/audio/cases/1976/75-6289_19761102-argument.mp3 ./1976-arguments-xml/75-6289_19761102.xml Warren E. Burger Edward R. Stege Unknown Speaker Leonard Young An advocate profile for "Mr. Leonard Young" was automatically generated because an existing match could not be found. William J. Brennan Thurgood Marshall There were 2 matches for "Mr. Justice Marshall". William H. Rehnquist Moore v. East Cleveland
Argument of Edward R. Stege We will hear arguments next in 6289, Moore v. City of East Cleveland. Mr. Stege, you may proceed whenever you are ready. Mr. Chief Justice, and may it please the Court. This is an appeal from a criminal conviction of Mrs. Iñez Moore in East Cleveland, Ohio Municipal Court. Mrs. Moore is a grandmother. She was convicted under a city ordinance for living in her own home with her own two sons and her two grandsons. She appealed the conviction to the Ohio County Court of Appeals, which affirmed with one judge dissenting. Her conviction was further appealed to the Ohio Supreme Court which dismissed the appeal for want of a substantial constitutional question and the case was further appealed here. Has she had to serve any of that five-day prison sentence? She has not. That five-day prison sentence was suspended on the condition that she, by July 1st , 1974, which was roughly 45 days after the conviction was handed down, that she put her grandson, John Jr., out of her home. She has failed to do that, pending the appeal to this Court. It is the appellant's position in this case that the East Cleveland ordinance, which prevents many family members from living together with their families in the city of East Cleveland, substantially interferes with fundamental rights of privacy and association in matters of family life. This ordinance is both over-broad and violated of the Equal Protection Clause of the Fourteenth Amendment. And the justifications offered by the city in support of this ordinance simply do not support the substantial interference of constitutional rights. Are you suggesting that there is an over-breadth test applicable when you get outside of the area of the First Amendment? That is correct. And what do you rely on for that? Well, I am suggesting that all the cases such as, for example, such as Row v. Wade, the abortion decisions, when a State passes a statute that interferes, I think the Danford case of last term, which interferes too seriously with a fundamental right such as, in that case, the right of privacy, the right to control the decision to terminate one’s pregnancy, that in a sense if the statute interferes too deeply with that fundamental right, it is truly over-broad. The term over-broad— It is one thing to say that the statute violates the right in question, and therefore, it cannot stand. It is another thing to say, as I think of the term “over-breadth” to me, that it covers areas that it should not cover so that even though it does not violate any right in this case, we are not going to let it apply because it may infringe on rights in other cases. Which meaning do you adopt? The former, your Honor. I take it the fundamental right you are talking about are perhaps, at least you raised in that is the right of a person to give a home to a near relative who is in need, that is, the grandchildren here. Where do you place that fundamental right? Do you seem to rule out the First Amendment rather quickly? It was not my intention, Mr. Chief Justice, to rule out the 1st Amendment. Would that be broad enough? The right of association? If you can find that in the First Amendment, in this context, would that be broad enough to reach having a grandmother give a home to her grandchildren? I think so. I think the fundamental right here does not arise from any one single point in the Constitution. It arises from several different influences in the Constitution. First of all, it arises from the line of cases beginning with Skinner v. Oklahoma, which discuss and afford protection to the right to procreate, the right to create a family, the right to determine the extent of one’s own family. That is one clearly defined source of constitutional protection. The second line of cases is that line beginning with Myron v. Nebraska and continuing on through the Yoda case, the school education case, which gives parents and which gives persons within the family the rights to control the very upbringing of the members of the family, particularly the minor children, to make decisions about the rearing of those children, the secular, the moral education of those children. Thirdly, we have the associational interest involved, which had been recognized most specifically in the Meryl context in Griswold and Eisenstead, which I think also extend to the relationships among family members. When you say family members, how broad does that term sweep? It sweeps, it encompasses ties of blood, marriage and adoption. So it would include presumably cousins? It would include cousins, yes. Suppose this ordinance merely said that anyone not related within the third degree shall not be regarded as a member of the family, do you think this would be valid? Just that. I think that begins to approach an area in which the legislative body might step in and determine a cut-off point. But the purpose of a cut-off point is completely different. It is a matter to resolve controversies. It is a matter to decide perhaps, the third cousin is too close. But perhaps the fourth and fifth— So you are conceding there is a cut-off point? I am conceding that there could be a cut-off point but for a very different purpose than this ordinance is designed. The purpose would only be to determine at what very attenuated point in the family blood lines, do family members who are related to the thirty-second degree, let us say, stand in effect as strangers to one another. That would be the sole function of that kind of limitation. I would emphasize that I do not think that that kind of examples has a lot of practical significance for a city like East Cleveland. Those problems simply do not come up, and for example, in the Veltiere (ph) case, the ordinance there said family members related by blood, marriage or adoption. And State Courts— --this ordinance. It is not this ordinance. Your first two categories, you spoke of children. This ordinance does not cut against children, does it? If your client could have 13 children, she would not be - as to them or sidewise with the ordinance, would she? Well, as long as they were minor children, as long as they have no children of their own, as long as they are not married. I am assuming all that? That is correct. The final threat, I mentioned three – It was not your position at an answer to my brother Blackmun that, if a family decided to, well we are going to be a tribal organization in our particular family – the Jones family or the Smith family – we are going to be tribal rather than think of ourselves as organized in a nuclear family or anything close to it, that the State would be constitutionally required to recognize that. I am not sure, to be honest about it, I am not sure what you are getting at by the term “tribal family”. Everybody related at all, like most of the population in the hills of Kentucky, for example. It seems to me that, well, using that example the answer is clearly no. My response to that is – Why? If they asserted that this is the kind of family we want to belong to, and these are associations that we are constitutionally entitled to maintain, then the State of Ohio and the City of Cleveland has no constitutional right to invade our constitutional right of association as a tribal organization. My response is that if we examine the prior decisions of the court, they build on blood relationships. well, is there anything in the constitution about that? There is nothing specifically in the Constitution. On the other hand, there is nothing specifically in the Constitution that creates a fundamental right of a parent to raise his child. It has been recognized. And there is nothing specifically in the Constitution that talks about procreation, yet it has been recognized. And I focus on certain areas of decisions, and identify three of them and the third, I think, relates to the protection that has been accorded to the family home. And from that, we assert a right to privacy and freedom of association in matters of family life. What good is it to have a right to control the upbringing of your child, if you cannot even live with that child? In the Prince case— Nobody is being denied the right to live with their child here, unless you are talking about the grandmother’s right to live with her grandchildren. That is correct. In a particular single house, in a single dwelling. In the family home. Well, but the application of this statute, of this ordinance, has quite an effect upon the father living with his children in the home of the grandmother. It cuts across that, does it not? The application of the statute by its terms should preclude the father as well from living in the home. But as a matter of fact, John Moore Jr., who is now age ten and was seven at the time of the prosecution, was singled out as the “illegal occupant” in the home. He is the one who was being asked to leave. It was based on his presence in the home that – If you and your opposition, would have get together as to where John Moore, Sr. lived, was he in the home or was he not in the home? As I read your brief, you have opposite polls on this. Mr. John Moore Sr. was in home at the time of trial, he is in the home now and he has been there ever since trial. The composition of the family home at the time of trial was Mrs. Moore, her two sons John Sr. and Dale Sr., and their two respective sons John Jr. and Dale Jr. Now that family composition has remained intact in exactly the same way, and those family members have continued to live in the home to this date. It is an awfully small point, but is there any reason why John Jr. rather than Dale Jr. is the villain in the picture? It is beyond me. I cannot explain that. Did the judge suggest why? I did not try the case below. The housing code singled out John Jr. as I say, the notice of violation -- (Inaudible) schools or something? Is that suggested in the record? There was a coincidence time-wise, a peculiar coincidence time-wise with John Jr.’s entry in the first grade. I would emphasize this ordinance interferes in the most substantial and direct way with matters of family life. For example, it applies to all dwelling units in the entire city of East Cleveland, Ohio. It applies to single family units, it applies to two-family units and multiple dwelling units and there is no place in the entire city of East Cleveland that Mrs. Moore can live together with her family. Even in an apartment? Even in an apartment. East Cleveland is a city of roughly 40,000 people and it is encompassed within about a 3 square mile area. And the criminal sanctions are severe as well. It is six months in jail for every day that a violation is allowed to continue. Do you think the City of East Cleveland could pass an ordinance that said there shall be no more than three people per room permanently residing in any single family dwelling? In a sense it has done that, although not in those terms. Its past two ordinances, one which sets an occupancy limit. For example, based on- Do you think it can— Yes, I do. The answer is yes. That, but such an ordinance though, it would certainly have a fairly sharp impact on even a nuclear family. Wouldn’t they have wanted to have a lot of children? It could conceivably have an impact, although that is clearly not the purpose of the ordinance. Let me use the example that East Cleveland has already, well the ordinance that they have already passed. They determined in a mathematical way how many people ought to live -- how many square feet of space are required to support an individual, two individuals, etc. And would that be valid? Yes, I believe that is valid. In this case for example, Mrs. Moore is entitled by virtue of the square footage in her home, and by virtue of the number of bedrooms, to have seven people there. She has always had less than seven in her home. It seems to me that that kind of ordinance has the very precision that this ordinance lacks. The problem that that ordinance is addressing is the problem of density. But could you not attack that ordinance on the grounds that it could conceivably interfere with the decision as to a nuclear family – mother, father, children – as who want to have a lot of children and say, instead of passing that kind of ordinance, they ought to pass the kind of ordinance that you are attacking here that does not have any effect on the nuclear family but just cuts it off at the nuclear family. It seems to me that what this court focuses on - and this is particularly true in the First Amendment over-breadth cases, but I think it should be equally true here - is on the substantiality and the degree of impact that the ordinance has on the particular fundamental right involved. And that ordinance would have a very minimal impact, generally speaking, on families. If it is properly tailored, if indeed the legislature sits down as the legislative body did, for example, in Young v. American Mini Theaters and decides that this particular measure is key to the problem. The impact on families would be very incidental and would be slight. I can see that in a particular situation there might be a rather severe impact, but that overall, it would be minimal. And I think that the other key distinguishing factor between that kind of ordinance and this ordinance is its very precision. There is nothing precise about this ordinance. If this is an anti-overcrowding ordinance, where is the relationship if you cut out -- apparently under some circumstances, one sub-group of grandchildren may live in the home provided that the child of the grandparent is dependent upon the grandparent. Now that sub-set might have several children, whereas the next sub-set, the married adult child who is separated from his wife and returns to the home, that child is automatically out. There is no precision, there is no logical relationship between this particular ordinance and the control of density. I think the relationship, if it exists, is purely accidental. I think that that is the distinction between the two kinds of ordinances and I would emphasize that East Cleveland has on the books here a per-person occupancy limit ordinance. Is there anything that prevents this if this fellow, a young man that is in trouble, if he goes out does he go on home relief or something? On welfare? He goes on presumably— Well, I guess that is what the city wants. Presumably what happens is that if— Well I assume that a seven-year old child cannot take care of himself. I think if John Moore, Jr. is forced to leave, I think his father will go with him and What happens? Then the relationship between the grandmother and her own son is disrupted and severed. Well, there is nothing in the record that shows that he has an independent income. That is correct. There is nothing about income at all. About income, either way. That is what I meant. Would that be relevant to this issue? I do not believe it would be. It is only relevant in so far as the statue is applied to -- , in so far as the dependency question is involved in the application of the statute. You mean that if they do not have any money at all, then the child may be thrown out in the street? Is that it? That is absolutely correct in this instance. Let me emphasize that the application of this ordinance here would not only sever and disrupt the relationship between Mrs. Moore and her own son, but it would disrupt the relationship that is established between young John and young Dale which is, in essence, a sibling type relationship. And it would most importantly disrupt the relationship between young John and his grandmother, which is the only maternal influence that he has had during his entire life. So the interference here, to go back to Mr. Justice Rehnquist's question, is very substantial. On that argument, would the case be any different if the grandfather had, say had his first wife die and remarried someone who was not actually the maternal grandmother but ye brought up the children? Would it be really a different case? Is it really dependent on the blood relationship or just the fact that these five individuals happen to live together? I think that there is something, perhaps sacred is going too far, something very, very significant in our society and in history about blood ties. The notion of kinship, the notion of sometimes it is a religious obligation to look out for your own kin. That is what is at work here. You would say that would be a different case, in other words. Yes, I would. I concede that in a given situation, the reality of the situation might approximate the same kinds of blood relationship. But it really is different and I am not asking this Court to reach that -- But would this be different if John Sr. was the adopted son of the grandmother and John Jr. was in turn the adopted son of John Sr.? I am puzzled by why you put so much on the blood relationship once the legal relationship is established. I am sorry. By emphasizing the blood ties, I did not mean to exclude ties of marriage and ties of adoption. Adopted children, for almost every purpose that I can conceive of, are treated the same as natural issue, are they not? Exactly, and there is very clear state policy along those lines. If this ordinance were tailored the way the Veltiere ordinance was tailored, obviously we would not be here. But also I would have no constitutional objections to that ordinance. It says: all persons related by blood, adoption or marriage. And then it is up to the family members to decide within their family how they want to live. Then to prevent the overcrowding you say that the municipality may put a density, a space requirement. But that you would accept because presumably it relates to health and safety. Yes, and in fact such a per-space requirement has been passed in this case. It is quoted in part on page 3 of the appellant’s brief. Counsel, does this ordinance have any provision for individual variances? Is there any procedure by which you could have applied on behalf of the family for a tolerance or something? Yes, there is a procedure. Within ten days after a citation by the housing code official, there is a right to appeal for a variance. The standards, but I would emphasize— Does the record show whether that was done in this case? The record does not show either way, but the fact is that no appeal was taken. I would emphasize that that particular ordinance is reproduced in the appendix to the appellee’s brief. As a matter of fact, in the appellee’s brief, there is a statement that had, and I am quoting, had Mrs. Moore sought a variance, it “probably” would have been granted “possibly with some stipulations”. And I think that those three qualifiers in the statement by the appellee are born out by any examination of the particular variance provision. The provision permits variances provided that the granting of the variance will not be inconsistent with the overall purposes of the ordinance in question. It seems to me that it is very difficult to expect East Cleveland on the one hand to grant a variance for Mrs. Moore if it is saying that the presence of John Moore, Jr. in the home is in fact inconsistent with the very purpose of the legislation. I do not follow it. Any variance, by definition, assumes, there's a violation of the literal general application of the ordinance, doesn’t it? But there is also a provision in the variance section that provides that if it is to be granted, it must be granted on the condition that it is consistent with the overall purposes of the ordinance. And I think what East Cleveland does in granting these things is that they give you an extension. Six months, a year and then you have to leave. We will give you a variance but we will give it to you temporarily for six months or a year and then you have to go. I would emphasize— Does the record support that or is that just sort of a -- ? That is not in the record. That is based on my own examination of the minutes of the zoning, the appellate review unit that makes these decisions. I would emphasize that it is correct, Mrs. Moore did not seek a variance in this case. But we contend that that is constitutionally irrelevant. In essence, the appellee’s argument is that there was some requirement of exhaustion of the administrative avenue here. It is our position that in a criminal case, it is not a precondition to asserting an offense based on the unconstitutionality of the ordinance, that one need a exhausted variant sort of administrative appellate procedure. Is there a legislative history which tells us the purpose of this ordinance? There is a legislative history but it does not illuminate the purpose of this ordinance. This ordinance was passed in 1961. Its predecessor was passed in 1961 at the time a Housing Code was adopted for the City of East Cleveland. And what the appellee has done in his brief, is cite the prefatory language to the Housing Code which talks about upgrading property, control of density and there is no provision that zeroes in on, by way of explanation, this particular provision. Because this is a suggestion that, in addition to the specific density provision or ordinance, this also has a purpose related to density? That is the position as I understand. And yet I think you told us the seven-room house , or rather the house in any event, could within the density ordinance, accommodate seven people. Is that right? That is correct. And yet there are only six here. Five. Is there any law in Ohio that says if you are charged with violation of the zoning code, you cannot after that time be given a variance? Does that prevent you from getting – By the terms of the variance ordinance, you must file an appeal within ten days. From the time— From the time of the citation. The citation occurred in January 1973, roughly a year or so prior to the prosecution. I would point out in further response to Mr. Justice Steven’s question that in Starr v. City of Baxley, 355 US 313, this Court considered the question of whether, reached the constitutional validity of a municipal ordinance that precluded persons from engaging in certain kinds of organizational activity without first seeking a permit. The fact was that the individual challenged the ordinance did not seek a permit in that instance and this Court addressed the very specific question whether or not the individual somehow lost his right to raise the question before this Court by failure to seek a permit. The Court rejected that decision. Was it not the holding in Starr that the very statute that required the permit was bad? That is correct, but that was not material to the exhaustion argument. The exhaustion argument was that, look this whole case could have been avoided - if you simply would have sought a permit, it might have been granted. And that point was specifically addressed by the Court and rejected. In fact, the very language of standing, somehow the appellant had no standing and that case is adopted by the appellee in his brief. If the municipality has no authority to put this kind of a limitation based on other than density, then the variance falls in the same category. Exactly. At this time, I would like to conclude by saying that this Court is presented with an ordinance which, on the one hand exhibits no rational methodology whatsoever, but on the other, cuts ever so deeply into the fabric of family life. We urge that Mrs. Moore’s conviction be reversed, that she be allowed to live together with her sons and grandsons in East Cleveland, unmolested by this ordinance. I would like to reserve my remaining few minutes. Very well. Mr. Young.
Argument of Leonard Young Mr. Chief Justice, may it please the Court. This time, the appellee would like to point out that with respect to John Moore, Sr., the Housing Code file of the City of East Cleveland shows that at the time of the citation, John Moore, Sr. was living on Central Avenue in the city of Cleveland. He was not living in the premises in question. Further, we would like to point out again from the Appendix of appellee’s brief that the initial citation occurred in January 1973. From that point until April 1974, the Housing Department of the City of East Cleveland worked with the appellant in trying to resolve this question of occupancy. It was not until April 1974 that this matter was taken to Court. When you say resolve, in what respect? Did you help them go somewhere else, get a variance, or do what? No. Your Honor, the procedure with respect to Code citations are to notify the party involved, either ask them to call the Housing Department to set up a conferences with them to find out what can be done to correct the situation, including conferences. There is nothing in the record but I can only make this point. In a usual situation like this, the housing inspector, if there is a possibility of a variance, would make a verbal response to that person involved in that situation. But again, there is nothing in the record to reflect that and I could not find anything in the record of the Housing Code. I am a little puzzled yet. What solution could they work out? If I may go to that, Your Honor. When you look at this situation, you have to look at the entire Housing Code. One of the things that I focus on at this point is that under the Housing Code, there is the sub-tenant (ph) group. They are, for example, and I take exception with regards to hardships. With regards to a variance, a showing of hardship is made if it can be done in harmony with the ordinance, that is, to maintain the safety, the welfare of the community, variances are granted. In this situation, the record does not reflect it and to my knowledge there was no showing of any need or any hardship as to why the grandson should remain in the premises. Again, I go back. If these arguments made on behalf of the appellant were made by John Moore, Sr. involving personal rights, I think you would have a different situation. But here, you have the appellant, a grandmother making these arguments of personal rights in which there is no guardianship, no adoption on her part of John Moore, Jr. Therefore, these are the types of things that John Moore, Sr., as a natural parent, has a right to determine. Mr. Young, why John Jr. and not Dale Jr.? Thank you, Mr. Brennan. If we go back again to the citation, I mean the ordinance in question. The nominal head of the household, in this case would be the appellant - she is listed as the owner of the premises, can have one unmarried child with her. Also, in the situation says he had a son, Dale Sr. was there and Dale Jr. was there. Looking at the total situation, the premises could accommodate the three individuals that the Housing Department would not give a citation on that type situation. When you bring in John Jr. who is there at that point, you have exhausted the ordinance which allows the unmarried son to be there. You are bringing on another family. In addition to that— Both sons were married. At the time of -- right. I do not know that. Is John Sr. unmarried? I do not know that. Possibly, he is. But again, I go back to the time of the citation. As far as we can determine, John Sr. was not in the home. Now, in addition to this, John Jr. was in the process of, as counsel for appellant pointed out, starting to school. One of the things in the public school system in East Cleveland, there must be some parent or person who stands in the position of the parent to whom the school can look to, if there is a need, for example the child is injured, a need to give consent for treatment. Without the appellant having a guardianship, this meant that they cannot turn to them. A grandmother cannot do that— Unless she is a parent. I am a grandparent. I would like to think I could. Under the situation where— So your answer is, they could not. Not on the, in my understanding they could not, particularly since the natural father is alive and had not given his consent to the grandmother in that respect. Of course, the city is not the School District, is it? No, it is not. Where do you want this young man to go? The only complaint is one boy, right? Is that the complaint? At the time of the citation, second family is – As of now, what is the complaint? As of now, there is a second family. John Moore, Sr. and John Moore, Jr. live there. One person? One person, too many? Two. The father and the son. They are there now. They are both wrong? I thought it was only one. Well, your question, Mr. Justice Marshall was as of now. I want to know how this family can conform to the Code. Minimum conflict. With the minimum conflict- Yes. Mrs. Moore, under room and house license, could apply for additional roomers. But this woman stands convicted of something. Now what has she done? What is she convicted of? She is convicted, your Honor, the conviction is for having more than one family in the premises in question. Who is that “more than one family” as to person? As to person at the time of the citation would be John Moore, Jr. As of now, since currently John Moore, Sr. is there, it would be John Moore, Sr. and John Moore, Jr. Well, as of the time of conviction? As of the time of conviction, based upon the stipulation by the appellant, John Moore, Sr. was there also. So it would be the two of them. I thought you said a minute ago, it was – Citation is different, your Honor, between conviction. Well, with citation, the only way that it could conform would be to throw this kid out on the street? No, no, Your Honor. Well, how else? One, the father, since he was living elsewhere, Your Honor, could take the child himself. Well, I am not talking about it, could John B Rockefeller could give him million dollars. May I continue? But so far as the city is concerned, he could go out in the streets. I would not go to that extent, Your Honor. Second thing is a point in the brief is that if the appellant, the grandmother had a guardianship, John Moore, Jr. would be part of her immediate family— Did anybody tell her that she could do that? The record does not reflect this, Your Honor. I can assume that, my thoughts would be that the normal procedure here is that they are told. I cannot assume that. Your Honor, my point – Unless you test— did you testify at the trial? At the trial in question, I was present. After the conviction, this question was discussed with the counsel who represented appellant at the trial level. This was discussed in my presence with members of the Housing Department. As it is in the record in this case? No, it was not, Your Honor. Well, I am not interested. I might as well go to the record. I understand. And so far as the record is concerned, this young chuck could go on home relief, or welfare or something. I would like to expand on the question that was raised when the appellant was present. At this point in time, and even after the conviction, for the appellant to make good application for variance, I think that question was raised and I would have to submit that it is possible even after the conviction for the application for variance to be made. Of course, on his constitutional plan, your friend’s position is that the municipality has no right to require them to ask for a variance, that this right exists independent of that. I might address myself to that. First of all, with regards to the fundamental rights issues, if we look at all of those cases dealing with that matter, if you look very closely, they are dealing with personal rights. The right, for example, of a person to vote, this is personal. The right of the female to determine whether she will procreate - again, personal rights. There is no law that counsel knows of in the State of Ohio that gives a grandmother a personal right to decide if her grandson can live with her. What is the Right Of Association? Is that personal? The Right Of Association in line of case, is dealing with there, again I would focus on the point that they deal primarily with relationship between what we call the nuclear family. Again, personal rights. The right to associate in this respect, the appellant is not being refrained from allowing her son, grandson to stay on weekends. Or even she - under the two systems I suggested – the hardship or guardianship – to actually assume full responsibility for him. I might point out that under the equal protection argument that was suggested by counsel, that in equal protection situations, the ordinance in question must be of a suspect character. There has not even been any argument to this effect or raised in the briefs in this instance. The Procedural Due Process, no proper notice was given, conferences were held, in this respect to try to determine how best to resolve this matter. You suggest, Counsel, we have never held a grandmothers were a suspect classification? No, what I am saying is in a suspect classification Mr. Justice Rehnquist is that-- Mr. Young, before you say it, I would like to hear you talk about what State interests are served by this ordinance? What legitimate state interests or purposes does this ordinance promote? With regards to the state interest, Your Honor, we are talking here of overcrowded conditions. That is only one. There is the problem of traffic, tax burdens with respect to, not only to the city services. Doesn’t the density provision take care of the overcrowded aspect, the health condition? You have a separate ordinance on density, don’t you? Yes we do, Your Honor. The density ordinance, with respect to square footage and density, partly covers our problem. If I may go back for a moment, the ordinance sequence was passed initially in 1961 defining family, redefined in 1964. It would appear that this legislative body at that point, found that they needed something additional, the two ordinances together from cooperating, working in complementary to deal with these three, actually four problems: overcrowding, traffic congestions and the tax burden so that the safety and the welfare of the city is handled within the income that the city is producing. Is there any legislative history that indicates what the council had in mind when it devised an ordinance that prevents a grandmother from living with her children and grandchildren? To my knowledge, your Honor, there is no legislative history in this— There was in fact, an historical fact that brought a rather dramatic change in the nature of the population of East Cleveland, wasn’t there? Just about the time this ordinance was passed? ’66, that would be the beginning of it, yes, Your Honor. Mr. Young, is it conceivable that the city council might have been willing to allow more people per square foot in a house if it was a nuclear family than if it was not? Yes, certainly Your Honor. In fact, we would suggest rather I would suggest that it is the nuclear family that the city commissioners had contemplated in passing of this ordinance. I might point out that, under the provisions or the definition of family, that under proper circumstances, other members of the family might be allowed to live in a given city, a given home. Mr. Young, let met be sure about this. Another solution to the dilemma here would have been for Dale Sr. and Dale Jr. to move out. Yes, that was a choice that the appellant could have made, yes. The grandmother could move out or would have to -- No, I would not say the grandmother could move out. She was the owner of the premises. (Inaudible) No, as long as she is the owner, I would not think it would be – On your traffic congestion, you said only one kid did not have a license. Your Honor, I would agree with that. However, I might point out that based on what has been before the Court at this time, you have Dale, Sr. and John, Sr., the appellant, who are adults. There are three automobiles there. This is a two-family, at least two adults on the other side. If they are all legitimate, there is nothing wrong with that. One of you asked me a question with respect to traffic. What I am pointing at is that, in a home where there is a two-car garage, you might have as many as five automobiles at this home. And I am focusing on the fact that the ordinance was aimed at more than just a question of overcrowdedness. I take it that neither Dale, Sr. nor John, Sr. had these two boys, Dale, Jr. and John, Jr. There would be no problem even though each, the grandmother and the sons each had a car. No, I would not – There would be no violation of the ordinance if just the appellant and her two sons lived in the house, would there? She can only have one unmarried son under the ordinance. Even though neither had any children? That is right. The mother could have only one of her children to live with her, is that it? She could have -- one unmarried son is being considered part of --may I expand that? One unmarried son is considered the family. The second son, since this is a two-family, would be there as what we call under the ordinance an unlicensed roomer. What if they are both unmarried and neither has a child, aren’t they alright? Can they not stay with their mother? As I read the definition of family in 134108--- I am sorry, you are correct in that. Get back to my -- question. And if neither Dale Jr. nor John Jr. had been born, and John Sr. and Dale Sr. lived with their mother and each had an automobile, there would be no violation of the ordinance notwithstanding the traffic problem that it might have created, would it? I would have to, under that factual situation – It is only because these two seven-year old grandchildren are there. And the three automobiles become a traffic hazard. In this case, that might be the situation, Your Honor. I believe that the younger grandson is not seven, it was— Whatever it is, it does not, as Justice Marshall suggested, it is sill not a license (Inaudible) or is he? No, he has not. A mother with six children would be okay. Well suppose -- -- was the appellant—yes. There would be no problem there. How about more than 12? There would be a problem there under the square footage ordinance. That would depend on the size of the building. Well, if the appellant is a mother of 12 children -- If one had 12 children in a 14-room house, it would be fine, right? If under the ordinance of square footage, it would be fine, yes. So the reason is to cut down the density and the traffic problem. Oh, incidentally, could all those children have a car? I suppose if they are at the proper age, they could. Could each one of them have a Volkswagen bus? In the same way, what about a truck? With regards to a Volkswagen bus, I would have to answer this on the basis of whether it is classified as a truck or not. There might be some problem with regards to where it would be parked. Trucks are not allowed to be parked in the residential areas. Certainly Mr. Young, you are trying to charge them with just “a” factor, is it not? It is not “the” factor. In the Estin (ph) case, it is “a” factor, it is not “the” factor. Again, I would like to go back with regards to the, again, the tax situation. This is with respect to the income generated to provide services for the city, the normal services, fire, police and so forth. If we have an overcrowded condition on the basis of the city’s limited income, of course, you are going to reduce the ability of the city to properly provide services for all of the citizens of the community. I might point out that with regards to – I am sorry, I do not think I followed it. How does this, I gather the way this would work is one father and son would have to leave in order to satisfy the ordinance, is that right? Or I suppose one of the grandchildren would have to leave this house in order to satisfy the ordinance. How does that alleviate the tax burden? Your Honor, I am talking about taking the situation with the case we have at hand. In effect, again I realize it is not in the record, but in effect multiplying the situation that you get continued overcrowded situations throughout the City of East Cleveland. As I understand it, if there were nothing but a density problem here, there would be no overcrowding. Is that right? If there was nothing but a density problem, there would be no problem. Yes, and in this house, there would be no overcrowding. But now the way it is, with the two grandchildren and there is an overcrowding and this somehow increases the cost of police, fire and other services? Is that it? With regards to this, I would have to submit that that is the situation because again I have to go back. John Sr. initially was living elsewhere and, assuming he was employed, he was paying his taxes to another municipality. Yet his son is being educated in the East Cleveland School District. In the situation before the Court, the appellant is challenging the state interest with respect to the passing of these ordinances. However, it is submitted on behalf of the City of East Cleveland that these ordinance rather was passed on the proper exercise of the police power, that it is rationally related to the purposes for which it was enacted. Therefore, in order to raise the challenge, the appellant has the obligation, has the burden to show by clear evidence that there is an infringement on the appellant. And I submit that the record below does not show any evidence on the part of the appellant that this is the situation, that the ordinance is not rationally related to its purpose. In fact, this is a point that is mentioned by the Ohio Court of Appeals in affirming the decision of the trial court. In summation, the appellee submits that the issue before this court is whether, when a city can properly pass a municipal ordinance on its police power in the interest of the welfare, safety of its community provides in that ordinance means by which the appellant, if it felt harshly could have gotten a variance, and the appellant does not make an effort to apply to the appellate route, then the appellant has first of all no standing before this Court. Secondly, since there is no record to show that the appellant presented a clear evidence that this ordinance is arbitrary, the Court should sustain the judgment of the Ohio State Appellant District affirmed by the Ohio Supreme Court and we respectfully submit that this Court affirm the decision below. Mr. Young, before you sit down, you made a point and I asked the question before about the availability of an appeal to the other side, that she could have asked for a variance. Does that not work both ways? Why couldn’t the City of East Cleveland, when they found out the facts that do not seem to be very extreme, why couldn’t they have simply withheld prosecution here? Why should the burden be on them when you have a situation like this, trying to get a seven-year old boy out of the house? With regards to, first of all, I do not know the facts available to the housing inspector at the time of the citation. But they surely were at the time of trial, weren’t they? At the time of the trial, Your Honor, the appellant simply stipulated that these five individuals were living there and filed a motion to dismiss on constitutional grounds. There is no evidence taken at the trial? No, but after they made that stipulation, there was no further evidence taken. And since there was no application to the Board of Zoning Appeals, I do not know whether, there was no application made, there might have been a denial or it may have been granted. I really do not know in this instance because there was no application made to the Board of Zoning Appeals in this respect. Of course, if you express, you are sure it would be good. Or did I read you wrong? I said possibly. This is what, it said possibly would be granted with probably some limitations. Probably. Possibly, you say. But you said it would probably be granted. Well would it, or would it not? I really do not know. You really do not know? I do not know at this point until the facts are presented to the Zoning Appeal. As of now, you do not know. No, I cannot get a minimum guarantee, no. Thank you very much. Thank you Mr. Young. You have anything further?
Rebuttal of Edward R. Stege I have nothing further at this time. Thank you. Thank you gentlemen. The case is submitted.