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No. 75-6289 Moore v. City of East Cleveland
Dear Bill:
,\
OVer the "holidays" I have prepared a first rough draft
of a dissenting opinion in the above case.
I will await, of course, circulation of the Court's
opinion before putting my dissent in final form. But I nope
to be able to circulate it promptly.
I thought it might be helpful to you, and our other
colleagues in dissent, to know that I expect to have an
opinion.
Sincerely,
Justice Brennan
Mr. Justice Marshall
Mr. Justice Blackmun
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CHAMBERS OF
February 10, 1977
JUSTICE THURGOOD MARSHALL
Re: No. 75-6289, Moore v. East Cleveland
Dear Potter:
I shall await the dissents.
Sincerely,
?fa·
T.M.
Mr. Justice Stewart
cc: The Conference
No. 75-6289
Potter:
Moore v. City of
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CHAMBERS OF
February 11, 1977
JUSTICE THURGOOD MARS HALL
Re: No. 75-6289, Moore v. City of East Cleveland
Dear Lewis:
Please join me in your dissent.
Sincerely,
/l'l
T.M.
Mr. Justice Powell
cc: The Conference
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CHAMBERS OF
February ll, 1977
JUSTICE HARRY A . BLACKMUN
/
Re:
No. 75-6289 - Moore v. City of East Cleveland
Dear Potter:
I could not join the op1mon as presently written.
fore shall also await the dissent.
Sincerely,
Mr. Justice Stewart
cc:
The Conference
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C H AM BERS O F
.JUSTICE W M. .J . BRE N NA N , .JR .
February 11, 1977
RE: No. 75-6289 Moore v. City of East Cleveland, Ohio
Dear Lewis:
Please join me, and r•11 also be shortly filing a
separate dissent.
Sincerely,
Mr. Justice Powell
cc: The Conference
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CHAMBERS OF"
JUSTICE THURGOOD MARS HALL
February 14, 1977
I
/
Re: No. 75-6289 -
Moore v. City of East Cleveland
Dear Bill:
Please join me in your dissent.
Sincerely,
-;/lrl·
T.M.
Mr. Justice Brennan
cc: The Conference
CHAMBERS OF
.JUSTICE HARRY A. BLACKMUN
February 14, 1977
Re: No. 75-6289 - Moore v. City of East Cleveland, Ohio
Dear Lewis:
Please join me in your dissent.
separate dissent.
Mr. Justice Powell
cc:
The Conference
I also shall file a short
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CHAMBERS OF
JUSTICE WILLIAM H. REHNQUIST
February 15, 1977
Re:
No. 75-6289 - Moore v. City of East Cleveland
Dear Potter:
Please join me.
Sincerely,
Mr. Justice Stewart
Copies to the Conference
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CHAMBERS OF
JUSTICE POTTER STEWART
February 16, 1977
MEMORANDUM TO THE CONFERENCE
Re:
No. 75-6289, Moore v. East Cleveland
At an appropriate place toward the end of my opinion
in this case, I am contemplating adding a paragraph along the
following lines:
In view of MR. JUSTICE BRENNAN's dissenting
opinion, a final word is appropriate. His dissenting
opinion seeks to convey the invidious message that
the ordinance before us is racially discriminatory.
Nothing could be further from the truth. The population of East Cleveland is over ninety percent Negro.
Its City Manager and the members of its City Commission are Negroes. It is that municipal government that is asking the Court to uphold the constitutional validity of this ordinance. And that municipal
government, far better than can any member of this
Court, understands and meets the needs and aspirations of the people who live in East Cleveland. In
view of these demographic facts, MR. JUSTICE
BRENNAN's dissenting opinion boils down to the
proposition that the people of the Negro community
of East Cleveland are prevented by the Constitution
from trying to escape the racial stereotypes of the
"subculture" that his dissenting opinion describes.
Surely, that strange proposition can only evoke
"shocked disbelief."
() £j,
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P.S.
4/11/77
Rider A, p.
(Moore v. East Cleveland}
The opinion of Mr. Justice White, concurring in the
./
judgment of the Court , views with alarm my reliance on
history in reading substantive content into the term
x "liberty".
He fears that recourse to history, and the
traditions associated with it, will "enormously broaden
the horizons" of the Uue Process Clause.
~'
at 9.
Mr. Justice White nevertheless finds no "difficulty" in
concluding that "petitioner in this case properly asserts
a liberty interest".
-Ante,
at 6.
He simply thinks the
interest lacks sufficient substance to be accorded
constitutional protection.
In reaching this conclusion,
his concurring opinion rejects my reliance on history and
tradition as a basis for reading meaning into the otherwise
boundless term "liberty''.
Mr. Justice White's opinion
suggests no other guides to a rational judgment.
Indeed,
his opinion offers no basis - other than personal opinionfor the conclusion that Mrs. Moore's acknowledged liberty
interest is not weighty enough to deserve protection.
I would have thought that history and tradition
afford perhaps the siasx single best source for ascertaining
the meaning of the liberty protected by the Due Process Clause.
2.
Indeed, Mr. Justice Harlan's oft quoted statement in
Poe v. Ullman, supra, - cited by Mr. Justice White as
"most accurately reflect[ing)
the thrust of prior
decisions '' - expressly pointed to history and tradition
as the source of ''supplying • . • content to this
constitutional
EBRBp:tt
concept".
at 542 (Harlan, J., dissenting).
~
v. Ullman, 367 U.S.,
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CHAMBERS OF
JUSTICE JOHN PAUL STEVENS
April 11, 1977
Re:
75-6289 - Moore v. City of East Cleveland
MEMORANDUM TO THE CONFERENCE
My initial analysis of this case was precisely that
expressed in Potter's opinion.
After the argument, however,
it occurred to me that there must be a body of State zoning
cases which would shed some light on the kinds of definition
of the term "family" which have been generally accepted. My
Law Clerk, David Kirby, and I therefore reviewed a large
number of State cases involving "single family" zoning ordinances. We found that the ordinances are basically of two
kinds.
The first merely limits the kind of structure that can
be erected on vacant property to one that will accommodate
a single housekeeping unit.
See, e.g., Euclid v. Ambler
Realty Co., 272 U.S. 365, 382, 388 -. --The second limits the kind of group that may occupy the
premises. Although this kind of limitation takes a variety of
forms, it typically limits the occupancy to persons related
by blood, adoption, or marriage, and then allows some exception
from that broad limitation.
See, e.g., Village of Belle Terre
v. Boras, 416 U.S. 1,2. Apart from the present case, there
appears to be no precedent for a limitation which prevents the
owner of a residence from having any of his relatives living
with him on a permanent basis.
The litigation involving these
ordinances invariably involves the question whether the use by
some unrelated person is permissible.
The State courts have regularly held that a general
restriction to related p ersons , plus a few exceptions, is a
ro er way to proscrib e uses that cater t
sien --such
as boar 1ng ouses,
aternity ~ouses, or even rental to a
--
2 -
group of college students as in Belle Terre. On the other
hand, uses which do not threaten the stable character of a
neighborhood have been tolerated even though the group of
occupants does not come within the literal definition of a
family.
(See, e.g., City of White Plains v. Ferraioli, 313
N.E.2d 756 (N.Y. 1974) (foster family);
City of Des Plaines
v. Trottner, 216 N.E. 2d 116 (Ill. 1966) (four adult men)).
The concern--as in the law of nuisance--seems to be whether
t9e pa rt j cular use may adversely affect the enjoyment o f
neighboring property.
~D.~
For the reasons which Potter states in his opinion, I
am persuaded that Belle Terre forecloses the challenge to the
ordinance based on the occupants' right to associate with one
another. But the State cases persuade me that we have not
adequately considered the need for a justification for this
restriction on an owner's right to use his property in a way
. that does not have any adverse effect on his neighbors.
~f~~~ ~
It is significant, I believe, that only the constitutional
claims of the tenants were adjudicated in Belle Terre. No one-111
~·~f/
not even Thurgood's dissent (see 416 u.s., at 13)--regarded the
~o~:~,
Belle Terre ordinance as an impermissible invasion of the owner's
~ oJ
I I..._.. property rights.
That restriction was an accepted method of
cle~Jf1 ~ curtailing property uses of a transient character in a stable
~ ~u.. neighborhood.
~~ -tt.....
The more restrictive ordinance involved in this case does
~r not have the .same justification. If we resort to the tests as
r~~~
stated in Euclid, 272 U.S., at 387-388, 395, and Nectow v.
ri~.
Cambridge, 277 U.S., at 188-189, and view the case from the
, I) S
standpoint of an owner deciding which of his relatives may
111 • •1
'"t "
live with him on a permanent basis, I can find no justification
for a rule that permits two grandchildren to live with the owner
·
if they are brothers but not if they are cousins.
..,.._~
.J
1
Af
1
Until I reviewed some of the State cases, I had assumed
that it was customary to define the word "family" in terms of
degrees of consanguinity. On that assumption, I was convinced
that the specific form of the definition was a matter to be left
to legislative choice by the municipality. But I am now convinced
that there is no justification for excluding any related persons
from the grou~ r.hat is eligible to occupy a residence on a permanent basis. No other ordinance, to the best of my knowledge,
*of course, a limit on the number of occupants would be permissible,
but the municipality has no interest in which members of the eligible
group the owner may invite to live with him.
- 3 -
has ever done so, and the City in this case has not come forward with any justification for doing so.
In these circumstances, ·I do not think we can properly
say that the City has satisfied even the minimal burden imposed
by Euclid and Nectow.
I have therefore finally concluded that
the parties addressed the wrong issue. As I now view the case,
the critical question is not a matter of "privacy," "liberty,"
or "freedom of association," but rather is whether this particular zoning ordinance is a permissible restriction on
an owner's right to use his property as he sees fit so long as
he does not impair the enjoyment of his neighbors' property.
Unless we are to abandon all review of the substance of zoning
ordinances, I have concluded that this one must be invalidated.
I am, of course, conscious of the force of Byron's
comments on substantive due process but I believe a measure
of substantive due process is inherent in the standard of review
that Euclid and Nectow prescribe for zoning cases. Moreover,
as long as the huge body of zoning litigation in the State
courts is used as a frame of reference, I doubt that the
property concept is as open-ended as reliance on "liberty,"
or "privacy." In all events, with apologies for having taken
so much time with this case, I have decided to vote to reverse.
Respectfully,
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CHAMBERS OF
.JUSTICE .JOHN PAUL STEVENS
April 11, 1977
Re:
75-6289 - Moore v. City of East Cleveland
MEMORANDUM TO THE CONFERENCE
My initial analysis of this case was precisely t~
expressed in Potter's opinion. After the argument,
w r
it occurred to me that there must be a body of State ~ ~
n
~
cases which would shed some light on the kinds of
fi i 'on
of the term "family" which have been generally ac
""1\~!'JI'o....~..Law Clerk, David Kirby, and I therefore reviewed
lar
~
number of State cases involving "single family" ~ in o
·
nances. We found that the ordinances are basica~ o
kinds.
~
hJ
tha~
The first merely limits the kind of struct
be erected on vacant property to one that will ccommotlate
(
a single housekeeping unit.
See, e.g., Euclid v. J(~~ -· ~
Realty Co., 272 U.S. 365, 382, 388.
~
•
The second limits the kind of group that may occupy the
premises. Although this kind of limitation takes a variety of
forms, it typically limits the occupancy to persons related
by blood, adoption, or marriage, and then allows some exception
from that broad limitation.
See, e.g., Village of Belle Terre
v. Boras, 416 U.S. 1,2. Apart from the present case, there
appears to be no precedent for a limitation which prevents the
owner of ' a residence from having any of his relatives living
with him on a permanent basis. The litigation involving these
ordinances invariably involves the question whether the use by
some unrelated person is permissible.
The State courts have regularly held that a general
restriction to related persons, plus a few exceptions, is a
proper way to proscribe uses that cater to transients--such
as boarding houses, fraternity houses, or even rental to a
-·
-
2 -
group of college students as in Belle Terre. On the other
hand, uses which do not threaten the stable character of a
neighborhood have been tolerated even though the group of
occupants does not come within the literal definition of a
family.
(See, e.g., City of White Plains v. Ferraioli, 313
N.E.2d 756 (N.Y. 1974) (foster family);
City of Des Plaines
v. Trottner, 216 N.E. 2d 116 (Ill. 1966) (four adult men)).
The concern--as in the law of nuisance--seems to be whether
the particular use may adversely affect the enjoyment of
neighboring property.
For the reasons which Potter states in his opinion, I
am persuaded that Belle Terre forecloses the challenge to the
ordinance based on the occupants' right to associate with one
another. But the State cases persuade me that we have not
adequately considered the need for a justification for this
restriction on an owner's right to use his property in a way
that does not have any adverse effect on his neighbors.
It is significant, I believe, that only the constitutional
claims of the tenants were adjudicated in Belle Terre. No one-not even Thurgood's dissent (see 416 U.S., at 13)--regarded the
Belle Terre ordinance as an impermissible invasion of the owner's
property rights.
That restriction was an accepted method of
curtailing property uses of a transient character in a stable
neighborhood.
The more restrictive ordinance involved in this case does
not have the .same justification. If we resort to the tests as
stated in Euclid, 272 U.S., at 387-388, 395, and Nectow v.
Cambridge, 277 U.S., at 188-189, and view the case from the
standpoint of an owner deciding which of his relatives may
live with him on a permanent basis, I can find no justification
for a rule that permits two grandchildren to live with the owner
if they are brothers but not if they are cousins.
Until I reviewed some of the State cases, I had assumed
that it was customary to define the word "family" in terms of
degrees of consanguinity. On that assumption, I was convinced
that the specific form of the definition was a matter to be left
to legislative choice by the municipality. But I am now convinced
that there is no justification for excluding any related persons
from the grou~ ~hat is eligible to occupy a residence on a permanent basis. No other ordinance, to the best of my knowledge,
*of course, a limit on the number of occupants would be permissible,
but the municipality has no interest in which members of the eligible
group the owner may invite to live with him.
-
3 -
has ever done so, and the City in this case has not come forward with any justification for doing so.
In these circumstances, ·I do not think we can properly
say that the City has satisfied even the minimal burden imposed
by Euclid and Nectow.
I have therefore finally concluded that
the parties addressed the wrong issue. As I now view the case,
the critical question is not a matter of "privacy," "liberty,"
or "freedom of association," but rather is whether this particular zoning ordinance is a permissible restriction on
an owner's right to use his property as he sees fit so long as
he does not impair the enjoyment of his neighbors' property.
Unless we are to abandon all review of the substance of zoning
ordinances, I have concluded that this one must be invalidated.
I am, of course, conscious of the force of Byron•s
comments on substantive due process but I believe a measure
of substantive due process is inherent in the standard of review
that Euclid and Nectow prescribe for zoning cases. Moreover,
as long as the huge body of zoning litigation in the State
courts is used as a frame of reference, I doubt that the
property concept is as open- ended as reliance on "liberty,"
or "privacy."
In all events, with apologies for having taken
so much time with this case, I have decided to vote to reverse.
Respectfully,
·-·
-
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CHAMBERS OF
JUSTICE POTTER STEWART
April 12, 1977
No. 75-6289, Moore v. City of East Cleveland
Dear Chief,
In view of John Stevens' memorandum of
yesterday, the opinion in this case should be
re-assigr}ed.
Sincerely yours,
The Chief Justice
Copies to the Conference
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CHAMBERS OF
JUSTICE WM. J. BRENNAN, JR.
April 12, 1977
RE: No. 75-6289 Moore v. City of East Cleveland
Dear Chief:
If as Potter suggests the above should be reassigned,
and it falls to me to do it, I assign it to Lewis.
Sincerely,
)
/l .. · /
/•~ 'l L
The Chief Justice
cc: The Conference
lfp/aa
4/22/77 ·
MEM>RANDUM
22, 1977
Jr.
Moore v. City of East Cleveland
I , have reviewed carefully the latest draft (4/21/77)
', of our opinion, and think it ia the beat yet.
It is a happy blend of our combined efforts, but I
particularly commend you and Charlie on :focuaing more sharply
present draft.
t·lj.,
>
Although I still wish to circulate it as announcing only
the judgment of the Court, I will giye odds that the Chief
Justice- and perhaps Others - will ."thrown in the spounge" •
.,I think. we have just about nsawed off" the limb on which
•:i!
',f
v
' · they occupy a rather precarious perch.
I am sending a copy
this memo to Charlie with ' a warm salute to you both.
Let's go to press.
Jr.
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CHAMBERS OF"
/
JUSTICE JOHN PAUL STEVENS
April 25, 1977
Re:
75-6568 - Hankerson v. North Carolina
Dear Byron:
Your memorandum expresses my views about this
case.
Mr. Justice White
Copies to the Conference
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CHAMBERS Of'
May 11, 1977/
.JUSTICE THURGOOD MARSHALL
Re: No. 7 5-6289, Moo,re v. City of East Cleveland
Dear Bill:
Please join me.
Sincerely,
Mr. Justice Brennan
cc: The Conference
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CHAMBERS OF
May 11, 1977
JUSTICE THURGOOD MARSHALL
Re: No. 75-6289, Moore v. City of East Cleveland
Dear Lewis:
Please join me.
Sincerely,
T. M.
Mr. Justice Powell
cc: The Conference
/
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CHAMBE:RS OF"
JUSTICE WILLIAM H. REHNQUIST
May 12, 1977
Re:
No. 75-6289 - Moore v. City of East Cleveland
Dear Potter:
Please join me in your dissenting opinion.
Sincerely,
Mr. Justice Stewart
Copies to the Conference
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CHAMBERS OF
May 13, 1977
..JUSTICE HARRY A . BLACKMUN
/
Re:
No. 75-6289 -
Dear Lewis:
Please join
m~.
Moo~e
I
v. City of East Cleveland
/
Sincerely,
!IPi.
Mr. JUstice Powell
cc:
The Conference
P.S.
(to LFP only): On page 10, 4th line, would it be
advisable to replace "Government" with the word "State"?
No. 75-6289
Moore v. City of
Cleveland
Dear Mike:
Please correct the docket to show that the appeal is
from the Court of Appeals of Ohio, Cuyahoga
Sincerely, ,.
lfp/ss
Moore v. City of East Cleveland
5/30/77
6.
Mrs. Inez Moore, lives in
he ~ East
Cleveland,
her son and two grandson,;w~ are first
counsins rather than brothers.
.l6t
E&M-
~aNlaa~ousing
"'
ordinance limits the occupancyof a dwelling unit to members
of a single family, but under its narrow definition of
"family"/~rs. Moore's household does not qualify.
I
As a result, the city ordered her to remove one grandson
from her home.
When she failed to comply, she was charged
with a violation of the ordinance, convicted, and sentenced
to five days in jail and a
$2 ~ . ~~ne.
~~~
The City defends this
,
~arrow
• J
.\
definition of the family -
--~.excluding grandchildren (/V"T.~
~ are cou ins ~a~aer tkaft hr.oehers
'
~
population
congestion, traffic safety and the . like.
But we perceive
and
sist ~
- on conventional zoning grounds:
no basis/ - in light of these
objectives/~ ~ 0 1:'family"
so narrowly/ as to deprive grandchildren of the privilege
of living with their parent and grandmother.
The institution of famil~~s deeply rooted in our
country's history and tradition.
limited to the nuclear family.
That tradition is not
::....a:::'
Decisions of this Court
2.
long have recognized / a constitutiopal liberty tnterest in
(
certain family rights.
The Justices who
~I-tA-'
join ~the
plurality
opinion~find no justification for the severe limitatio~
this ordinance imposes upon
famil~~ iation :
Accordingly, we reverse the
The~o~o~~ have
Brennan, Mr.
•upro~
Court of
~ c,. ec_,.
filedj'i s joined by Mr. Justice
Blackrnun.
by Mr. _Justice Marshall.
Mr. Justice Stevens has filed an opinion concurring in
the judgment.
The Chief Justice, Mr. Justice Stewart, and Mr.
Justice White have each filed dissenting opinionsJ Mr.
Justice Stewart's opinion being joined by Mr. Justice
Rehnquist.
(
12/13/76
6
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s-;1.. i/77
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75-6289 J. oore v. Cit y of East C1eve1and
-