Pasadena Republican Club v. Western Justice Center

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.