution. Shapiro v. Thompson, 394 U.S. 618,

89 S. Ct. 1822, (1969).

6

(d) To Privacy as guaranteed by the First and Four-

teenth Amendments to the United States Con-

stitution. Griswold v. Connecticut, 381 U.S. 479,

495 (1965).

(e) To Due Process and Equal Protection of Laws

in that defendant will suffer substantial economic

injury and loss if one or both of her sons is

required to vacate her home.

Traditional American families have enjoyed a right-

fully favored position in the history of American juris-

prudence. The ordinance at issue clearly has a detri-

mental affect on the Moore family and others similarly

situated. The ordinance does not represent a valid exer-

cise of delegated state police power. The rights of the

defendant and her family must be guaranteed and pro-

tected.

For these reasons, the defendant requests that this

Court find the ordinance to be unconstitutional and dis-

miss the complaint.

Respectfuily submitted,

/s/ Frank Murtaugh

FRANK MURTAUGH

7

OPINION AND JOURNAL ENTRY

CouURT OF APPEALS OF OHIO, EIGHTH JUDICIAL DISTRICT

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

No. 33888

CITY OF EAST CLEVELAND, APPELLEE

—vs—

INEZ MOORE, APPELLANT

DATE—July 18, 1975

APPEAL FROM EAST CLEVELAND MUNI. COURT

No. 163,307

JOURNAL ENTRY

This cause came on to be heard upon the pleadings

and the transcript of the evidence and the record in the

East Cleveland Municipal Court, and was argued by

counsel for the parties; and upon consideration, the court

finds no error prejudicial to the appellant and there-

fore the judgment of the East Cleveland Municipal

Court is affirmed. Each assignment of error was re-

viewed and upon review the following disposition made:

On January 16, 1974 the defendant-appellant, Inez

Moore, was cited by an East Cleveland deputy housing

inspector for violation of Sec. 1351.02 of Ordinance 6010

of the City of East Cleveland. (All references to code

sections are to the Ordinances of the City of East

Cleveland unless otherwise indicated.) The defendant

was residing in her home with her sons, Dale Moore and

John Moore, and their sons Dale Moore, Jr. and John

Moore, Jr. Sec. 1351.02 provides that a dwelling unit

shall be occupied by only one family, and under the

definition in Sec. 1341.08 the defendant, her sons and

grandsons constitute more than one family. The notice

of violation served upon the defendant alleged that

John Moore, Jr., age 7, was an illegal occupant of her

dwelling.

The defendant entered a plea of not guilty to the

charge and filed a motion to dismiss the action on the

ground that Sec. 1341.08 is unconstitutional.

On May 17, 1974 the court denied the motion to dis-

miss and found the defendant guilty of violating Sec.

1351.02. The court entered judgment against her and

she now appeals assigning one error:

The lower court erred in overruling Appellant’s

motion for dismissal upon the grounds that the ordi-

nances in question were unconstitutional as viola-

tions of Appellant’s rights to freedom of association,

travel, privacy, and Appellant’s rights to equal pro-

tection under the laws and due process of law.

The question of the constitutionality of Sec. 1341.08

was before this court in Hilson v. City of East Cleveland

(Court of Appeals No. 30544, 1971) in which we held

that the ordinance as applied by Sec. 1351.02 was not

unconstitutionally void for vagueness. The two ordi-

nances read as follows:

“1351.02 LIMITATION ON OCCUPANCY.

“The occupancy of any dwelling unit shall be

limited to one, and only one, family and to any au-

thorized persons occupying such dwelling unit with

such family.”

“1341.08 FAMILY.

““Pamily’ means a number of individuals related

to the nominal head of the household or to the spouse

of the nominal head of the household living as a

single housekeeping unit in a single dwelling unit,

but limited to the following:

“(a) Husband or wife of the nominal head of the

household.

9

“(b) Unmarried children of the nominal head of

the household or of the spouse of the nomi-

nal head of the household, provided, how-

ever, that such unmarried children have no

children residing with them.

“(¢) Father or mother of the nominal head of the

household or of the spouse of the nominal

head of the household.

“(d) Notwithstanding the provisions of subsec-

tion (b) hereof, a family may include not

more than one dependent married or un-

married child of the nominal head of the

household or of the spouse of the nominal

head of the household and the spouse and

dependent children of such dependent child.

For the purpose of this subsection, a de-

pendent person is one who has more than

fifty percent of his total support furnished

for him by the nominal head of the house-

hold and the spouse of the nominal head

of the household.

“(e) A family may consist of one individual.”

In the instant case, the defendant specifically chal-

lenges subsection (d) of Sec. 1341.08 and argues that

it is an irrational exercise of legislative power because

it so narrowly defines the word “family.” She argues

further that since she and her two sons and two grand-

sons are a traditional blood-related family, they should

be able to live together in the same dwelling free from

unreasonable governmental interference. Yet under the

definition of Sec. 1341.08(d) the defendant’s family is

more than one family and Sec. 1351.02 proscribes their

living together in the same dwelling unit.

The defendant contends that Sec. 1341.08 should be

struck down because it violates her constitutionally

guaranteed “fundamental” rights of association, travel

and privacy. Furthermore, she argues that the ordinance

transgresses the equal protection and due process clauses

of the United States Constitution. For the reasons set

10

forth below, we find all of these arguments to be with-

out merit.

In Village of Belle Terre v. Boraas (1974), 416 US.

1, the Supreme Court recently considered the constitu-

tionality of an ordinance enacted in a small New York

community which defined “family” as,

“fojne or more persons related by blood, adop-

tion, or marriage, living and cooking together as a

single housekeeping unit, exclusive of household serv-

ants. A number of persons but not exceeding two

(2) living and cooking together as a single house-

keeping unit though not related by blood, adoption,

or marriage shall be deemed to constitute a family.”

The constitutionality of the ordinance had been challenged

by a group of more than two unrelated students living

together as a single housekeeping unit in a single family

dwelling. Speaking for the majority of the court which

affirmed the constitutionality of the ordinance, Mr. Jus-

tice Douglas noted,

“The present ordinance is challenged on several

grounds: that it interferes with a person’s right to

travel; ... that it bars people who are uncongenial

to the present residents; . . . that the restriction of

those whom the neigubors do not like trenches on

the newcomer rights of privacy; .. .”

“We find none of these reasons in the record be-

fore us. It is not aimed at transients. ... It in-

volves no ‘fundamental’ right guaranteed by the

Constitution, such as . . . the right of association,

...or any rights of privacy, .. .”

416 US. at 7.

In Belle Terre the Supreme Court held that the town

ordinance defining a family involved no “fundamental”

right guaranteed by Constitution. That holding is equally

applicable to the instant case.

Sec. 1341.08 does not involve the rights of association,

travel or privacy nor any other “fundamental” right

guaranteed by the United States Constitution. There-

fore, the defendant’s argument that Sec. 1341.08 violates

11

her rights of association, travel and privacy is without

merit. See also: Palo Alto Tenants Union v. Morgan

(1970), 321 F. Supp. 908 and Rademan v. City of

County of Denver (1974), 526 P. 2d 1325.

Considering the defendant’s final contentions—that

Sec. 1341.08 is violative of the equal protection and due

process clauses—we note that the Constitution of the

State of Ohio, Section 3, Article X VIII states:

“municipalities shall have authority to exercise

all powers of local self-government and to adopt and

enforce within their limits such local police, sanitary

and other similar regulations, as are not in conflict

with general laws.”

The purpose underlying the enactment of all East

Cleveland Housing Code Ordinances is set forth in Sec.

1343.02 as follows:

“. . to establish minimum standards necessary

to make all dwelling structures safe, sanitary, free

from fire and health hazards, and fit for human

habitation and beneficial to the public welfare; to

establish minimum standards governing the main-

tenance of dwelling structures in such condition as

will not constitute a blighting or deteriorating in-

fluence on the neighborhood and the community; to

protect property values and to maintain the char-

acter and appearance of the community and neigh-

borhoods within the community; to fix responsi-

bilities for owners and occupants of dwelling struc-

tures with respect to sanitation, repair and main-

tenance;....”

Two reasons for enacting and enforcing Sec. 1341.08

are mentioned by counsel for East Cleveland in his brief:

1) to help alleviate traffic congestion, and 2) to lessen

the possible financial burden on the city school system

which would result from an inordinate number of school

age children residing in a single dwelling which would

consequently generate a disproportionately small real

estate tax revenue per child.

12

The defendant failed to present the trial court with

any evidence to support her contention that Sec. 1341.08

is violative of the equal protection and due process

clauses. Rather she rests on the assertion in her appellate

brief, that the ordinance is unreasonable and arbitrary

on its face. We disagree.

A municipal ordinance enacted pursuant to the legis-

lative exercise of local police power is valid unless it

clearly bears no real and substantial relation to public

health, safety, morals or general welfare. Benjamin V.

City of Columbus (1957), 167 Ohio St. 103; Curtiss v.

Cleveland (1959), 170 Ohio St. 127.

As this court recently stated in syllabus 3 of Alsenas

v. City of Brecksville (1972), 29 Ohio App. 2d 255:

“To prevail in such a case the complainant must

also clearly establish that the ordinances he at-

tacks do not bear a real and substantial relation

to the public health, safety, morals or general wel-

fare and are, in turn, unreasonable or arbitrary,

that is, in substance, that the local legislative au-

thority could not have reasonably believed or, in

permitting such legislation to remain in force, can-

not reasonably believe that the necessity of regula-

tion in the public interest outweighs, qualitatively,

the impact imposed on the individual property

owner.”

A duly enacted municipal ordinance is presumed to be

constitutionally valid. The burden of establishing the

unconstitutionality of such an ordinance is upon the one

challenging its validity. Cleveland v. Antonio (1955),

100 Ohio App. 34.

Since the defendant presents no evidence to rebut the

presumption of legislative validity, we find that Sec.

1341.08 bears a real and substantial relation to public

health, safety or welfare and is, therefore, valid. See

13

City of East Cleveland v. Palmer (1974), 40 Ohio App.

2d 10.

Affirmed.

[Received for Filing Jul. 18, 1975, Gerald E. Fuerst, By

Peggy [Illegible] |

It is ordered that appellee recover of appellant its costs

herein taxed.

The Court finds there were reasonable grounds for

this appeal.

It is ordered that a special mandate issue out of this

court directing the E. Cleve. Muni. Court to carry this

judgment into execution.

A certified copy of this entry shall constitute the

mandate pursuant to Rule 27 of the Rules of Appellate

Procedure, Exceptions.

DAY, P. J., DISSENTS (See dissening opinion attached) ;

MANOS, J.

SILBERT, J., CONCUR.

(Silbert, J., retired judge of the 8th appellate district,

sitting by assignment. )

/s/ Jack G. Day

Jack G. DAY

Presiding Judge

N.B. This entry is made pursuant to the third sentence

of Rule 22D, Ohio Rules of Appellate Procedure. This

is an announcement of decision, (see Rule 26). Ten

(10) days from the date hereof this document will be

stamped to indicate journalization, at which time it will

become the judgment and order of the court and time

period for review will begin to run.

For plaintiff appellee: Leonard Young

For defendant appellant: Frank Murtaugh

14

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT

COUNTY OF CUYAHOGA

No. 33888

APPEAL FROM

EAST CLEVELAND MUNICIPAL COURT

No. 163,307

CiTy OF East CLEVELAND, PLAINTIFF-APPELLEE

—_— =

INEZ MOORE, DEFENDANT-APPELLANT

DATE—July 18, 1975

JOURNAL ENTRY

DISSENTING OPINION

DAY, J., DISSENTING:

Respectfully, I dissent.

In this case a grandmother was fined $25 and sen-

tenced to five days in jail because two sons and their

respective sons, her grandsons, lived with her in a

single family house. The judgment and sentence comes

about because the defendant’s family configuration does

not meet the definition imposed by the East Cleveland

= which is set out in the margin and under-

ined.’

* “1341.08 FAMILY.

“*Family’ means a number of individuals related to the nominal

head of the household or to the spouse of the nominal head of the

household living as a single housekeeping unit in a single dwelling

unit, but limited to the following:

“(a) Husband or wife of the nominal head of the household.

“(b) Unmarried children of the nominal head of the household

or of the spouse of the nominal head of the household, provided,

15

I.

In 1971 an entry of this court held the ordinance not

“unconstitutionally vague”, Hilson v. City of East Cleve-

land, Case No. 30544. That decision is not dispositive of

the present issue. For the vice of that part of the

ordinance involved in the instant case is not that it is

vague. Its very precision is an element in its uncon-

stitutionality. The interference with a blood related group

living as a family, qua family, is arbitrary, unreason-

able, and capricious on its face and, therefore, violates

due process of law.

Il.

Few constitutional rights are more important than

the right to determine one’s associations without gov-

ernmental interference, NAACP v. Alabama (1958), 357

U.S. 449, 460-462, 2 L. Ed. 2d 1488, 1498-1499. The right

is invested with special gravity when the association in

question involves the family or race, cf. Loving v. Vir-

ginia (1967), 388 U.S. 1, 7-9, 18 L. Ed. 2d 1010, 1015-

1016. It is fundamental that even a legitimate govern-

mental objective, when its pursuit affects constitutional

rights, is tested by the availability of alternative means

less threatening to liberty:

“ .. even though the governmental purpose be legiti-

mate and substantial, that purpose cannot be pur-

sued by means that broadly stifle fundamental per-

sonal liberties when the end can be more narrowly

however, that such unmarried children have no children residing

with them.

“(c) Father or mother of the nominal head of the household or of

the spouse of the nominal head of the household.

“(d) Notwithstanding the provisions of subsection (b) hereof, a

family may include not more than one dependent married or un-

married child of the nominal head of the household or of the spouse

of the nominal head of the household and the spouse and dependent

children of such dependent child. For the purpose of this subsection,

a dependent person is one who has more than fifty percent of his

total support furnished him by the nominal head of the household

and the spouse of the nominal head of the household.

[“(e) A family may consist of one individual. (Ord. 5744, Passed

7-26-66.)”’]

16

achieved. The breadth of legislative abridgment

must be viewed in the light of less drastic means

of achieving the same purpose.” (emphasis supplied)

Shelton v. Tucker (1960), 364 U.S. 479, 489;

NAACP vy. Button (1963), 371 U.S. 415, 423;

NAACP v. Alabama (1964), 377 U.S. 288, 307-

308.?

If the ordinable objective is to regulate housing density

in the interest of health, safety and welfare—a legitimate

city objective and the only discernible one—there “are

less drastic means of achieving the same purpose” and

the City has, in fact, already utilized one of them.

Ordinance 1351.03 of the City of East Cleveland makes

elaborate provision for regulating the condition and size

of habitable floor areas in the City including a standard

number of square feet per occupant.’ Without assessing

the validity of the standards in Ordinance 1351.03, it is

obvious that its density control scheme is an approach

less invasive of the right of association and directly

relevant to a health, safety and welfare purpose than

the definition in Ordinance 1341.08 (d).

ITl.

Whether and to what extent government has constitu-

tional authority to define and regulate living groupings

other than a family related by blood can be left to

another time. But even if the state may intervene with-

in federally approved limits, see Village of Belle Terre

Vv. Boraas (1974), 416 U.S. 1, 7-9, 39 L. Ed. 2d 797,

803-804, that does not mean that a state constitution

* Indeed the least inhibiting means may be required. See fn.

29 of Mr. Justice Brennan’s concurrence in Abington School District

V. Schempp (1963), 374 U.S. 208, 265, 10 L. Ed. 2d 844, 883, and

cases collected there.

’ Ordinance 1351.03(e) provides:

“Every dwelling unit shall contain at least 150 square feet of

habitable floor area for the first occupant thereof and at least 100

additional square feet of habitable floor area for every additional

occupant thereof, but in no case shall any dwelling unit contain less

than 250 square feet of habitable floor area.”

17

may not impose higher obstacles to government inter-

ference. Federal constitutional safeguards are a floor

not a ceiling, Oregon v. Haas (1975), —— U.S. ——, 43

L. Ed. 2d 570, 575-576; Cooper v. California (1967),

386 U.S. 58, 62, 17 L. Ed. 2d 730, 734. But decision

in the present case need not founder on Belle Terre in

any event. For that case is not germane to this case.

The ordinance Belle Terre approved did not define a

family to exclude persons “related by blood from living

together as a family”. -

There is another constitutional frailty inherent in

Ordinance 1341.08’s definition of the family. It does

not define a reasonable category which can pass the

tests for validity under the equal protection clause.‘

In utilizing the family definition in issue, a classifica-

tion was established which is suspect because it involves

the fundamental right to association, NAACP v. Ala-

bama, id., in the privacy of the family, cf. Loving Vv.

Virginia, id. 388 U.S. at 11-12, 18 L. Ed. 2d at 1017-

1018; and Griswold v. Connecticut (1965), 381 US.

479, 485-487, 14 L. Ed. 2d 510, 515-516. When it is

shown that a classification has these characteristics, the

state (city) must show some compelling state interest

to justify it, Shapiro v. Thompson (1969), 394 U.S. 618,

634, 638, 22 L. Ed. 2d 600, 615, 617. At very least the

State has not shown a compelling state interest that

could not have been satisfied by alternate means.

When the classification is neither suspect nor invasive

of a fundamental right, it still must rationally be re-

lated to a legitimate governmental goal if it is to avoid

the taint of arbitrariness, Reed v. Reed (1971), 404

U.S. 71, 75-77, 30 L. Ed. 2d 225, 229-230. Rational

relationship departs from the classification here when it

attempts to regulate the composition of family to ac-

* McGowan V. Maryland (1961), 366 U.S. 420, 6 L. Ed. 2d 393,

involved Sunday closing laws. The statutes were upheld using the

test that it must stand if “any state of facts reasonably may be

conceived to justify it”, cf. 366 U.S. at 425-426, 6 L. Ed. 2d at 399.

The fundamental rights involved here were not involved in McGowan

and different principles apply here.

18

complish an end served as well or better under another

ordinance (see fn. 3, supra).

Finally, legislation which comports with equal pro-

tection must impose its regulation impartially, Yick Wo.

Vv. Hopkins (1886), 118 U.S. 356, 373-374, 30 L. Ed.

220, 227:

“Though the law itself be fair on its face and im-

partial in appearance, yet, if it is applied and ad-

ministered by public authority with an evil eye and

an unequal! hand, so as practically to make unjust

and illegal discriminations between persons in simi-

lar circumstances, material to their rights, the de-

nial of equal justice is still within the prohibition

of the Constitution.”

The instant case involves a definition of family so

arbitrary and so ill suited to the regulation of popula-

tion density that the presence of the “unequal hand’ is

patent. It does “make wnjust and illegal discriminations

between persons in similar circumstances” with conse-

quences which are material to their rights.

I would declare Ordinance 1341.08(d) unconstitutional

in the parts pertinent to this case, reverse the judg-

ment, and discharge the defendant.

19

JOURNAL ENTRY

THE SUPREME COURT OF OHIO

THE SUPREME COURT OF OHIO

1975 TERM

To wit: November 28, 1975

No. 75-896

THE STATE OF OHIO, '

CITY OF COLUMBUS. )

INEZ MOORE, APPELLANT

v8.

CiTY OF EAST CLEVELAND, APPELLEE

APPEAL FROM THE COURT OF APPEALS

FOR CUYAHOGA COUNTY

This cause, here on appeal as of right from the Court

of Appeals for Cuyahoga County, was heard in the man-

ner prescribed by law, and no motion to dismiss such

appeal having been filed, the Court sua sponte dismisses

the appeal for the reason that no substantial constitu-

tional question exists herein.

It is further ordered that a copy of this entry be

certified to the Clerk of the Court of Appeals for

Cuyahoga County for entry.

L Themes L. Startzman, Clerk of the Supreme Court

of Ohio, certify that the foregoing entry was correctly

copied from the Journal of this Court.

Witness my hand and the seal of the Court

this day of 19——_

Clerk

Deputy

20

NOTICE OF APPEAL

IN THE SUPREME COURT OF THE

STATE OF OHIO

No. 75-896

INEZ MOORE, APPELLANT

—vs—

CITY OF EAST CLEVELAND, OHIO, APPELLEE

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that Inez Moore, the appellant

above named, hereby appeals to the Supreme Court of the

United States from the final order of November 28, 1975

affirming the judgment of Conviction, entered herein on

May 17, 1974.

This appeal is taken pursuant to 28 U.S.C. Sec. 1257

(2).

/s/ Francis Murtaugh, Jr.

FRANCIS MURTAUGH, JR.

Attorney for Inez Moore, Appellant

Legal Aid Society of Cleveland

3408 Lorain Avenue

Cleveland, Ohio 44113

=>

21

PROOF OF SERVICE

AFFIDAVIT

I, FRANCIS MURTAUGH, JR., Attorney for Inez

Moore, appellant herein, depose and say that on the 20th

day of February, 1976, I served a copy of the foregoing

Notice of Appeal to the Supreme Court of the United

States on the City of East Cleveland, Ohio, appellee

herein, by mailing a copy in a duly addressed envelope,

first class postage prepaid, to its counsel of record, Henry

B. Fisher, Director of Law, The City of East Cleveland,

14340 Euclid Avenue, East Cleveland, Ohio 44112.

All parties required to be served have been served.

/s/ Francis Murtaugh, Jr.

FRANCIS MURTAUGH, JR.

Subseribed and Sworn to, before me, at Cleveland,

Ohio, this 20th day of February, 1976.

/s/ Francis Murtaugh, Jr.

22

SUPREME COURT OF THE UNITED STATES

No. 75-6289

INEZ MOORE, APPELLANT

v.

CITY OF EAST CLEVELAND, OHIO

ON CONSIDERATION of the appellant for leave to

proceed in forma pauperis,

IT IS ORDERED by this Court that the said motion

be, and the same is hereby, granted.

April 26, 1976

a

28

SUPREME COURT OF THE UNITED STATES

No. 75-6289

INEZ MOORE, APPELLANT

| i

CITY OF EAST CLEVELAND, OHIO

APPEAL from the Supreme Court of the State of

Ohio.

The statement of jurisdiction in this case having been

submitted and considered by the Court, probable juris-

diction is noted.

April 26, 1976

® ©. 8. soveenment raimrine orice; 1976 214689 6275