Hot potato federal case is dispute over state actor law

LOS ANGELES -- The city of Pasadena said a non-profit organization leasing government property was not a state actor when it canceled a Republican speaking event featuring a speaker who promotes traditional marriage, according to motion to dismiss a First Amendment lawsuit Wednesday.

Not only politically charged but entrenched in numerous connections to the legal community, the case has seen nine U.S. district judges either recuse themselves due to their associations with someone involved in the suit or taken off the case for unspecified reasons.

The Pasadena Republican Club, in suing for injunctive and declaratory relief, said the nonprofit Western Justice Center violated the group's First Amendment rights by canceling the event hours before it was to begin. Pasadena Republican Club v. Western Justice Center, 18-CV9933 (C.D. Cal., filed Nov. 28, 2018). Central to the club's argument opposing dismissal and in support of a motion for summary judgment is the idea that the center, founded in 1987 by 9th U.S. Circuit Judge Dorothy Nelson, was a delegated authority, and state actor, through its lease of a city-owned building where the event was scheduled.

"The city wants to make it clear ... it does not discriminate on the basis of political party, religion or any other protected classification," Carol Humiston of Bradley & Gmelich LLP said as she argued for the city Wednesday. "The city did not know the Western Justice Center had rented to the Pasadena Republican Club. They didn't know they made a decision to rescind that rental. They were not involved in any way."

The action focuses on the justice center's former executive director Judith Chirlin, a retired Los Angeles County Superior Court judge who canceled the event featuring John Eastman in 2017. Eastman is chairman of the National Organization for Marriage, which supports marriage as a union between a man and a woman, according to its website.

The justice center seeks to develop conflict resolution programs for students, teachers and the greater community, according to its website.

During oral arguments, sole practitioner Anthony T. Caso, who is representing the Republican Club, read a 2017 email sent by Chirlin stating the event was canceled.

"While I knew that Prof. Eastman was a professor and author, we learned just today that he is the president of the National Organization for Marriage or NOM. NOM's positions on same sex marriage, gay adoption, and trans-gender rights are antithetical to the values of the Western Justice Center," Caso read, quoting Chirlin. "WJC works to improve campus climates with a special focus on LGBTQ bias and bullying. We work to make sure people recognize and stop LGBTQ bullying. Through these efforts we have built up a valuable reputation in the community and allowing your event in our facility would hurt our reputation in the community.'"

Caso relied on the 1961 U.S. Supreme Court case Burton v. Wilmington Parking Authority, which discusses the application of the equal protection clause to a private business that operates in close relationship to a government to the point that it becomes a "state actor."

Caso argued, based on his reading of Burton, that the center was made a state actor when, among other things, it provided 100% of the money needed for the city to purchase the property, which it then rented back to the center to be used for "public purposes" under a 99-year lease.

"I think Burton is the only case on this because after Burton was decided, most cities didn't go through this type of procedure where the government will rely on some other private entity and then allow that entity to engage in unconstitutional actions," Caso said. "The Supreme Court rule is supposed to send a signal. It's a signal that worked up until now."

After the case was moved from judge to judge in the Central District, openly gay U.S. District Judge Michael Fitzgerald was taken off the case. No reason has been given. Chief Judge Sidney Thomas of the 9th U.S. Circuit Court of Appeals assigned Senior Circuit Judge A. Wallace Tashima to sit by assignment at the district court.

While Tashima did not make a ruling Wednesday. He did at one point call Caso's Burton argument "a pretty convoluted path" to proving the center was a state actor when he argued "the actions of the executive directors and executive committee of the justice center are attributable to the city because of this lease and public purpose dispute resolution."

He said according to Burton, an important element required for a private entity to be considered a state actor is the discrimination was vital to the financial success of that government entity. However, it is unclear if Tashima changed his mind by the end of the hearing.

Arguing on the center's behalf, William E. Thomson of Gibson Dunn & Crutcher LLP echoed Tashima's concern with Caso's Burton argument.

"As the argument that the club here makes clear, if the court were to find state action based on this expansive reading of Burton, it would radically reorder the relationship between public and private spheres to the great contraction of the latter and the great expansion of the former," Thompson said.

"Such an outcome would directly contradict controlling Supreme Court and 9th Circuit precedent interpreting Burton," he told Tashima, "in particular the criteria you yourself referred to that the private entities action had to be an 'indispensable element' in the financial success of the governmental entity."

Tashima said he would take the arguments under submission.