Robinson v. City of Edmond
| Decision Date | 17 October 1995 |
| Docket Number | Nos. 94-6237,95-6008,s. 94-6237 |
| Citation | 68 F.3d 1226 |
| Parties | Wayne ROBINSON; Curtis Battles; Wendell Miller; Martin Feldman, Plaintiffs-Appellants, Barbara Orza, Plaintiff, v. CITY OF EDMOND, a Municipal corporation; Randell Shadid, individually and in his official capacity as Mayor of the City of Edmond; Ron Mercer, individually and in his official capacity as a member of the City Council of the City of Edmond; Kay Bickham, individually and in her official capacity as a member of the City Council of the City of Edmond; and Gary Moore, in his official capacity as a member of the City Council of the City of Edmond, Defendants-Appellees. Wayne ROBINSON; Curtis Battles; Wendell Miller; Martin Feldman, and Barbara Orza, Plaintiffs-Appellants, v. CITY OF EDMOND, a Municipal corporation; Randell Shadid, individually and in his official capacity as Mayor of the City of Edmond; Ron Mercer, individually and in his official capacity as a member of the City Council of the City of Edmond; Kay Bickham, individually and in her official capacity as a member of the City Council of the City of Edmond; and Gary Moore, in his official capacity as a member of the City Council of the City of Edmond, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Micheal C. Salem, Salem Law Offices, Norman, Oklahoma (Joel Carson, Carson & Mueller, Oklahoma City, Oklahoma, with him on the briefs), for Plaintiffs-Appellants.
Laura Haag McConnell, Hartzog, Conger & Cason, Oklahoma City, Oklahoma, and V. Burns Hargis, McAfee & Taft, Oklahoma City, Oklahoma (Ryan S. Wilson, Hartzog, Conger & Cason, Oklahoma City, Oklahoma, and Stephen T. Murdock, City Attorney, Edmond, Oklahoma, with them on the briefs), for Defendants-Appellees.
Michael L. Tinney, Oklahoma City, on the brief, for Amicus Curiae Citizens for Keeping the Cross.
Before ANDERSON, HOLLOWAY, and LUCERO, Circuit Judges.
At issue in this case is the official seal of the City of Edmond, Oklahoma. The circular seal contains four quadrants, of which one depicts a steam engine and oil derrick, one depicts the Old North Tower, 2 one depicts a covered wagon with the number 1889, 3 and the last quadrant depicts a Christian cross. A copy of the seal appears as an appendix to this opinion.
The seal was first adopted in 1965 following a competition sponsored by the City Council and a local newspaper. A local resident, Frances Bryan, designed the seal from her two winning entries. Since 1965 the seal has been used extensively by the City, and appears on City limits signs, on City flags, on the uniforms of City police officers and firefighters, on official City vehicles, on stickers identifying City property, and in the City Council chambers. Additionally, the seal appears on each utility bill sent out by the City, as well as on official City stationery and the Utility and Sanitation Department's newsletter. The seal has been registered as a trademark under Oklahoma law.
Plaintiffs are non-Christians who live or work in Edmond. Mr. Feldman is a Jew who lives in Edmond, Mr. Miller is a member of the Unitarian Congregation who lives and is self-employed in Edmond, Mr. Battles is a member of the Unitarian Congregation who lives in Edmond, and Dr. Robinson is the minister of the Channing Unitarian Church in Edmond. They brought this action under 42 U.S.C. Sec. 1983, claiming that the inclusion of the Christian cross in the City seal violated the Establishment Clause and the Free Exercise Clause of the First Amendment, as well as certain provisions of the Oklahoma Constitution. They named as defendants the City, its mayor, and its City Council members. The mayor and City Council members were sued in both their official and individual capacities. Plaintiffs sought declaratory and injunctive relief, as well as nominal damages.
The district court initially granted defendants' Fed.R.Civ.P. 12(b)(6) motion to dismiss plaintiffs' claims against them in their individual capacities. It subsequently granted defendants' motion for partial summary judgment on plaintiffs' claimed deprivation of their rights under the Free Exercise Clause of the First Amendment, and on their state law claim under Article I, Sec. 5 of the Oklahoma Constitution. After a two-day trial to the court, in which eight witnesses testified, the district court granted judgment for defendants, holding that the seal did not violate the Establishment Clause under the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111-12, 29 L.Ed.2d 745 (1971). It also held, without explanation, that the seal was valid under the Oklahoma Constitution. Following judgment, defendants sought costs and attorneys fees, pursuant to 28 U.S.C. Sec. 1920 and 42 U.S.C. Sec. 1988. The district court awarded costs of $5,586.38, and denied all but $2,361.00 of attorneys fees, holding that plaintiffs' claims under the Establishment Clause and their claims against defendants in their individual capacities were not frivolous, unreasonable or without foundation. It held, however, that plaintiffs' claim under the Free On appeal, plaintiffs argue the district court erred in finding for defendants on their Establishment Clause claim. 4 They also claim error in the district court's order requiring plaintiffs to disclose in camera to the court a letter sent to plaintiffs by their attorney. Finally, they claim the district court erred in awarding to defendants attorneys fees and costs incurred in responding to plaintiffs' Free Exercise Clause claim, which the court held was frivolous. They in turn seek an award of attorneys fees and costs if they prevail in this appeal. Defendants seek attorneys' fees incurred in defending their award of fees and costs below.
Exercise Clause was without foundation, given plaintiffs' admission in their depositions that "they were completely free to exercise their respective chosen religions in the City of Edmond," Order at 3, Pls.' Br., Attach. F3, and that fees and costs were appropriately awarded to defendants for defending such a baseless claim.
The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. The Supreme Court generally applies the three-part test of Lemon when evaluating claimed violations of the Establishment Clause. 5 Thus, we continue to apply it to such cases, while recognizing that "[a]lthough the Supreme Court has been unwilling to endorse Lemon as the 'be-all' and 'end-all' in Establishment Clause cases, it has continued to apply it almost exclusively." Friedman v. Board of County Comm'rs, 781 F.2d 777, 780 (10th Cir.1985) (en banc), cert. denied, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 978 (1986).
Government action violates the Establishment Clause under Lemon if it fails to meet any of the following conditions: (1) it must have a secular purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111-12. The first and second parts of the test have been modified, or at least recast, to ask whether the challenged government action was intended to endorse, or has the effect of endorsing, religion. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592-93, 109 S.Ct. 3086, 3100-01, 106 L.Ed.2d 472 (1989); Lynch v. Donnelly, 465 U.S. 668, 687-94, 104 S.Ct. 1355, 1366-70, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); Foremaster v. City of St. George, 882 F.2d 1485, 1491 (10th Cir.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990).
Plaintiffs concede that the main issue in this case is whether the City seal violates the second part of the Lemon test: whether its primary effect is to advance or inhibit religion, or, in endorsement test terms, whether it conveys or attempts to convey the message "that religion or a particular religious belief is favored or preferred." Allegheny, 492 U.S. at 593, 109 S.Ct. at 3101 (quoting Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 2497, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring in the judgment)). 6 In applying this "effects" test, we must consider the " 'particular physical setting' " of the challenged action. Foremaster, 882 F.2d at 1491 (quoting Allegheny, 492 U.S. at 597, 109 S.Ct. at 3103). Further, we evaluate the effect "by an objective standard, which looks only to the reaction of the average receiver of the government communication or average observer of the government action." Friedman, 781 F.2d at 781; see also, Foremaster, 882 F.2d at 1491 ().
Other cases, including two from our own circuit, have considered whether a government seal or logo containing an unmistakably religious image violates the Establishment Clause. All but one of those cases have held that it does. Finding no principled distinction between those cases and this one, we likewise hold that the Edmond City seal violates the Establishment Clause.
We first addressed this issue in Friedman, in which the Bernalillo County seal containing a Latin cross and the Spanish motto "C...
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