Hawley v. City of Cleveland
| Decision Date | 03 October 1985 |
| Docket Number | No. 84-3458,84-3458 |
| Parties | Jane HAWLEY; Lucille Branch; David Finley; Eileen Roberts; and William James, Plaintiffs-Appellants, v. CITY OF CLEVELAND; George F. Doughty, Director of Port Control; Catholic Diocese of Cleveland; Bishop Anthony M. Pilla, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joshua Kancelbaum (argued), Anne W. Lindsay, Lester Potash, Cleveland, Ohio, Eliot J. Katz, Chagrin Falls, Ohio, Gordon J. Beggs, Gail White, American Civil Liberties Union of Cleveland Foundation, Inc., Cleveland, Ohio, for plaintiffs-appellants.
Edward J. Maher (argued), Robert M. Wolff (argued), Mark J. Valponi, Douglas J. Paul, Chattman, Garfield, Friedlander & Paul, Cleveland, Ohio, for defendants-appellees.
Before MARTIN and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.
This is a first amendment case, involving the application of the first amendment's Establishment Clause (as made applicable to the states through the fourteenth amendment) to the leasing of space in an airport to a church for use as a chapel. Appellants, taxpayers in the City of Cleveland, filed suit in the district court seeking to enjoin such a lease by the City's Department of Port Control ("Port Control") to the Catholic Diocese of Cleveland ("the diocese"). The district court held that taxpayers lacked standing and dismissed the suit. We reverse.
Cleveland Hopkins International Airport is operated by the City of Cleveland through the City's Department of Port Control. The effect of the airport's finances on the City's fisc is, however, limited. Airport expenses are paid by user fees levied on the airlines which use the facility, with fees assessed in such a manner that receipts balance expenditures. If any one airline becomes unable to pay its fees, the remaining airlines' fees are increased; only in the highly unlikely event of a simultaneous default by all airlines could the City be required to devote tax revenues to airport expenses. There is, however, one manner in which airport revenues can affect municipal finances. The airlines have agreed, in order to give Port Control a motive to operate the airport efficiently, to give the City's general fund a share of non-flight related revenues, such as shop rentals. The amount of these "incentive payments can be substantial; in 1981, incentive payments to the City totaled $2,272,293. Obviously, improvident operation could result in a reduction of such payments.
In 1983, the City reached an agreement with the diocese and its bishop, the Most Reverend Anthony M. Pilla, to rent 2,733 square feet of space inside the airport terminal building for use as a chapel. The agreement was approved in a June 20, 1983 ordinance passed by Cleveland's City Council. The twenty year lease provides that the chapel will be open to persons of all faiths and be available for non-Catholic religious services, subject to scheduling by the Catholic bishop. Just how obvious the chapel's association with the Catholic Church will appear upon visual examination may be open to question. On the one hand, the chapel's exterior will conform with the airport design, and will only be identified by a simple sign saying "chapel;" signs elsewhere in the airport will indicate the location of the chapel. The chapel will have some stained glass windows in or around the exterior doors. The interior will be designed so that specifically Catholic religious symbols can be removed when the chapel is to be used by members of another faith. On the other hand, it appears that the chapel will contain at least some permanent furnishings which, if not exclusively Catholic, bespeak at least a Christian orientation and are common to Catholic places of worship (e.g., an altar, a holy water font, a statue of the Madonna).
There is some controversy as to the effect of the chapel rental on the amount of incentive payments to the City. The lease requires the diocese to pay the City rent of $1,200 a year--about 44cents per square foot of rented space. Since the average rental rate for space in the airport terminal is approximately $20 per square foot, the chapel rental rate constitutes an apparent subsidy by the City to the diocese. There are other facts, however, which make it unclear whether this is the case. The space which the diocese is renting is located on the least used airport concourse, and is not prime rental space. The space had previously been used for storage and as a first-aid station, and no business had expressed interest in renting it. The diocese had previously offered a larger sum of money to rent space elsewhere in the airport and had been rejected, presumably because of the likelihood that Port Control would have been able to obtain still higher rents from businesses interested in that particular space. The City and the diocese contend that there was no real commercial possibility of renting the area here in question to anyone other than the diocese, and that by obtaining at least some rent for space which otherwise would have remained unrented, the City was actually improving its incentive payment status. Appellants reply that twenty years is a long time, that there is very little unrented space remaining inside the airport, and that it is very likely that the rental to the diocese will at some point have the effect of excluding tenants who would pay a higher rental. They contend as well that there may have been other parties interested in the space, noting that businesses have approached Port Control with requests to rent airport space only to be turned down. The City responds that no one else had indicated any interest in this particular space, but concedes that it made no active attempt to seek other tenants. Port Control did not solicit bids on the space.
To sum up, the operation of the airport is not subsidized by Cleveland taxes. Receipts from airport shop rentals, however, may result in increased revenues for the City. It cannot be determined on the basis of the present record whether the rental by the City to the diocese will enhance or decrease such revenues.
Appellants are Cleveland taxpayers 1 who filed suit in the United States District Court for the Northern District of Ohio, seeking to enjoin the City and the diocese from carrying out the terms of their lease on the ground that it represents a subsidy by the City to the diocese in violation of the Establishment Clause in the first amendment, as made applicable to the states through the fourteenth amendment. The City and the diocese moved for dismissal, arguing that appellants lacked standing to bring the suit. The court granted the motion, ruling that Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) and Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952) compelled the conclusion that appellants did lack standing. Appellants then appealed to this court. Appellants raise various arguments as to why they have standing to bring the present suit.
The Temporary Emergency Court of Appeals recently succinctly summarized the nature of standing as follows:
To establish standing, appellants must demonstrate that they have " 'such a personal stake in the outcome of the controversy' as to warrant [their] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on [their] behalf." Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In Simon v. Eastern Kentucky Welfare Rights Organization, 26 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), the Supreme Court stated that "the relevant inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision."
Midwest Petroleum Co. v. United States Dept. of Energy, 760 F.2d 287, 289 (Temp.Emer.Ct.App.1985). We first consider whether plaintiffs have asserted a sufficient personal stake in the controversy over the building of the airport chapel to warrant their invocation of the jurisdiction of the federal courts.
Appellants assert that they have suffered non-economic injury as a result of the lease of space for the chapel. They allege that they "regularly use Cleveland Hopkins International Airport" and that the "presence of a sectarian chapel at Cleveland Hopkins Airport impairs [their] use and enjoyment of the public facility." Amended Complaint at p 3(c).
In Valley Forge, plaintiffs, an organization dedicated to the separation of church and state, and several of its employees, challenged the conveyance of property by the federal government to a church-related college without any cost to the college. The Court held that plaintiffs lacked standing, either in their capacity as taxpayers or as citizens, to challenge the conveyance. The Court rejected plaintiffs' claim to general "citizen standing," which the lower court had accepted because the "challenged governmental action caused 'injury in fact' to their shared individuated right" to prevent government from violating the Establishment Clause. 454 U.S. at 476-82, 102 S.Ct. at 760-63; 619 F.2d 252, 261 (3d Cir.1980). In discussing plaintiffs' lack of standing on the basis of non-economic injury, the Court stated that plaintiffs
fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III....
Id., 454 U.S. at 485, 102 S.Ct. at 765. (Emphasis in original.) The Court further stated:
In reaching this conclusion, we do not retreat from our earlier holdings that standing may be predicated on noneconomic injury. See, e.g., United...
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