Baraka v. McGreevey

F.R.A.P.). *(Pursuant 43(c), to Rule intimidate) con- on the (or speakers based the sub- Given messages. their tent 05-2361. No. upon levied could be expense stantial Appeals, possi- limitless States Court United and the almost speaker, Third Circuit. abuse, an understatement it is bility chills constitu- provision this conclude April Argued speech.10 tionally-protected March

Filed III. reasons, af- we will foregoing

For the the order part and reverse part

firm for fur- remand District Court

of the proceedings.

ther BARAKA, Appellant

Amiri

v. individually; McGREEVEY, E.

James ca Codey, his official J.

*Richard Acting State

pacity as Governor Jersey, a Jersey; New New State politic; New Jer

body corporate and Arts, agen

sey State Council body

cy politic of the State Harrington, indi Jersey; Sharon

New capacity as

vidually in her official

Chairperson State 1-10; Arts; Does John on the

Council Agencies 1-10;

Mary Does Unknown 1-10, un Entities Government time, indi plaintiff this

known capaci

vidually official and in their

ties Dunkel, United States Move- Nationalist considered The 10. We have 1991)), is, (7th to be without (that them Cir. find arguments those remaining ment’s such, rulings District Court's merit. As marginally covered at least were which see, affirmed. will e.g., these matters be parties, on disappointing briefs of both THE COURT OPINION OF SCIRICA, Judge. Chief from an action arises appeal This 42 U.S.C. Baraka under brought by Amiri § 2201 and 28 U.S.C. §§ and 1988 officials, and entities employees, against alleges Jersey. the State of New constitutional his violated defendants poet eliminating position rights District Jersey. The of New laureate under complaint Baraka’s dismissed 12(b)(6) to .state for failure Fed.R.Civ.P. granted. relief can be upon which claim (Ar- Manns, Jr., Esquire, affirm. will D. William We Newark, NJ, Sanchez, Rob- &Lee gued), NJ, Orange, Pickett, Esquire, South T.

ert I. Appellant. for Baraka, appointed poet, Amiri Scheindlin, (Argued), Esquire, Jersey July A. of New Lewis laureate poet Jersey, Attorney McGreevey, General New on Office Governor James Safety, Tren- Jersey & Public New State of Law of the Department recommendation NJ, ton, The Appellees. Arts. for the Council created Legislature

State P.L. it in 1999 when enacted laureate poet SCIRICA, Judge, Chief Before (codified Ann. Stat. at N.J. YOHN, c. 228 NYGAARD, Judge, and Circuit 2003)).1 The stat- (repealed § 52:16A-26.9 Judge.* District Jr., participate in the years and period of two United H. Yohn William *The Honorable next laureate. Judge District for the Eastern selection District States by designation. Governor the sitting Pennsylvania, panel shall submit citation of whom poet to the name of the 52:16A-26.9, provided: 1. Section shall be presented and who merit shall be New Jer- hereby the established a. There is State for the poet of the laureate considered Citation sey Carlos Williams William subsequent years. two distinguished presented to to be Merit biennially present the consid- shall Jersey who shall be c. The Governor poet from New New Cita- the State of Williams poet Jersey laureate of Carlos the William ered New poet years. The Jersey of two period for a Merit. tion of receive an honorarium shall engage laureate activi- poet shall laureate d. The encourage poetry with- promote and ties to $10,000. Jersey for the Humani- Council The New b. give fewer than shall no in the State and Jersey ties, New with the in consultation each readings within the State two Arts, biennially on the shall Council State desig- the poet holds laureate year while the per- panel of four convene appoint and nation. poets distinguished either who are sons the Humani- Jersey Council for New e. The stylistic represent range persons who ties, Jersey the New with in consultation poetry. Each field of approaches Arts, establish shall on State Council panel be shall the first such member of necessary to are deemed guidelines as such the first Jersey. After term from New purposes of this section. effectuate poet lau- subsequent poet and each laureate person shall serve expired, that has reate panel for a of the the members one of governor provided biennially thereafter, ute would gether. Soon Jersey the New poet appoint a State laureate who would Legislature passed P.L.2003, State c. years serve for two and receive an honor- repealed which section 52:16A-26.9 and $10,000. poet arium of The laureate would position abolished the poet laureate.3 promote poetry within give the State and McGreevey Governor signed repealer public readings year. least two each into law on July Two appointment, months after his Bar- Baraka filed a complaint under aka poem “Somebody read his entitled §§ U.S.C. 1983 and 1988 and 28 U.S.C. Up Blew America” at the Geraldine R. § against Governor McGreevey, in Dodge Poetry Festival in Stanhope, New his individual and capacities, official Har- Jersey. poem The generally commented rington, in her individual and official ca- society on American politics, and on pacities, Jersey the New State Council for terrorism, specifically referencing the ter- Arts, the State of New Jersey, and September ror attacks of various unknown employees, agents, legis- read, in part: “Who knew the World Trade officials, lative and entities of the State of gonna get Center was told bombed/Who Jersey, New in their individual and official 4000 Israeli workers at the Twin Towers capacities. Baraka alleged abol- stay day/Why home that did Sharon ishing position of poet laureate and stay away?”2 denying him the honorarium punish him outcry, After an a spokesman for Gover- views, for expressing his defendants vio- McGreevey nor issued a statement lated right speech free under the governor strictly “[t]he any criticizes racist First Amendment right and his to due style anti-Semite behavior. The of Bar- process of law under the Fourteenth implies aka’s recent verse that Israelis had Amendment. Baraka alleged also various known September about the 11 terrorism causes of action under the Jersey New (Second ¶ 15.) attacks.” Am. Compl. Constitution and Jersey state law. McGreevey Governor asked Baraka to re- requested He payment $10,000- of the refused, sign. Baraka contending the per-year honorarium years,4 for two im- poem was neither anti-Semitic nor racist. mediate reinstatement alleges Governor McGreevey laureate, compensatory punitive then instructed Sharon Harrington, damages, attorneys’ fees. chair of the New State Council for Arts, granted District Court payment to withhold defendants’ $10,000 motion to honorarium. Baraka dismiss alleges also under Fed.R.Civ.P. 12(b)(6) Governor McGreevey and other defen- failure to state a claim upon dants “commenced concerted which campaign” granted. relief can be The court to remove him from position or to dismissed Baraka’s against claims abolish the State, of Council, laureate alto- the Arts and the unknown poem The full text of the passed is available at a Assembly in a 69-to-2 vote. Laura Baraka, page registered Web http://www. to Mansnerus, Jersey Assembly New Votes to Cut (last visited on amiribaraka.com/blew.html Job, Times, Embattled Poet’s July N.Y. 15, 2007). March 2003, at B2. 3. The bill lists nine state senators and three appeal, recognizes 4.On § Baraka 52:16A- assembly sponsors, members as and fifteen $10,000 provided 26.9 single payment for a of state fifty-five and assembly senators mem- $10,000 per year. and not co-sponsors. bers passed as It with 21 votes Senate, and 19 abstentions the State and it

195 Cir.2005) (3d Fisher, 347, 351 423 F.3d on entities employees and government County Bucks Enter. Inc. v. immunity. D.P. (quoting Amendment Eleventh basis (3d Coll., 943, 944 Cir. F.2d Cmty. 725 against Governor the claims It dismissed 1984)). allega all factual accept must the basis We Harrington on McGreevey and true, but we complaint court as immunity. The in Baraka’s tions legislative absolute accept “unsupported honorari- compelled for the not to claim Baraka’s dismissed inferences,” under and unwarranted concluding, conclusions after um Res., to right Inc. v. Pa. Power law, Energy enforceable legally Schuylkill had no he (3d against Co., claims 417 Cir. F.3d Light It dismissed 113 payment. & and enti- as a 1997), individuals couched government legal or “a conclusion unknown specif- Allain, allege to v. 478 allegation,” Papasan failed because ties factual to his led part 265, 286, on their 92 L.Ed.2d conduct ic S.Ct. feder- any (1986). viable In the absence court’s a district harm. We review to exercise claim, declined the court claims for al law pendent state dismissal Baraka’s state over jurisdiction v. Ne. pendent Markowitz of discretion. abuse (3d Cir.1990); Co., claims. law 906 F.2d Land F.2d Agency, 830 Pa. Hous. Cooley v. Fin. the District Baraka contends appeal, On Cir.1987). (3d 469, 471 (1) holding Governor by: erred Court protect- were McGreevey Harrington and (2) immunity; legislative by absolute

ed III. a con- deprived of was not

holding Baraka A. interest property stitutionally protected (3) law; declining process of without due against Gov- his claims Baraka contends was de- he Baraka’s claim address not Harrington are McGreevey and ernor lib- constitutionally protected of a prived immunity because by legislative barred (4) the case as interest; dismissing erty actions and their legislator ais neither individu- government unknown various con- nature. He legislative were (5) failing entities, als, agencies; political their actions were tends —advo- over jurisdiction pendent exercise administrative- cating legislation—and claims.5 law state punitive single person targeting McGree- believe Governor We treatment. II. proper- actions are Harrington’s vey’s subject had District are enti- characterized ly § 1983 42 U.S.C. under jurisdiction matter immunity. tled jurisdic § We have 28 U.S.C. “Absolute review § 1291. Our under 28 U.S.C. tion sphere ‘in the actions to all taken a com attaches court’s dismissal a district ” activity.’ Bogan legitimate 12(b)(6) Val plenary. Rule plaint under 44, 54, Scott-Harris, (3d 523 U.S. Bank, v. Sky v. lies (1998) Ten 12(b)(6) 140 L.Ed.2d Cir.2006). be motion will A Rule “ Brandhove, ney certainty ‘if it appears granted (1951)). Legisla L.Ed. 1019 any set granted under could be relief no ” only suit not from immunity shields v. Evancho tive proved.’ could be which facts capacities were employees in their official Court’s appeal the District not Baraka does State, by the Arts the Eleventh Amendment. against the barred holding that claims Council, government entities and unknown 196 but also

legislators, directly officials outside not related enacting legislation. legislative they per of the branch when Baraka also appears to use the term to (afford legislative form functions. See id. express this narrow meaning. ing legislative immunity may- absolute to a But examples illustrate, as these or); v. Sup.Ct. Consumers Union of Va. of by legislators activities that directly affect U.S., Inc., 719, 734, 446 U.S. 100 S.Ct. drafting, introducing, debating, passing or (1980) 1967, (same, 641 64 L.Ed.2d to the “ rejecting legislation, are ‘an integral part members);

Virginia Supreme Court and its of the deliberative and communicative pro Pa., Sup.Ct. 760, v. 211 Gallas F.3d 776- ” cesses,’ and are properly characterized as (3d Cir.2000) (same, Pennsylvania legislative, not political patronage. Id. members); Court and its Aitchi (quoting States, Gravel v. United 96, (3d Raffiani, son v. Cir. 606, 625, 92 S.Ct. 33 L.Ed.2d 583 1983) (same, city council, to members of a “ (1972)). Activities ‘casually that are mayor, city attorney). and a The rele incidentally related to legislative affairs question vant is whether Governor part but not a legislative process McGreevey and Chair Harrington’s actions “ itself,’” Brewster, are not. (quoting Id. were ‘in sphere legitimate legisla ” 2531). at U.S. 92 S.Ct. activity.’ Bogan, tive 523 U.S. at (quoting S.Ct. 966 Tenney, 341 U.S. Baraka describes the actions of 783). 71 S.Ct. Governor McGreevey and Harrington as “advocating and promoting legislation.” legislative He contends immunity does not DeWeese, Youngblood In 352 F.3d 836 apply they because legislators are not (3d Cir.2004), we addressed the distinction because these political, legislative, between political activities activities. But when governor and a on part legislators. state As exam- governor’s appointee advocate bills to the activities, ples we cited “vot- legislature, they act in a capaci resolution, ing for a subpoenaing and seiz- ty- ing property and records for a committee appears to concede as much. hearing, preparing investigative reports, He alleges Governor McGreevey and Har- addressing a congressional committee, rington actively and, course, participated in legisla- speaking before legisla- process. tive (internal repealer body allegedly tive was session.” Id. at 840 omitted). passed at the “urging, direction and citations We re- contrasted these (Second ¶ quest” 19) Compl. with Am. examples political activities, of defen- includ- “ signed dants. It was ing ‘a into law range legitimate wide Governor “errands” performed constituents, McGreevey. As noted, the District making of gravamen appointments “[t]he with agencies, complaint [Baraka’s] Government assistance in Governor securing McGreevey and Harrington Government con- tracts, preparing ‘orchestrated and so-called “news directed’ the letters” constituents, releases, legislature news to abolish of Poet ” speeches delivered outside the Laureate.” Congress.’ McGreevey, Baraka v. No. 04- (D.N.J. Brewster, slip 2005). United States v. op. at 6 March These actions integral L.Ed.2d were “an part of the (1972)). therefore, Youngblood, we deliberative and process- communicative used the “political” es,” term to refer pa- Youngblood, 352 (quota- F.3d at 840 tronage practices officials, omitted), activities tion by which repealer “ legisla- also Legislature are vey and the the ‘within enacted, squarely fall and ” (af- Aitehison, activity.’ F.2d at 99 legislative See tive. legitimate, sphere of at Tenney, attorney 341 U.S. immunity to an legislative Id. fording at 783). 376, 71 S.Ct. drafting in city council a who advised ordinance). Though neither Governor Court consid the Bogan, legisla- Harrington were legislative McGreevey nor absolute ered whether of a a member mayor and to a in applied officials tors, actions as their 47, 118 S.Ct. 966. at 523 U.S. city council. repealer the advocating and proposing in roles central advo played officials Both legislative. as properly characterized an ordi passing cating, promoting, characterization, his Despite Baraka’s government a office that eliminated nance encompass- necessarily also cause action employee. the sole plaintiff of which signing in the actions the Governor’s im es legislative concluding absolute Id. In city poet the law. The position held into repealer the Court munity applied, the voting for acts of re- by legislative council member’s eliminated laureate was form, quintessentially “in were ap- ordinance gubernatorial required pealer, which acts of intro mayor’s legislative,” (absent a override of legislative proval the ordinance signing budget ducing veto).6 McGreevey’s sign- act of Governor legislative.” formally “also were into law char- properly law is repealer into ing the 55, 118 966. S.Ct. action, those like legislative acterized as named Governor he contends Youngblood. in Brewster and designated not because McGreevey as a defendant States, 286 U.S. v. United See Edwards repealer, but because signed the Governor (1932) 76 L.Ed. the legisla- and orchestrated he advocated character legislative “the (noting poet position that abolished tion disap- approving in or function President’s con- appears to argument His laureate. Holm, bills”); Smiley v. proving central, actions were the Governor’s cede 372-73, L.Ed. 795 The process. integral, or (1932) governor’s actions (discussing authorizes Jersey Constitution New part as vetoing a bill signing such measures to “recommend Governor process). desirable,” convene may deem as he opinion in his Legislature “whenever require.” N.J. shall 2. public interest Const, V, § Gov- 1. The art. ac- defendants’ contention that Baraka’s therefore, constitutionally ernor, author- change does were administrative tions measures. to recommend ized noted, Baraka con- As our conclusion. Furthermore, with consistent this is abolishing tends that “legislative” activity designated type of laureate, him for targeted defendants As the Gov- Youngblood. in Brewster and in administra- engaged punitive action Harrington’s actions appointee, ernor’s legislative activity. opposed tive—as counseling Governor McGree- advising and — legisla- returning constitutions, by it to the law to veto the Jer- the New other state Like governor takes no objections. If the ture with governor a grants the role sey Constitution law days, becomes the bill legisla- action within legislation. All finalization of all veto Legislature override can Legis- default. of the state passed both houses tion super-majority in both only by a two-thirds governor, who presented to the be must lature Const, V, 1, par. § it, art. houses. NJ. by signing the law enact is authorized determining legislative In whether representing people the will of the which immunity municipal attaches to actors governing body en has been chosen to gaging arguably administrative activi serve.

ties, we ask whether the activities are 211 F.3d at 774 (quoting Ryan, 889 F.2d substantively procedurally legis “both 1290-91).7 lative in nature.” In re Montgomery Here, defendants are officers and (3d 367, Cir.2000); County, 215 F.3d state actors. Our cases differ as to wheth- Foerster, (3d 96, 100 see Carver v. 102 F.3d two-part er the substance/procedure inqui- Cir.1996) (asking whether act is “sub ry, applied municipal actors, first to is also stantively legislative,” involving “policy- as appropriate for actors at the state level. making” “line-drawing,” “procedur Gallas, In applied we two-part inquiry ally legislative,” being “passed by Pennsylvania to Supreme justices Court means of established proce justices concluded the were entitled to dures”) (quoting Ryan Burlington legislative immunity for their actions in (3d County, 889 F.2d 1290-91 Cir. reorganizing judicial one of the state’s dis- 1989)); Bogan, see also 523 U.S. at 118 tricts. Id. But in other cases we declined (affording legislative to to extend the two-part inquiry to state non-legislator performed who functions actors. Youngblood, See 352 F.3d at 841 that substantively were and procedurally (“We n. 4 have since recognized ... that legislative). In explained Gallas we this the substance/procedure test was ‘devel- two-part inquiry: oped municipalities,’ where individual First, the act “substantively” must be likely officials are more perform a mix- i.e., legislative, legislative in character. ing of administrative and func- Legislative acts are those which involve tions, and thus have ‘decline[d] to extend

policy-making general decision of a [sic] analysis Carver [the ... ] other levels of or, scope put way, it legisla- another ”) government.’ (quoting Larsen v. Senate linedrawing. tion involves Where the Pa., Commonwealth 152 F.3d affects a decision small number or a (3d Cir.1998)) (“[Bjecause concerns for individual, single legislative power separation powers are often at a not implicated, and the act takes on the level, minimum at the municipal we decline addition, nature of In administration. analysis extend our developed for mu- act “procedurally” legislative, must be nicipalities to other govern- levels of is, passed by ment.”). means of established Instead, we articulated the rele- legislative procedures. principle This vant inquiry as whether the actions in requires constitutionally accepted question were “within sphere legiti- procedures enacting legislation mate, legislative activity.” Youngblood, must be followed order to assure that 352 F.3d at Tenney, 341 U.S. legitimate, 783).8 the act is a reasoned decision at 71 S.Ct. Ryan We further noted that in "we did similarly We apply decline the Carver imply legislative body, passing mean to that a case, analysis to especially light this jure affecting only a de single person, law language that, from the we would not be entitled to immuni- believe, propriety casts doubt on the of us- Pa., ty.” Sup.Ct. Gallas v. ing any separate test to municipal- examine (3d Cir.2000). 774 n. 14 legislative immunity, Bogan, level see U.S. at 140 L.Ed.2d 79 Youngblood, support we Bogan found (holding legislators that local are "likewise” for our apply two-part decision not to absolutely immune from suit under stated, inquiry. We actions. noted vey’s Harrington’s We government, of the level

Regardless and, in recommending substance/proce- their actions in two-part that the we believe wheth- analyzing case, repealer helpful signing in the inquiry is Governor’s dure the allegedly performing non-legislator in er a those of the defendants similar to were to immuni- is entitled form, tasks administrative quin- that “in were Bogan—actions and Lar- Youngblood that in ty.9 We note 523 U.S. tessentially legislative.” Bogan, the two- declining apply to cases sen—-the with the 55, agreed 966. 118 S.Ct. We at nowas to state actors —there part inquiry of gravamen that “[t]he Court District in were question actions allegation that the that complaint Governor [Baraka’s] administrative, inqui- for this and no need McGreevey Harrington and ‘orchestrated distinguishing between a means of ry as Jersey legislature and directed’ the actions. See legislative and administrative Poet Laureate.” position the of abolish Larsen, 840-41; 352 F.3d at Youngblood, sum, Baraka, 04-1959, op. at 6. In slip No. addition, these cases In 152 F.3d at 252. procedur- their actions were we concluded Gallas, in legislators’ actions. addressed ally legislative. ac- contrast, non-legislators’ addressed the ac- Here, similarly address we tions. support in of the Their actions (Governor McGree- non-legislators tions of substantively legisla were also repealer allegedly performing vey Harrington) and law, enacted, eliminat formally This tive. determining whether tasks. In legislative laureate, position a position poet the of ed it is relevant immunity applies, legislative Eliminating legislatively created. that McGreevey’s and to ask whether Governor constitutes of laureate position the both substan- actions Harrington’s were that traditional type of “policy-making” they If legislative. tively procedurally entails, the actions here legislation by the were, set they meet the standard Gallas, substantively legislative. See were sphere “in they were Supreme Court — F.3d at 774. Bogan, activity.” legitimate legislative 54, (quoting at 118 S.Ct. 523 U.S. employment, we In the context 783). 376, at 71 S.Ct. Tenney, 341 U.S. the elim- a distinction between have drawn the termination position of a ination on the already focused We have id. at 775 employee. See individual McGree- nature of procedural Governor determining whether a means 1983), two-part, vides useful a sub- particularly § test, 55, meet allegedly 523 U.S. actions stance/procedure id. at administrative (refusing L.Ed.2d 79 Court— 118 S.Ct. set forth standard "legislative in require be that an act must sphere of "in the the actions whether legisla- "formally well as substance” activity.” Bogan, 523 legislative legitimate legislative a to be tive character” order Tenney, at 118 S.Ct. 966 U.S. act). 783). the sub- We use at 71 S.Ct. Bogan n. 4. the Court F.3d at 841 But inquiry not to establish stance/procedure require be both an act "refuse” to did ac- for certain separate distinct standard legislative substantively for procedurally tors, whether the Court’s to determine but Rather, apply. it concluded has been met. standard question were the acts because need to deter- respects, there was no both Larsen, not to explained our decision we procedurally whether mine actors. two-part inquiry to state apply “alone sufficient actions was character noted, separation of “concerns We immunity.” petitioners to entitle at the munici- powers are often at minimum Bogan, F.3d at 252. pal level.” 152 Bogan’s analysis illustrates We believe pro- inquiry substance/procedure two-part (“[T]he public employment of a resolving logically prior question elimination opposed firing of a legislative.” whether their acts were Bo —as single ‘legislative’ individual —constitutes gan, 523 U.S. at 118 S.Ct. 966. The act.”); County, Montgomery 215 F.3d at explained “it simply is ‘not conso to terminate (holding decision director nant government with our scheme of for a county department housing services inquire court to into the of legisla motives ” “Hiring par- was administrative because tors.’ Id. at (emphasis 118 S.Ct. 966 personnel employee omitted) ticular decision (quoting Tenney, 341 at U.S. general policy involve does not mak- 783). 71 inquiry The relevant was ing”). whether, “stripped of all considerations of motive, intent and [defendants’] actions Nevertheless, Baraka contends legislative.” were Id. purpose repealer of the was to remove Youngblood, In representative him as a state specifically laureate after he representatives contended two other resign, refused to and its effect is de- better nied her analogized adequate budget to the termination of an individ allocation for in employment staffing than to office retaliation for ual’s the elimination her com- plaints against of a their position. party leadership. contends he was at punished speech, Citing Bogan his which F.3d emphasized his detrac we that a view, tors In court does not termed anti-Semitic. his consider intent and intent and motive to determine purpose legislative motive behind the whether repealer perceived immunity applies to a anti-Semitism. defendant’s actions. But a intent Id. at 841. allocating defendant’s and motive are Defendants’ acts of office-staffing appropriations among immaterial to whether certain acts are en indi- immunity. representatives titled vidual Bogan, See were acts 54-55, to which immunity at S.Ct. 966. Accord extended. Id. at 841. It was immaterial ingly, allegation may Baraka’s as to that the acts Governor have McGreevey’s Harrington’s punish been intended to plaintiff intent and be- accept “legislators’ motive—which we cause true re motives are irrelevant viewing the denial of a to whether their enjoy legislative activities Fed.R.Civ.P. 12(b)(6) immunity.” 839-40; Gallas, motion—cannot affect Id. at analy our see also (“In sis. F.3d at 773 determining whether an official is entitled to legislative immuni- In Bogan, plaintiff alleged defendants’ ty, we must focus on the nature of the passing an actions ordinance were moti- official’s action rather than the official’s animus, by vated racial and were in retali- office.”). motives or the title of her ation for her exercise of First Amendment rights. id. at Osborn, See 118 S.Ct. 966. A Canary Baraka cites v. 211 F.3d jury (6th agreed plaintiff, with finding Cir.2000), defen- 324 and Kamplain Curry dants’ actions had been Commissioners, motivated a County Board (10th punish plaintiff desire to Cir.1998), for her constitu- in contending an im- tionally protected speech. Relying on proper this motive is relevant to a court’s de- jury finding, Appeals the Court of for the termination of whether legislative immuni- First Circuit held that ty applies. because defendants’ But neither supports case this targeted actions plaintiff, they position. were not In Canary, the Appeals Court of legislative. But the Court con- for the Sixth Circuit concluded individual Appeals cluded the Court of “erroneously school board members were not entitled to subjective relied on intent in legislative immunity [defendants’] absolute for their role were against claims them barred Baraka’s employ- of an the renewal voting against legislative immunity. principal. assistant as an ee’s contract they were as- Because F.3d 330-31. of an and actions performance

sessing actions “did their employee, individual in much of our dissent- Although joinwe implications prospective have colleague’s views on the structure and ing occu- particular beyond well reach[ed] Clause, and Debate history Speech office,” accordingly were pant of has am- jurisprudence we believe modern immunity. by legislative not covered understanding our plified transformed omitted). Kamplain, (quotation at 330 provision. of this constitutional Tenth Circuit for the Appeals doctrine, separation powers adminis- acted defendants concluded balances, under- checks im- its attendant foreclosing capacity trative development speech at- of the and girds the they plaintiffs banned munity when speech legislators at tendance, protections and afforded participation, debate county of commission- state meetings of a board States constitutions. the United and conclud- at 1252. The court created ers. 159 F.3d framers a The Constitution’s this ed, engen- the circumstances “[b]ecause that would government structure enactment or concern the power among case did for the competition der we cannot public policy, promulgation of branches. any related

say the bans were that But the also establishes Constitution Id. at legislation legislative function.” president, the functions for legislative re- Canary Kamplain nor Neither similar to established the quite those subjective intent on defendants’ lied in the New Constitution governor legislative determining in whether motive legisla- these at issue here. Whether cited Bo- immunity applied. Both cases branch may functions executive tive entitle an act is that gan’s “[w]hether directive immunity legislative is officers absolute act, turns on the nature legislative in Supreme Court answered question a the intent of the the motive or rather than on and, recently, Bogan. in We Tenney more Canary, performing it.” See official Youngblood, in these standards applied 329; at 1251. Kamplain, 159 F.3d F.3d at here is consis- our decision and we believe Supreme the asks us to do what prece- Court’s Supreme with both tent “rel[y] on has labeled Court erroneous — own. and our dent resolving in subjective intent [defendants’] legisla- colleague insists dissenting Our of whether logically prior question only to shield immunity is tive intended Bogan, 523 legislative.” were their acts disregards mod- But this legislators. view 966. Governor at 118 S.Ct. U.S. and, strikingly, most jurisprudence ern subjective McGreevey’s and Harrington’s recent Supreme Court’s undercuts analysis of role in our plays intent no issue, clearly Bogan, in guidance on legislative. not their acts were whether or immunity to extending legislative absolute whether, question is relevant (a mayor) official non-legislator public of intent all considerations “stripped propos- in the integrally involved who motive, leg were actions [defendants’] legislation al, passage promotion in 55, 118 Both at islative.” municipal department. eliminating substance, of both in actions form noted that There Accordingly, legislative. were defendants immunity attaches holding in “[a]bsolute did not err the District Court sphere legiti- taken in the authority actions claim such a constitutional to all activity.” Bogan, participate in legislative process. mate (internal quotes at 118 S.Ct. 966 B. omitted). Later, the Court noted “[w]e recognized have that officials outside the Baraka contends that even if legislative are legisla- branch entitled to immunity damages, bars his claim for it immunity they perform legisla- tive when does not bar claim for reinstatement functions,” adding that an tive executive’s against McGreevey Harring Governor respect enacting legislation actions with ton in their official capacities. He notes “integral steps legislative pro- legislative immunity personal that im cess.” Id. 118 S.Ct. 966. Subse- defense, munity citing Kentucky v. Gra quently, legisla- we noted this extension of ham,

tive officials outside (1985), L.Ed.2d 114 for the proposition description legislature Bogan. our personal immunity defenses are un Youngblood, (Bogan See 352 F.3d at 840 official-capacity available in actions. “municipal held officials were immune dicta, In Kentucky, the Court noted plaintiffs from a claim that the officials only immunities that can “[t]he be claimed rights they violated her civil when enacted official-capacity action are forms of budget position”). that eliminated her sovereign immunity entity, qua entity, may possess, such as the Eleventh dissenting colleague’s If our concern is Amendment.” Id. at 105 S.Ct. 3099. legislative immunity that would be extend- Kentucky addressed a plaintiff— whether lobbying activity, ed to basic we cannot prevailed who in a against govern suit a agree. ignores fundamentally This the dif- entity’s employees mental in personal their played by governor ferent roles a and his capacities attorneys’ recover fees —could in appointees legislative process the from entity. 161, 105 from the Id. at S.Ct. 3099. played by those private party who lob- involve, case, It did not as does this a claim noted, legislation. bies for As the New injunctive for declaratory relief. Ac governor requires Constitution the cordingly, the case has limited relevance to play enacting legislation, in role determining whether through signing vetoing it. It also au- bars Baraka’s claim for reinstatement. governor thorizes the to “recommend such desirable,” may Moreover, Larsen, measures as he deem interpreted we the to convene Legislature “whenever in Supreme opinion Court’s in Supreme opinion his Virginia interest shall re- Court v. Consumers Union to quire.” Const., V, § N.J. art. l.10 cases,” These hold that at in “appropriate least integral steps functions are legisla- legislative immunity apply can to claims process, tive by authorized declaratory injunctive state Con- for relief and, extension, stitution governor by against capacit officials their official appointees. Larsen, private lobbyist 253; No can ies.11 See 152 F.3d at Con- governor additionally given 10. broad 11. We concluded we also erred in Acierno power grant pardons Cloutier when we reprieves, stated “the and to forfeitures, legislative immunity ap has never held that suspend pow- and remit fines and plies damages injunc- to both claims for necessarily ers that overlap powers with the Larsen, (citing tive relief.” 152 F.3d at 252 assigned judicial govern- branch of Cloutier, (3d Const, Acierno v. 607 n. 8 V, § ment. N.J. art. 2. Cir.1994) (en banc)). recognized We that "in Accordingly, the District at 254. Union, F.3d at sumers concluding Bara- not err in that Court did Pennsyl- determining whether reinstatement was barred request ka’s for § justice’s Supreme Court vania immunity.- by legislative sena- against state reinstatement for claim “appro- impeached him who tors C. case,” Larsen’s asked “whether we priate Baraka’s dismissed The District Court from the relief prospective for request Leg- because the for the honorarium claim consistent could be accorded Senators pay- funds for appropriated never islature legislative im- underlying policies with $10,000 provided for ment sought “re- Larsen munity.” Id. Because appro- of an § In the absence 52:16A-26.9. nothing less than instatement — held, defendants were the court priation, guilty, their senators rescind individual honorari- pay Baraka the not authorized we concluded: impeachment,” on this vote there could be no liabili- Accordingly, um. remedy imagine “It is difficult The court withholding payment.12 for ty directly interfere with more would Appropriations that under the explained exclusively to the Senators assigned role Jersey State of the New Constitu- Clause Pennsylvania Constitution.” by the tion, only from the funds can be withdrawn were enti- Accordingly, the senators appropriation. treasury by legislative State immunity. to absolute tled Const, VIII, par. § art. N.J. See Larsen, sought the relief Like (“No drawn from the State money shall be infringe sought by Baraka would relief made treasury appropriations but for Jersey Legislature. the New on the role of § law.”); Ann. 52:18-27 N.J. Stat. see also Jersey legis require New Baraka seeks to 2003) (“No (West drawn money shall be repealing the their to rescind votes lators treasury unless it has been the state from recreating legislation and to enact purpose statute appropriated to explicitly drawn.”). with the District agree position. We court cited the the it The was which be in that this “would in opinion conclusion Jersey Supreme Court’s Court’s New 133, under general policies 411 A.2d consistent with the Byrne, v. 82 Camden N.J. immunity,” (1980), and “would that 462, proposition lying 470 the to assigned the role in the courts seriously interfere with can be no redress “[t]here Baraka, action or Legislature.” Legislature’s the the exclusively to overcome either to its con- 04-1959, Debating, pursuant slip op. at 8-9. refusal to take action No. appropria- state on, power “role[s] over voting passing stitutional statutes Baraka’s con- rejected exclusively” Legislature, the The court assigned to tions.” vested 52:16A-26.9 case” for that section “appropriate is an tention and this case property constitutionally protected a a immunity to him application mandate. Larsen, that overcame this 152 interest prospective claim for relief. $10,000 appoint- Baraka’s as of the date Union in Consumers fact the nullified,” "repealed],” application "retroactively the issue the did resolve ment legislative immunity to claims for provided absolute "eliminat[ed]” the honorarium question prospective relief and answered the Dis- § mischaracterizes 52:16A-26.9. This - (citing Sup.Ct. the affirmative.” Id. legislature holding. the of Va. Court's Because trict U.S., Inc., 446 U.S. Union the Consumers pay the honor- appropriated not funds had (1980)). 64 L.Ed.2d arium, legal had no held the court defendants $10,000 the from authority to withdraw the Court held Baraka states the District treasury pay Baraka. state appropriate legislature’s failure law, Jersey a statute New tion was not needed until late when Under (Baraka) particular poet revenue to a the next appointed. that devotes state At time, corresponding appropria Legislature already needs a this purpose had authorizing payment, adopted budget year and a court can tion State for fiscal Camden, appropriation. compel 2002-2003. contends that had the Camden, municipali position 411 A.2d at 470. In laureate not been abol- challenged ap July, appropriation ties the State’s failure to ished would have expend funds accordance been made in propriate budget year for fiscal purported Legislature’s with certain statutes that to de 2003-2004. But whether the governments. appropriate vote tax revenues to local failure to funds was intention- requested a court al municipalities The order or the result of indifference or over- requiring legislature sight, to make the nec the absence of an appropriation is essary Id. at 466. appropriations. Regardless legisla- determinative. intent, Appropriations § court held the Clause tive 52:16A-26.9 could not au- “firmly expenditure payment interdicts the of state thorize of the honorarium in the through separate monies statutes not oth a corresponding appropriation absence of integrated erwise related to or with the of state revenue. Baraka’s assertion that general act appropriation governing undisputed “it is refused [defendants] budget given year.” $10,000 state for a fiscal pay guaranteed by Baraka the Furthermore, request at 468. even if the the statute” is inaccurate it im- because ing party prove statutorily could plies defined defendants were authorized to make right, substantive a court could not compel payment but chose not to do so. an appropriation. (citing Id. at 469 appears exception to be an ? Cantwell, N.J.Super. Amantia v. general requiring rule (1965)); Jersey A.2d 251 also New see If appropriation. there is a constitutional D.C., Div. Family Youth & Serv. v. right payment, may compel pay court (1990) N.J. 571 A.2d ment even in the appropria absence of an (“There can in the be no redress courts to Serv., Family tion. See Youth & 571 A.2d Legislature’s overcome either the action 1301; Cahill, Robinson v. 69 N.J. or refusal pursuant to take action to its (1975). Jersey A.2d 713 Divi constitutional power appropria over state Services, sion Family Youth and tions .... That principle applies even if a issue was whether the New Su party clearly is compensa entitled to preme require legislature Court could tion.”). pay attorneys— disburse state funds to timing

Based on appro appointed represent indigent parents priations process, Baraka contends the minor their children—who were clear lack of an appropriation ly is immaterial to entitled to compensation. The court whether he was entitled to the honorari qualified principle that can be “[t]here um. He notes that in 1999—when the no redress in the courts to overcome either Legislature position poet created the Legislature’s action or refusal to take $10,000 laureate—it appropriated pay pursuant action power its constitutional person first position. who held the over appropriations,” by noting state an Since poet the first years exception served two constitutionally “when funds are 2000, starting early appropria- Serv., further Family mandated.”13 Youth & rejected argument The court necessary also that it should find the authorization in benefit, person in a property had interest attorneys Because A.2d at 1301. than an abstract clearly must have more right compensation, no constitutional have more for it. He must legis- need or desire the absence of concluded the court it. He expectation unilateral to their than a was fatal appropriation lative must, instead, legitimate claim of an have Here, absence of claims. whether to it.” Id. Baraka’s claims entitlement fatal to appropriation honor- payment of the depends on whether types pro of interests “[T]he constitutionally mandated. arium was and, are varied ‘property’ tected as not, intangible, relating ‘to the often as D. and economic whole domain of social the honor- payment of Baraka contends ” Co., v. Zimmerman Brush Logan fact.’ be- constitutionally mandated arium was 1148, 422, 430, 102 S.Ct. 455 U.S. him vested in con- law cause (1982) Nat. Mut. Ins. L.Ed.2d 265 liberty stitutionally protected property Co., v. Tidewater 337 U.S. Co. Transfer appointed he was interests when 646, 1173, 582, L.Ed. 1556 69 S.Ct. claims he poet laureate. He position of (1949) J., (Frankfurter, For dissenting)). due interests without was denied these protected individuals can have example, was abol- of law when process positions public property interests $10,000 honorarium with- and the ished Roth, at 576- employment. See 408 U.S. held. (“[A] college pro 92 S.Ct. 2701 an held under fessor dismissed from office evaluating procedural due professors provisions college tenure claim, “whether we first determine process during the members dismissed are en and staff individual interests the asserted their contracts have interests amend terms of within the fourteenth compassed safeguard that are life, liberty, proper employment continued protection ment’s (internal Suzuki, process.”) 116 ed due citations 227 F.3d ty.” Alvin v. omitted). omitted); (3d Cir.2000) v. Bd. Prop see also Slochower (quotations Educ., 350 U.S. Higher and their di erty interests are “created (1956); Filippo v. 100 L.Ed. 692 San by existing rules or are defined mensions (3d 1134-35 Bongiovanni, an inde understandings that stem from Cir.1992). Baraka does not contend as state law—rules pendent source such on an interest is based protected property certain bene understandings secure State, with the employment relationship entitlement support claims of fits and As if he did. nor would he succeed Regents Bd. State to those benefits.” Roth, appointee was a state laureate he Coll. v. —not Rather, (1972). he contends employee.14 “To have a L.Ed.2d 548 general appropriation clauses that all appropriation ed general statutory clauses. necessarily give carte blanche. us such explained: court Family v. D. Jersey & Serv. New Div. Youth of departments, statutory for all schemes [T]he 1295, (1990). 388, A.2d 1300 118 N.J. 571 C. divisions, agencies of State and other units general-appropriation government determining Jersey include New law 14. We look to Thus, theory, we employee. under its could clauses. a See whether was Wood, general-appropriation 96 S.Ct. always Bishop that find (1976) (“|T]he 2074, legislature sufficien- compel the 684 enable us to 48 L.Ed.2d clauses property a cy [to feel the the claim of entitlement pay services we of for whatever decided employment] must be persuad- interest in provide. We are not should state created a “mutual under- § reasoned Stana’s interest remain 52:16A-26.9 State, gave the which rise standing” with ing analogous plain on the list was to the constitutionally protected property to a in- employment tiffs’ interests in Cleveland alleges both he and the State terest. He Loudermill, Board Education v. legally entitled to the understood he U.S. 84 L.Ed.2d honorarium. (1985), where Supreme the Court referred “ significance employee’s] ‘the of [an Baraka cites v. School District Stana ” (3d Cir.1985), private in retaining employment.’ 775 F.2d 122 for interest Pittsburgh, Stana, proposition the that a mutual understand- (quoting 775 F.2d at 128 Louder property In ing give mill, S.Ct.1487). can rise to interests. at U.S. Stana, explained, “[property we interests employment relationship was central ... arise from written or unwrit- can also our decision in Stana. Because Baraka government policies or ten state or local did not hold a public employ ‘mutually explicit understandings’ from be- ment, inapposite. Stana is government employer employ- a tween ee.” Id. at 126. But we clarified all “[i]n Furthermore, § 52:16A-26.9 cases, inquiry the relevant is whether the sign “mutually shows no of a explicit un claim ‘legitimate claimant has a of entitle- derstanding” that Baraka was entitled to ” Roth, ment.’ Id. at the honorarium upon accepting ap the 2701). Furthermore, the “mutual- pointment. provided pay The statute for ly understanding” in explicit grew Stana ment of an honorarium poet laure employment relationship. out of an ate, who, during two-year period, would holding employee’s place a school on an “engage in promote activities to and en employment eligibility list constituted courage poetry within the State.” N.J. interest, protected property accepted we 52:16A-26.9(d). § Stat. Ann. The statute plaintiffs argument the school dis- provide did not poet the laureate would the list policy maintaining trict’s creat- upon receive the honorarium appointment. “ ‘mutually explicit understanding’ ed a provide Nor did it the laureate would person place that a on who earned be entitled to the honorarium whether or eligibility list will not be removed from the completed not he his term. years.” list for four 126. We noted “ Jersey Terms in New ‘frequently Court had rec- statutes not other- ognized severity depriving person wise defined are to be given general- their ” livelihood,’ ly the means of id. at accepted meanings. N.J. Stat. Ann. law.”). operation reference to state courts of that business.” Id. at 20 omitted). use (quotation two different tests to determine whether "Although primarily used cases,” qualifies employee. an individual compensation See in workers’ this test is well, Zarghami,

Lowe v. appropriate 158 N.J. 731 A.2d in other cases as such as (1999). "involving 19-20 The "control test” performed by profes- considers those work "(1) following degree employees,” factors: of con- sional and where the nature of employer trol exercised necessarily independent, over the means pro- work involves work; (2) completing judgment. the source of the fessional Id. at 20-21. Under ei- (3) test, compensation; worker's the source of the employee. ther Baraka was not a state resources; (4) equipment worker’s The State did not exercise control over his work, employer’s resources, rights.” provide termination Id. The him with facilities or pay "relative nature the work regular salary. test” considers him a Baraka was not State, dependence “the economically dependent extent of the economic on nor was upon operation any worker the business he serves and work central to the State relationship of the nature of his work to business. payment for with a valid claim to ployee de- generally An honorarium is §1:1-1. “necessary” medical “reasonable” honorary payment or reward “an fined as treatment, over the reasonable- “disputes services compensation as for usually given any necessity particular treatment ness propriety custom or forbids on which employer’s an obli- must be resolved set or for which price fixed business be before employee’s an entitle- gation pay law.” can be enforced payment no —and Dictionary ment benefits —arise.” Third International Webster’s (1999) (em- (1981); En- 143 L.Ed.2d 130 see also Oxford (Unabridged) (2d ed.1989) employee (defining phasis original). an Until Dictionary glish reward”). claim of entitlement to the honorary legitimate has a as “an honorarium benefit, constitutionally can be no “mutually a there did not create The statute Here, too, interest. protected property understanding” that Baraka explicit obligated to because defendants were not upon the honorarium legally entitled to re- in- Baraka was not entitled to property pay to a giving rise appointment, —and honorarium, no there can be ceive—the terest. constitutionally protected property inter- § create a Nor did 52:16A-26.9 est. prop a obligation giving rise to contractual Moreover, noted, if the statute even As the District Court erty interest. obligation, it leg did create a contractual indication that the “absent some clear constitutionally protect a contractually, would not confer bind itself islature intends to Only on Baraka. cer property in ed interest is that ‘a law is not presumption protected prop create tain state contracts private to create contractual tended under the Fourteenth policy erty a interests rights merely but declares vested v. Nat’l. Resi Unger Amendment. See legislature until the shall pursued to be ” Baraka, 04-1959, F.2d Matching Program, 928 No. dents ordain otherwise.’ Cir.1991). (3d two Generally, the R.R. Passen 1397-98 (quoting at 11 Nat’l slip op. protected that create Atchison, types of contracts Topeka & Santa Fe ger Corp. v. that confer a Co., 451, 465-66, interests are those property Ry. “ (1985)). ‘characterized protected lan status —those L.Ed.2d 482 dependence quality of either extreme § 52:16A-26.9 does not demon guage of benefits, perma the case of welfare part an intent on the State strate tenure, or sometimes in the case of contractually. pro The statute nence bind itself both, occurs in the case frequently poet laureate shall receive “[t]he vides ”—and those security § benefits’ “Honorari social honorarium.” 52-.16A-26.9. “ pro itself includes not a ‘the contract voluntary payment um” where implies entity can terminate in vision that the state obligation. nothing We see contractual ” Linan-Faye cause.’ only contract for demonstrating the state intend the statute Camden, Co., Inc. v. Hous. Auth. Baraka. Const. to enter a formal contract with ed Cir.1995) (3d context, Supreme In a different 1399). 928 F.2d at Unger, obligation to held that if there is no Court Here, the stat- benefit, right alleges legitimate there can be no pay neither honorarium —is ute conferred —an claim of entitlement to the benefit. relies in his on which Baraka Mutual Insur- a benefit American Manufacturers only life, terminable Sullivan, daily nor a contract Company ance most, provid- § cause. At 52:16A-26.9 Pennsylvania held that because “unilateral expectation” Baraka with a Act entitles an em- ed Compensation Workers 208 Roth, 1155, (1976) voluntary (holding award. 408 U.S. at S.Ct. 47 L.Ed.2d 405

of a reputation constitutionally alone is not a 577, provide It did not him 92 S.Ct. interest); protected property liberty or see claim of “legitimate with a entitlement.” City also v. 402 Philadelphia, Graham proper- honorarium a form of Id. Nor is an (3d 139, Cir.2005); 142 Kelly F.3d v. Bor rely daily ty he would his life. on which N.J., 1073, Sayreville, ough 107 F.3d (“It purpose is a of the ancient See id. (3d Cir.1997). Paul, 1077-78 In the Su to property protect institution of those preme Court noted that its case law did people rely in their upon claims which proposition “not establish the that reputa lives, that must not be arbi- daily reliance alone, apart tangible tion from some more undermined.”). trarily employment, interests such as is either Baraka also contends he has a ‘liberty’ ‘property’ by or itself sufficient to constitutionally protected interest in his procedural protection invoke the reputation, deprived of which he was when Paul, Due Process Clause.” 424 at U.S. alleges eliminated.15 He his was 701, 96 S.Ct. 1155. have We noted some “irreparable damage caused to defendants confusion whether the additional “more embarrassment, humiliation reputation, tangible protectible interest” must be “a Reputational distress.” emotional interest,” property “something or whether protected harm can constitute a interest interest, property independent less than a coupled depriva when with an additional ly Clause, protected by the Due Process right a or protected tion of interest.16 See Twp. could be sufficient.” Ersek v. [] Davis, 693, (3d 711-12, Springfield, Paul v. 102 F.3d 83 n. 5 Cir. property a 15. Baraka contends he has interest ments of the Due Process Clause of the Four- reputation. Generally, reputational in his if brought play.” teenth Amendment are into implicates constitutionally protected harm interest, rejected reading, But the Id. this which liberty it is a interest. See Paul v. represent significant broadening” would “a 693, 711, Davis, 424 U.S. 96 S.Ct. Instead, previous cases. the Court read (1976); Kelly Borough L.Ed.2d 405 phrase government "because of what the N.J., (3d Sayreville, 1077-78 him,” doing is to to refer "the fact that Cir.1997). Filippo, But see San 961 F.2d at governmental action taken in that case de- reputational (implying harm can consti- prived right previously the individual of a deprivation protected property of a tute a interest). right held under state law.” Id. This right purchase liquor "the or obtain citizenry,” common with the rest of the Filippo proposi- 16. Baraka cites San for the governmental "[wjhenever name, question action in was a 'person's good tion that honor, government reputation, integrity state statute that allowed at officials is stake be- government doing post cause what the prohibiting is notices sale of alcoholic him,' property is interest involved and due beverages people (including to certain process requirements apply.” 961 F.2d at plaintiff) history problems because of their Roth, (quoting 408 U.S. at "significantly with alcohol. Id. The statute 2701). Paul, Court recited a law, plaintiff's altered” the status under state nearly identical statement. See 424 U.S. at legal and "it was that alteration of status (" person's good 96 S.Ct. 1155 ‘Where which, injury resulting combined with the name, honor, reputation, integrity defamation, justified from the invocation government of what stake because is do- 708-09, procedural safeguards.” Id. at him, ing opportunity notice and an to be S.Ct. repu- Court’s conclusion that ”) heard are essential.' Wisconsin v. tational harm alone cannot form the basis of Constantineau, process a due claim was "reinforced our (1971)). 27 L.Ed.2d 515 The Court rec- subject” discussion of the in Roth. Id. at ognized this statement "could be taken to 96 S.Ct. 1155. government mean that if a official defames a more, person, procedural require- without ... Graham, long recognized 142 n. 2. as essen- 1996); privileges 402 F.3d at see Bara- orderly pursuit happiness the issue here. tial to the need not decide We a deprivation of no additional pled by ka has free men. couple to with the al- interest protected Nebraska, Meyer v. a Fed. reputation.17 On leged injury to his (1923). 625, 67 L.Ed. 1042 Harm to S.Ct. 12(b)(6) motion, accept his al- we R.Civ.P. can, circumstances, reputation certain true, harm as but reputational legations of deprivation liberty of a inter- constitute an action- conclude he has not stated

we Paul, est. See of a constitution- deprivation claim for able noted, 1155. But as Baraka has not reputation. in his ally protected interest properly alleged protected a interest Baraka has not identified reputation. his E. protected liberty a interest of which he the District Court Baraka also contends of continued deprived. was Denial by ignor[ing]” depri- “completely erred depriva- also constitute employment can alleges He liberty of his interest. vation Roth, liberty of a interest. See tion him his deprived defendants 2701. But Baraka U.S. at 92 S.Ct. punish to him for and of the honorarium employed by the state. Accord- was not views, liberty him of a inter- depriving his err in ingly, the District Court did not process due of law. est without declining speech to address his free claim liberty protected interests claim of a constitu- separately from his are broad in process due procedural tionally protected property interest. scope, including can Baraka state a properly Nor bodily merely freedom from re- First Amendment retaliation claim. Bara- the individu- right straint but also the ka denied a benefit —the contends he was contract, engage any to al to $10,000 retaliation honorarium —in for his life, acquire occupations of to common But Bara- expression. First Amendment a knowledge, marry, to establish useful children, ka a viable claim that defen cannot state bring up worship home pun him the honorarium to dants denied according to the dictates of his own God conscience, ish him for his views when defendants generally enjoy those Moreover, protected liberty in her depri- vation of a interest claim for to state valid protected repu- alleged vation interest based on had not reputation, we noted she harm, allege plaintiff must harm tational "imposed upon university's had her a actions Roth, opportunities. In forecloses future stigma disability generally fore- or other reputa- plaintiff harm to his contended advantage to take of other closed her freedom tion, resulting the non-renewal of his from opportunities.” 928 F.2d at educational contract, pro- deprivation of a amounted words, she had not estab- In other liberty The Court acknowl- tected interest. opportuni- lished the "kind of foreclosure job edged in one ... that "nonretention required by at 574 ties” Roth. 408 U.S. n. attractive to might make him somewhat less Ersek, 2701; see also 102 F.3d at Roth, employers.” 408 U.S. at some other showing (discussing requisite of future But it concluded 574 n. 92 S.Ct. 2701. deprivation liberty based harm to establish hardly establish the kind of this harm "would Here, alleg- reputation). on harm to amounting opportunities to a foreclosure damage "irreparable ” defendants caused es Unger, deprivation liberty.’ Id. In embarrassment, reputation, humiliation reputation plaintiff alleged to her based harm distress,” spe- but he does not and emotional university's graduate on discontinuation of a oppor- cifically allege a of future foreclosure residency program, to which she had been tunities. depri- addressing accepted. her claim for Moreover, Baraka’s claims legally pay authorized

were not against appropriation no the unknown defendants because honorarium Accordingly, Baraka does not barred the Eleventh Amendment to the made. ever agencies claim. extent defendants are either state First Amendment cognizable state a in holding err in or state officials sued their official ca did not The District Court deprive pacities. Dep’t Baraka of a See Will v. Mich. State did not defendants Police, 109 105 constitutionally protected property or lib- (1989); interest, L.Ed.2d 45 M.A. ex rel. v. erty infringe upon his First E.S. Newark, State-Operated Sch. Dist. rights. Amendment (3d Cir.2003). F.3d His claims by are barred the doctrine of F. immunity to the extent the claims are based on the involvement of these uniden The District Court dismissed in passage unknown tified defendants of the against Baraka’s claims various legislation abolishing position poet because Baraka government defendants in laureate. allege they engaged specific did not that contributed to his harm. behavior G.

Furthermore, District held that Court respondeat superior there is no because Baraka contends the District § named liability under defen declining pen erred in to exercise Court be held liable for the ac dants could not jurisdiction dent over his state law claims. A de tions of the unknown defendants. The District noted the fed “[w]here rights fendant in a civil action “must have trial, eral claims are dismissed before ‘the personal alleged involvement pen district court must decline to decide Rasheed, liable,” wrongs to be Sutton v. dent state claims unless considerations of (3d Cir.2003) (quotation 323 F.3d judicial convenience, economy, and fairness omitted), responsible and “cannot be held parties provide justi an affirmative ” for a constitutional violation which he or Baraka, fication doing for so.’ No. 04- approved,” in nor participated she neither 1959, slip op. (quoting Borough at 12 Oliva, C.H. ex rel. Z.H. v. 226 F.3d Lancaster, West 45 F.3d Mifflin (3d Cir.2000). allege Baraka does not (3d Cir.1995)). on specific, personal part involvement pen- We have held “a refusal to exercise defendants, and, accord unknown jurisdiction dent a state law claim over ingly, the District Court did not err prior after dismissal of all federal claims dismissing them. against the claims ordinarily trial is not an abuse of discre- Wilentz, tion.” Edelstein v. Complaint clearly Baraka contends “the (3d Cir.1987). Here, it was not an alleges that part these were [defendants] abuse of discretion for the District Court of ‘a ... campaign concerted to remove or ” pendent jurisdiction to decline to exercise terminate position.’ from his state [him] determining after considerations reply brief, In his he adds “more detail will jurisdiction weighing pendent favor of possible” be once he “is able to obtain present. were not discovery light to shed on Defendants’ ac- vague tions.” Baraka’s references to the IV. conduct of the unknown defendants are noted, insufficient to allegations constitute As pun- contends he was state a Jersey claim. ished the Governor and the New states have Legislature speaking designated specific poets views—views laureate, to be anti-Semitic. perceived poet that were either executive order or alleged punishment consisted of the legislation, His several cases the post position elimination of the of New has run its course when its holder has laureate, Baraka then held. poet which previ- died. Some states have codified a ously post. unofficial laureate dismiss, accept On a motion to we any set of allegations as facts will In summary, historically true — has suffice, though compelled we are not by legislative been created or executive inferences, accept unsupport unwarranted Thus, despite action. the undeniable artis- legal ed conclusions conclusions dis tic and cultural having poet benefits of guised allegations. Schuylkill as factual laureate, we are not any aware that state 417; Energy, Papasan, 113 F.3d at requires constitution the maintenance of 286, 106 S.Ct. 2932. the that position, any provision any nor of officially poet post created laureate pro- This case turns not on Baraka’s First it mind, appropriate tects from right speak Amendment official action to but (legislative gubernatorial) protected legal designed rather on whether he had a to terminate it. interest —constitutional or otherwise—in position

the continued existence of the of Jersey Legislature The New created the laureate, Jersey poet and his own post poet through ordinary leg- of laureate holding post. of the repeal islative action. The post of the Library Congress began filling of ordinary by resulted from legislative acts Poetry” called in in “Consultant legislators governor. and the The statute 1937. In Congress passed legislation provision protected contained no that it that changed post the title of the to United ordinary legislative process. from the Poetry States Poet Laureate Consultant in Baraka, any person, like was free to Library Congress. of 2 U.S.C. speak protected his views. But he had no § poet 177. The national laureate receives legal interest in the maintenance of the stipend by private gift. funded Some position poet Jersey. laureate of New began naming states poets their own laure- century, early ate earlier in the as as Y. A history 1919.18 review of the of state forth, For the reasons set we will affirm poets thirty- laureate reveals of the judgment the of the District Court. nine currently poet states that have a lau- reate, twenty-nine legislatures have codi- NYGAARD, J., dissenting. fied their poet position; state laureate the view, remaining positions respectfully my ten were created I dissent. the governor. executive order of the majority holding expands These the posts typically immunity privilege described as “honor- to insulate almost ev- ary,” statutory ery sometimes include a provi- action taken executive branch offi- connection, for a stipend, always, having sion modest but not cials some however re- mote, acts, passage and sometimes are left vacant. Some with the (last 2007). history history 18. Detailed on the information and visited on March A post poet current status of the laureate the national laureate is available at: Laureate, http:// each state on the web the is available site the About Position of Poet Room, (last Library Congress Reading www.loc.gov/poetiy/aboutlaureate.html at: Main 17, 2007). http://www.loc.gov/rr/main/poets/current.html visited on March in derived, preserve the immunity- was intended qualified part subsumes accepted Legisla of the doctrine, effectively integrity abolishes and dependence executive branch against designed of action Executive. It was causes ture from of, or in the affairs meddle who govern officials of the prevent other branches into, themselves insinuate otherwise interfering legislators with the ment from I therefore dissent legislative process.19 As performance of their duties.20 majority opinion portion from that taught, Harlan “since the Glorious Justice for- which extends Britain, throughout Revolution McGreevey Chairper- mer Governor history, privilege has States United Harrington. son recognized important protec been things make two History precedent independence integrity tion of First, support no for the there is clear: legislature. govern In the American legis- afforded protection claim that the the clause serves the ad mental structure coextensively non-legisla- applies lators reinforcing separa ditional function Thus, Majority’s implication tors. deliberately powers so established tion McGreevey and Ms. that Governor fact by the Founders.” United States John not members of the New are Harrington son, 754, 15 immaterial; and that is Jersey legislature (1966) (citing Story, Commen L.Ed.2d 681 legislative capacity in a they acting were Constitution; II The on the Works taries and they “orchestrate!] direet[]” when (Andrews ed. James Wilson 37-38 of starkly legislature the stands through bills 1896)). governing jurisprudence at with both odds Second, legislative im- doctrine. Given that the doctrine of history of the and the in extending protections munity the derives from a clause located do more non-legislators I, who immunity goal protect is to Article I infer that its legislation, but who “orches- propose than improper branch from and Legislative the activities, direct[]” and trate[] by non-legislators intrusions untoward critically very weakens the majority the from either of the coordinate branches far- privilege, portending the foundation of Indeed, government. ques- even when the vitality the for both reaching results by legisla- conduct tion arises as to what separa- effect on the privilege and for its qualifies immunity, Supreme tors for the powers. tion of that, cautioned “the courts have Court has beyond privilege to matters extended the Speech the and Debate Historically, House, in either but Clause, legislative immunity pure speech or debate from which (citing disagreement Id. Ten no on this fact. the Articles of Confederation. 19. There is Brandhove, 367, 372-75, majority specifically ney holds is that v. 341 U.S. What the (1951)). which fall within the L.Ed. 1019 Because the actions S.Ct. rooted, McGreevey’s principle firmly there was doctrine Governor was so during the New "orchestration] direction] [of] of the clause the de little discussion Jersey legislature to abolish the Constitutional Convention and it bates of the Maj. Op. at 196. hardly Laureate.” Poet mentioned at all in the ratification Speech Specifically, the and De debates. Id. that, I, any Speech provides "for or bate Clause Speech and Debate Clause in Article 20. The House, Repre in either [Senators Debate product Section of our Constitution is the questioned any not be oth speech sentatives] shall long lineage free or debate of a I, 1; cl. er Place.” U.S. Const. Art. Sect. guarantees began English with the Bill of DeWeese, Youngblood see v. Rights to some of the also continued on constitutions, (3d Cir.2004). appeared first state also out, pointed indirect sors Levinson and Pildes have only necessary prevent when was, great problem “the solution to this of such deliberations.” Gravel impairment instead, link power-seeking motives States, 606, 625, 92 United officials to the interests of their (1972). Here, 2614, 33 L.Ed.2d 583 Daryl Levinson Rich- branches.” J. from protecting legislature instead of Pildes, Parties, H. Separation ard Not deliberations, in- impairment of its we are Powers, 119 Harv. L.Rev. 2316-17 into the func- sulating executive intrusions (June 2006). By giving “those who admin- legislature tion and deliberations of department necessary ister each con- Importantly, from suit. personal stitutional means and motives to specifically has instructed that: others,” resist encroachments of the speech the heart of the clause is hoped system Framers create House, in either and insofar as debate competition power among which construed to reach other the clause is safely branches would constrain each with- matters, they integral part must be (citing in its bounds. The Federalist communicative of the deliberative and 321-22). (Madison), Papers No. 51 at processes participate which Members course, might argued it be Of proceedings in committee and House type of behavior issue here is akin to respect with to the consideration and preparing investigative such acts as re- passage rejection proposed legisla- ports, addressing congressional commit- respect tion or with to other matters tee, speaking legislative body before a places which the Constitution within the session, all of which are accorded jurisdiction of either House. But, immunity. imprimatur legislative Legislative immunity, as derived from legislative it is not. have limited im- We Clause, and is meant to Speech Debate munity “to include that are an activities apply legislative govern- to the branch integral part of the deliberative and com- ment, prowl legislative not all who by processes municative which Members importune legislators pet halls to on some participate pro- in committee and House cause or another. ceedings respect with to the consideration system govern- The bedrock of our passage rejection proposed legis- and or political competition ment is between the respect lation or with to other matters legislative and executive branches. Put places which the Constitution within the parlance, Congress more familiar and the jurisdiction Youngblood, of either House.” President would “check” and “balance” Gravel, (quoting F.3d at 840 408 U.S. 352 that each other. The Framers believed (1972)) (my empha- at 92 2614 S.Ct. great problem “the to be solved” was sis). conversely, legisla- Nonetheless design governing that would institutions immunity tive will not extend “to acts that “practical security” against afford the ex- casually incidentally legis- are related to political power. cessive concentration of part legislative lative affairs but not of the (Madison). Papers No. 48 Federalist Youngblood, 352 at process itself.” F.3d explained, Brewster, “a mere demarca- As Madison 92 U.S. 2531). Thus, parchment me, tion on of the constitutional activities such as S.Ct. a departments limits of the several is not “orchestrating] directing]” the New guard against sufficient those encroach- a Jersey legislature passing personally into tyrannical legislation they ments which lead to a concen- un- targeted piece —be government by ordinary citi- powers governor tration of all the dertaken may casually hands.” Id. at As Profes- zen—are activities which be same repeatedly have beyond af- went far that. We legislative incidentally related legislative fairs, part legislative not of the are cautioned that “a official’s but garden take I would not itself. process immunity only attaches to those from suit activity, if undertak- even lobbying variety legislative capacity. acts undertaken representa- and his governor aby en state respect to the only It is with activity under the such tive, place delegated leg- to them the state powers privilege. of the protection absolute [non-legislative are islatures that officials] majority that the New Carver, I with agree immunity.” entitled to absolute permits the Governor Jersey Constitution (my emphasis). at 100 “Absolute legislation General to recommend immunity attaches to all actions support this does not Assembly. But sphere legitimate legisla- in the taken that the Governor’s majority’s conclusion Scott-Harris, activity.” Bogan v. tive legislation is “recommending” actions in 44, 54, 118 S.Ct. 140 L.Ed.2d 79 U.S. and entitled to the “formally legislative” (1998) Brandhove, (quoting Tenney v. privilege. my protection of 367, 376, 71 95 L.Ed. 1019 S.Ct. that a prescription view the Constitutional (1951)) (my emphasis). key ques- But the may leg recommend governor are, following Bogan legiti- tions what is provide Constitutional im islation does not Indeed, legislative? mate —what is even non-legislators, him or other primatur for legislators, for actual legisla ] ]” to “orchestrate! direct! rejected reading has of the doctrine that that respectfully I submit process. tive everything would cover “related to due it non- scope applies as the doctrine’s functioning legislative process.” map simply does legislators Brewster, United States it, application from its majority would have (1972). L.Ed.2d 507 and, additionally, that there legislators, Immunity includes “activities merely practices is no integral part of the deliberative and com- Instead, the legislative activities. relate to processes municative which Members non-legislators inquiry for central participate pro- committee and House performing legis whether the official ceedings respect with to the consideration functions, which the lative passage rejection proposed legis- and defined as acts Bogan v. Scott-Harris respect lation or with to other matters “integral steps legislative the that were places which the Constitution within the 523 U.S. process.” Bogan, (1998) 966, (citing jurisdiction Youngblood, L.Ed.2d 79 S.Ct. of either House.” States, 482, 286 U.S. Edwards v. United (quoting at 840 v. 352 F.3d Gravel United (1932)).21 627, 490, L.Ed. 1239 52 S.Ct. States, 2614, 408 U.S. (1972)). Conversely, legisla- L.Ed.2d 583 majority agree I with the that for- also tive will not extend “to acts that aspects necessary legislative mal to the casually incidentally legis- related to signing of a bill and process—introduction legislative part lative affairs but not the immuni- qualify legislative for it into law— here, process Youngblood, aide itself.” 352 F.3d at ty. governor But the and his Many majority’s opinion ignores ques- 523 U.S. at S.Ct. 966. actions 21. McGreevey’s Harring- place sphere tion whether can be said to take within the "integral steps legisla- ton's actions are in the activity including lobbying. legislative That — process,” focusing whether tive instead on however, mean, does not that all such actions within the their actions were undertaken immunity. legislative are entitled activity.” Bogan, "sphere legislative See (3d Brewster, Ashbridge, 92 v. 326 n. 3 2531). Cir.2006). may McGreevey It be true that Harrington protected should be legislative immu- Because the roots of their in orchestrating directing role nity protect quintessentially seek passage of the bill about which Baraka process, the doctrine should however, complains; the appropriate de- inhibited, might action that be protect for them qualified immunity fense by the threat of impaired frustrated or —not legislative immunity. absolute to the where that action is central suit process. way, this Viewed Hence, I respectfully must dissent. that broad extension of the it is clear majority doctrine advocated

non-legislators’ actions show does underlying basis of fidelity

true doctrine, protect legis- which is to and would not follow the process,

lative that doc-

Supreme Court’s caution only necessary

trine extended when be UNITED STATES of America prevent impairment only I that Accordingly, function. believe in the “integral steps actions that are FORD, Appellant. Kelvin legislative process,” acts that are inextri- to, for, cably necessary linked No. 05-4998.

passage legislation pro- are entitled to of Appeals, United States Court I tection. conclude actions Third Circuit. complaint averred in Baraka’s are not “integral steps legislative process,” in the Submitted Pursuant to Third Circuit and, therefore, I would reverse the Dis- 34.1(a) L.A.R. Feb. trict Court.22 Filed March Finally, point by concluding I out that McGreevey Harrington are not legislative immunity, entitled to absolute deprive

we do not them of other valid Qualified immunity

defenses. remains not defense,

only appropri- a robust but is the

ate one where defendants are offi-

cials in the executive branch. See Dotzel grasped language daily support, 22. The District Court onto not in the case cited for it case, contained within a 1994 District Court Gravel. The "substantial nexus” test would (D.N.J. Hughes Lipscher, F.Supp. envelop a too broad set of behavior much "[(Individuals 1994), proposition for the doctrine, allowing non-legislators under the legislators are not but whose acts have a who legislative immunity just for acts not to claim substantial nexus are also imbued integral legislative process generally legislative immunity.” with this absolute (such bill) signing introducing as the Hughes, F.Supp. at 296. To the extent lobby- that could be seen as but also for acts scope that it overreads and over-extends the ing, politicking, and the like. The doctrine doctrine, it should be affir- plainly behav- not intended to cover such matively rejected. Nowhere has this standard ior, legislators. even for adopted, espe- explicitly been advocated or

Case Details

Case Name: Baraka v. McGreevey

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 21, 2007

Citation: 481 F.3d 187

Docket Number: 05-2361

Court Abbreviation: 3rd Cir.