# Amicus Brief — Moore v. East Cleveland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0209%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1977 - **Citation:** 431 U.S. 494 ## Text ay 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. . 10 ii 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 14 14 (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, 7, (1973) . a: 2 a aS eS a 20, 21, 18 19 22 10 13 22 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. (c) father or mother of the nominal 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- 10 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. 1l 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 12 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 13 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. 14 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- 15 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 16 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. See also Prince v. Massachusetts, 321 U.S. 158; Skinner v. Oklahoma, 316 U.S. 535. Appellant seeks to protect her right to determine basic family relationships and living arrangements on the basis of the needs of family members as opposed to an arbitrary definition of "family" imposed by the City of East Cleveland, as well as her broad rights to free association and privacy within the home. Any one of these rights in itself would be sufficient to invoke the protection of the Due Process Ciause. Yet this ordinance fails to meet the criteria of due process. As the Court stated in Meyer v. Nebraska, quoted supra, Due Process requires that where protected liberty is interfered with legislative action may not be arbitrary 17 or without reasonable relationship to a purpose within the competence of the state to effect. Thus as in Bates v. Little Rock, 361 U.S. 516 (1960), where the Court held that occupational tax license ordi- nances requiring local branches of the N.A.A.C.P. to disclose membership lists interfered with members’ freedom of associ- ation and violated the Due Process require- ments, the legitimacy of the goals sought to be furthered by the ordinances does not end the Due Process inquiry (361 U.S. at 524-25): It cannot be questioned that the governmental purpose upon which the municipalities rely is a fundamental one. . . But governmental action does not auotmatically become reasonably related to the achievement of a legit- imate and substantial governmental purpose by mere assertion in the pre- amble of an ordinance. When it is shown that state action threatens significantly to impinge upon constitu- tionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification. Similarly in the present case the goals this ordinance is claimed to further may well be legitimate; however there is no reasonable relation between the means chosen and the ends they are intended to advance, 18 The means utilized here, a restrictive and unrealistic attempt to define what a family is, bear no relationship to the cited pur- poses of the East Cleveland oruinance, which generally relate to overcrowding, traffic congestion, undue burdens on the school system and community character. The Classification drawn by the ordinance is unrelated to the number of persons that can be included in a family unit although the influences the ordinance seeks to con- trol are basically a factor of numbers. The operation of this ordinance precludes families which are smaller than the number for which their dwelling is zoned, thus necessarily excluding families whose presence neither creates nor contributes to the evils sought to be controlled. This fatal over- breadth in the ordinance indicates the lack of reasonable relationship between Appellee's goals and the chosen means for carrying them out. The lack of reasonable relationship, which is more fully discussed in Appellant's Brief, controverts due process requirements and renders the ordinance unconstitutional, The overinclusiveness of the category of families excluded from the ordinance is fatal on another Due Process ground: even where a governmental purpose is legitimate and substantial it cannot be pursued by ~ means that broadly stifle fundamental liber- ties when the same ends can be more narrowly achieved. Shelton v. Tucker, 364 U.S. 479 (1960) ; Kusper v. Pontikes, 414 U.S. 51 (1973). 19 The Court in Shelton v. Tucker found that the state had a valid interest in inquiring into the competence and fitness of its teachers but that requiring each ‘teacher to file annually an affidavit list- ing without limitation every organization to which he belonged or contributed in the past five years was an unnecessarily broad interference with a teacher's associational freedom. Similarly the East Cleveland ordinance is an unnecessarily expansive interference with Appellant's rights to free association, privacy and to determine her family life, for while some of the groups excluded from the statutory defini- tion of family might contribute to the problems which the ordinance attempts to control it indiscriminately outlaws many family groups that would no more contribute to such problems than those families which fall within the statutory definition. The ordinance thus violates the Due Process Clause in two ways: the means chosen have no relationship to the legitimate ends, and the ordinance is not drawn so as to minimize infringement on constitutionally protected freedoms. 20 Appellee asserts that the purposes served by §1341.08's restrictive definition of "family" are the prevention of overcrowd- ing, burdening the school system and traffic congestion. Families which do not fall within the definition have no opportunity to show that their presence in East Cleve- land will not contribute to these problems; thus the ordinance raises a conclusive pre- sumption that such family units will con- tribute to such problems, a presumption which violates Due Process mandates, ° "Statutes creating irrebuttable pre- sumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments." Vlandis v. Kline, 412 U.S. 441, 446 (1973). This Court in that case declared unconstitutional under the Due Process Clause a Connecticut statute creating an irrebuttable presump- tion of non-residence for purposes of qualifying for reduced tuition rates at a state university, noting (412 U.S. at 452): [I]t is forbidden by the Due Process Clause to deny an individual the resi- dent rates on the basis of a permanent and irrebuttable presumption of non- residence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination, Similarly in Cleveland Board of Educa- tion v. LaFleur, supra, the Court held 21 unconstitutional mandatory maternity leave rules which created a conclusive presumption that a teacher who is four or five months pregnant becomes physically unable to con- tinue her duties (414 U.S. at 644): The mandatory termination provisions of the Cleveland and Chesterfield County rules surely operate to insulate the classroom from the presence of potentially incapacitated pregnant teachers. But the question is whether the rules sweep too broadly. See Shelton v. Tucker, 364 U.S. 479. That question must be answered in the affirmative, for the provisions amount to a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physic- ally incapable of continuing. There is no individualized determination by the teacher's doctor--or the school board's--as to any particular teacher's ability to continue at her job. The rules contain an irrebuttable presump- tion of physical incompetency, and that presumption applies even when the medical evidence as to an individual woman's physical status might be wholly to the contrary. The Court relied on the language of Vlandis v. Kline, supra, in finding the conclusive presumption not necessarily or universally true in finding the rules violative of Due Process, Similarly in 22 the present case the irrebuttable presump- tion raised by the East Cleveland ordinance is not universally true, and as in both Vilandis v. Kline and Cleveland Board of Education v. LaFleur there are reasonable alternative means of making the crucial determination. Investigation as to the number of persons in a household, the number of school age children and cars, could easily be made, and in fact such investiga- tions are undoubtedly already carried on to insure that certain other zoning provi- sions, such as those regulating maximum number of person who can inhabit one dwel- ling, are complied with. While it might be argued that such investigations would be an administrative burden on the city, such inconvenience is not sufficient to justify the unconstitutionality of a conclusive presumption. In Stanley v. Illinois, 405 U.S. 645 (1972), the Court held unconsti- tutional Illinois' procedure which conclu- sively presumed unwed fathers to be unfit parents, and stated (405 U.S. at 656-657): Despite Bell and Carrington, it may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconven- ience of inquiry in any case, includ- ing Stanley's. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cog- nizance in constitutional adjudica- tion. But the Constitution recognizes 23 higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the over- bearing concern for efficiency and efficacy that may characterize praise- worthy government officials no less, and prehaps more than mediocre ones. Procedure by presumption is always cheaper and easier than individualized determination, But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand. Thus in addition to the basic failure of Appellee to tailor the ordinance to Due Process requirements, the unnecessary use of an inaccurate conclusive presumption allowing no opportunity for rebuttal in- fringes upon Appellant's freedoms as pro- tected by the Due Process Clause, rendering the ordinance unconstitutional. CONCLUSION The lack of any relationship between the asserted purposes of East Cleveland 24 §1341.08 and the classification it utilizes and the unnecessary infringement on consti- tutionally protected rights of those whose presence does not contribute to the problems the ordinance seeks to control constitute basic violations of Equal Protection, under either formulation of the applicable tests that have been applied by this Court, and further violations of Due Process require- ments, For these reasons, East Cleveland Ordinance §1341.08 should be held to be unconstitutional and void, Respectfully submitted, DAVID L. GENGER LINDA M. PISTNER DAVID B. HOPKINS 1144 Union Commerce Bldg. Cleveland, Ohio 44115 MELVIN L. WULF American Civil Liberties Union 22 East 40th Street New York, New York 10016 BENJAMIN SHEERER 33 Public Square Cleveland, Ohio 44113 Attorneys for ic r July 6, 1976 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0209%3A7. Public record. Not legal advice.