i'o: The Ch1 ~~~t~ Mr. Juc Mr. Jm Wh~.,e

Mr. Jus , LC(\ Ha"'shall Mr. Just lee Bl wkmu.n

a..-tiG . J U.J ti CE P)WE\11

Mr. Just i r'P R 1-J.qtulst Mr. Juot.!.ce St )V ms

From: Mr. J· n+·~~ Jrennan

Circulated: -V.¢'..2 _

J n<•z Moon•. :\p]l<'llnnt.

v. City of EaHt Clc•vc•lcllld. Ohio.

On Appeal from the Supreme Court of Ohio.

lFcbruary ~, 1977]

.\ln. Jn;'l'lCE Bm~NNAK, dissenting .

Hcaction to this d0cision must be Oil(' of shockrd disbelit•f. Tlw Court holds that tlw Constitution is pov.:erless to prevent En-;t ( 'h•vchuHI fro1n Jn·osccutilll! as a criminal and jailing a ()!1-ycar-old graJHinwtlwr for rdt1sing to expel front hc•r lwllll' h<'r now lO-y0ar-old grandson who has lived with and b('('ll

brought up hy her sinc0 hie:; moth0r's death whe n lw was less than OJH' y0ar old.' The grandmoth<~r is blaek. and was \\'irlowC'd in Hl5X with SC'ven children to care for. flllws::; forced her to quit work and slw novv lives on Social Security." ll<'l' t\\'o so ns, Dah· and .John. and her t\\'O grandsons. Dale. Jr .. age 5 and John. Jr .. age 10. haw l>C'c'n living \\'ith h<'r in IH•r mod0st house. ·'

1 ( 'uriou>'i~·. i hr Coml nmvhnl' mrnl ion~ that 1 hi~ i~ :1 niminal pro~l'-

c·tllion whi('h rc•-tilt<'d in lht• n;rnndmotlwr'~ t·onvir•tion nnd ~<'lll<'lll't' to pri~on and :1 fitH'. Sl'l'lion J:~.J-5.\-19 pt·rmil~ impri::;onrnrut of up to ~ix

lllOnth~. ;tnd n fint• of ll]l to ::)1000. for ,·iolation of an~· provi~ion of thl· Hou~ing ( 'odt·. Ea!'h daY sueh v iol:! I ion t·onl in Il l'." ma~·. b~· tht· tt·nn~ of 1hi~ st•('tionl\·ml"lilulr :1 ~r·paralf' ofJ'pn"~' ·

"SPl' Tlw Plain D<'nl<'r (( 'lt'\Tiand). :\o1· .. "l. J\!71\, al A-l. C'ol. 1. "Tlw Cuurl mi." l<il((•nJy n""<'rls. p. ti n. 'i. th;il tiH·n• i." " nothing in tlw

rr·l'onl 10 indi r:ltt• lh ·il tlw .ppl'llant ha" nn~· hand in IIH' ltphringing- of hl'r gr:indt·ltildn•n. :llld i1 is thtl~ unn<'<'r'"'ar~· to ~pt•r·tiiHil' about thl' rx tPnl In 11·hir·h t·a .. «'" "urh : 1~ l'icrce , .. Sr!l'iety of .'iislers ... and Jft•yr·r \. Nebraska . . might in lhat l'Vt'nl lw n·ll'vant." Tlw opC'ning paragraph of apjwllant'..- hrid " I all'' 1 hat ..-lw h:1,; "rHi"l'd lwr gmndson in hC'r own lwnw "illt'l' thl' dt·a lh of thl ' (' hild'~ mothl'r in HJ(ji , wht·n I hl'[ w ;t,.:

. .,

75-6289-DISSENT (A)

2 MOORE v. EAST CLEVELAND

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), the case primarily relied upon by the Court, is, if relevant at all, an authority against the Court's decision. The Belle Terre ordi­nance barred only unrelated individuals from constituting a family in a single-family zone. The Village took special care in its brief to emphasize that its ordinance did not in any manner inhibit the choice of related individuals to constitute a family, whether in the "nuclear" or "extended" form. This was because the Village perceived that choice as one it was constitutionally powerless to dictate. Its brief, p. 29, stated: "Whether it be the extended family of a more leisurely age or the nuclear family of today the role of the family in raising and training successive generations of the species makes it more important, we dare say, than any other social or legal institution . . . . If a.ny freedom not specifica.lly mentioned in the Bill of Rj~ts enjoys a 'preferred position' in the law it js most certainly the family" (emphasis supplied). AI do not fl question that a municipality may constitutionally zone to prohibit groups of unrelated individuals from constituting a family. I cannot accept the conclusion of the Court, how-ever, that a municipality may constitutionally define "family" as essentally confined to parents and the parents' own chil­dren.' In his dissent, which I join, my Brother PoWELL

lro;s than a year old." In addition, we were informed by appellant'H counsrl at oral argument that,

"application of thi::; ordinance here would not only sever and di~rupt the rrhtion :;hip betwern Mrs. ;'vfoorr and her own ;;on , but it would disrupt the relationship that is r;;tabli~h ed bet ween .' ·oung John and ~·otmg Dalr , which i ~ in r~-;sencr a sibling-typr relatiom;hip, and it would mo;;t importantly disrupt the re l nt ion ~hip brtwe2n ~·otmg .John and his grand­mothr r . which i ~ thr on!~· matrrnal influrnce that hr has h:ul during hi;; rntirr life" Tr. of Oral Arg., at 16.

Thr city did not disputr th e~c· repre:srntat ions, and it is clear that this ra:-;r wa~; argurd from thr outsrt as requiring drrision in thi::; contrxt.

1 Thr East Clevrlnnd ordinance drfinrs ·'fHmily " to include, in addition to thr :;pousr of the "nominal hPa cl of the household," tlw coupiP's child­](',;;:; unmarried children , but only one dC'pendcnt child (mnrricd or un-

75-6389-DISSENT (A)

MOORE v. EAST CLEVELAND 3

conclusively demonstrates that classifying family patterns in this eccentric way is not a rational means for achieving the ends East Cleveland claims for its ordinance, and further that the ordinance unconstitutionally abridges the "freedom of personal choice in matters of family life [that] is one of the liberties })rotected by the Due Process Clause of the Four­teenth Amendment." Cleveland Boar·d of Education v. LaFleur, 414 U. S. 632, 639-640 (1974). I write only to underscore the complete cultural myopia of that arbitra.ry boundary in the light of the tradition of the American house­hold that has been a feature of our society since our begin­nings as a Nation-the "tradition" in my Brother PowELL's words, "of uncles, aunts, cousins and especially grandparents sharing a household along with parents and children .... " Post, p. 7. The Court's characterization of this grand­mother's family arrangement as nothing more than that of "permanently sharing a single kitchen and a suite of contig­uous rooms," ante, at 7, displays a depressing insensitivity ahout the human condition of a very large part of our society.

In today's America. the "nuclear family" is the pattern often found in much of white suburbia. Sanden, Sociology: A Systematic Approach, p. 320 (1965). But the "extended family" that provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the beachhead for successive waves of immigrants who populated our cities,~ remains not merely

ma.rriC'd) having dependent children, nnd one parent of the nominal head of thC' housPhold or of his or her spouse. Thus an "extended family" is authorized in only the most limited sense, and "family" is essentially con­finPd to parents and thPir own children. Appellant grandmother was rhargrd with violat.ing the ordinance because she brought .John, .Jr., to live with her at. the same time her other grandson, Dale, .Jr., was a.!so living in the home; the latter is classified as an "unlicensed roomer" authorized by the ordinance to live in the house.

5 See Report. of thC' National Advisor~· Commission on Civil Disorders, '278-281 (1968); Kosa and Nash, Social Accent of Catholics, 8 Social

75-6289-DISSENT (A)

4 MOORE v. EAST CLEVELAND

still a pervasive living pattern, but under the goad of brutal economic necessity, a prominent pattern-virtually a means of survival-for large numbers of the poor and deprived minori­ties of our society. For them compelled pooling of scant resources requires compelled sharing of a household.0

Black families like the one in this case especially assume the "extended" form} We may suppose that this reflects the

Order, 98-103 (1958) ; M. Novak, The Ri~e of the Unmeltable Ethnics, 300 (1973); B. Yorburg, The Changing Family, 106-109 (1973); Kosa, Rachiele and Schomme, Sharing the Home with Relative~, 22 Marriage und Family Living, 129 (1960) .

6 See, e. g., H. Cans, The Urban Villagers, 45-73, 245-249 (1962). "Perhaps the most important-or at. least the most visible--difference

between the classes is one of family structure. The wo1'king class sub­cultu1'e is distinguished by the dominant role of the family circle.

"The specific charact.eristics of the family circle may differ widely­from the collateral peer group form of the West Enders, to the hierarchial type of the Irish , or to the cla;;sical three-generation extended family .... What. matters most-and distinguishes this subculture from oth<>rs-is that t.here be a family circle which is wider than the nuclear family, and that all of the opportunities, temptations, and pressures of the larger society be evaluated in t{'>rms of how they affect the ongoing way of life that has been built around this circle." !d., at 244-245 (emphasi;; in original).

7 Yorburg, supm, n. 3, p. 108: "Within the balck lower class it has been quite common for several generations, or parts of the kin, to live together under one roof. Often n. maternal grandmother is the acknowledged head of this type of household which has given rise to the term 'matrifocal' to describe lowrr-class black family ]Xttterns." J. Scanzoni, Thr Black Family in Modern Society, 1:34 ( 1971) ; See abo Ander ·on, The Pains and Pleasures of Old Black Folb, Ebon~· March 1973, 128-130. See generally E. Frazier, Tlw Negro Family in the United States (1939) ; Lewis, The Changing Negro Fnmily, in I. Gin~berg, Thr Nation's Children (1960).

The rxtendrd fnmily often pla~·s an important role in the rearing of young black rhildrrn whose parrnts must work. ~any such children fre­(jttentl~· "spend all their growing-up ~·ra rs in the carr of extended kin .... Often rbildrrn arr 'givrn ' to their grand parent;; , who rear thrm to adulthood . ... Many rhildrrn normally grow up in a threr-generation housrhold and they absorb the influrnces of thr grandmother and grand-

75-G289-i)1SSENT (A)

MOORE v. EAST CLEVELAND 5

truism that black citizens. like generations of white immi~ grants before them, have been victims of economic and other disadvantages that worsen if they are compelled to abandon extended for nuclear living patterns.s Even in husband and wife households, 13%- of black families compared with 3)/a of white families include relatives under 18. in addition to the couple's own children." ln black households whose head is an elderly woman. as in this case, the contrast is even more striking: 48% of such black households, compared with 10%) of counterpa.rt white households, include related minor chil­dren not offspring of the head of the household. 10

father as wrll as mother :md fnther." .J. Ladnrr, Tomorrow's Tomorrow: Thl' Rinck Woman, 60 (1971). ~The extended family ha~ man~· ~trl'ngth:; not shared by the nuclear

f;1mil~r.

"Thr casr histories bl'hind mounting rates of dl'linqncncy, addiction. criml', neurotic disabilities, mental illness and srnility in socirtii'S in whir·h autonomous nucll'nr familirs prevail suggl'st th<lt frequent failurP to de­velop enduring famil~· tics is a. seriou~:; inadequacy for both individuals and socictie~." D. Blisten, The World of the Famil~·, 256 (1963).

Extl'nded familirs provide services and emotional support not always found in the nuclear family:

"fT]he troublc~ of the nuclear family in indnst.rial societies generally, nnd in Aml'rican ::;ocil'ty, particularly, stem largely from the inability of this type of family strnchtrl' to proYidc certain of the services performed in the pa::;t by thl' !'xtended family. Adequate health, educa.tion, and Wl'lfarc provision, particularly for the two non-productive generations in modern sorieti<'l>, the youn~ and the old, is increasingly an insurmountable problem for the nuclear family. The unrelieved and sometimes unbear­ably intl'nsc parent -child relationship. where child-bearing is not shared at least in p11rt b~· other::;, and the loncliness of nuclear family units, in­crC'ao>ingly turned in on themselve::; in contracted and relativcly isolated srttings. is anothcr major problem." Yorburg, S'Upra, n. 3, p. 194.

"R. Hill,. The Strength::; of Blark Familic:;, 5 (1971). 10 !d., 5-Ci. It i::< C'~timatccl that at lrast 26% of b1ack children livc in

othrr tJwn bu~band-wifC' fmniliC's, ·'including fostcr parents, the presence of other mnlc or fcm~tlr rclntiVC'~ (grandfnthcr or grandmother, older brother or ~istrr, uncle or il\lllt), ma.le or fcmalc nonrelatives, [or with] only one adult (usunll~· motlwr) prcRrnt. . . . .1. Scnnzoni , supra., 44.

--- - ----

75-62 9-DISSENT (A)

MOOHE v. EAST CLEVELAND

Thus the "extended family" pa.ttern of Jiving rema.ins a vital tenet of our society. especially among our black citizens.1 ~

Although appellants' brief. p. 38. implies an argument that the East Cleveland ordinance is racia.lly discriminatory. it suffices that the values traditionally associated with the "extended family" compellingly demonstrate that in prohibiting that pattern of family living as a means of achieving its objectives appellee city has chosen a device that deeply intrudes upon family associational rights that historically have been central, and today remain central, to a large proportion of our popula­tion. Indeed. today's decision is a particular reason for con­cern. for it may encourage enactment elsewhere of similar ordinances that effectively exclude blacks from single-family white neighborhoods, this because the prohibition of the "extended family" pattern may make such neighborhoods undesirable or out of the reach of black citizens.

Moreover, the Court's holding that East Cleveland may permissibly draw the family line at the arbitrary boundary chosen by it surely conflicts with prior decisions that pro­tected "extended" family relationships. For the "private realm of family life which the State cannot enter," recognized a~ protected in Prince v. Massachusetts, 321 U. S. 158. 166 (1944), was the relationship of aunt and niece. And in Pierce v. Society of Sisters, 268 U.S. 510,534-535 (1925). the protec­tion held to have been unconstitutionally abridgzd was "the liberty of parents and guardians to bring the upbringing and education of children under their control" (emphasis added). See also WisconS'in v. Yoder, 406 U. S. 205, 232-233 (1972). Those decisions recognized. as today's does not. that the choice of the "extended family" pattern is within the "freedom of personal choice in matters of family life [that] is one of the

11 ~ovak. The Ril"C' of tlw UnmC'Itt1blr Ethnir~. s·upra, n. :~; R. Hill, ThC' StrC'ngt.b~ of Black FamiliC's, supra, 5-fi; 1\". Glazer & D. Moynihan, lk~·oml the Melti11g Pot. 50-5:~ (:2cl C'cl. 1970); L. Rninwatrr & W. Yan­rC'y , The Mo~·nihan RC'port and thC' Politics of Controv<>rsy, 51-60 (1967).

75-62, !J-DISSENT (A)

l\IOORE v. EAST CLEVELAND 7. I

liberties protected by the Due Process Clause of the Fouli­teenth Amendment."

The Court states that "the variance procedure of East J

Cleveland's Building Cod<? a~s~.q~es special significance." A 11 te, at 9. We are assureq that this is not because this grandmother "was obligated to exhaust her administrativ~ remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protection Clause." /d., at 10. At least one obstacle to requiring exhaustion of course is Euclid v. Ambler Realty Co., :272 V. S. 365 ( 1926). the leading case in the zoning field, which expressly held that one attacking the constitutionality of a building or zoning code need not first seek a variance. /d., at 386.

Of course, the matter of a variance is irrelevant under my view that the municipality is constitutionally powerless to abridge the freedom of personal choice of related members of a family to live together. But even on the Court's own terms, the reliance on the variance procedure does not aid the Court's conclusions. The thrust of the Court's argument appears to be that the existence of the variance procedure serves to lessen either tl1P irrationality of the definition of "family" or the extent of its intrusion into family life-style decisions. This argurnent does not withstand analysis.

First. there is no basis for an inference-other than the city's self-serving statement that a hardship variance "pos­sibly with some stipulation(s) would probably have been granted"- that this grandmother would have obtained a vari­ance had she rf'quested one. Indeed, a contrary inference is more supportable. In deciding to prosecute her in the first place, the city tipped its hand how discretion would have been exercised. In any event, ~ 1311.02 limits the discretion of the Board of Building Code Appeals to grant variances to those which are "in harmony with the general intent of sud~ ordinance .. . .'' If the Court is correct that at least one of

75-!f289.....;,DTSSENT (A)

s MOORE v. EAST LEVELAND

the legitimate objectives of the definition of "family" was to preserve the single (nuclear) family character of East Cleveland, ante, at 8-9, then granting this grandmother a variance would be in excess of the Board's powers under the ordinance.

Furthermore, the very existence of the "escape hatch" of the variance procedure only heightens the irrationality of the restrictive definition, since application of the ordinance then depends upon which family units the zoning authorities seek to permit to reside together and whom the prosecuting authorities choose to prosecute. The Court's disposition of the analogous situation in Roe v. Wade, 410 U.S. 113 (1973), is instructive. There Texas argued that, despite a rigid and narrow statute 'prohibiting abortions except for the purpose of saving the mother's life, prosecuting authorities routinely tolerated elective abortion procedures in certa,in cases, such as nonconsensual pregnancies resulting from rape or incest. The Court was not persuaded that this saved the statute, THE CHIEF JusTICE commenting the "no one in these circum­stances should be placed in a posture of dependence on a prosecutorial policy or prosecutoria.l discretion." /d., at 208 (BuRGER, C. J., concurring.) Similarly, this grandmother cannot be denied the opportunity to defend this criminal prosecution because of a variance procedure that holds her family hostage to the vagaries of discretionary administrative decisions. Smith v. Cahoon, 283 U. S. 553, 562 (1931). We have now passed well beyond the day when illusory escape hatches could justify the imposition of burdens on funda­mental rights. Stanley v. Illinois, 405 U. S. 645, 647-649 ( 1972); Staub v. City of Baxley, 355 U. S. 313, 319 ( 1958).

Bronnan Stawart

e White _ ......... - laokmun

Powell Justioe Rehnquis17-

. Just1oe Stevens

lz'omo; Kr. Just1oe Karshal~J.I.

CUoulated: FEB 16 1977 1st DRAFrt'

SUPREME COURT OF THE UNITED STAT~oiroulated: ----==-

No, 75-6289

Inez Moore, Appellant, J l'\ IJ 'JI ~ ~ On Appeal from the Suprem('j ~ ~

. v. Court of Ohio. ·· ~ -j~ . ' 1 C1ty of East Cleveland, Ohio. · ~ v ~

[February -, 1977] J._

~-~~ MR. JusTICE MARSHALL, dissenting.

I agree entirely with the opinions of MR. JusTICE BRENNAN and MR. JusTICE PowELL. I would add just a few more words.

Only the most tortured reading and scholastic distinctions allow the Court today to read our earlier cases to enshrine the

J nuclear family as the only familial structure protected by the ..,. ~ _ ..... ~~. Constitution. I cannot agree that the norms of middle-class -~- -- suburban life set the standards of constitutional law forall

')41-,,; JJ. U • people at all times. For many in our society, particularly

L ~ among immigrant groups, the poor, and blacks, strong grand-

~d••..,.. . _.. .., parents have held families together and have been respon-~~ ,./.

1 sible for the education and upbringing of decent, law-abiding

'""- children. The personal decisions of individuals bound by family ties to live with each other should never be subject to

• state interference except to ensure basic health and safety standards. I have no doubt that to send an elderly grand-

~ mother to jail for the crime of raising her young grandsons ,\ violates fundamental rights "implicit in the concept of or-

~ • ... .lJu dered liberty." See Opinion of the Court, ante, p. 7. In-, ~ ~ .. - deed, I fear there would be little "ordered liberty" left in

-.,- •' ~ modern society were the majority's expansive acceptance of ~ _.,. state power and its truncated view of the family ultimately

,, to prevail. I dissent from the Court's blind repudiation of ~~some of the most fundamental values of our society,

~~ ~ ___.::..;.w~ ~

~~ ~ . .

~ ~ ~'

- j)Ov.r(_

•-v. ....... .J,. • va-o t,.;cu oJ:o-J. .U.la.u

Mr. Justice Stewart Mr. Justice White Ill'. Justice Marshall Kr. Justice Black~un Jlr. Justice Powell ' Mr. Justice Rehnquist Mr. Ju•t1oe Stav-ena

From: The Chief J~ltiOI

Ciroulated:MAR 1 11977 1st DRAF!f' . ~,

R~circulatedt --~---------

SUPREME COURT OF THE UNITED STAT~ ~ No. 75-6289 71 C

1 I fAA- • • 4 ..e~ ... .....c..c.-

Inez Moore, Appellant, I -:r_. . - . ~- - I On Appeal from the Sup~ ~

. v. Court of Ohio. ~~ iiJ..-oJ' ~ City of East Cleveland, Ohio. r--- -, - I

[March -, 1977]

MR. CHIEF JusTICE BuRGER, concurring in the judgment,

I concur in the judgment, but it is unnecessary for me to reach the cliffi,cult constitutional issue this case presents. For me, the deliberate refusal to make use of a plainly adequate administrative remedy should foreclose appellant from pres .. • ing a11y constitutional objections to the city's zoning ordinatH'(' in this Court. Considerations of federalism atld romity. · well as practical aspects of the limits of the capacity the frd~ eral courts,dictate this result. In courts, as in hos )itals for example, two bodies cannot occupy the same space at the flame time; when any case which could have been disposed of long ago at the local level comes here, it fills space some othee case might well have been given.

( 1)

ThP single-family zoning ordinances of the .,gjty of East Clrveland define the term "family" to include dfily tbr head of tlw household and his or her most intimate relatives, principally the spouse and unmarried and dependent chil­dren. Excluded from the definition of "family," and hence from cohabitation , are various persons related by blood or

,adoption to the head of the household. The obvious purpose of the City is the traditional one of preserving certain areas as family residential communities.

Tlw .£_ity has established a Board of Building Code Appeals to conS!uer variances from this facially stringent single-family limit whC'n necessary to alleviate "practical difficulties and un~

75-6289-co ~ cun

MOORE v. EAST CLEVELAND

necessary hardships" and "to secure the general welfare and [do] substantial justice .... " East Cleveland Housing Code § 1311.02. The Board has power to grant variances to "I a] ny person adversely affected by a decisiou of any City official made in the enforcement of any [zoningj ordinance,' ' so long as appeal is made to the Board within 10 days of notic<:' of tlw decision appealed from. East Cleveland Ordinance § 1311.03.

After appellant's receipt of the notice of violation. her lawyers made no effort to apply to the Board for a variance to exempt her from the restrictions of the ordinance, even though her situation appears on its face to present precisely the kind of "practical difficulties and unnecessary hardships" the vari­ance procedure was intended to accommodate. Any lawyer worth his salt surely could have made this showing to the Board and secured prompt relief. Appellant's counsel Joes not claim appellant was unaware of the right to go to the Board and seek a variance, or that any attempt was madP to secure relief by an application to the Board.' Indeed, appel­lant's counsel makes no cla.im that the failure to seek a vari­ance was due to anything other than a deliberate decision to forego tlw administrative process in favor of a judicial forum.

(2)

J n vie>v of appellant's deliberate bypass of the variancr procedure, and having gone to the state courts instead , tlw

1 Cm1n~r l for app<:>llant candid!~· admittPd at oral argunwnt that ' 'i\Jr~.

:\loon' did not ~erk a varianee in thi~ CH>iC'. WP contend that that is con~i it Itt ionall~· irrrlevant ." Tr. of Oral Arg. 20. Tlltl~, t hi~ wa,; nut an ltnpublieizcd admini::;tralivC' renwdy of which <~JlJH:'llanl r<>mninrd tmawnre nntil aftrr it hre<\mr una,·nilablr. Such a ca:;r would , of eour~<'. pr<·~pnf

ntatNi<lll~· diffrrent ronsidrratwn:-; . Cf. Lmnbl' rt v . Califomia, :355 U. t-l . :!:25 (HJ57) . T vPntun· a guP~H that thr glamor of making law in thP :-iuprenw Court of Oh1o--or m thi .~ Court- ovC'l'bore a ~ound jndgnwnt of how lw,.;t to g<'t r<:>ltef for :tppPihlllt in iiH· ,;hortf'st timr ancl with the It) \\' I'"( (' () ~ ( ,

75-()289-CO~C lilt

MOORE v. EAST CLEVELAND 3

question arises whether she should now be permitted to coul­plain of the unc0nstitutio11ality of the single-family ordinance as it applies to her. This Court has not yet required one in appellant's position to utilize state administrative remedies as a p.-<-requisite to obtaining federal relief; but experience hat· d0monstrated that such a requirement is imperative. I11 110

other way can we avoid having locally soluble cases take the place of cases in this Court in which no other adequate remedy is available. The doctrine requiring exhaustion of adminis­trative remedies is richly supported by cot~derations of fed­eralism and the necessities of the limited resources orne -courts.

A

The basis of the exhaustion doctrine was simply put in Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 50- 51 ( 1938), as

"the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted."

Exhaustion is simply one aspect of allocation of overtaxed judicial resources. Appellant wishes to use a residential prop­erty ill a manner at variance with a municipal housing code. That claim could have been swiftly and inexpensively adjudi­cated at the municipal level, without engaging cumbersome federal judicial machinery at the highest level." Of course, had appellant utilized the local administrative remedies and state judicial remedies to no avail, review in this Court would be available. The exhaustion principle asks simply that,

2 Exhau~tion doc~ not den~· or limit litigants' right to a federal forum "brcau:;e ~;tate admini~;trative 1gency determinations do not crN\te rr::; Judicata. or collatrral e::;toppel rffects. The exhau.>tion of statr adminis­trative rrmrdie~; postpone~; rathrr than prrrlud('S thr assrrtion of thr frdrral jurisdiction." Comment, Exhaustion of State Admini:strativ~

Remrdies in &ction 1983 C'a~r::;, 41 lJ. Chi. L. RPv. 537, 551 (1974).

f5-6289-CONCUH

4 MOORE v. EAST CLEVELAND

absent compelling circumstances-and none are claimf'cj here-the avenues of relief nearest and simplest should be pursued first. This Court should now make unmistakably clear that when state or local governments provide admin~ istrative remedial procedures, no federal forum will be open unless the claimant can show the remedy is inaarq uate or that resort to those remedies is futile.

Utilization of available administrative processps is mall" dated for a complex of reasons. Statutes sometimes provide administrative procedures as the exclusive remedy. Even apart from a statutory command, it is common sense to per~ mit the simple, speedy and inexpensive processes of the admin­istrative machinery to sift the facts and compile a completo record for the benefit of any reviewing courts. Exhaustion avoids interruption of the administrative process, and allows application of an agency's specialized experience and the broad discretion granted to local zoning entities. Indeed, judicial review may be seriously hampered if the appropriate a?;ency has no chance to apply its experience, exercise its discretion or make a factual record reflecting all aspects of the problem.

Most important, if administrative remedies are pursued, the citizen may win complete relief without needlessly in­voking judiciai process. This permits the parties to resolve their disputes by relatively informal means far less costly and time consuming than litigation. By requiring exhaustion of administrative processes the courts are assured of reviewing only final agency decisions arrived at after considered .i udgment. It also permits agencies an opportunity to correct their own mistakes or give discretionary relief short of judi­cial review. Consistent failure by courts to mandate utiliza­tion of administrative remedies-under the growing insistence of lawyers demanding broad judicial remedies- inevitably undermines admiuistrative effectiveness and defeats funda­mental public policy by encouraging "end runs" around the administrative process,

15-6289-CO OUR

MOORE v, EAST CLEVELAND

It is apparent without discussion that resort to the local apM , peals board in this case would have furthered these policies, particularly since the exercise of informed discretion and ex­perience by the proper agency is the essence of any housing code variance procedure. We ought not encourage lawyers seemingly more concerned with "causes" than cases or clients to bypass simple remedial process available at their doorstep in order to invoke expensive judicial machinery on matters capable of being resolved at local levels.

B The suggestion that exhaustion of administrative remedies

is not required on issues of constitutional law is not support­able. In one sense this argument is correct, since adminis­trative agencies have no power to decide questions of f<'dcral constitutional law. But no one has a right to a federal con­stitutional adjudication on an issue capable of being resolved on a less elevated plane. This Court has frequently re­manded cases for exhaustion "before a challenge can bf' made in a reviewing court of the constitutionality of the basic statute, on which the agency may not pass .... " K. David, Administrative Law Text 391 (3d ed. 1972). Indeed. exhaustion is often requirecl precisely because there are con­stitutional issues present in a case, in order to avoid unneces­sary adjudication of these delicate constitutional questions by giving the affected administrative agency an opportuuity to resolve the matter on nonconstitutional grounds. See Chris­tian v. New York Dept. of Labor, 414 U. S. 614 (1974); Public Utilities Cornrn'n of California v. United States, 355 U. S. 534, 539-540 (1958); Allen v. Grand Central Aircraft Co., 347 U. S. 535, 553 (1954): Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 766-767 (1947); Natural Gas Co. v. Slattery, 302 U. S. 300, 309-311 (1937) ; Fuchs, Pre­requisites to Judic;al Review of Administrative Agency Ac• tion, 51 Ind. L. J. 817, 883 ( 1976).

75-6289-CONCUR

fOORE v. EAST CLEVELAND

Of course, if administrative authority closes the door to relief, further exhaustion is pointless and judicial relief may be available. See We-inberger v. Salfi , 422 U. S. 749 (1975). But so long as favorable administra.tive action is available, the policies favoring exhaustion are 110t mitigated in the slightest by a claim of constitutional issue. Re(• Chistia;n, supra. To the extent that nouconstitutional decision is pos­.sible only at the administrative level, those policies are r·e­inforced. Plainly we have here precisely such a case. Ap­pearance before the local City Board would have provided an opportunity for complete relief without forcing a constitu­tional ruling. The posture of the constitutio11al issues in this case thus provides an additional reason supporting the exw haustion requirement.

c It is also said tha.t exhaustion is not required when to do

so would inflict irreparable injury on the litigant. ln the present case. as in others in which a constitutional clailll is asserted, injury is likely to include the "loss or destruction of substantive rights." In such a case, "the presence of con­stitutiollal questions. coupled with a sufficient showing of ill­adequacy of prescribed administrative relief and of threatened or impending irreparable injury flowing from delay ... has been held sufficient to dispense with exhausting the adminis­trative process before instituting judiciaJ intervention .'' Ai1·­craft & Diesel Equipment Corp., supra, at 773.

But there is every reason to require resort to administrative remedies "where the individual charged is to be ueprived of nothing until the completion of [the administrativr I pro­ceeding." Gibson v. Berryhill, 411 U. S. 564, 574- 575 (1973) (issue not decided); see Natural Gas Co., supra, at 309- 311; Schlesinger v. Councilman, 420 U. R. 738 (1975); Aircraft & Diesel Equipment Corp ., supra, at 773-774. The focus must be on the adequacy of the administrative remedy. 1f the desired relief may be obtained without undue burdens, .and if

I

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MOORE v. EAST CLEVELAND 7

~ubstantial rights are protected as the process moves forward, no harm is done by requiring the litigant to pursue and f'x­haust those remedies a before calling on the Constitution of the United States. To do otherwise trivializes constitutional adjudication.

In this case appellant need have surrendered no asserted constitutional rights in order to pursue the local administra­tive remedy. No reason appears why appellant could not have sought a variance as soon as notice of a claimed viola­tion was received, without altering the living arrangements in question. The notice of violation gave appellant 30 days within which to comply by seeking a variance; no criminal or civil sanctions could possibly have attached until expira­tion of that period.

Though timely invocation of the administrative rcnwdy would have had no effect on appellant's asserted rights. and would have inflicted no irreparable injury, the present avail­ability of such relief under the City ordinance is less clear. It is unrea.Iistic to expect a municipality to hold OJWn its

3 This analysis explain'l those cases in which this Court ha~ nllowNI per:;on::; ~ubject to claimed uncomtitutional rc::;triction,; on thrir fn·Pdum of <'XprPSsion to challrngc that rrstriction without first applying for n permit. which, if granted, would moot their claim. E. g., Hyne~ v. Mauo·r and Council of the Borough of Oradell, 425 U. S. 610 (1976); Shuttle~­worth v. City of Birmingham, 394 U. S. 147 (1969); Staub v. City of Baxley, 355 U. S. 313 ( 1958). In rach in::;tanc·r t lw permit procrdure was itself an unconstitutional infringement on Fir::;t Amrndment right~ .

Thu:> , in tho:>r ra::;rs irreparable injury-tlw loss or postponrf)1ent of pre­cious First Amrndment rights-was a roncomitant of the :wailablr ad-minist ra.t ive procrdu rc. ·

Similarly explicablE' are tho::>r ra::>cs in which challenge is madr to the constitutionality of til<' admini::>tmtiv<' proct>edings thrml;elve:;. Srt> Fre('d­man v. Maryland, 3go U. S. 51 (1965); Public Ctilitu Comm'n, s·upra, at. 540. But se>r Christian, s·upra, at f:i22, wlwre apprllants' con~titutional

dur procrs~ challrng<> to administrative proc·edures was deferred twuding ngt·Bcy action. Exhaustion in tho~(' ~ituation:s would Himilarl~· risk in­fringrment of a ron~titutional right b~· thr ndmini~tmtiv<> proce8:-> its<>lf,

75-6289-CONCUR

8 MOORE v. EAST CLEVELAND

. administrative process for years after legal enforcement ac­tion has begun. Appellant cannot rely on the present absence of administrative relief either as justification for the original failure to seek it, or as a reason why accountability for that failure is unreasonable.. See Huffman v. Pursue, Ltd. , 420 U. S. 592, 611 n. 22 (1975). Any other rule would make a mockery of the exhaustion doctrine by placing no deterrence to its violation.

D

This is not a case where inadequate or unclear or costly remedies make exhaustion inappropriate, or where the Board's position relating to appellant's claims is so fixed that further administrative review would be fruitless. There is not the slightest indication of any fixed Board policy against vari­ances, or that a prompt application for a variance would not have been granted.4 Nor is it dispositive that the case in­volves criminal rather than civil penalties. The applicability of the exhaustion principle to bar challenges to the legality of prosecutions is established, even where, unlike the present case, substantial felony penalties are at stake. McG ee v. United States, 402 U. S. 479 (1971); Yakus v. United States , 321 U. S. 414 (1944); Falbo v. United Sta.tes, 320 U. S. 549 (1944) ; see McKart v. United States, 395 U. S. 185 (1969) . There is far less reason to take into account the criminal nature of the proceedings when only misdemeanor penalties· are involved ..

·1 MR. ,TUI:lTICE 'SHEN N AN's statement that "there is no basis for an in­ference ... that this grandmother would havP obtained a. variance had she requc:sted one," post , at 7, misses the point . To be adPqua.te for exha.nstion purpo~es, an admini~tra.tive remedy nerd not guaniJltee the !itignnt. in advmlCe of success on the merits . Wha.t is re<.Juired is kt

forum wit.h the power to grant relief, capable of hearing thr case with objectivity and dispat ch. There i~ no reason to doubt that appellant '\\'0\~ld have .r~ce!ve<,l_ a. fair hearing before the Board.

75-6289-CONCUR

MOORE v. EAST CLEVELAND

(3)

Thus the traditional justifications offered in support of the' ,exhaustion principle point toward application of the doctrine .. But there is a powerful additional reason why exhaustion ~hould be enforced in this case. We deal here with federal judicial review of an administrative determination by a sub­division of the State of Ohio. When the question before a federal court is whether to enforce exhaustion of state admin-~

. istrative remedies, interests of federalism and comity make }he analysis strikingly similar to that appropriate when the' question is whether federal courts should abstain from inter­ference with ongoing state judicial proceedings.5 In both situations federal courts are being requested to act in ways· lacking deference to, and perhaps harmful to, important state interests in order to vindicate rights which can be protected ' in the state system as well as in the federal. Cf. Constan­tineau v. Wisconsin, 400 U.S. 433, 439 (1971) (BuRGER, C. f ,· dissenting). The policies underlying this Court's refusals to~ jeopardize important state objectives needlessly in Huffman v. Yursue, Ltd., supra; Juidice v. Vail, - U. S. - (1977) ; : and · Trainor v. Hernandez, - U. S. - (1977) , coun~el strongly against a.ction which encoura.ges evasion and under­mining of other important state interests inca.rnated as regti-? latory procedures.

When the state asserts its sovereigi1ty th-rough _ the admh?-­istrative process, no less than when it proceeds judicially, "federal courts ... should abide by standards of "restraint that '·

5 See Parisi v. Davidson, 405 U. S. 34, 37,· 40 n. 6 (1972); Public Utili- ' ties Comm'n v. United Fuel Co ,' 317 U. S. 456 -(H.i43); Natural G'as C~., supra, at 311; Prentis v. Atlantic Coast Line, 211 U. S. 210, 229 (1908); First Nat'l . Bank v. Board of County Comm'rs ; 264 U. S. 450 (1924); cf. Schlesinger v. Councilman, supra, at 756-757. See generally Jaffe, .Tudicial Control of Administrative Action 437-438 (1965); Fuchs, Pre­requisites to Judicial Review of Administrative Agency Action, 51 Ind. L. J. 817, 861-862 (1976) ; Comment , Exhaustion of Stat.e Administrati~e'! RrJnedies Under t he CiV.il Rignf.s Act, 8 Ind.lL. Rev. 56& (l9iS}l

'.

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10 MOORE v .. EAST CLEVELAND

go well beyond those of private equity jurisprudence." Huff­man, supra, at 603; cf. Younger V. Harris, 401 U. S. 37, 4.t ' p971). A proper respect for state integrity is manifested by and, in part, dependent on , our reluctance to disrupt state proceedings even when important federal rights are asserted as a reason for doing so. Where, as here, state law affords an appropriate "door-stop" vehicle for vindication of th~ claims underlying those rights, federal courts should not be called upon unless those remedies have been utilized. No litigant has a right to force a constitutional adjudication by eschewing the only forum in which adequate nonconstitutional relief is possible. Whether or not exhaustion is required in this case under principles of state law is of no significance t~ this Court. Our federal appellate jurisdiction does not turq on state law requirements. Appellant seeks to invoke federal relief in this Court. We should now make clear that the ,finite resources of this Court. are not available unless the liti-: gant has first pursued all adequate available administrative remedies.

The doctrine of exhaustion of administrative remedies ha1; a long history. Though its salutary effects are un ·

ey ave o ten casually neglected t e judicial penchant of honoring the d trine more in the reach than in the observ~ ance. For my part, the time has come to insist on enforce­ment of the doctrine whenever the local or state remedy is adequate and where asserted rights can be protected, and ir­reparable injury avoided, within the administrativ<' process. Only by so doing will this Court and other federal courts be available to deal with the myriad new problems clamoring for resolution.

1 concur in the judgment; in comparable future cases ~ wiH vot<' to dismiss the appeal for failure to utilize available $tate remedies.

To: The Chief J lsticA Mr. Justice Stewart Mr. Justice White Mr. Justice Mars'11'lll Mr. Jus,tice Blackmun

V"'" Mr. Just !.ce Powell Mr. Just i ce R"'hnqu1st Mr. Justice Stevens

From: Mr. Just10e Brennan

Circulated ~~;177 2nd DRAFT Reciroula t ed: __

SUPREME COURT OF THE UNITED STATES

No. 75- 6289

Inez Moore, Appellant, v.

City of East Cleveland, Ohio.

On Appeal from the Supreme Court of Ohio.

[May -, 1977]

MR. JusTICE BRENNAN, concurring.

I join the Court's opinion. I agree that the Constitution Is not powerless to prevent East Cleveland from prosecuting as a criminal and jailing, a 63-year-old grandmother for re­fusing to expel from her home her now 10-year-old grandson who has lived with her and been brought up by her since his mother's death when he was less than a year old.2 I do not question that a municipality may constitutionally zone to alleviate noise and traffic congestion and to prevent over­crowded and unsafe living conditions, in short to enact rea­sonabl(' land- use restrictions in furtherance of the legitimate objectives East Cleveland claims for its ordinance. But the

1 T hiH lli :~ criminal prosecution which resulted in the grandmother's ('onviction and srntence to prison and a fin e. Section 1345.99 permits impm;onment of up to six months, and a fine of up to $1000, for violation of nn~· provision of the Housing Code. Each day such violation continues rna~·. by the termR of this ::;ect ion, constitute a separate offense.

' Bncf for Ap1wllant, at 4. l n addition , we were informed by appel~

l <~ut '~ coun:-;rl at oral argumenL t hat ,

·1 pphcatwn of thi~ ordinance here would not only sever and disrupt the n·l:i I JOn~hip brtwN•n Mrs. Moore and her own son, but it would disrupt ' h• rl'la t IOJIHhip that is e.stablishPd bPtween young John and young Dale, whwh JS 111 e.;sence a sibling-type relationship, and it would most importantly di~rupt t hP relationship between young John and his grand­mother, which is t he only maternal influence that he has had during his t' lltJrn life." Tr. of Or:tl Arg., at 16. The citv d1d not di~:;putc thC.':>c repre:;entations, and it is clear that this C'<lS<' wa.'i argued from the outset as requiring decision in this contell."t.

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2 MOORE v. EAST CLEVELAND

zoning power is not a license for local communities to enact senseless and arbitrary restrictions which cut deeply into private areas of protected family life. East Cleveland may not constitutionally define "family" as essentially confined to parents and the parents' own children.8 The Court's opinion conclusively demonstrates that classifying family patterns in this eccentric way is not a rational means of achieving the ends East Cleveland claims for its ordinance, and further that the ordinance unconstitutionally abridges the "freedom of per­sonal choice in matters of family life [that] is one of the liberties protected by the Due Process Clause of the Four­teenth Amendment." Cleveland Board of Education v. La­Fleur, 414 U. S. 632, 639-640 ( 1974). I write only to under­score the complete cultural myopia of the arbitrary boundary drawn by the East Cleveland ordinance in the light of the tradition of the American home that has been a feature of our society since our beginning as a Nation-the "tradition" in the Court's words, "of unCles, aunts, cousins and especially grandparents sharing a household along with parents and children ... " Ante, p. 9. The line drawn by this ordinance displays a depressing insensitivity toward the economic and Pmotional needs of a very large part of our society.

In today's America, the "nuclear family" is the pattern so often found in much of white suburbia. Sanden, Sociology: A Systematic Approach, p. 320 (1965). The Constitution

a Tlw East ClC'veland ordinance defines "family" to include, in addition t.o the spouse of the "nominal head of the household," the couple's child­Jpss unmarried children, but only one dependent cl1ild (married or un­married) having dC'pendent children, and one parent of the nominal head nf thC' household or of his or her spouse. Thus an "ex1:ended family" is <lilt horizro in only the most limited sense, and "family" is essentially con­fiord to parents and their own children. Appellant grandmother was elwrged with violating the ordmancC' because .John, .Jr., lived with her at the ,.:11me time her other grand,;on, Dale, Jr., was also living in the home; 1hC' latter is clas:;!lird as an " unlicensed roomer" authorized by the ordi­onncP to live in the house.

75-6289-CONCUR

MOORE v. EAST CLEVELAND 3

cannot be interpreted, however, to tolerate the imposition by government upon the rest of us of white suburbia's preference in patterns of family living. The "extended family" that provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the beachhead for successive waves of immigrants who populated our cities,' remains not merely still a pervasive living pattern, but under the goad of brutal economic neces­sity, a prominent pattern-virtually a means of survival­for large numbers of the poor and deprived minorities of our society. For them compelled pooling of scant resources re­quires compelled sharing of a household.5

The "extended" form is especially familiar among black families.'; We may suppose that this reflects the truism

4 See Report of the National Advisory Commission on Civil DisordPrs, 278-281 (1968); Kosa and Nash, Social Accent of Catholics, 8 Social Order, 98-103 (1958); M. Novak, The Rise of the Unmeltable Ethnics, 300 (1973); B. Yorburg, The Changing Family, 106-109 (1973); Kosa, Rarhiele and Schomme, Sharing the Home with Relatives, 22 Marriage and Family Living, 129 ( 1960).

~ Sel' , e g., H. Gans, The Urban Villagers, 45-73, 245-249 (1962). "Pcrhabs the most important-or at least the most visible-difference

between the classes is one of family structure. The working class sub­culture is distinguished by the dominant role of the family circle.

"Thr specific charact.eristics of the family circle may differ widely­from the collateral peer group form of the West Enders, to the hierarchial type of the Irish, or to the classical three-generation ext.ended family .... What matters most-and distinguishes this subculture from others-is that ther~ be a family circle which is wider than the nuclea.r family, and that all of the opportunities, temptations, and pressures of the larger socirty be evaluated in t.erms of how they affect the ongoing way of life that has been built around this circle." /d., at 244-245 (emphasis in original) .

u Yorburg, supm, n. 3, p. 103 : "Within the black lower class it has been quite rommon for several generations, or parts of the kin, to live together under one roof. Often a maternal grandmother is the acknowledged head <Qf this type of homsehold which has given rise to the t.erm 'matrifocal' t()

75-6289-CONCUR

4 MOORE v. EAST CLEVELAND

that black citizens, like generations of white immigrants before them, have been victims of economic and other disadvantages that would worsen if they were compelled to abandon extended for nuclear living patterns. 7 Even in husband and wife households, 131)'c:, of black families compared with 37o of white families include relatives under 18 years old, in addi-

describe lower-cla.ss black family patterns." J. Scanzoni, The Black Family in Modem Society, 134 (1971); See also Anderson, The Pains and Pleasures of Old Black Folks, Ebony March 1973, 128-130. See generally E. Frazier, The Negro Family in the United States (1939); Lewis, The Changing Negro Family, in I. Ginsberg, The Nation's Children (1960).

The extended family often plays an important role in the re.o'tring of young black children whose parents must work. Many such children fre­quently "spend all their growing-up years in the care of extended kin .... Often children are 'given' to their grand parents, who rear thrm to adulthood .... Many children normally grow up in a three-generation household and they absorb the influences of the grandmother and grand­father as well as ·mother and fa.ther." J. Ladner, Tomorrow's Tomorrow: The Black Woman, 60 (1971).

7 The extended family has many strengths not shared by the nuclear family.

"The case histories behind mounting rates of delinquency, addiction , crime, neurotic disabilities, mental illness and senility in societies in which ;mtonomous nuclear families prevail suggest that frequent failure to de­velop enduring family ties is a serious inadequacy for both individuals and societies." D. Blisten, The World of the Family, 256 (1963).

Extended families provide services and emotional support not always found in the nuclear family :

"[T]he troubles of the nuclear family in industrial societies generally, and in American society, particularly, stem largrly from the inability of this type of family structure to provide certain of the services performed m the past by the extended family. Adequate health, education, and wPifare provision, particularly for the two non-productive generations in modern societies , the young and the old, is increasingly an insurmountable problem for the nucle.o'tr family. The unrelieved and sometimes unbear­:ibly intense parent-child relationship, where child-bP.a.ring is not shared at lr~1st in part by others, and the loneliness of nuclear family units, in­r·rrasingly turnrd in on themselves in contracted and relatively isolated ' f'ttings, is another major problem." Yorburg, supra, n. 3, p. l94 .

.. ~

75-6289-CONCUR

MOORE v. EAST CLEVELAND 5

tion to the couple's own children.8 In black households whose head is an elderly woman, as in this case, the contrast is even more striking: 487o of such black households, compared with 10% of counterpart white households, include related minor children not offspring of the head of the household.0

I do not wish to be understood as implying that East Cleve­land's enforcement of its ordinance is motivated by a racially discriminatory purpose: the record of this case would not sup­port that implication. But the prominance of other than nuclear families among ethnic and racial minority groups, including our black citizens, surely demonstrates that the "extended family" pattern remains a vital tenant of our society."' It suffices that in prohibiting this pattern of family living as a means of achieving its objective~appellee city has chosen a device that deeply intrudes into family associational rights that historically have been central, and today remain central, to a large proportion of our population.

Moreover, to sanction the drawing of the family line at the arbitrary boundary chosen by East Cleveland would surely conflict with prior decisions that protected "extended" family relationships. For the "private realm of family life which the State cannot enter." recognized as protected in Prince v. Massachusetts, 321 U. S. 158, 166 ( 1944), was the relation­ship of aunt and niece. And in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), the protection held to have been unconstitutionally abridged was "the liberty of parents

HR. Hill, Thr Strengths of Black Families, 5 (1971). 0 I d., 5-6. I1 is estimated that at. least 26% of black children live in

othrr than husband-wife families, "including foster parents, the presence of other male or female relatives (grandfather or grandmother, older brother or :;ister, uncle or aunt), male or female nonrela.tives, [or with] only one adult (tL~Hnlly mother) present. . . . J. Scanzoni, supra, 44.

' 0 ~ovak, The Rise of the Unmeltable Ethnirs, supra, n. 3; R. Hill, The Strengths of Blark Families, supra, 5-6; N. Glazer & D. Moynihan, Br~·ond thr Mdtillg Pot, 50-53 (2d ed. 1970); L. Rainwater & W. Yan­< 'C~', The Mo:vnihan ReJ?ort and the Pol~t~cs of Controversy, 51-60 (1967) ..

75-6289-CONCUR

MOORE v. EAST CLEVELAND

and gua.rdians to bring the upbringing and education of chil-dren under their control" (emphasis added). See also Wiscon-S'in v. Yoder, 406 U. S. 205, 232-233 (1972). Indeed, Vil-lage of Belle Terre v. Bor(las, 416 U. S. 1 1974 the case primarily relied upon by the appelle ~actually supports ~ the Court's decision. The Belle Terre ordinance barred vnly unrelated individuals from constituting a family in a single-family zone. The Village took special care in its brief to emphasize that its ordinance did not in any manner inhibit the choice of related individuals to constitute a family, whether in the "nuclear" or "extended" form. This was because the Village perceived that choice as one it was constitutionally powerless to inhibit. Its brief, p. 26, stated: "Whether it be the extended family of a more leisurely a.ge or the nuclear family of today the role of the family in raising and training successive generations of the species makes it more important, we dare say, than any other social or legal institution . . . . If any freedom not specifically mentioned in the Bill of Rights enjoys a 'preferred position' in the law it is most certainly the family" (emphasis supplied). The cited decisions recognized, as the Court recognizes today, that the choice of the "extended family" pattern is within the "freedom of personal choice in rna tters of family life [that] is one of the liberties protected by the Due Process Clause of the Four­teenth Amendment." 414 U. S., at 639-640.

Any suggestion that the variance procedure of East Clevelands Building Code assumes special significance is without merit. This is not only because this grandmother was not obligated to exhaust her administrative remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protec­tion Clause. Euclid v. Ambler Realty Co., 272 U. S. 365 ( 1926) , the leading case in the zoning field, expressly held chat one attacking the constitutionality of a building or zoning ('Ode need not first seek a variance. Id., at 386. Rather, the:

75-6289-CONCUR

MOORE v. EAST CLEVELAND 7

matter of a variance is irrelevant also because the municipality is constitutionally powerless to abridge, as East Cleveland has done. the freedom of personal choice of related members of a family to live together. Thus, the existence of the variance procedure neither serves to lessen the irrationality of the defi­nition of "family" nor the extent of its intrusion into family life-style decisions.

There is no basis for an inference-other than the city's self-serving statement that a hardship variance "pos­sibly with some stipulation(s) would probably have been g:ranted"-that this grandmother would have obtained a vari­ance had she requested one. Indeed, a contrary inference is more supportable. In deciding to prosecute her in the first place, the city tipped its hand how discretion would have been exercised. In any event, § 1311.02 limits the discretion of the Board of Building Code Appeals to grant variances to those which are "in harmony with the general intent of such ordinance .... " If one of the legitimate objectives of the definition of "family" was to preserve the single (nuclear) family character of East Cleveland, then granting this grand­mother a variance would be in excess of the Boa.rd's powers under the ordinance.

Furthermore, the very existence of the "escape hatch" of the variance procedure only heightens the irrationality of the restrictive definition, since application of the ordinance then depends upon which family units the zoning authorities permit to reside together and whom the prosecuting authori­ties choose to prosecute. The Court's disposition of the analogous situation in Roe v. Wade, 410 U. S. 113 (1973), is instructive. There Texas argued that, despite a rigid and narrow statute prohibiting abortions except for the purpose of saving the mother's life, prosecuting authorities routinely tolerated elective abortion procedures in certain cases, such as nonconsensual pregnancies resulting from rape or incest. The Court was not persuaded that this saved the statute, THE

75-6289-CONCUR

MOORE v. EAST CLEVELAND

CHIEF JusTICE commenting the "no one in these circum­stances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion." /d., at 208 (BuRGER, C. J., concurring.) Similarly, this grandmother cannot be denied the opportunity to defend this criminal prosecution because of a variance procedure that holds her family hostage to the vagaries of discretionary administrative decisions. Smith v. Cahoon, 283 U. S. 553, 562 (1931). We have now passed well beyond the day when illusory escape hatches could justify the imposition of burdens on funda­mental rights. Stanley v. Illinois, 405 U. S. 645, 647-649 (1972) i Staub v. City of Baxley, 355 U.S. 3131 319 (1958).

1st DltAFT

To: The Chief Justice Mr. Justice Brennan Mr. Justice Stewart Mr. Justice White 1!r. Justice ·Marshall l.fr. Justice Blaokmun

~r. Juetioe Powell Mr. Justice Rehnquiau

From: Mr. Juatioe Stevena

Circulated: MAY 2 4 1977 Recirculated: ____________ _

SUPREME COURT OF THE UNITED STATES

No. 75-6289

I

Inez Moore, Appellant, I 0 A 1 f h, S n ppea rom t e uprem.e, v. Court of Ohio.

City of East Cleveland, Ohio.

[May -, 1977]

MR. JusTICE STEVENS, concurring.

In my judgment the critical question presented by this case 1s whether East Cleveland's housing ordinance is a permissible. restriction on appellant's right to use her own property as she sees fit.

Long before the original States adopted the Constitution, the common law protected an owner's right to decide how best to use his own property. This basic right has &lways been limited by the law of nuisance which proscribes uses that .impair the enjoyment of other property in the vicinity. But the question whether an individual owner's use could be further limited by a municipality's comprehensive zoning plan was not finally decided until this century.

The holding in City of Euclid v. Ambler Realty Co., 272 U. S. 365, tha.t a city could use its police power, not just to abate a specific use of property which proved offensive, but also to crea.te and implement a 'cpmprehensive plan for the use of land in the community, vastly diminished the rights of Individual property owners. It did not, however, totally P-xtinguish those rights. On the contrary, that case expressly recognized that the broad zoning power must be exercised within constitutional limits.

In his opinion for the Court, Mr. Justice Sutherland fused the two express constitutional restrictions on any State inter­ference with private property-that property shall not be taken without due process n~r for a public purpose without

75-6289--CONCUR (A)

MOORE v. EAST CLEVELAND

just compensation-into a single standard: "[B]efore [a zon­mg] ordinance can be declared unconstitutional, [it must be ~hown to be] clearly arbitrary and unreasonable, having no substantial relation to the pftblic health, safety, morals or general welfare." 272 U. S., at 395 (emphasis added). This principle was applied in Nectow v. City of Cambridge, 277 l . S. 183; on the basis of a specific finding made by the .state trial court that "the health, safety, convenience and general welfare of the inhabitants of the part of the city affected" would not be promoted by prohibiting the land­owner's contemplated use, this Court held that the zoning ordinance as applied was unconstitutional. Id., at 187.1

With one minor exception,2 between the Nectow decision m 1928 and the 1972 decision in Village of Belle Terre v. Boraas, 416 U. S. 1, this Court has not reviewed the substance of any zoning ordinances. The case-by-case development (Jf 'he constitutional limits on the zoning power has not, then·­fore, taken place in this Court. On the other hand, during the past half century the broad formulations found in City of Euclid and N ectow have been applied in countless situa.tions by the sta.te courts. Those cases shed a revelatory light on the character of the single-family zoning ordinance challenged 111 this case.

Litigation involving single-family zoning ordinances is ·~ommon. Although there appear to be almost endless differ­ences in the language used in these ordinances/ they contain

1 ThP Court cited Zahn v. Board of Public Works, 274 U. S. 325. The .,tatement of the rule in Zahn remains viable toda.y:

"The most. that can be said r of this zoning ordinance] is that. whether that drterrrunation was an unreasonable, arbitrary or unequal exercise of power b fair!~ debatable. In such circ\.IIIlstances, the settled rule of this Court i" that 1t will not. >;ubstitute 1ts judgment for that of the legislative body d wrgrd with the pnmary duty and responsibility of determining the 1 n l~tiou ." Id ., at :328

~ Goldblatt \' . ToiNt of Hempstead, 369 U. S. 590. Sre, for Pxampll·, ttw variou::; provisions quoted or paraphrased in

I

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thre:\.i~iiJ8h~ types of restrictions. First, they define the kind of structure that may be erected on va,cant land.4

,

Second, they require that a single-family home be occupied only by a "single housekeeping unit." 5 Third, they often require that the housekeeping unit be made up of persons. related by blood, adoption, or marriage, with certain limited exceptions.

Although the legitimacy of the first two types of restrictions is well settled,n attempts to limit occupancy to related persons. have not been successful. The state courts have recognized a va.lid community interest in preserving the stable cha.ra.cter of residential neighborhoods which justifies a prohibition

Brady v. Superior Court, 19 Cal. Rptr. 242, 249 n . 3 (Dist •. Ct. of App. 1969)·.

·J As this Court recognized in City of Euclid, even residential apart­ments can lmve a negative impact on an area of single-family homes.

" fO]ftrn the apartment house is a mere parasite, constructed in order to ktke adynntage .. of the: open spac,es and attractive surroundings crcH ted by fa single family dwelling area] . . . . [T] he coming of one apart­ment house is followed by others, interfering by their height. and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their· necessary accompa11iments, the disturbing noises incident. to increased . traffic and business, and the occupation, by means of moving and parked ~utomobiles, of larger portions of the streets, thus de.tracting from their :;afcty and depriving childrt:>n of the privilege of quiet and open spaces for play, enjoyrd by those in more favored localities,-until, finally, the re:;idential character of the neighborhood and its desirability as a place of detached residen ce ·are utterly destroyed. Under these circumstances, ttpartment. houses, which in a different environment. would be not only en­tirely unobjectionable but highly desirable, come very near to being nuisances." City of Euclid v. Ambler R ealty Co., 272 U. S., at 394-395.

" Limiting uHe to ;;ingle-honsekeeping units, like limitations on the numbN of occupants, protects the community's interest, in minimizing overcrowding, avoiding the excessive use of municipal services, traffic rontrol, tmd other aspPct;; of an attra.ctive physical enviornment See Village of Belle Terre v. Bor-aOJJ, 416 U . S. 11 9. ·

" Sr>e nn 4 and 5, supra ..

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against transient occupancy.7 Nevertheless, in w~ll reasoned . opinions, the courts of Illinois,8 New York,ll New Jersey/0

7 Types of group living which have not fared well under single-family ordinances include fraternities, City of Schenectady v. Delta Chi Fra­ternity, 168 N. Y. S. 2d 754 (App. Div. 1957), sororities, COJSsidy v. Triebel, 85 N. E. 2d 461 (1948), a retirement home designed for over 20 people, Kellogg v. Joint Council of Women's Auxiliaries Welfare Assn., 265 S. W. 2d 374 (S. C. of Mo. 1954), and a COillli!ercial thera JtJc orne for emotionally disturbed children, Browndale International, Ltd. v. Board of Adjustment, 208 N. W. 2d 121 (Wis. 1973). These institutional uses nre not only inconsistent with the single-housekeeping unit concept. but include many more people than would normally inhabit a single-family dwelling.

8 In City of Des Plaines v. Trottner, 216 N. E. 2d 116, the Illinois Supreme Court faced a challenge to a single-family zoning ordinance by a u;roup of four unrelated young men who occupied a dwelling in violation nf the ordinance which provided tha.t a " 'family' consists of one or more persons each related to the other by blood (or adoption or marriage)." 216 N. E . 2d, at 117. In his opinion for the court, Jus.tice Schaef,er wrote:

"When otJ1er courts have been called upon to define the term 'family' they have emphasized the single housekeeping unit aspect of the ter.r~,

rather than the relationship of the occupants. [Citing cases.]

" In terms of permissible zoning objectives, a group of persons bound together only by their common desire to operate a single housekeeping unit, might. be thought to have a transient quality that. would affect adversely the stability of the neighborhood, and so depreciate the value of other property. An ordinance requiring relationship by blood, marriage or adoption could be regarded as tending to limit the intensity of land use. And it. might be considered that, a group of unrelated persons would be more likely to generate traffic and parking problems than would an equal number of rela.ted persons.

"Bnt. none of these observations reflects a universal truth. Family group::J are mobile. today, and not all family units are internally stable and we!l-di::;cipline.d. Family groups with two or more cars are not unfamiliar. \nd so far as intensity of use is concerned, the definition in the present •.1rdinanre, w1th its reference to the 'respective spouses' of persons related.

[Footnotes 9 and 10 are on p. 5]

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California,11 Connecticut,12 Wisconsin/3 and other jurisdic­tions,14 have permitted unrelated persons to occupy single­family residences notwithstanding an ordinance prohibiting, either expressly or implicitly, such occupancy.

by blood, marriage or adoption, can hardly be regarded as an effective control upon the size of family units.

"The General A..<:Sembly has not specifically authorized the adoption of zoning ordinances that penetrate so deeply as this one poes into the internal composition of a single housekeeping unit. Until it has done so, we are of the opinion that we should not read the general authority that it has delegated to extend so far." 216 N. E. 2d 118-120.

9 In City of White Plains v. Ferraioli, 313 N. E. Zd 756, the Court of Appeals of New York refused to apply an ordinance limiting occupancy of single-family dwellings to related individuals to a "group home" licensed by the State to care for abandoned and neglected childrer. The court wrote: "'Zoning is intended t.o control types of housing and living and not he genetic or intimate internal family relations of human being<

"Whether a family be organized along t.ies of blood or formal adqptions,. or be a similarly structured group sponsored by the Sta.te, ~ is the group home, sltould not be consequential in meeting the test. of the zoning ordinanc~. So long as the group home bears the generic character of a family ~it. as a relatively permanent. household, and is not a framework for tran ients or transient living, it conforms to the pl.1roose of the ordinan . . .. "

10 In irsch Holding Co. v. Borough of Manasquan, 281 A. 2d 513, 518 n. 6 (1971), the Supreme Court of New Jersey reviewed a complex single­family zoning ordinance designed to meet what the court recognized to be a pressing co~munity problem. The community, a seaside resort, had been inundated during recent. summers by unruly groups of summer visitors renting 1aside cottages. To solve the problems of excessive noise, over­crowding, intoxication, · wild parties and immorality tha.t ,resulted from these gn;mp rentals, the community passed a zoning ordinance which prohibitep seasonal rentals of cottages by most groups other than " familiesr related by blood or marriage. The court found tha.t even though ~he problem was severe, the ordinance "precludE![d] so many harmless ,dwelling uses" that it became "sweepingly excessive, and therefore legally upreasonable." Ibid. The court quoted the following language

[Footnotes 11, 12, and 13 are on p. 6, Footnote 14 is on p. 7]

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These cases delineate the extent to which the state courts have allowed zoning ordinances to interfere with the right of a proper~y owner to determine the internal composition of his

in a deci~ion by a lower New Jersey court in a similar case as "equally applicable here" :

"Thus, even in the light of the legitimate concern of the municipality with the undesirable concomitants of group rentals experienced in Mij.rga.te City, and of the presumption of validity of municipal ordinances, we are satisfied tha.t the remedy here a.dopted constitutes a sweepjngly excessive restriction of property rights as aga.inst the problem sought to be dealt with, and in legal contemplation deprjves plaintiffs of their propert.y without due process." Gabe Collins Redlty Inc. v. Margate City, 271 A. 2d 430, 434 (App. Div. 1970), quot•ed at. 281 A. 2d 519.

The court, in Kirsch Holding Co., 281 A. 2d., at 518 n. 6, also quoted with approva.l the following statement in another New Jersey case:

"Unt.il compelled to do so by a. New Jersey precedent squarely in point, this court will not conclude that persons who have economic or other personal reasons for living together as a bona fide single housekeeping unit and who have no other orientation, commit. a zonipg violation, with pqssible pena.l consequences, just because they a.re not related." Mario v. Mayor and Council of Norwood, 187 A. 2d 217,221 (Law Div.1966).

I

, 11 A Californ:ia appellate court. in Brady v. Super-ior Court, 19 Cal. Rptr. 242, 250, allowed use of a siQgle-family dweljing by two unrelated st,udents, noting :

~'The erection or construction of a 'single family dwelling,' in itself, would imply that any building so constructed would contajn a central kitchen, dining room, living room, bedrooms; thflt is, constitute a single housekc0ping unit. Consequently, to qualify as a 'single family dwelling' nn erected structure n0ed only be used as a single housekeeping unit.""

12 The Supreme Court of Connecticut allowed occupan~y of a large summer horne by four relqted families because the families did "not occupy separate quarters within the house, [but used] the lodging, cooking· and ca.ting facilities [as] common to all." Neptune Park Association v. Steinberg, 84 A. 2d 687, 689,

13 The Supreme Court of Wisconsin, noting that "the letter killeth but the spirit giveth life," II Corinthians 3, 6, held that six priests and two lay brothers constituted a "family" a~d that their Ud), for purely residen-. llal purposes of a single-family dwelling did not violate a single-family )lOlling ordinance. Missionaries of 0J,tr Lady of LaSalette v. Villaqe o[' Whitefish Bay, 66 N. W. 4d fi2Z (1954),

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·household. The intrusion on that basic property right has not previously gone beyond the point where the ordinance defines a family to include only persons related by blood, marriage or adoption. Indeed, as the cases in the margin demonstrate, state courts have not always allowed the intrusion to pene­trate that far. The state decisions have upheld zoning

I} -..w~~in~an~ces which regulated the identity, as opposed to the number of persons who may comprise a household only to th~ extent that the ordinances require such households to remain ·nontransient, single-housekeeping units.15

There appears to be no precedent for an ordinance which excludes any of an owner's relatives from the group of persons who may occupy his residence on a permanent basis. Not does there appear to be any justification for such a restriction

14 Carroll v. City of Miami Beach, 198 So. 2d 643 (Dist.. Ct .. of App. 1967); Robertson v. Western Baptist Hospital, 267 S. W. 2d 395 (Ky. Ct. of App. 1954); Women's Kansas City St. Andrew Society v. Ka:nsas City, 58 F. 2d 593 (CA8 1932); Village of University Heights v. Cleveland Jewish Orphan's Horne, 20 F. 2d 743 (CA61927).

15 Village of Belle Terre v. Bomas, 416 U. S. 1, is consistent with this line of sta.te authority. Chief Judge Breitel in City of White Plains v.

- li'ermipli 313 N E 2d 756, 758 (N. Y. Ct. of Apps. 1974) cogently characterized the Bell~ decision upholding a single-family ordinance as one primarily concerned with the prevention of transciency in a small, quiet suburban community. He wrote:

"The group home [in City of White Plains] is not, for purposes of a zoning ordinance, a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school (cf. Village of Belle v. Boraas, . .. ) . Every yea.r or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes."

HI Of course, a community has other legitimate concerns in zoning an area for single family uo;c including prevention of overcrowding in residences and prevention of traffic congestion. A community which attacks these problem,; by r<"Stricting the composition of a household is using a means not reasonably related to the ends it seeks to achieve. See City of Des Plaines v. Trottner, 216 N. E. 2d 116, 118 (Ill. 1966) . To

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8 MOORE v. EAST CLEVELAND

on an owner's use of his property?6 The city has failed totally to explain the need for a rule which would allow a homeowner to have two grandchildren live with her if they are brothers, but not if they are cousins. Since this ordinance has not been shown to have any "substantial relation to the public health, safety, morals or general welfare" of the City of East Cleveland, and since it cuts so deeply into a fundamental right normally associated with the ownership of residential property-that of an owner to decide who may reside on her property-it must fall under the limited standard of review of zoning decisions which this Court preserved in City of Euclid and Nectow, supra. Under that standard, East Cleveland's unprecedented ordinance constitutes a taking of property without due process and without just compensation.

For these reasons, I concur in the Court's judgment.

prevent overcrowding, a community can certamly nlace a limit on th~ number of occupants in a household, either in absolute terms or in rela.tion to the available floor space. Indeed, the City of Eaj>t Clevela~d had on its books an ordinance requiring a minimum amount of floor space per occupant in every dwelling. See Nolden v. Ea.st Cleueland City Commis­sion, 232 N. E. 2d 421 (Comm. Pleas Ct. of Ohio 1966). Similarly, traffic congestion can be reduced by prohibiting on-street parking. To attack these problems through use of a restrictive definition of family is, as one court noted, like "burn[ing] the hol.lse to roast the pig." Larson v. Mayor and Council of the Borough of Spring Lake Heights, 240 A. 2d 31~ 86 (N. J . Super. 1968) . More narrowly, to gg ct bha~ a hmJtahon on-:" which of the owner's grandchildren may reside with herjfM Wij releva.nce~ to these proble~ psi s 115