Pasadena Republican Club v. Western Justice Center ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PASADENA REPUBLICAN CLUB, a No. 20-55093
General Purpose Political
Committee, on behalf of itself and its D.C. No.
members, 2:18-cv-09933-
Plaintiff-Appellant, AWT-AFM
v.
OPINION
WESTERN JUSTICE CENTER, a
California nonprofit corporation;
CITY OF PASADENA; JUDITH CHIRLIN,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
A. Wallace Tashima, District Judge, Presiding *
Argued and Submitted December 7, 2020
Pasadena, California
Filed January 25, 2021
*
A. Wallace Tashima, Circuit Judge, for the Ninth Circuit Court of
Appeals, sitting in the United States District Court, for the Central
District of California, by designation.
2 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
Before: Susan P. Graber and Carlos T. Bea, Circuit Judges,
and Jennifer A. Dorsey, ** District Judge.
Opinion by Judge Bea
SUMMARY ***
Civil Rights
The panel affirmed the district court’s dismissal of civil
rights claims and summary judgment in favor of the City of
Pasadena in an action brought by the Pasadena Republican
Club against the City and its lessee, the Western Justice
Center, and the Center’s Executive Director, alleging First
Amendment violations arising from the Center’s rescission,
on the basis of political and religious viewpoint, of an
agreement to rent out a space for the Republican Club’s
speaking event.
Western Justice Center (WJC), a private nonprofit
organization, has leased property from the City of Pasadena
since 1994 and uses it primarily to provide legal services to
Pasadena citizens. It currently pays $1 per month in rent.
The Pasadena Republican Club claimed that WJC’s leasing
arrangement with the City constituted sufficient grounds for
the Club to bring its constitutional claims.
**
The Honorable Jennifer A. Dorsey, United States District Judge
for the District of Nevada, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 3
The panel noted that in Burton v. Wilmington Parking
Auth., 365 U.S. 715, 725 (1961), the Supreme Court held
that, in certain circumstances, a private actor who leases
government property must comply with the constitutional
restraints as though they were binding covenants written into
the lease agreement itself. Although the Court in Burton
deemed the lessee to be a state actor, it reserved this finding
for the set of circumstances under which the “State has so far
insinuated itself into a position of interdependence with a
private actor that it must be recognized as a joint participant
in the challenged activity.”
The panel held that WJC was not a state actor for
purposes of the Club’s constitutional claims. Neither the
circumstances under which WJC rehabilitated the building
and acquired the lease, nor the terms of the lease itself,
converted WJC into a state actor. To apply the ruling in
Burton, the private party’s conduct of which the plaintiff
complains must be inextricably intertwined with that of the
government. Here, the panel noted that WJC and the City
lack the significant degree of integration, dependency and
coordination that was apparent in Burton.
The panel held that the Club failed to state a claim under
§ 1985(3) because WJC and its agents were not state actors
and because the Club did not allege that the City or some
other state actor participated in the alleged conspiracy to
deprive the Club of its constitutional rights. Finally, in
affirming the district court’s summary judgment in favor of
the City, the panel held that the government did not, without
more, become vicariously liable for the discretionary
decisions of its lessee. The undisputed facts indicated that
the City had not delegated any final policy-making authority
that caused the Club’s alleged constitutional injury.
4 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
COUNSEL
Anthony T. Caso (argued), Center for Constitutional
Jurisprudence, Fowler School of Law, Chapman University,
Orange, California, for Plaintiff-Appellant.
William E. Thomson III (argued), Debra Wong Yang,
Dhananjay S. Manthripragada, Daniel R. Adler, and Jason S.
Kim, Gibson Dunn & Crutcher LLP, Los Angeles,
California, for Defendants-Appellees Western Justice
Center and Judith Chirlin.
Dawn Cushman (argued), Jonathan A. Ross, and Carol A.
Humiston, Bradley & Gmelich LLP, Glendale, California,
for Defendant-Appellee City of Pasadena.
Justin R. Sarno and Sylvia Chu, Dentons US LLP, Los
Angeles, California, for Amicus Curiae League of California
Cities.
OPINION
BEA, Circuit Judge
The restraints set forth in the United States Constitution
generally bind only government actors, excluding private
actors from its reach. Nearly sixty years ago, however, the
Supreme Court held that, in certain circumstances, a private
actor who leased government property must comply with the
constitutional restraints as though they were binding
covenants written into the lease agreement itself. Although
the Court deemed the lessee to be a state actor, it reserved
this finding for the set of circumstances under which the
“State has so far insinuated itself into a position of
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 5
interdependence with [a private actor] that it must be
recognized as a joint participant in the challenged activity.”
Burton v. Wilmington Parking Auth., 365 U.S. 715, 725
(1961). Indeed, the Court explicitly limited its applicability
to the “peculiar facts or circumstances present,” cautioning
that the conclusions drawn from the case “are by no means
declared as universal truths on the basis of which every state
leasing agreement is to be tested.” 1 Id. at 725–26. We, now,
must revisit this precedent and determine whether it is
applicable to the case before us.
Pasadena Republican Club (the “Club”) contracted with
Western Justice Center (“WJC”), a private nonprofit
organization, to rent some space in WJC’s building for a
speaking event. Shortly before the event, however, WJC
learned about the speaker’s association with a politically
active group that, as WJC explained, holds “positions on
same-sex marriage, gay adoption, and transgender rights
[that] are antithetical to [its] values.” WJC then rescinded
the rental agreement. In response, the Club filed a lawsuit
alleging that its First Amendment rights had been violated.
The Club claimed that WJC’s leasing arrangement with the
City of Pasadena (the “City”) constituted sufficient grounds
to bring constitutional claims against WJC, a private
§ 501(c)(3) nonprofit organization dedicated to civic
improvement. Relying exclusively on Burton, the Club filed
1
In fact, the dissenting justices criticized the Court’s opinion for
failing to elucidate a workable standard in determining what constitutes
“state action.” See Burton, 365 U.S. at 728 (Harlan, J., dissenting) (“The
Court’s opinion, by a process of first undiscriminatingly throwing
together various factual bits and pieces and then undermining the
resulting structure by an equally vague disclaimer, seems to me to leave
completely at sea just what it is in this record that satisfies the
requirement of ‘state action.’”).
6 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
claims against the City, WJC, and WJC’s Executive Director
under 42 U.S.C. § 1983.
We reject the Club’s assertions and hold that WJC is not
a state actor for purposes of the Club’s constitutional claims.
Neither the circumstances under which WJC rehabilitated
the building and acquired the lease, nor the terms of the lease
itself, convert WJC into a state actor. Similarly, the
government does not, without more, become vicariously
liable for the discretionary decisions of its lessee. To apply
the ruling in Burton, the private party’s conduct of which the
plaintiff complains must be inextricably intertwined with
that of the government. See Brunette v. Humane Soc’y of
Ventura Cty., 294 F.3d 1205, 1212–13 (9th Cir. 2002);
Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 569 (9th Cir.
1987). For the reasons set forth herein, we affirm the District
Court’s dismissal.
I. BACKGROUND
A. The City acquires the Property and leases it to
WJC
In 1988, the City sought to purchase from the United
States Government real property located at 55-85 South
Grand Avenue, Pasadena, California. (the “Property”). The
purchase was contingent upon the approval of a leasing
agreement between the City and WJC for the rehabilitation
and use of the Property. Among other things, the City
intended to “provide increased and improved legal services
to the citizens of Pasadena” and “provide a forum for
educational research.”
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 7
In 1989, the City purchased the Property and executed
an agreement to lease it to WJC (the “Lease”). 2 The Lease
described the relationship:
[WJC] is entering into this Lease, rather than
directly purchasing the Premises, because
[WJC] does not qualify as an organization
eligible to purchase the Premises [from the
U.S. Government]. It is the intent that neither
[the Pasadena Surplus Property Authority]
nor the City of Pasadena shall be required to
contribute general funds to the acquisition,
restoration or renovation of the Premises, but
nothing contained herein shall be construed
as prohibiting or restricting the City against
assisting [WJC] in applying to third parties
for grants of funds to be used for restoring the
Premises. This Lease is not entered into as a
commercial transaction by either party . . . .
The Lease required WJC to pay for all costs related to the
acquisition, improvement, repair, and maintenance of the
Property. Indeed, the Lease specifically stated that the City
shall “have no obligation, in any manner whatsoever, to
repair and maintain the Premises nor the building located
thereon nor the equipment therein, whether structural or non-
structural.”
2
Initially, the Lease was between WJC and the Pasadena Surplus
Property Authority, a public corporation formed by the City. It was not
until 1994 that the Authority transferred the Property to the City. For
purposes of this Opinion, however, we reference only the City.
8 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
The Lease also limited WJC’s use of the Property to
“non-profit law related functions,” including:
(i) operation of a center for the study of the
following matters: alternative dispute
resolution, administration of justice, delivery
of legal services, and other legally oriented
issues; (ii) providing space to non-profit
entities for legal seminars, meetings,
conferences, hearing rooms, deposition
rooms, arbitration rooms, law library,
research space; (iii) residential and office
facilities for legal researchers and scholars
and ancillary services such as dining
facilities; and (iv) for subleasing portions of
the Premises to tax exempt organizations
providing law related services, and for no
other purposes whatsoever.
Although the Lease required WJC to “use the [Property] for
these purposes during ordinary business hours,” it also stated
that WJC was not precluded from “using the [Property] for
community meetings and other purposes during non-
business hours.” Critically, the City asserts that it “derives
no income, revenue or other financial benefit on account of
[WJC]’s rental of meeting rooms” and “has no input or
control over the entities to which [WJC] may rent its meeting
rooms . . . during the evening hours.”
In 1994, the City agreed to lend to WJC up to $458,000
for further rehabilitation of the Property. WJC has repaid
those loans (and accrued interest thereon) in full through
rental payments to the City. WJC currently pays to the City
$1 per month in rent.
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 9
B. WJC rescinds the Club’s rental for the scheduled
speaking event
Prior to the planned event that gave rise to this litigation,
the Club periodically rented event space for its meetings that
occurred outside of normal business hours. Consistent with
that practice, the Club contracted with WJC to rent some
space on the Property for a speaking event to occur on
April 20, 2017. Dr. John Eastman, former dean at the
Chapman University School of Law and professor of
constitutional law, was scheduled to speak during the event.
After reserving the space for April 20 but before the
event had occurred, the Club attempted to reserve the space
for an additional event to occur the following month. The
Executive Director of WJC, retired Los Angeles Superior
Court Judge Judith Chirlin, informed the Club that WJC’s
Executive Committee had enacted a new policy to “not make
the [Property] available for rental to political groups—one
side or the other.” WJC enacted this new policy “because of
the heightened political rancor these days, and because it is
the mission of [WJC] to promote peaceful conflict resolution
and reduce prejudice and intergroup conflict.” The Club was
told that WJC would honor the Club’s rental for April 20,
but would not rent to the Club thereafter.
Notwithstanding the pledge to honor its commitment, on
the very afternoon of April 20, Judge Chirlin informed the
Club that WJC would not allow the scheduled speaking
event to take place on the Property later that same evening:
It is with regret that I inform you that [the
Club] cannot use our facilities for your
meeting tonight. While I knew that Prof
Eastman was a professor and author, we
learned just today that he is the President of
10 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
the National Organization for Marriage
(NOM). NOM’s positions on same-sex
marriage, gay adoption, and transgender
rights are antithetical to the values of [WJC].
[WJC] exists to build a more civil, peaceful
society where differences among people are
valued. WJC works to improve campus
climates with a special focus on LGBT bias
and bullying. We work to make sure that
people recognize and stop LGBT bullying.
Through these efforts we have built a
valuable reputation in the community, and
allowing your event in our facility would hurt
our reputation in the community.
We will return the fee that you have paid
immediately.
C. Procedural history
In November 2018, the Club filed this action against
WJC, Judge Chirlin, and the City. Relying on § 1983, the
Club alleges that all defendants discriminated against the
Club’s political viewpoints and religious beliefs in violation
of the First Amendment. Additionally, under 42 U.S.C.
§ 1985(3), the Club alleges that Judge Chirlin conspired to
violate the Club’s First Amendment rights.
In May 2019, WJC and Judge Chirlin moved to dismiss
the claims under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, and the City moved for summary judgment. The
District Court granted both motions. For purposes of this
appeal, the District Court held that the operative complaint
does not plausibly allege that either WJC or Judge Chirlin
acted “under color of state law” pursuant to the “joint action”
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 11
or “symbiotic relationship” test found in Burton. The
District Court also held that the undisputed facts show that
the City did not delegate to WJC any final policy-making
authority of the City that caused the Club’s alleged
constitutional violation. The Club timely appeals from this
decision.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo a district court’s decision to grant a
motion to dismiss. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its face.”
Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806,
812 (9th Cir. 2010) (internal quotation marks omitted). “A
claim has facial plausibility when the plaintiff pleads the
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (internal quotation marks omitted).
We also review de novo a district court’s decision to
grant a motion for summary judgment. See Balint v. Carson
City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc). In
doing so, we do not weigh the evidence but, rather,
determine whether there is a genuine issue of material fact.
See id.III. MOTION TO DISMISS
A. The Club’s § 1983 claims against WJC and Judge
Chirlin
Title 42 U.S.C. § 1983 provides that “[e]very person
who, under color of any statute, ordinance, regulation,
12 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and the laws, shall be liable to the party
injured in an action at law” (emphasis added). “The ultimate
issue in determining whether a person is subject to suit under
§ 1983 is the same question posed in cases arising under the
Fourteenth Amendment: is the alleged infringement of
federal rights fairly attributable to the [government]?”
Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835
(9th Cir. 1999) (quoting Rendell-Baker v. Kohn, 457 U.S.
830, 838 (1982)); see also Lugar v. Edmondson Oil Co.,
457 U.S. 922, 935 n.18 (1982) (noting that “conduct
satisfying the state-action requirement of the Fourteenth
Amendment [also] satisfies the [§ 1983] statutory
requirement of action under color of state law”).
1. State action under Burton and its progeny
“The determination of whether a nominally private
person or corporation acts under color of state law ‘is a
matter of normative judgment, and the criteria lack rigid
simplicity.’” Rawson v. Recovery Innovations, Inc.,
975 F.3d 742, 747 (9th Cir. 2020) (quoting Brentwood Acad.
v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295–
96 (2001)). Courts must engage in “sifting facts and
weighing circumstances” to answer what is “necessarily a
fact-bound inquiry.” Lugar, 457 U.S. at 939. Indeed, “[no]
one fact can function as a necessary condition across the
board . . . nor is any set of circumstances absolutely
sufficient.” Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002)
(quoting Brentwood Acad., 531 U.S. at 295–96).
The Supreme Court has developed four different tests
that “aid us in identifying state action: ‘(1) public function;
(2) joint action; (3) governmental compulsion or coercion;
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 13
and (4) governmental nexus.’” Rawson, 975 F.3d at 747
(quoting Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.
2003)). The “[s]atisfaction of any one test is sufficient to
find state action,” but “[a]t bottom, the inquiry is always
whether the defendant has exercised power possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” Id. at
747–48 (internal citations omitted).
Here, the Club relies exclusively on the “joint action” or
“symbiotic relationship” test. 3 The test asks “whether the
government has so far insinuated itself into a position of
interdependence with a private entity that the private entity
must be recognized as a joint participant in the challenged
activity.” Brunette, 294 F.3d at 1210. A private entity may
be considered a state actor “only if its particular actions are
‘inextricably intertwined’ with those of the government.” Id.
at 1211.
In Burton, the progenitor of this test, a state parking
authority acquired land to construct a public parking garage.
365 U.S. at 718. Before construction began, however, the
parking authority learned that the anticipated revenue from
the garage would not be sufficient to finance its purchase,
construction, or operations. Id. at 719. To secure additional
monies, the parking authority executed long-term leases with
commercial tenants. Id. The leasing agreements required
the parking authority to pay the cost of the tenants’ utilities,
3
We therefore need not decide if any other state-action test applies.
See Harvey v. Brewer, 605 F.3d 1067, 1078 (9th Cir. 2010) (explaining
that “a court will not pass upon a constitutional question if there is some
other ground upon which the case may be disposed”).
14 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
heat, maintenance, and repairs—all of which were paid for
from public funds. Id. at 720.
The Supreme Court held that one of the tenants, a
restaurant that refused to serve customers based on their
race, was a state actor because the parking authority was a
joint participant in the tenant’s operations and, thus, a joint
participant in the tenant’s discrimination. Id. at 723–25. The
Court focused on the mutual benefits conferred from the
relationship: the tenant transacted more business because its
customers were afforded a convenient spot to park in the
public garage, and that convenience had an effect of
increasing the utilization (and revenue) for the garage. Id. at
724. Critically, the parking authority also depended on the
tenant’s rental payments for its financial success because the
garage was not a self-sustaining facility. See id. In other
words, the tenant’s commercial operations “constituted a
physically and financially integral and, indeed,
indispensable part of the State’s plan to operate its project as
a self-sustaining unit.” Id. at 723–24. In all, Burton teaches
us that “substantial coordination” and “significant financial
integration” between the private party and government are
hallmarks of a symbiotic relationship. Brunette, 294 F.3d
at 1213.
Heeding the Supreme Court’s own instruction to limit
Burton’s holding to “the peculiar facts or circumstances
present,” Burton, 365 U.S. at 725–26, we have repeatedly
distinguished Burton and declined to expand its
applicability. In Vincent, for instance, we held that a
government contractor performing maintenance services at
an Air Force base was not a state actor because “the
government did not profit from [the contractor]’s alleged
unconstitutional conduct.” 828 F.2d at 569–70. “While [the
contractor] may have been dependent economically on its
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 15
contract with the Air Force, [the contractor] was most
certainly not an indispensable element in the Air Force’s
financial success.” Id. at 569. We, therefore, found “no
significant financial ‘integration’ between [the contractor]
and the Air Force.” Id.; see also Brunette, 294 F.3d at 1213–
14 (holding that there was no symbiotic relationship where a
private news company accompanied a “quasi-public”
Humane Society in executing a search warrant of a breeder’s
ranch because plaintiff failed to allege that the news
company “rendered any service indispensable to the
Humane Society’s continued financial viability”).
That is not to say that Burton is not binding precedent.
Recently, in Rawson v. Recovery Innovations, Inc., we
concluded that a private nonprofit hospital was a state actor.
There, a patient sought to hold a private hospital and its
doctors liable for petitioning a state court to commit him
involuntarily to hospital custody and forcibly injecting him
with antipsychotic medications. Rawson, 975 F.3d at 747.
Noting that “Burton remains instructive,” we held that the
§ 1983 claims survived summary judgment because the
private hospital operated its facility on the same grounds as
the state’s main psychiatric hospital. Id. at 745–46. Not only
did the private hospital lease its facility from the state, but
the grounds were “recognizable” and “clearly marked as a
state hospital.” Id. at 756. Further entangling the two, the
private hospital’s medical director was also a full-time
physician at the state hospital. Id. at 746. We considered
this particular leasehold relationship only one of several
factors weighing in favor of finding state action. 4 We
4
Indeed, we “consider[ed] the full factual context” in Rawson,
observing numerous factors weighing in favor of finding state action,
such as (1) the private hospital “exercise[d] powers traditionally held by
the state” by detaining and forcibly treating Rawson to “protect[] both
16 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
ultimately concluded that the state had “undertaken a
complex and deeply intertwined process [with private
actors] of evaluating and detaining individuals for long-term
[involuntary] commitments, and therefore, the state has so
deeply insinuated itself into this process that [the private
actors’] conduct constituted state action.” Id. at 757 (internal
quotation marks omitted) (alterations in original).
2. WCJ and the City lack the significant degree
of integration, dependency, and coordination
that was apparent in Burton
Applying the principles distilled from Burton and its
progeny, we cannot find state action here. First, WJC and
the City manage their operations independently of each
other. In Burton, the parking authority operated a parking
garage in the same building as its commercial tenants and
depended on those for-profit tenants for its initial financing
and continued viability. The parking authority relied on
rental payments—the restaurant paid $28,700 per year—to
defray the parking authority’s own operating expenses
because the parking garage was not a self-sustaining facility.
In contrast, the Club does not allege that WJC helps to defray
any operating expenses for the City. Nor does the Club
the public and Rawson himself”; (2) the private hospital “perform[ed]
actions under which the state owes constitutional obligations to those
affected” by attempting to commit him involuntarily, thereby depriving
Rawson of his liberty interests; (3) the state, through the county
prosecutor, significantly involved itself and “played an outsized role” in
the private hospital’s decisionmaking to petition to commit Rawson
involuntarily; (4) the state approved the private hospital’s petition to
commit Rawson involuntarily; and (5) the private hospital was “charged
with applying state protocols and criteria in making evaluation and
[involuntary] commitment recommendations.” See Rawson, 975 F.3d
at 751–56.
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 17
allege that the City performs any City functions on the
Property or that the City is responsible for any expenses
related to the Property. Indeed, all expenses related to the
Property are paid directly by WJC, which is a self-sustaining
organization itself. Cf. Rendell-Baker, 457 U.S. at 842–43
(noting the salience in Burton that “the rent from the
restaurant contributed to the support of the garage”); Geneva
Towers Tenants Org. v. Federated Mortg. Inv’rs, 504 F.2d
483, 487 (9th Cir. 1974) (explaining that, in Burton, the
“interdependence was principally financial” and the “rents
paid by the shop partially defrayed the cost of the public
facility and enhanced its success”).
Although WJC borrowed money from the City to acquire
and improve the Property, the Club does not allege that WJC
and the City are financially integrated. Cf. Rendell-Baker,
457 U.S. at 840 (holding that “receipt of public funds does
not make [a private school’s] discharge decisions acts of the
State”). The Club does not allege that the City provided any
capital to support WJC’s operations, nor does the Club allege
that the City provided any below-market interest rates. 5 Cf.
Geneva Towers, 504 F.2d at 487 (holding that there was
interdependence where private parties invested in a public
housing project and received below-market interest rates).
On the contrary, the operative complaint acknowledges that
WJC has reimbursed the City in full for all loans and accrued
interest.
Indeed, the City distanced itself from WJC through the
terms in the Lease. Unlike in Burton—where the lease
5
We do not mean to suggest that any one of those particular facts
“function[s] as a necessary condition” or would be “absolutely
sufficient” to establish that WJC acted under color state of law. Lee,
276 F.3d at 554.
18 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
required the parking authority to pay its tenants’ bills for
utilities, heat, maintenance, and repairs—the Lease here
does not require the City to cover any costs related to WJC
or the Property. Instead, the Lease explicitly requires WJC
to pay for its own utilities, operations, maintenance, and
repairs. Also, unlike in Rawson—where a private hospital
not only leased its facility from the state, but operated
alongside the state hospital on the same campus that was
“clearly marked as a state hospital,” 975 F.3d at 756—the
Club does not allege that the Property hosts any City-
managed operations or that the Property is marked as City-
owned land. And further unlike in Rawson, the Club does
not allege that WJC and the City share any personnel. See
id. at 746.
The Club suggested during oral argument that WJC’s
leasing arrangement with the City, alone, is enough to satisfy
Burton. But merely contracting with the government does
not transform an otherwise private party into a state actor.
See Rendell-Baker, 457 U.S. at 840–41 (distinguishing
Burton and explaining that “[a]cts of such private contractors
do not become acts of government by reason of their
significant or even total engagement in performing public
contracts”); Vincent, 828 F.2d at 569–70 (distinguishing
Burton and finding no state action where a contractor
performed maintenance services at a U.S. Air Force base
because “[t]here is no significant financial ‘integration’
between [the contractor] and the Air Force”).
Moreover, the City does not profit financially from
WJC’s alleged discrimination. In Burton, the financial
successes of the parking authority and its tenant were
inextricably linked: an increase in the tenant’s revenue
achieved through the restaurant’s business plan of racial
discrimination (more customers, at least in 1961) correlated
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 19
with an increase in the parking authority’s revenue (more
cars parked). The parking authority’s financial success also
hinged on the tenant’s success to the extent that the tenant
could afford the critical rental payments, which subsidized
the garage’s operations. Therefore, the “profits earned by
[the tenant’s] discrimination not only contribute[d] to, but
also [were] indispensable elements in, the financial success
of [the] governmental agency.” 365 U.S. at 724. But here,
the City does not realize any share of the revenue earned
from WJC’s rental agreements. Regardless of however
much WJC may profit from renting or refusing to rent event
space, the City receives only $1 per month in rent. Thus, the
Club fails to plead that WJC’s nonprofit operations are
indispensable to the City’s continued viability. Cf. Brunette,
294 F.3d at 1213–14 (finding no symbiotic relationship
because plaintiff failed to allege that the private news
company “rendered any service indispensable to the
Humane Society’s continued financial viability”); Vincent,
828 F.2d at 569–70 (finding no symbiotic relationship
because the contractor performing maintenance services at
the Air Force base “was most certainly not an indispensable
element in the Air Force’s financial success”).
Setting aside the fact that the City does not profit
financially from WJC’s alleged discrimination, the Club
maintains that the City “profits” intangibly by allowing civic
programs to operate in the City. The Club contends that
WJC canceled the speaking event to preserve its reputation,
which allowed WJC to continue carrying out its “non-profit
law related functions,” which in turn benefited the City and
its citizens. But this contention expansively stretches Burton
to capture the mere generic promotion of a public purpose—
the principal goal of government writ large. Adopting this
theory would cast almost any nonprofit with a civic mission
and some contractual relationship with the government as a
20 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
state actor. The City certainly derives some benefit insofar
as its citizens benefit from WJC’s “study of dispute
resolution and the administration of justice.” But “any
exchange of mutual benefits . . . falls far short of creating the
substantial interdependence legally required to create a
symbiotic relationship.” Brunette, 294 F.3d at 1214.
Finally, the City’s involvement in WJC’s alleged
discrimination is nowhere near the requisite degree of
“substantial cooperation” mentioned in Burton. The City did
not participate in, or know in advance about, the initiation or
the cancellation of the Club’s speaking event. In fact, the
City did not even learn about the incident until the Club filed
the complaint in this case. The Club fails to allege that the
City “significantly involve[d] itself in the private parties’
actions and decisionmaking at issue.” Rawson, 975 F.3d
at 753; see also Brunette, 294 F.3d at 1212 (finding that a
private party and a “quasi-public” entity “acted
independently” where neither “assisted the other in
performance of its separate and respective task” nor
participated in the other’s preparatory meetings before the
alleged constitutional violation).
In all, WJC and its agents were not state actors for
purposes of the Club’s § 1983 claims. The Club fails to
allege that the City has “undertaken a complex and deeply
intertwined process” with WJC to discriminate against the
Club by canceling its speaking event. Rawson, 975 F.3d
at 757 (internal citation omitted). The Club also fails to
allege that the City “has so deeply insinuated itself into this
process that [WJC’s] conduct constituted state action.” Id.
(internal citation omitted). Accordingly, we affirm the
District Court’s dismissals.
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 21
B. The Club’s § 1985(3) claim against Judge Chirlin
While § 1983 provides a cause of action if one person
deprives an individual of his constitutional rights, § 1985(3)
provides a cause of action if two or more persons conspire to
deprive an individual of his constitutional rights. Like
§ 1983, which requires the wrongdoer to be a state actor,
§ 1985(3) requires at least one of the wrongdoers in the
alleged conspiracy to be a state actor. Indeed, the Supreme
Court has held that “an alleged conspiracy to infringe First
Amendment rights is not a violation of § 1985(3) unless it is
proved that the State is involved in the conspiracy.” United
Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S.
825, 830 (1983).
Here, however, the Club fails to allege that a state actor
participated in the alleged conspiracy. The Club alleges only
that Judge Chirlin “conspired with members of the staff and
executive committee of [WJC] to deprive [the Club] and its
members of civil rights.” The Club attempts to sidestep the
state-action requirement by arguing that WJC itself is a state
actor, but for the same reasons described above, this
argument fails as to WJC and its agents. Because WJC and
its agents are not state actors, and because the Club does not
allege that the City or some other state actor participated in
the alleged conspiracy, the Club fails to state a claim under
§ 1985(3).
IV. SUMMARY JUDGMENT
A municipality may be sued for constitutional violations
under § 1983, but “claims cannot predicate municipal
liability for constitutional violations of its officers under the
theory of respondeat superior.” Lockett v. Cty. of L.A.,
977 F.3d 737, 741 (9th Cir. 2020) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978)). To establish Monell
22 PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR.
liability under § 1983, the constitutional violation must be
caused by a municipality’s “policy, practice, or custom” or
be ordered by a policy-making official. See Dougherty v.
City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); Gibson v.
Cty. of Washoe, 290 F.3d 1175, 1185–86 (9th Cir. 2002),
overruled on other grounds by Castro v. Cty. of L.A.,
833 F.3d 1060, 1076 (9th Cir. 2016).
The Club argues that the City is liable for WJC’s alleged
constitutional violation because the City delegated final
policy-making authority when it leased the Property to WJC.
Through the terms in the Lease, the Club argues, the City
delegated complete discretion over whether and to whom the
Property could be rented during nonbusiness hours.
Therefore, WJC’s refusal to rent the Property to political
groups and its subsequent cancellation of the Club’s
speaking event constituted “an act of official governmental
policy.” The Club seems to suggest that we should infer
delegation—and thus liability—from the mere fact that a
private party rented out space on the property that it had
leased from the government.
Although it is true that the Lease did not prohibit WJC
from renting out event space during nonbusiness hours, a
permissive lease covenant does not convert discretion into
delegation, even when that discretion rests with a public
official. See Pembaur v. City of Cincinnati, 475 U.S. 469,
481–84 (1986) (plurality opinion) (“The fact that a particular
official—even a policymaking official—has discretion in
the exercise of particular functions does not, without more,
give rise to municipal liability based on an exercise of that
discretion.”). And even more so here. When the City
executed the Lease, it was not delegating final policy-
making authority on political speaking events in the City; it
was simply conveying a property interest—the right of
PASADENA REPUBLICAN CLUB V. W. JUSTICE CTR. 23
occupancy—in the premises. WJC maintained the authority
to decide who, when, for what reason, and for how long a
visitor could occupy the premises during nonbusiness hours.
Therefore, when WJC executed—and rescinded—the rental
agreement with the Club, WJC was exercising its
discretionary authority on its own behalf as the holder of a
possessory interest in the Property. WJC was not exercising
any “policymaking authority for a particular city function”
on behalf of the City. Hammond v. Cty. of Madera, 859 F.2d
797, 802 (9th Cir. 1988), abrogated on other grounds as
stated in L.W. v. Grubbs, 92 F.3d 894, 897–98 (9th Cir.
1996). “[T]he fact that the government licenses, contracts
with, or grants a monopoly to a private entity does not
convert the private entity into a state actor—unless the
private entity is performing a traditional, exclusive public
function.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.
Ct. 1921, 1931–33 (2019) (holding that the private operator
of a public access channel was not a state actor). And, of
course, there is no claim that renting out event space during
nonbusiness hours is a “traditional, exclusive public
function.” The government does not, without more, become
vicariously liable for the discretionary decisions of its lessee.
Accordingly, the undisputed facts show that the City did not
delegate any final policy-making authority that caused the
Club’s alleged constitutional injury.
AFFIRMED.