Amicus Brief — Moore v. East Cleveland

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

ILED |

ln THE

L JUL 2 976 |

Supreme Court of the United Ptates |

Ocronen Tnm, 1976 —_—|_MICHAEL RODAK, JR., CLERK

No. 75-6289

Inez Moons,

Appellant,

—V—

Crry or East Cievetanp, Ono,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF OHIO

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU OF GREATER CLEVELAND,

AMICI CURIAE

Davi L, Genorrn

Linpa M, Piste

Daviw B, Horxins

1144 Union Commerce Building

Cleveland, Ohio 44115

Meivin L. Wor

American Civil Liberties Union

22 Kast 40th Street

New York, New York 10016

BenJaMin SHEERER

83 Public Square

Cleveland, Ohio 44113

Attorneys for Amici Curiae

Interest of Amici Curiae .....

Ordinances Involved. ......-.

Statement of Facts ....++e+6-s

Summary of Argument. ....-s«s+-s.

Argument:

I. East Cleveland's ordinance

denies appellant equal pro-

tection of the laws - +--+. .

A. The fundamental nature of

the right asserted by

appellant prohibits

appellee from infringing

such right without a

compelling governmental

amterese 2. 2c ec ec ec oe ce

B. Even if less rigorous

scrutiny is applied the

means chosen by appellee

are not reasonably related

to the purposes of the

ordinance and violate the

Equal Protection Clause. .

II. The East Cleveland ordinance

violates the Due Process

requirements of the Four-

teenth Amendment. ......

A. The East Cleveland

ordinance fails to com-

ply with the fundamental

requirements of Due

pena. «© @ «66 6¢ 6 & 6's

B. The East Cleveland

ordinance creates a con-

clusive presumption that

families not within the

definition will contri-

bute to overcrowding and

traffic congestion prob-

lems, a presumption which

violates Due Process.

Conclusion . ....

TABLE OF AUTHORITIES

Cases

Bates v. Little Rock, 361 U.S.

516 (1960). a © © @&eesest #8 ©

Cleveland Board of Education v.

LaFleur, 414 U.S. 632

(1976). «© 0 2 0 0 0 co oh B®, 2,

Dunn v. Blumstein, 405 U.S.

see Givers + % 4 6 6 8

iii

Griswold v. Connecticut, 381

oe... 679 tapers © © © © eo «

Kusper v. Pontikes, 414 U.S.

51 (1973). . => -= + 7 _ -- 7

Meyer v. Nebraska, 262 U.S,

390 (1923) _ * . * 7 . * 7. ad

NAACP v. Alambama, 357 U.S.

440 (iGGG) «cece eoveee

Reed v. Reed, 404 U.S. 71 (1971).

Roe v. Wade, 410 U.S. 113 (1973).

Shapiro v. Thompson, 394 U.S.

618 (1969) ‘Js =. 2 me *- ©« « .

Shelton v. Tucker, 364 U.S.

479 (1960) 7. ©« .- - ®* *- e @«

Stanley v. Georgia, 394 U.S.

557 (1969) —~— si, 2 a a oe a

Stanley v. Illinois, 405 U.S.

645 (1972) > ae: ££. &. =

United States v. Robel, 389

U.S. 258 (1967). . - . a = =

Village of Belle Terre v.

Boraas, 416 U.S. 1 (1973). .

Vlandis v. Kline, 412 U.S. 441

18,

(1973) . a: 2 a aS eS a 20, 21,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

INEZ MOORE,

Appellant,

Vv.

CITY OF EAST CLEVELAND, OHIO,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF OHIO

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU OF GREATER CLEVELAND,

AMICI CURIAE

INTEREST OF AMICI CURIAE

Leave to file a brief amicus curiae

was granted the American Civil Liberties

Union by order of the Court on June 21, 1976.

The American Civil Liberties Union

files this brief to establish that the

Ordinances of the City of East Cleveland

at issue in this case, which prohibit the

appellant from living in the same home with all

of her grandchildren, are unconstitutional.

We believe the ordinances infringe fundamen-

tal rights in violation of the Equal Protec-

tion and Due Process Clauses of the Fourteenth

Amendment to the United States Constitution.

ORDINANCES INVOLVED

§1351.02 LIMITATION ON OCCUPANCY

The occupancy of any dwelling unit

shall be limited to one, and only one,

family and to any authorized persons occu-

pying such dwelling unit with such family.

§1341.08 FAMILY

Family means a number of individuals

related to the nominal head of the house-

hold or to the spouse of the nominal head

of the household living as a single house-

keeping unit ir 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 unmarried children have

no children residing with them.

head of the household or of the spouse of

the nominal head of the household.

(ad) 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 children of such dependent child.

For the purpose of this subsection, a depen-

dent person is one who has more than fifty

percent of his total support furnished for

him by the nominal head of the household

and the spouse of the nominal head of the

household,

(e) a family may consist on one indi-

vidual.

STATEMENT OF FACTS

The violation of the ordinances arises

from the fact that appellant's home is

occupied by herself, her elder son, his

son, her younger son, and his son, John

Moore, Jr., now ten years old. Under

§1341.08(d), “family” is defined to exclude

appellant's ten-year-old grandson. Appel-

lant was convicted and sentenced to five

days in jail and fined $25.00.

SUMMARY OF ARGUMENT

The effect of Appellee's ordinance

§1341.08, operating in conjunction with

§1351.02, is to deny Appellant and her

family the right to live in East Cleveland,

Her right to determine basic family rela-

tionships and her rights of association and

privacy in the family context are arbitrar-

ily infringed by Appellee's ordinance

despite the fact that this deprivation of

fundamental rights is not necessary to

promote any compelling interest of East

Cleveland. This lack of relationship be-

tween the purposes asserted for the ordi-

nance and the means chosen to further such

purposes in itself is sufficient to consti-

tute a violation of Equal Protection, but

the ordinance is further flawed by its

failure to draw its classification in such

a way as to minimize intrusion on constitu-

tionally protected rights. Even under the

lesser degree of scrutiny applied to statutes

not affecting fundamental rights the ordi-

nance in issue here violates the Equal Pro-

tection clause because the classification

it creates does not bear a reasonable

relationship to the asserted purposes.

In addition to these Equal Protection

violations, the ordinance fails to meet the

requirements of the Due Process Clause.

The right to free choice in matters of

family life, the right to privacy in the

family context and the right of free asso-

ciation are all protected "liberties" under

the Due Process Clause, and the lack of

relationship between the means and asserted

ends of the ordinance alone renders it

unconstitutional. A further Due Process

violation is found in the failure to choose

the means which least affect fundamental

liberties, as the ordinance deprives many

families of their protected rights despite

the fact that they do not contribute to the

problems it attempts to control. Yet a

conclusive presumption is raised that any

family units outside the restrictive defi-

nition of "family" necessarily contribute

to the problems of overcrowding of the

schools and traffic congestion; such presump~-

tions violate Due Process for their arbitrary

deprivation of personal liberties.

Thus Appellee's ordinance §1341.08 is

unconstituional for its violation of both

the Equal Protection and Due Process Clauses

and should be held void,

ARGUMENT

I. EAST CLEVELAND'S ORDINANCE DENIES

APPELLANT EQUAL PROTECTION OF THE LAWS.

The effect of East Cleveland ordinance

$1341.08 is to deny the hoore family, which

has adopted its living arrangement out of

necessity, the right to live in East Cleve-

land, This ordinance infringes fundamental

rights but is not necessary to promote a

compelling governmental interest and thus

violates the Equal Protection Clause.

A. The Fundamental Natur f the ht

Asserted by Appellant Prohibits

Appellee From Infringing Such Right

Without a Compelli vernmental

Interest.

There are special constitutional pro-

tections afforded the family:

The Court has frequently emphasized

the importance of the family. The rights

to conceive and to raise one's children

have been deemed "essential, " Meyer v.

Nebraska, 262 U.S. 390,399 (1923), “basic

civil rights of man," Skinner v.

Oklahoma, 316 U.S. 528, 533 (1953).

"It is cardinal with us that the

custody, care and nurture of the child

reside first in the parents, whose

primary function and freedom include

preparation for obligations the state

can neither supply nor hinder." prince

v. Massachusetts, 321 U.S. 158, 166

(1944). The integrity of the family

unit has found protection in the Due

Process Clause of the Fourteenth

Amendment, Meyer v. Nebraska, supra,

at 399, the Equal Protection Clause of

the Fourteenth Amendment, Skinner v.

Oklahoma, supra, at 541, and the Ninth

Amendment, Griswold v Connecticut,

381 U.S. 479, 496 (1965) (Goldberg, J.,

concurring).

Nor has the law refused to recognize

those family relationships unlegiti-

mized by a marriage ceremony. . . "To

say that the test of equal protection

should be the 'legal' rather than the

biological relationship is to avoid

the issue. For the Equal Protection

Clause necessarily limits the authority

of a State to draw such ‘legal’ lines

as it chooses." Glona v. American

Guarantee Co., 391 U.S. 73, 76-76

(1968). Stanley v. Illinois, 405 U.S.

645, pp. 651-652 (1972)

Thus the fact that Appellant's family

is not an average nuclear family with a

mother, father and children does not mean

that the Constitutional protection afforded

her is any the less. Yet the interest

asserted by Mrs. Moore in this case is not

simply the importance of the right to main-

tain her family unit. Her interest encom-

passes the right to pursue one's private

interests and to associate freely with others

in so doing, a right which has been held to

7 nnn protected by the Fourteenth

endment, N.A.A.C.P. v. Alabama, 357 U.S.

449 (1958); this right should be especially

protected in the family context. The right

to privacy, emanating from several fundamen-

tal constitutional guarantees, has been

upheld in various contexts but especially

in situations bearing on family lifestyle

and relationships, “a right of privacy older

than the Bill of Rights," Griswold v.

Connecticut, 381 U.S. 479, 486 (1965). In

Stanley v. Georgia, 394 U.S. 557, 564 (1969),

the Court said:

[A]Jlso fundamental is the right to

be free, except in very limited circum-

stances, from unwanted governmental

intrusions into one's privacy.

"The makers of our Constitution

undertook to secure conditions favor-

able to the pursuit of happiness.

- « »« They conferred, as against the

Government, the right to be let alone

--the most comprehensive of rights

and the right most valued by civilized

man." Olmstead v. United States, 277

U.S. 438, 478 (1928) (Brandeis, J.,

dissenting).

Because of the fundamental aature of

the interest which is infringed by Appellee's

ordinance, "any classification which serves

to penalize the exercise of that right,

unless shown to be necessary to promote a

compelling governmental interest, is uncon-

stitutional.” Shapiro v. Thompson, 394 U.S.

618, 634 (1969). The asserted purposes of

§1341.08--prevention of overcrowding, of

burdening the schools and of traffic conges-

tion--do not rise to the level of compelling

interests.

Further, in this case the lack of

direct relationship between the households

excluded by §1341.08 and the evils the

ordinance seeks to reduce is sufficient to

render this ordinance unconstitutional, as

the means are not necessary to promote the

interests asserted by Appellee, whether or

not such interests are compelling.

Yet even if a compelling interest fur-

thered by East Cleveland's ordinance could

be shown, such an interest alone is not

sufficient to sustain the ordinance if the

means chosen to protect that interest

unnecessarily infringe protected freedoms.

In scrutinizing durational residence re-

quirements imposed on voting rights in Dunn

v. Blumstein, 405 U.S. 330, 343 (1972), the

Court stated:

It is not sufficient for the state

to show that durational residence re-

quirements further a very substantial

state interest. In pursuing the

important interest, the State cannot

choose means that unnecessarily burden

or restrict constitutionally protected

activity. Statutes affecting consti-

tutional rights must be drawn with

"precision," NAACP v. Button, 371 U.S.

415, 438 (1963); United States v. Robel,

389 U.S. 258, 265 (1967), and must be

"tailored" to serve their legitimate

objectives. Shapiro v. Thompson supra

at 631. And if there are other,

reasonable ways to achieve those goals

with a lesser burden on constitutionally

protected activity, a State may not

choose the way of greater interference,

If it acts at all, it must choose "less

drastic means." Shelton v. Tucker, 364

U.S. 479, 488 (1960).

The exclusion of many family units

which would not contribute to the problems

§1341.08 is intended to control renders the

ordinance unconstitutional for its failure

to employ the least intrusive means avail-

able. A more precisely drawn ordinance

would avoid the infirmity of unnecessarily

infringing the constitutional rights of

those families who do not contribute to the

problems the statute seeks to avoid. But

the ordinance as it stands violates the

Equal Protection Clause of the Fourteenth

Amendment and is unconstitutional.

B. Even If Less Rigorous Scrutiny Is

Applied the Means Chosen by

Appellee Are Not Reasonably Related

to the Purposes of the Ordinance

and Violate the Equal Protection

Clause.

The arbitrary nature of this ordinance

is so apparent that even if the less rigor-

ous, rational relationship test were applied

it would be found to be unconstitutional.

In assessing a statutory preference for male

estate administrators where competing appli-

cations have been filed by both male and

female members of the same entitlement class,

the Court in Reed v. Reed, 404 U.S. 71, 75-

76 (1971), described the applicable test as

follows:

The Equal Protection Clause of that

amendmert does, however, deny to States

the power to legislate that different

treatment be accorded to persons placed

by a statute into different classes on

the basis of criteria wholly unrelated

to the objective of that statute. A

Classification "must be reasonable, not

arbitrary, and must rest upon some

ground of difference having a fair and

substantial relation to the object of

the legislation, so that all persons

similarly circumstanced shall be treated

alike." Royster Guano Co. v. Virginia,

253 U.S. 412, 415 (1920).

The Court there held that to give a

mandatory preference to members of either

sex simply for the purpose of eliminating

hearings on the merits was precisely the

arbitrary legislative choice forbidden by

the Equal Protection Clause. The classifi-

cation embodied in East Cleveland's ordinance

is no less arbitrary, and the means by which

Appellee has chosen to further the purposes

which it alleges are the basis for this

ordinance are not fairly and substantially

related to those purposes. The interests

of the community in preventing excessive

traffic problems and overcrowding of the

schools, while legitimate. are not directly

furthered by this ordinance, which is

totally void of any reference to the number

of persons living in any one dwelling but

is instead based solely on the relationship

of those persons and as such is an invidious

discrimination against legitimate family

relationships.

The Court relied on the Reed v. Reed

formulation of the rational relationship

test in Village of Belle Terre v. Boraas,

416 U.S. 1 (1973), to uphold a village

ordinance which restricted land use to one-

family dwellings and defined "family" to

include one or more persons related by

blood, adoption or marriage, or not more

than two unrelated persons living as a

housekeeping unit. The ordinance in ques-

tion precluded large groups of unrelated

persons from living as units in a family

residential area, which would have upset

the family orientation of the neighborhood.

In contrast to Belle Terre's attempt to

limit living units to a family of related

members or an unmarried couple, the East

Cleveland ordinance at issue here attempts

to delimit what constitutes a family

within the confines of blood relationships,

resulting in an arbitrarily drawn line.

Further, because of Appellant's family

relationships she has constitutionally pro-

tected rights not available to unrelated

persons who group together for convenience,

such as her rights of association and

privacy in determining her family relation-

ships. That the critical importance of

family values is particularly relevant in

the context of zoning was recognized by the

Court in Village of Belle Terre v. Boraas,

supra, at 9, which is based largely on the

value of providing neighborhoods conducive

to family life:

A quiet place where yards are wide,

people few, and motor vehicles restricted

are legitimate guidelines in a land-use

project addressed to family needs. This

goal is a permissible one within Berman

v. Parker, supra. The police power is

not confined to elimination of filth,

stench, and unhealthy places. It is

ample to lay out zones where family

values, youth values, and the blessings

of quiet seclusion and clean air make

the area a sanctuary for people.

Given the critical nature of the interest

asserted by Appellant in this case, an

interest which this Court has consistently

protected, the lack of any reasonable rela-

tionship between East Cleveland ordinance

§1341.08 and the goals it seeks to fulfill

creates a particularly invidious form of dis-

crimination and it should be held unconstitu-

tional for violation of the Equal Protection

Clause.

II. THE EAST CLEVELAND ORDINANCE VIOLATES

THE DUE PROCESS REQUIREMENTS OF THE

FOURTEENTH AMENDMENT

Appellant's protected freedom to exer-

cise her personal choice as to which family

members she will reside with, her freedom

of association and of privacy in the context

of her own home, have been denied by East

Cleveland's ordinance in violation of the

protection afforded Appellant by the Due

Process Clause of the Fourteenth Amendment.

The necessary relationship between legiti-

mate governmental goals and the means chosen

to further such goals is missing from this

statute, and the further failure to tailor

the ordinance so as to minimize infringement

on protected freedoms renders the statute

unconstitutional. Further, the ordinance

sets up an irrebuttable presumption, a legis-

lative approach which has long been disfavored

under the Due Process Clause.

A. The East Cleveland Ordinance Fails

to Comply with the Fundamental

Requirements of Due Process

The Due Process Clause of che Fourteenth

Amendment prohibits the state from depriving

any person of life, liberty or property with-

out due process of law. In defining this

protected liberty, the Court has said:

Without doubt, it denotes not merely

freedom from bodily restraint but also

the right of the individual to con-

tract, to engage in any of the common

occupations of life, to acquire useful

knowledge, to marry, establish a home

and bring up children, to worship God

according to the dictates of his own

conscience, and generally to enjoy

those privileges long recognized at

common law as essential to the orderly

pursuit of happiness by free men.

- « « The established doctrine is that

this liberty may not be interfered with,

under the guise of protecting the

public interest, by legislative action

which is arbitrary or without reason-

able relation to some purpose within

the competency of the State to effect.

Meyer v. Nebraska, 262 U.S. 390, 399-

400 (1923)

The basic rights asserted by Appellant

in this case are her rights to free associ-

ation and to privacy, in the very special

context of family life. It is “beyond |

debate” that freedom of association is "an

inseparable aspect of the ‘'liberty'" pro-

tected by the Due Process Clause, N.A.A.C.P.

v. Alabama, 357 U.S. 449, 460 (1958). The

Court has also stated that the right of

privacy is “founded in the Fourteenth Amend-

ment's concept of personal liberty and re-

strictions on state action..." Roe v.

Wade, 410 U.S. 113, 153 (1973). Such rights

become even more crucial when placed in the

family context, the importance of which is

such that this Court has determined that

the right to free choice in family matters

is itself a due process protected liberty.

In Cleveland Board of Education v. LaFleur,

414 U.S. 632, 639-640 (1974), the Court

said:

This Court has long recognized that

freedom of personal choice in matters

of marriage and family life is one of

the liberties protected by the Due

Process Clause of the Fourteenth

Amendment. Roe v. Wade, 410 U.S. 113;

Loving v. Virginia, 388 U.S. l, 12;

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

Pierce v. Society of Sisters, 208 U.S.

510; Meyer v. Nebraska, 262 U.S. 390.