No. 05-2361
Lewis A. Scheindlin, Esquire, (Argued), Office of Attorney General of New Jersey, Department of Law & Public Safety, Trenton, NJ, for Appellees.
*OPINION OF THE COURT
SCIRICA, Chief Judge.
This appeal arises from an action brought by Amiri Baraka under
I.
Two months after his appointment, Baraka read his poem entitled “Somebody Blew Up America” at the Geraldine R. Dodge Poetry Festival in Stanhope, New Jersey. The poem commented generally on American society and politics, and on terrorism, specifically referencing the terror attacks of September 11, 2001, and read, in part: “Who knew the World Trade Center was gonna get bombed/Who told 4000 Israeli workers at the Twin Towers to stay home that day/Why did Sharon stay away?”2
After an outcry, a spokesman for Governor McGreevey issued a statement that “[t]he governor strictly criticizes any racist or anti-Semite behavior. The style of Baraka‘s recent verse implies that Israelis had known about the September 11 terrorism attacks.” (Second Am. Compl. ¶ 15.) Governor McGreevey asked Baraka to resign. Baraka refused, contending the poem was neither anti-Semitic nor racist.
Baraka alleges Governor McGreevey then instructed Sharon Harrington, the chair of the New Jersey State Council for the Arts, to withhold payment of the $10,000 honorarium. Baraka also alleges Governor McGreevey and other defendants “commenced a concerted campaign” to remove him from his position or to abolish the position of poet laureate altogether. Soon thereafter, the New Jersey State Legislature passed P.L.2003, c. 123, which repealed section 52:16A-26.9 and abolished the position of poet laureate.3 Governor McGreevey signed the repealer into law on July 2, 2003.
Baraka filed a complaint under
The District Court granted defendants’ motion to dismiss under
On appeal, Baraka contends the District Court erred by: (1) holding Governor McGreevey and Harrington were protected by absolute legislative immunity; (2) holding Baraka was not deprived of a constitutionally protected property interest without due process of law; (3) declining to address Baraka‘s claim he was deprived of a constitutionally protected liberty interest; (4) dismissing the case as to various unknown government individuals, entities, and agencies; and (5) failing to exercise pendent jurisdiction over the state law claims.5
II.
The District Court had subject matter jurisdiction under
III.
A.
Baraka contends his claims against Governor McGreevey and Harrington are not barred by legislative immunity because neither is a legislator and their actions were not legislative in nature. He contends their actions were political — advocating legislation — and administrative — targeting a single person for punitive treatment. We believe Governor McGreevey‘s and Harrington‘s actions are properly characterized as legislative and are entitled to immunity.
“Absolute legislative immunity attaches to all actions taken `in the sphere of legitimate legislative activity.‘” Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). Legislative immunity shields from suit not only legislators, but also public officials outside of the legislative branch when they perform legislative functions. See id. (affording absolute legislative immunity to a mayor); Sup.Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 734, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (same, to the Virginia Supreme Court and its members); Gallas v. Sup.Ct. of Pa., 211 F.3d 760, 776-77 (3d Cir.2000) (same, to the Pennsylvania Supreme Court and its members); Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir. 1983) (same, to members of a city council, a mayor, and a city attorney). The relevant question is whether Governor McGreevey and Chair Harrington‘s actions were “`in the sphere of legitimate legislative activity.‘” Bogan, 523 U.S. at 54, 118 S.Ct. 966 (quoting Tenney, 341 U.S. at 376, 71 S.Ct. 783).
1.
In Youngblood v. DeWeese, 352 F.3d 836 (3d Cir.2004), we addressed the distinction between legislative and political activities on
But as these examples illustrate, activities by legislators that directly affect drafting, introducing, debating, passing or rejecting legislation, are “`an integral part of the deliberative and communicative processes,‘” and are properly characterized as legislative, not political patronage. Id. (quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)). Activities that are “`casually or incidentally related to legislative affairs but not a part of the legislative process itself,‘” are not. Id. (quoting Brewster, 408 U.S. at 528, 92 S.Ct. 2531).
Baraka describes the actions of Governor McGreevey and Harrington as “advocating and promoting legislation.” He contends legislative immunity does not apply because they are not legislators and because these are political, not legislative, activities. But when a governor and a governor‘s appointee advocate bills to the legislature, they act in a legislative capacity.
Baraka appears to concede as much. He alleges Governor McGreevey and Harrington actively participated in the legislative process. The repealer was allegedly passed at the “urging, direction and request” (Second Am. Compl. ¶ 19) of defendants. It was signed into law by Governor McGreevey. As the District Court noted, “[t]he gravamen of [Baraka‘s] complaint is that Governor McGreevey and Harrington `orchestrated and directed’ the New Jersey legislature to abolish the position of Poet Laureate.” Baraka v. McGreevey, No. 04-1959, slip op. at 6 (D.N.J. March 22, 2005). These actions were “an integral part of the deliberative and communicative processes,” Youngblood, 352 F.3d at 840 (quotation omitted), by which the repealer was enacted, and fall squarely “`within the sphere of legitimate, legislative activity.‘” Id. at 841 (quoting Tenney, 341 U.S. at 376, 71 S.Ct. 783).
In Bogan, the Supreme Court considered whether absolute legislative immunity applied to a mayor and to a member of a city council. 523 U.S. at 47, 118 S.Ct. 966. Both officials played central roles in advocating, promoting, and passing an ordinance that eliminated a government office of which plaintiff was the sole employee. Id. In concluding absolute legislative immunity applied, the Court held the city council member‘s acts of voting for the ordinance were “in form, quintessentially legislative,” and the mayor‘s acts of introducing a budget and signing the ordinance into law “also were formally legislative.” Id. at 55, 118 S.Ct. 966.
Baraka contends he named Governor McGreevey as a defendant not because the Governor signed the repealer, but because he advocated and orchestrated the legislation that abolished the position of poet laureate. His argument appears to concede the Governor‘s actions were central, or integral, to the legislative process. The New Jersey Constitution authorizes the Governor to “recommend such measures as he may deem desirable,” and to convene the Legislature “whenever in his opinion the public interest shall require.”
Despite Baraka‘s characterization, his
2.
Baraka‘s contention that defendants’ actions were administrative does not change our conclusion. As noted, Baraka contends that in abolishing the position of poet laureate, defendants targeted him for punitive action and engaged in administrative — as opposed to legislative — activity.
In determining whether legislative immunity attaches to municipal actors engaging in arguably administrative activities, we ask whether the activities are “both substantively and procedurally legislative in nature.” In re Montgomery County, 215 F.3d 367, 376 (3d Cir.2000); see Carver v. Foerster, 102 F.3d 96, 100 (3d Cir.1996) (asking whether the act is “substantively legislative,” as involving “policy-making” or “line-drawing,” and “procedurally legislative,” as being “passed by means of established legislative procedures“) (quoting Ryan v. Burlington County, 889 F.2d 1286, 1290-91 (3d Cir. 1989)); see also Bogan, 523 U.S. at 55, 118 S.Ct. 966 (affording legislative immunity to a non-legislator who performed functions that were substantively and procedurally legislative). In Gallas we explained this two-part inquiry:
First, the act must be “substantively” legislative, i.e., legislative in character. Legislative acts are those which involve policy-making decision [sic] of a general scope or, to put it another way, legislation involves linedrawing. Where the decision affects a small number or a single individual, the legislative power is not implicated, and the act takes on the nature of administration. In addition, the act must be “procedurally” legislative, that is, passed by means of established legislative procedures. This principle requires that constitutionally accepted procedures of enacting the legislation must be followed in order to assure that the act is a legitimate, reasoned decision representing the will of the people which the governing body has been chosen to serve.
211 F.3d at 774 (quoting Ryan, 889 F.2d at 1290-91).7
Here, defendants are public officers and state actors. Our cases differ as to whether the two-part substance/procedure inquiry, first applied to municipal actors, is also appropriate for actors at the state level. In Gallas, we applied the two-part inquiry to Pennsylvania Supreme Court justices and concluded the justices were entitled to legislative immunity for their actions in reorganizing one of the state‘s judicial districts. Id. But in other cases we declined to extend the two-part inquiry to state actors. See Youngblood, 352 F.3d at 841 n. 4 (“We have since recognized ... that the substance/procedure test was `developed for municipalities,’ where individual officials are more likely to perform a mixing of administrative and legislative functions, and thus have `decline[d] to extend [the Carver] analysis ... to other levels of government.‘“) (quoting Larsen v. Senate of the Commonwealth of Pa., 152 F.3d 240, 252 (3d Cir.1998)) (“[B]ecause concerns for the separation of powers are often at a minimum at the municipal level, we decline to extend our analysis developed for municipalities to other levels of government.“). Instead, we articulated the relevant inquiry as whether the actions in question were “within the sphere of legitimate, legislative activity.” Youngblood, 352 F.3d at 841 (quoting Tenney, 341 U.S. at 376, 71 S.Ct. 783).8
We have already focused on the procedural nature of Governor McGreevey‘s and Harrington‘s actions. We noted that their actions in recommending and, in the Governor‘s case, signing the repealer were similar to those of the defendants in Bogan — actions that were “in form, quintessentially legislative.” Bogan, 523 U.S. at 55, 118 S.Ct. 966. We agreed with the District Court that “[t]he gravamen of [Baraka‘s] complaint is that Governor McGreevey and Harrington `orchestrated and directed’ the New Jersey legislature to abolish the position of Poet Laureate.” Baraka, No. 04-1959, slip op. at 6. In sum, we concluded their actions were procedurally legislative.
Their actions in support of the repealer were also substantively legislative. This law, formally enacted, eliminated the position of poet laureate, a position that was legislatively created. Eliminating the position of poet laureate constitutes the type of “policy-making” that traditional legislation entails, and the actions here were substantively legislative. See Gallas, 211 F.3d at 774.
In the context of public employment, we have drawn a distinction between the elimination of a position and the termination of an individual employee. See id. at 775 (“[T]he elimination of a public employment position — as opposed to the firing of a single individual — constitutes a `legislative’ act.“); Montgomery County, 215 F.3d at 377 (holding decision to terminate director of county department of housing services was administrative because “[f]iring a particular employee is a personnel decision that does not involve general policy making“).
Nevertheless, Baraka contends the purpose of the repealer was to remove him specifically as poet laureate after he refused to resign, and its effect is better analogized to the termination of an individual‘s employment than to the elimination of a position. Baraka contends he was punished for his speech, which his detractors termed anti-Semitic. In his view, the intent and motive behind the purpose of the repealer was perceived anti-Semitism. But a defendant‘s intent and motive are immaterial to whether certain acts are entitled to legislative immunity. See Bogan, 523 U.S. at 54-55, 118 S.Ct. 966. Accordingly, Baraka‘s allegation as to Governor McGreevey‘s and Harrington‘s intent and motive — which we accept as true in reviewing the denial of a
In Bogan, plaintiff alleged defendants’ actions in passing an ordinance were motivated by racial animus, and were in retaliation for her exercise of First Amendment rights. See
In Youngblood, a state representative contended two other representatives denied her adequate budget allocation for office staffing in retaliation for her complaints against their party leadership. 352 F.3d at 838. Citing Bogan we emphasized that a court does not consider intent and motive to determine whether legislative immunity applies to a defendant‘s actions. Id. at 841. Defendants’ acts of allocating office-staffing appropriations among individual representatives were legislative acts to which immunity extended. Id. at 841. It was immaterial that the acts may have been intended to punish the plaintiff because “legislators’ motives are irrelevant to whether their activities enjoy legislative immunity.” Id. at 839-40; see also Gallas, 211 F.3d at 773 (“In determining whether an official is entitled to legislative immunity, we must focus on the nature of the official‘s action rather than the official‘s motives or the title of his or her office.“).
Baraka cites Canary v. Osborn, 211 F.3d 324 (6th Cir.2000), and Kamplain v. Curry County Board of Commissioners, 159 F.3d 1248 (10th Cir.1998), in contending an improper motive is relevant to a court‘s determination of whether legislative immunity applies. But neither case supports this position. In Canary, the Court of Appeals for the Sixth Circuit concluded individual school board members were not entitled to absolute legislative immunity for their role in voting against the renewal of an employee‘s contract as an assistant principal. 211 F.3d at 330-31. Because they were assessing the performance and actions of an individual employee, their actions “did not have prospective implications that reach[ed] well beyond the particular occupant of the office,” and accordingly were not covered by legislative immunity. Id. at 330 (quotation omitted). In Kamplain, the Court of Appeals for the Tenth Circuit concluded defendants acted in an administrative capacity foreclosing legislative immunity when they banned plaintiff‘s attendance, participation, and speech at meetings of a county board of commissioners. 159 F.3d at 1252. The court concluded, “[b]ecause the circumstances of this case did not concern the enactment or promulgation of public policy, we cannot say that the bans were related to any legislation or legislative function.” Id. at 1252. Neither Canary nor Kamplain relied on defendants’ subjective intent or motive in determining whether legislative immunity applied. Both cases cited Bogan‘s directive that “[w]hether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” See Canary, 211 F.3d at 329; Kamplain, 159 F.3d at 1251.
Baraka asks us to do what the Supreme Court has labeled erroneous — “rel[y] on [defendants‘] subjective intent in resolving the logically prior question of whether their acts were legislative.” Bogan, 523 U.S. at 54, 118 S.Ct. 966. Governor McGreevey‘s and Harrington‘s subjective intent plays no role in our analysis of whether or not their acts were legislative. The relevant question is whether, “stripped of all considerations of intent and motive, [defendants‘] actions were legislative.” Id. at 55, 118 S.Ct. 966. Both in form and in substance, the actions of both defendants were legislative. Accordingly, the District Court did not err in holding Baraka‘s claims against them were barred by legislative immunity.
3.
Although we join in much of our
The separation of powers doctrine, and its attendant checks and balances, undergirds the development of the speech and debate protections afforded legislators by the United States and state constitutions. The Constitution‘s framers created a structure of government that would engender competition for power among the branches.
But the Constitution also establishes legislative functions for the president, quite similar to those established for the governor in the New Jersey Constitution and at issue here. Whether these legislative functions may entitle executive branch officers to absolute legislative immunity is a question the Supreme Court answered in Tenney and, more recently, in Bogan. We applied these standards in Youngblood, and we believe our decision here is consistent with both the Supreme Court‘s precedent and our own.
Our dissenting colleague insists legislative immunity is intended to shield only legislators. But this view disregards modern jurisprudence and, most strikingly, undercuts the Supreme Court‘s recent guidance on the issue, in Bogan, clearly extending absolute legislative immunity to a non-legislator public official (a mayor) who was integrally involved in the proposal, promotion and passage of legislation eliminating a municipal department. There the Supreme Court noted that “[a]bsolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.” Bogan, 523 U.S. at 54, 118 S.Ct. 966 (internal quotes omitted). Later, the Court noted “[w]e have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions,” adding that an executive‘s actions with respect to enacting legislation are “integral steps in the legislative process.” Id. at 55, 118 S.Ct. 966. Subsequently, we noted this extension of legislative immunity to public officials outside the legislature in our description of Bogan. See Youngblood, 352 F.3d at 840 (Bogan held “municipal officials were immune from a plaintiff‘s claim that the officials violated her civil rights when they enacted a budget that eliminated her position“).
If our dissenting colleague‘s concern is that legislative immunity would be extended to basic lobbying activity, we cannot agree. This ignores the fundamentally different roles played by a governor and his appointees in the legislative process from those played by a private party who lobbies for legislation. As noted, the New Jersey Constitution requires the governor to play a role in enacting legislation, through signing or vetoing it. It also authorizes the governor to “recommend such measures as he may deem desirable,” and to convene the Legislature “whenever in his opinion the public interest shall require.”
B.
Baraka contends that even if legislative immunity bars his claim for damages, it does not bar his claim for reinstatement against Governor McGreevey and Harrington in their official capacities. He notes that legislative immunity is a personal immunity defense, citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), for the proposition that personal immunity defenses are unavailable in official-capacity actions.
In Kentucky, the Court noted in
Moreover, in Larsen, we interpreted the Supreme Court‘s opinion in Supreme Court of Virginia v. Consumers Union to hold that at least in “appropriate cases,” legislative immunity can apply to claims for declaratory and injunctive relief against officials in their official capacities.11 See Larsen, 152 F.3d at 253; Consumers Union, 446 U.S. at 732, 100 S.Ct. 1967. In determining whether a Pennsylvania Supreme Court justice‘s § 1983 claim for reinstatement against state senators who impeached him was an “appropriate case,” we asked “whether Larsen‘s request for prospective relief from the Senators could be accorded consistent with the policies underlying legislative immunity.” Id. Because Larsen sought “reinstatement — nothing less than that the individual senators rescind their guilty vote on this impeachment,” we concluded: “It is difficult to imagine a remedy that would more directly interfere with the role assigned exclusively to the Senators by the Pennsylvania Constitution.” Id. at 254. Accordingly, the senators were entitled to absolute legislative immunity.
Like the relief sought in Larsen, the relief sought by Baraka would infringe on the role of the New Jersey Legislature. Baraka seeks to require New Jersey legislators to rescind their votes repealing the statute and to enact legislation recreating the position. We agree with the District Court‘s conclusion that this “would be inconsistent with the general policies underlying legislative immunity,” and “would seriously interfere with the role assigned exclusively to the Legislature.” Baraka, No. 04-1959, slip op. at 8-9. Debating, voting on, and passing statutes are “role[s] assigned exclusively” to the Legislature, and this case is an “appropriate case” for application of legislative immunity to a claim for prospective relief. Larsen, 152 F.3d at 254. Accordingly, the District Court did not err in concluding that Baraka‘s request for reinstatement was barred by legislative immunity.
C.
The District Court dismissed Baraka‘s claim for the honorarium because the Legislature never appropriated funds for payment of the $10,000 provided for by § 52:16A-26.9. In the absence of an appropriation, the court held, defendants were not authorized to pay Baraka the honorarium. Accordingly, there could be no liability for withholding payment.12 The court explained that under the Appropriations Clause of the New Jersey State Constitution, funds can only be withdrawn from the State treasury by legislative appropriation. See
Based on the timing of the appropriations process, Baraka contends the lack of an appropriation is immaterial to whether he was entitled to the honorarium. He notes that in 1999 — when the Legislature created the position of poet laureate — it appropriated $10,000 to pay the first person who held the position. Since the first poet served for two years starting in early 2000, further appropriation was not needed until late 2002, when the next poet (Baraka) was appointed. At this time, the Legislature had already adopted the State budget for fiscal year 2002-2003. Baraka contends that had the position of poet laureate not been abolished in July, the appropriation would have been made in the budget for fiscal year 2003-2004. But whether the Legislature‘s failure to appropriate funds was intentional or the result of indifference or oversight, the absence of an appropriation is determinative. Regardless of the legislative intent, § 52:16A-26.9 could not authorize payment of the honorarium in the absence of a corresponding appropriation of state revenue. Baraka‘s assertion that “it is undisputed that [defendants] refused to pay Baraka the $10,000 guaranteed by the statute” is inaccurate because it implies defendants were authorized to make a payment but chose not to do so.
There appears to be an exception to the general rule requiring a legislative appropriation. If there is a constitutional right to payment, a court may compel payment even in the absence of an appropriation. See Youth & Family Serv., 571 A.2d at 1301; Robinson v. Cahill, 69 N.J. 133, 351 A.2d 713 (1975). In New Jersey Division of Youth and Family Services, the issue was whether the New Jersey Supreme Court could require the legislature to disburse state funds to pay attorneys — appointed to represent indigent parents and their minor children — who were clearly entitled to compensation. The court qualified the principle that “[t]here can be no redress in the courts to overcome either the Legislature‘s action or refusal to take action pursuant to its constitutional power over state appropriations,” by noting an exception “when funds are constitutionally mandated.”13 Youth & Family Serv., 571 A.2d at 1301. Because the attorneys had no constitutional right to compensation, the court concluded the absence of a legislative appropriation was fatal to their claims. Here, whether the absence of an appropriation is fatal to Baraka‘s claims depends on whether payment of the honorarium was constitutionally mandated.
D.
In evaluating a procedural due process claim, we first determine “whether the asserted individual interests are encompassed within the fourteenth amendment‘s protection of life, liberty, or property.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000) (quotations omitted). Property interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id.
“[T]he types of interests protected as `property’ are varied and, as often as not, intangible, relating `to the whole domain of social and economic fact.‘” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quoting Nat. Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting)). For example, individuals can have protected property interests in positions of public employment. See Roth, 408 U.S. at 576-77, 92 S.Ct. 2701 (“[A] public college professor dismissed from an office held under tenure provisions and college professors and staff members dismissed during the terms of their contracts have interests in continued employment that are safeguarded by due process.“) (internal citations omitted); see also Slochower v. Bd. of Higher Educ., 350 U.S. 551, 559, 76 S.Ct. 637, 100 L.Ed. 692 (1956); San Filippo v. Bongiovanni, 961 F.2d 1125, 1134-35 (3d Cir.1992). Baraka does not contend his protected property interest is based on an employment relationship with the State, nor would he succeed if he did. As poet laureate he was a state appointee — not an employee.14 Rather, he contends § 52:16A-26.9 created a “mutual understanding” with the State, which gave rise to a constitutionally protected property interest. He alleges both he and the State understood he was legally entitled to the honorarium.
Baraka cites Stana v. School District of Pittsburgh, 775 F.2d 122 (3d Cir.1985), for the proposition that a mutual understanding can give rise to property interests. In Stana, we explained, “[p]roperty interests ... can also arise from written or unwritten state or local government policies or from `mutually explicit understandings’ between a government employer and employee.” Id. at 126. But we clarified “[i]n all cases, the relevant inquiry is whether the claimant has a `legitimate claim of entitlement.‘” Id. (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701). Furthermore, the “mutually explicit understanding” in Stana grew out of an employment relationship. In holding a school employee‘s place on an employment eligibility list constituted a protected property interest, we accepted plaintiff‘s argument that the school district‘s policy for maintaining the list created a “`mutually explicit understanding’ that a person who earned a place on the eligibility list will not be removed from the list for four years.” Id. at 126. We noted the Supreme Court had “`frequently recognized the severity of depriving a person of the means of livelihood,‘” id. at 128, and reasoned that Stana‘s interest in remaining on the list was analogous to the plaintiffs’ employment interests in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), where the Supreme Court referred to “`the significance of [an employee‘s] private interest in retaining employment.‘” Stana, 775 F.2d at 128 (quoting Loudermill, 470 U.S. at 543, 105 S.Ct. 1487). The employment relationship was central to our decision in Stana. Because Baraka did not hold a position of public employment, Stana is inapposite.
Furthermore, § 52:16A-26.9 shows no sign of a “mutually explicit understanding” that Baraka was entitled to the honorarium upon accepting the appointment. The statute provided for payment of an honorarium to the poet laureate, who, during a two-year period, would “engage in activities to promote and encourage poetry within the State.”
51
Terms in New Jersey statutes not otherwise defined are to be given their generally accepted meanings.
52
Nor did
53
In a different context, the Supreme Court held that if there is no obligation to pay a benefit, there can be no legitimate claim of entitlement to the benefit. In American Manufacturers Mutual Insurance Company v. Sullivan, the Supreme Court held that because the Pennsylvania Workers Compensation Act entitles an employee with a valid claim to payment for “reasonable” and “necessary” medical treatment, “disputes over the reasonableness and necessity of particular treatment must be resolved before an employer‘s obligation to pay — and an employee‘s entitlement to benefits — arise.” 526 U.S. 40, 60, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (emphasis in original). Until the employee has a legitimate claim of entitlement to the benefit, there can be no constitutionally protected property interest. Here, too, because defendants were not obligated to pay — and Baraka was not entitled to receive — the honorarium, there can be no constitutionally protected property interest.
54
Moreover, even if the statute did create a contractual obligation, it would not confer a constitutionally protected property interest on Baraka. Only certain state contracts create protected property interests under the
55
Here, the right Baraka alleges the statute conferred — an honorarium — is neither a benefit on which Baraka relies in his daily life, nor a contract terminable only for cause. At most,
56
Baraka also contends he has a constitutionally protected interest in his reputation, of which he was deprived when his position was eliminated.15 He alleges defendants caused “irreparable damage to his reputation, embarrassment, humiliation and emotional distress.” Reputational harm can constitute a protected interest when coupled with an additional deprivation of a protected right or interest.16 See Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (holding reputation alone is not a constitutionally protected property or liberty interest); see also Graham v. City of Philadelphia, 402 F.3d 139, 142 (3d Cir.2005); Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073, 1077-78 (3d Cir.1997). In Paul, the Supreme Court noted that its case law did “not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either `liberty’ or `property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Paul, 424 U.S. at 701, 96 S.Ct. 1155. We have noted some confusion whether the additional “more tangible interest” must be “a protectible property interest,” or whether “something less than a property interest, independently protected by the Due Process Clause, could be [] sufficient.” Ersek v. Twp. of Springfield, 102 F.3d 79, 83 n. 5 (3d Cir. 1996); see Graham, 402 F.3d at 142 n. 2. We need not decide the issue here. Baraka has pled no additional deprivation of a protected interest to couple with the alleged injury to his reputation.17 On a Fed. R.Civ.P. 12(b)(6) motion, we accept his allegations of reputational harm as true, but we conclude he has not stated an actionable claim for deprivation of a constitutionally protected interest in his reputation.
E.
57
Baraka also contends the District Court erred by “completely ignor[ing]” the deprivation of his liberty interest. He alleges defendants deprived him of his position and of the honorarium to punish him for his views, depriving him of a liberty interest without due process of law.
58
The liberty interests protected by procedural due process are broad in scope, including
59
not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.
60
Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Harm to reputation can, in certain circumstances, constitute deprivation of a liberty interest. See Paul, 424 U.S. at 711, 96 S.Ct. 1155. But as noted, Baraka has not properly alleged a protected interest in his reputation. Baraka has not identified a protected liberty interest of which he was deprived. Denial of continued public employment can also constitute deprivation of a liberty interest. See Roth, 408 U.S. at 573, 92 S.Ct. 2701. But Baraka was not employed by the state. Accordingly, the District Court did not err in declining to address his free speech claim separately from his claim of a constitutionally protected property interest.
61
Nor can Baraka properly state a First Amendment retaliation claim. Baraka contends he was denied a benefit — the $10,000 honorarium — in retaliation for his First Amendment expression. But Baraka cannot state a viable claim that defendants denied him the honorarium to punish him for his views when defendants were not legally authorized to pay the honorarium because no appropriation was ever made. Accordingly, Baraka does not state a cognizable First Amendment claim. The District Court did not err in holding defendants did not deprive Baraka of a constitutionally protected property or liberty interest, or infringe upon his First Amendment rights.
F.
62
The District Court dismissed Baraka‘s claims against various unknown government defendants because Baraka did not allege they engaged in specific behavior that contributed to his harm. Furthermore, the District Court held that because there is no respondeat superior liability under
63
Baraka contends “the Complaint clearly alleges that these [defendants] were part of `a concerted campaign . . . to remove or terminate [him] from his state position.‘” In his reply brief, he adds “more detail will be possible” once he “is able to obtain discovery to shed light on Defendants’ actions.” Baraka‘s vague references to the conduct of the unknown defendants are insufficient to constitute allegations that state a claim.
64
Moreover, Baraka‘s claims against the unknown defendants are barred by the
G.
65
Baraka contends the District Court erred in declining to exercise pendent jurisdiction over his state law claims. The District Court noted “[w]here the federal claims are dismissed before trial, `the district court must decline to decide pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.‘” Baraka, No. 04-1959, slip op. at 12 (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.1995)).
66
We have held “a refusal to exercise pendent jurisdiction over a state law claim after dismissal of all federal claims prior to trial is ordinarily not an abuse of discretion.” Edelstein v. Wilentz, 812 F.2d 128, 134 (3d Cir.1987). Here, it was not an abuse of discretion for the District Court to decline to exercise pendent jurisdiction after determining the considerations weighing in favor of pendent jurisdiction were not present.
IV.
67
As noted, Baraka contends he was punished by the Governor and the New Jersey Legislature for speaking his views—views that were perceived to be anti-Semitic. His alleged punishment consisted of the elimination of the position of New Jersey poet laureate, which Baraka then held.
68
On a motion to dismiss, we accept the allegations as true—any set of facts will suffice, though we are not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations. Schuylkill Energy, 113 F.3d at 417; Papasan, 478 U.S. at 286, 106 S.Ct. 2932.
69
This case turns not on Baraka‘s First Amendment right to speak his mind, but rather on whether he had a protected legal interest—constitutional or otherwise—in the continued existence of the position of New Jersey poet laureate, and his own holding of the post.
70
The Library of Congress began filling a position called “Consultant in Poetry” in 1937. In 1985, Congress passed legislation that changed the title of the post to United States Poet Laureate Consultant in Poetry to the Library of Congress.
71
In summary, the position has historically been created by legislative or executive action. Thus, despite the undeniable artistic and cultural benefits of having a poet laureate, we are not aware that any state constitution requires the maintenance of the position, nor that any provision of any officially created poet laureate post protects it from appropriate official action (legislative or gubernatorial) designed to terminate it.
72
The New Jersey Legislature created the post of poet laureate through ordinary legislative action. The repeal of the post resulted from ordinary legislative acts by legislators and the governor. The statute contained no provision that protected it from the ordinary legislative process.
73
Baraka, like any person, was free to speak his views. But he had no protected legal interest in the maintenance of the position of poet laureate of New Jersey.
V.
74
For the reasons set forth, we will affirm the judgment of the District Court.
75
NYGAARD, J., dissenting.
76
I respectfully dissent. In my view, the majority holding expands the legislative immunity privilege to insulate almost every action taken by executive branch officials having some connection, however remote, with the passage of legislative acts, subsumes in part the qualified immunity doctrine, and effectively abolishes accepted causes of action against executive branch officials who meddle in the affairs of, or otherwise insinuate themselves into, the legislative process.19 I therefore dissent from that portion of the majority opinion which extends legislative immunity to former Governor McGreevey and Chairperson Harrington.
77
History and precedent make two things clear: First, there is no support for the claim that the protection afforded to legislators applies coextensively to non-legislators. Thus, the Majority‘s implication that the fact that Governor McGreevey and Ms. Harrington are not members of the New Jersey legislature is immaterial; and that they were acting in a legislative capacity when they “orchestrate[] and direct[]” bills through the legislature stands starkly at odds with both governing jurisprudence and the history of the doctrine. Second, by extending the protections of legislative immunity to non-legislators who do more than propose legislation, but who “orchestrate[] and direct[]” legislative activities, the majority critically weakens the very foundation of the privilege, portending far-reaching results for both the vitality of the privilege and for its effect on the separation of powers.
78
Historically, the
79
Given that the doctrine of legislative immunity derives from a clause located in Article I, I infer that its goal is to protect the Legislative branch from improper and untoward intrusions by non-legislators from either of the coordinate branches of government. Indeed, even when the question arises as to what conduct by legislators qualifies for immunity, the Supreme Court has cautioned that, “the courts have extended the privilege to matters beyond pure speech or debate in either House, but only when necessary to prevent indirect impairment of such deliberations.” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Here, instead of protecting the legislature from impairment of its deliberations, we are insulating executive intrusions into the function and deliberations of the legislature from suit. Importantly, the Supreme Court has specifically instructed that:
80
the heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.
81
Id. Legislative immunity, as derived from the Speech and Debate Clause, is meant to apply to the legislative branch of government, not all who prowl the legislative halls to importune legislators on some pet cause or another.
82
The bedrock of our system of government is political competition between the legislative and executive branches. Put in more familiar parlance, Congress and the President would “check” and “balance” each other. The Framers believed that “the great problem to be solved” was to design governing institutions that would afford “practical security” against the excessive concentration of political power. The Federalist Papers No. 48 (Madison). As Madison explained, “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” Id. at 308. As Professors Levinson and Pildes have pointed out, “the solution to this great problem was, instead, to link the power-seeking motives of public officials to the interests of their branches.” Daryl J. Levinson and Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L.Rev. 2311, 2316-17 (June 2006). By giving “those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others,” the Framers hoped to create a system in which competition for power among the branches would constrain each safely within its bounds. Id. (citing The Federalist Papers No. 51 (Madison), at 321-22).
83
Of course, it might be argued that the type of behavior at issue here is akin to such acts as preparing investigative reports, addressing a congressional committee, and speaking before a legislative body in session, all of which are accorded the imprimatur of legislative immunity. But, it is not. We have limited legislative immunity “to include activities that are an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Youngblood, 352 F.3d at 840 (quoting Gravel, 408 U.S. at 625, 92 S.Ct. 2614 (1972)) (my emphasis). Nonetheless and conversely, legislative immunity will not extend “to acts that are casually or incidentally related to legislative affairs but not part of the legislative process itself.” Youngblood, 352 F.3d at 840 (quoting Brewster, 408 U.S. at 513, 92 S.Ct. 2531). Thus, to me, activities such as “orchestrat[ing] and direct[ing]” the New Jersey legislature into passing a personally targeted piece of legislation — be they undertaken by a governor or ordinary citizen — are activities which may be casually and incidentally related to legislative affairs, but are not part of the legislative process itself. I would not take garden variety lobbying activity, even if undertaken by a state governor and his representative, and place such activity under the absolute protection of the privilege.
84
I agree with the majority that the New Jersey Constitution permits the Governor to recommend legislation to the General Assembly. But this does not support the majority‘s conclusion that the Governor‘s actions in “recommending” legislation is “formally legislative” and entitled to the protection of a legislative privilege. In my view the Constitutional prescription that a New Jersey governor may recommend legislation does not provide Constitutional imprimatur for him or other non-legislators, to “orchestrate[] and direct[]” the legislative process. I respectfully submit that the doctrine‘s scope as it applies to non-legislators simply does not map as the majority would have it, from its application to legislators, and, additionally, that there is no immunity for practices that merely relate to legislative activities. Instead, the central inquiry for non-legislators is whether the official was performing legislative functions, which the Supreme Court in Bogan v. Scott-Harris defined as acts that were “integral steps in the legislative process.” Bogan, 523 U.S. 44, 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (citing Edwards v. United States, 286 U.S. 482, 490, 52 S.Ct. 627, 76 L.Ed. 1239 (1932)).21
85
I also agree with the majority that formal aspects necessary to the legislative process — introduction of a bill and signing it into law — qualify for legislative immunity. But here, the governor and his aide went far beyond that. We have repeatedly cautioned that “a public official‘s legislative immunity from suit attaches only to those acts undertaken in a legislative capacity. It is only with respect to the legislative powers delegated to them by the state legislatures that [non-legislative officials] are entitled to absolute immunity.” Carver, 102 F.3d at 100 (my emphasis). “Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)) (my emphasis). But the key questions following Bogan are, what is legitimate — what is legislative? Indeed, even for actual legislators, the Supreme Court has rejected a reading of the doctrine that would cover everything “related to the due functioning of the legislative process.” United States v. Brewster, 408 U.S. 501, 513, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). Immunity includes “activities that are an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Youngblood, 352 F.3d at 840 (quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)). Conversely, legislative immunity will not extend “to acts that are casually or incidentally related to legislative affairs but not part of the legislative process itself.” Youngblood, 352 F.3d at 840 (quoting Brewster, 408 U.S. at 513, 92 S.Ct. 2531).
86
Because the roots of legislative immunity seek to protect the quintessentially legislative process, the doctrine should protect action that might be inhibited, frustrated or impaired by the threat of suit where that action is central to the legislative process. Viewed in this way, it is clear that broad extension of the doctrine advocated by the majority to non-legislators’ actions does not show true fidelity to the underlying basis of the doctrine, which is to protect the legislative process, and would not follow the Supreme Court‘s caution that the doctrine be extended only when necessary to prevent impairment of the legislative function. Accordingly, I believe that only actions that are “integral steps in the legislative process,” acts that are inextricably linked to, and necessary for, the passage of legislation are entitled to protection. I conclude that the actions averred in Baraka‘s complaint are not “integral steps in the legislative process,” and, therefore, I would reverse the District Court.22
87
Finally, I point out that by concluding that McGreevey and Harrington are not entitled to absolute legislative immunity, we do not deprive them of other valid defenses. Qualified immunity remains not only a robust defense, but is the appropriate one where defendants are public officials in the executive branch. See Dotzel v. Ashbridge, 438 F.3d 320, 326 n. 3 (3d Cir.2006). It may be true that McGreevey and Harrington should be protected for their role in orchestrating and directing the passage of the bill about which Baraka complains; however, the appropriate defense for them is qualified immunity — not absolute legislative immunity.
88
Hence, I must respectfully dissent.