Hawley v. City of Cleveland

• Decision Date: 18 May 1994
• Docket Number: No. 91-3740,91-3740
• Citation: 24 F.3d 814
• Parties: Jane HAWLEY; Eileen Roberts; and David Finley, Plaintiffs-Appellants, v. CITY OF CLEVELAND; Director of Port Control; Catholic Diocese of Cleveland; and Bishop Anthony M. Pilla, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 814

24 F.3d 814

29 Fed.R.Serv.3d 60

Jane HAWLEY; Eileen Roberts; and David Finley, Plaintiffs-Appellants, v. CITY OF CLEVELAND; Director of Port Control; Catholic Diocese of Cleveland; and Bishop Anthony M Pilla, Defendants-Appellees.

No. 91-3740.

United States Court of Appeals Sixth Circuit.

Argued March 21, 1994.

Decided May 18, 1994.

Lester S. Potash, DJR & Associates and Kevin F. O'Neill (argued and briefed), American Civ. Liberties Union of Ohio Foundation, Cleveland, OH, for plaintiffs-appellants.

Heather Graham Oliver (briefed), Edward J. Maher, Ross & Kraushaar, Douglas J. Paul (argued and briefed), Chattman, Garfield, Friedlander & Paul and Bernard H. Niehaus, Cleveland, OH, for defendants-appellees.

Before: KEITH, MARTIN, and DAUGHTREY, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Pursuant to an ordinance passed by the Cleveland City Council, the Catholic Diocese of Cleveland operates a chapel, in a space the diocese leases from the City of Cleveland, in the terminal building of Cleveland Hopkins International Airport. Claiming that the lease agreement and its authorizing ordinance violate the Establishment Clause of the First Amendment, three Cleveland taxpayers and an advocacy organization brought suit under 42 U.S.C. Sec. 1983 against the city, the city's Director of Port Control, the diocese, and diocese Bishop Anthony M. Pilla. Plaintiffs now appeal the district court's judgment in favor of defendants. For the following reasons, we affirm the judgment of the district court.

I

Jane Hawley, Lucille Branch, David Finley, and Americans United for Separation of Church and State filed suit challenging the chapel's lease and the lease's authorizing ordinance in federal district court on August 16, 1983. ¹ On May 15, 1984, the district court dismissed plaintiffs' action for lack of standing. On October 29, 1985, this Court held that plaintiffs did have standing, reversed the district court, and remanded the case. Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986). The matter was subsequently tried before the district court on February 5-11, 1991. On July 19, the court rendered judgment for defendants, making the following findings of fact pursuant to Federal Rule of Civil Procedure 52:

1. The plaintiffs are citizens of the United States and resident taxpayers of the City of Cleveland.

2. The defendants include the City of Cleveland, its Director of Port Control, the Catholic Diocese of Cleveland and Bishop Anthony M. Pilla.

3. Cleveland Hopkins International Airport (the "Airport"), is a major, modern airport facility currently served by 16 airlines, providing non-stop service to over 60 major U.S. cities, and connecting service to points all over the world. The Airport occupies an 18,000 acre site. The passenger terminal measures 690,000 square feet. At Hopkins can be found nearly 5,000 parking spaces; 12 passenger elevators, 8 speedwalks and 13 escalators. There are also 5,000 airline and other tenant employees based at Hopkins.

4. To serve the employees, patrons and passengers at this major transportation facility and solely to accommodate persons using the Airport, there are various commercial establishments including newsstands, book stores, flower stores, country stores, candy shops, restaurants, cafeterias, bars, and baking and hotel facilities. In addition, Hopkins has five rental car companies and eleven freight companies. There are also non-profit service establishments such as the U.S.O. and a Travelers' Aid center, as well as the Chapel, which is the subject of this litigation.

5. Pursuant to Ordinance Nos. 843-82, 2124-82, and 1607-83, duly passed by Cleveland City Council, the Director of Port Control, on behalf of the City of Cleveland, entered into an agreement, effective August 1, 1983, with Anthony M. Pilla, Bishop of the Catholic Diocese of Cleveland[,] for the use of approximately 2,733 square feet of space located in the terminal building of the Airport for the operation of a Chapel. The Airport Chapel was intended by the City to provide services to the traveling public and employees at the airport.

6. City of Cleveland Ordinance No. 843-82, introduced by Councilmen Ciolek and Forbes, by Department Request, "Authorizing the Director of Port Control to enter into an Agreement with Anthony M. Pilla, Bishop of Cleveland, for use of certain space at Cleveland Hopkins International Airport", was read for the first time in the Cleveland City Council on April 19, 1982. The legislation was referred to the Director of Port Control, who approved it on April 21, 1982, the Director of Finance, who noted his approval on April 30, 1983 (sic), and the Law Director of the City of Cleveland, who found "no legal objection to the passage of the within ordinance", on May 2, 1982. The legislation was also referred to the Committee on Aviation, Lakefront Development and Transportation, which recommended passage on May 3, 1982, and the Committee on Finance, which recommended passage on May 13, 1982. The ordinance had a second and third reading on May 17, 1982, and May 24, 1982, respectively. Ordinance 843-82 was signed by the Mayor on May 28, 1982.

7. City of Cleveland Ordinance No. 2142-82, introduced by Councilmen Ciolek and Forbes, by Departmental Request, "To amend Section 1 of Ordinance No 843-82, passed May 24, 1982, relating to the use of certain space at Cleveland Hopkins International Airport", was read for the first time in the Cleveland City Council on September 27, 1982. The legislation was referred to the Director of Port Control, who approved it on September 29, 1982, the Director of Finance, who noted his approval, and the Law Director of the City of Cleveland, who found "no legal objection to the passage of the within ordinance", on October 4, 1982. The legislation was also referred to the Committee on Aviation, Lakefront Development and Transportation, which recommended passage on October 25, 1982. The ordinance had a second and third reading on December 6, 1982. Ordinance 2124-82 was signed by the Mayor on December 8, 1982.

8. City of Cleveland Ordinance No. 1607-83, introduced by Councilmen Ciolek, Johnson, Woods and Forbes, by Departmental Request, "To amend Section 1 of Ordinance No. 843-82, passed May 24, 1982, as amended by Ordinance No. 2142-82, passed December 6, 1982, authorizing the Director of Port Control to enter into an Agreement with Anthony M. Pilla, Bishop of Cleveland, for use of certain space at Cleveland Hopkins International Airport", was read for the first time in the Cleveland City Council on May 23, 1983. The legislation was referred to the Director of Port Control, who approved it on May 24, 1983, the Director of Finance, who noted his approval on May 27, 1983, [and] the Law Director of the City of Cleveland, who found "no legal object[ion] to the passage of the within ordinance", on June 20, 1983. It was approved by the City Planning Commission on June 17, 1983. The legislation was also referred to the Committees on Aviation, Lakefront Development and Transportation, the Committee on Real Property, the Committee on City Planning, and the Committee on Finance, all of which recommended passage on June 20, 1983. The ordinance had a second and third reading on June 20, 1983. Ordinance 1607-83 was signed by the Mayor on June 23, 1983.

9. The legislation authorizing the lease between the City of Cleveland and the Diocese of Cleveland for the Airport Chapel took over 14 months to be approved by the Cleveland City Council.

10. Cleveland Hopkins International Airport is an entirely self[-]sustaining unit in the economic sense and receives not a cent from the tax-supported general fund of the City of Cleveland. Airport operations, development and expansion is paid exclusively by bond proceeds, airline rentals, airport user fees, landing fees, concession fees and other operating revenue. The bonds which finance airport activities are secured by the airlines. If, at year's end, airport expenses exceed revenue, this loss is adjusted by charging the airlines under the formula set forth in the Agreement and Lease between the airlines and the City. Likewise, year end revenue is credited to the airlines. The Airport is, therefore, not supported by or dependent upon any municipal or state tax dollars.

11. As an incentive to the City to provide good management for the Airport System, an incentive compensation payment is provided which is paid from Airport Revenues to the General Fund of the City. Such amounts, if any, are determined for each year by a formula located in Section 8.06(b) of the Agreement and Lease between the Airlines and the City. There were no incentive compensation payments made in the years 1984, 1986 and 1988, but such payments were made in 1985 and 1987. Even if the Chapel's rent were $60,000 per year, this amount would have no impact whatsoever on the incentive payment calculations. It would neither produce an incentive payment when there otherwise was none, nor would it increase what otherwise was paid in 1985 and 1987. In fact, calculations performed by the City[,] and accepted into evidence, demonstrate that the incentive payments for those years would have actually been reduced had the Diocese been paying more rent for the Airport Chapel space.

12. The Administration of the Airport makes its decision as to the appropriateness of particular uses of space at the Airport based upon passenger usage, the public nature of the service provided, the needs of the airlines and their employees and the prevailing practice at other airports in the nation. The Airport has conducted studies about the need for particular uses at the Airport.

13. There are airport chapels existing in at least 16 other airports in the Continental United States. There had long been a small space designated as a Chapel in the plans of the Airport. However, that space did not effectively...