Baraka v. McGreevey

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

3-21-2007

Baraka v. McGreevey

Precedential or Non-Precedential: Precedential

Docket No. 05-2361

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2361

AMIRI BARAKA,

Appellant

v.

JAMES E. McGREEVEY, individually;

*RICHARD J. CODEY, in his official capacity

as Acting Governor of the State of New Jersey;

STATE OF NEW JERSEY, a body corporate and politic;

NEW JERSEY STATE COUNCIL OF THE ARTS,

an agency and a body politic of the State of New Jersey;

SHARON HARRINGTON, individually and in her

official capacity as Chairperson of the

New Jersey State Council on the Arts;

JOHN DOES 1-10; MARY DOES 1-10;

UNKNOWN AGENCIES and

GOVERNMENT ENTITIES 1-10, unknown to plaintiff

at this time, individually and in their official capacities

*(Pursuant to Rule 43(c), F.R.A.P.)

On Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action No. 04-cv-1959

(Honorable Garrett E. Brown, Jr.)

Argued April 24, 2006

Before: SCIRICA, Chief Judge,

NYGAARD, Circuit Judge, and YOHN, District Judge*

(Filed March 21, 2007)

WILLIAM D. MANNS, JR., ESQUIRE (ARGUED)

Lee & Sanchez

Nevada Court Mall

21-23 Court Street

Newark, New Jersey 07102

ROBERT T. PICKETT, ESQUIRE

15 Village Plaza, Suite 1C

South Orange, New Jersey 07079

Attorneys for Appellant

*

The Honorable William H. Yohn Jr., United States District

Judge for the Eastern District of Pennsylvania, sitting by

designation.

2

LEWIS A. SCHEINDLIN, ESQUIRE (ARGUED)

Office of Attorney General of New Jersey

Department of Law & Public Safety

Richard J. Hughes Justice Complex

P.O. Box 112

Trenton, New Jersey 08625

Attorney for Appellees

OPINION OF THE COURT

SCIRICA, Chief Judge.

This appeal arises from an action brought by Amiri

Baraka under 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 2201

against officials, employees, and entities of the State of New

Jersey. Baraka alleges defendants violated his constitutional

rights by eliminating his position as poet laureate of New Jersey.

The District Court dismissed Baraka’s complaint under Fed. R.

Civ. P. 12(b)(6) for failure to state a claim upon which relief can

be granted. We will affirm.

I.

Amiri Baraka, a poet, was appointed poet laureate of

New Jersey in July 2002, by Governor James McGreevey, on

the recommendation of the New Jersey State Council for the

Arts. The New Jersey State Legislature created the position of

3

poet laureate in 1999 when it enacted P.L.1999, c.228 (codified

at N.J. Stat. Ann. § 52:16A-26.9 (repealed 2003)).1 The statute

1

Section 52:16A-26.9, provided:

a. There is hereby established the New Jersey

William Carlos Williams Citation of Merit to be

presented to a distinguished poet from New Jersey

who shall be considered the poet laureate of the

State of New Jersey for a period of two years. The

poet laureate shall receive an honorarium of

$10,000.

b. The New Jersey Council for the Humanities, in

consultation with the New Jersey State Council on

the Arts, shall biennially appoint and convene a

panel of four persons who are either distinguished

poets or persons who represent a range of stylistic

approaches in the field of poetry. Each member

of the first such panel shall be from New Jersey.

After the term of the first poet laureate and each

subsequent poet laureate has expired, that person

shall serve as one of the members of the panel for

a period of two years and participate in the

selection of the next poet laureate. The panel

shall submit to the Governor the name of the poet

to whom the citation of merit shall be presented

and who shall be considered poet laureate of the

State for the subsequent two years.

c. The Governor shall present biennially the New

4

provided the governor would biennially appoint a State poet

laureate who would serve for two years and receive an

honorarium of $10,000. The poet laureate would promote

poetry within the State and give at least two public readings

each year. Id.

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

Jersey William Carlos Williams Citation of Merit.

d. The poet laureate shall engage in activities to

promote and encourage poetry within the State

and shall give no fewer than two public readings

within the State each year while the poet holds the

laureate designation.

e. The New Jersey Council for the Humanities, in

consultation with the New Jersey State Council on

the Arts, shall establish such guidelines as are

deemed necessary to effectuate the purposes of

this section.

5

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

2

The full text of the poem is available at a Web page

registered to Baraka, http://www.amiribaraka.com/blew.html

(last visited on March 15, 2007).

6

the position of poet laureate.3 Governor McGreevey signed the

repealer into law on July 2, 2003.

Baraka filed a complaint under 42 U.S.C. §§ 1983 and

1988 and 28 U.S.C. § 2201 against Governor McGreevey, in his

individual and official capacities, Harrington, in her individual

and official capacities, the New Jersey State Council for the

Arts, the State of New Jersey, and various unknown employees,

agents, legislative officials, and entities of the State of New

Jersey, in their individual and official capacities. Baraka alleged

that by abolishing the position of poet laureate and denying him

the honorarium to punish him for expressing his views,

defendants violated his right to free speech under the First

Amendment and his right to due process of law under the

Fourteenth Amendment. Baraka also alleged various causes of

action under the New Jersey Constitution and New Jersey state

law. He requested payment of the $10,000-per-year honorarium

for two years,4 immediate reinstatement to the position of poet

3

The bill lists nine state senators and three assembly

members as sponsors, and fifteen state senators and fifty-five

assembly members as co-sponsors. It passed with 21 votes and

19 abstentions in the State Senate, and it passed the Assembly

in a 69-to-2 vote. Laura Mansnerus, New Jersey Assembly Votes

to Cut Embattled Poet’s Job, N.Y. Times, July 2, 2003, at B2.

4

On appeal, Baraka recognizes § 52:16A-26.9 provided for

a single payment of $10,000 and not $10,000 per year.

7

laureate, compensatory and punitive damages, and attorneys’

fees.

The District Court granted defendants’ motion to dismiss

under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon

which relief can be granted. The court dismissed Baraka’s

claims against the State, the Arts Council, and the unknown

government employees and entities on the basis of Eleventh

Amendment immunity. It dismissed the claims against

Governor McGreevey and Harrington on the basis of absolute

legislative immunity. The court dismissed Baraka’s claim for

the honorarium after concluding, under New Jersey law, he had

no legally enforceable right to payment. It dismissed the claims

against unknown government individuals and entities because

Baraka failed to allege specific conduct on their part that led to

his harm. In the absence of any viable federal claim, the court

declined to exercise pendent jurisdiction over Baraka’s state law

claims.

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

8

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

42 U.S.C. § 1983 and 28 U.S.C. § 1331. We have jurisdiction

under 28 U.S.C. § 1291. Our review of a district court’s

dismissal of a complaint under Rule 12(b)(6) is plenary. Vallies

v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006). A Rule 12(b)(6)

motion will be granted “‘if it appears to a certainty that no relief

could be granted under any set of facts which could be proved.’”

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) (quoting

D.P. Enter. Inc. v. Bucks County Cmty. Coll., 725 F.2d 943, 944

(3d Cir. 1984)). We must accept all factual allegations in

Baraka’s complaint as true, but we are not compelled to accept

“unsupported conclusions and unwarranted inferences,”

Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d

405, 417 (3d Cir. 1997), or “a legal conclusion couched as a

factual allegation,” Papasan v. Allain, 478 U.S. 265, 286

(1986). We review a district court’s dismissal of pendent state

law claims for abuse of discretion. Markowitz v. Ne. Land Co.,

906 F.2d 100, 103 (3d Cir. 1990); Cooley v. Pa. Hous. Fin.

Agency, 830 F.2d 469, 471 (3d Cir. 1987).

5

Baraka does not appeal the District Court’s holding that

claims against the State, the Arts Council, and unknown

government entities and employees in their official capacities

were barred by the Eleventh Amendment.

9

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 (1998) (quoting Tenney v.

Brandhove, 341 U.S. 367, 376 (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 (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

(quoting Tenney, 341 U.S. at 376).

10

1.

In Youngblood v. DeWeese, 352 F.3d 836 (3d Cir. 2004),

we addressed the distinction between legislative and political

activities on the part of state legislators. As examples of

legislative activities, we cited “voting for a resolution,

subpoenaing and seizing property and records for a committee

hearing, preparing investigative reports, addressing a

congressional committee, and, of course, speaking before the

legislative body in session.” Id. at 840 (internal citations

omitted). We contrasted these with examples of political

activities, including “‘a wide range of legitimate “errands”

performed for constituents, the making of appointments with

Government agencies, assistance in securing Government

contracts, preparing so-called “news letters” to constituents,

news releases, and speeches delivered outside the Congress.’”

Id. (quoting United States v. Brewster, 408 U.S. 501, 512

(1972)). In Youngblood, therefore, we used the term “political”

to refer to patronage practices and activities by officials, not

directly related to enacting legislation. Baraka also appears to

use the term to express this narrow meaning.

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 (1972)). Activities that are

“‘casually or incidentally related to legislative affairs but not a

11

part of the legislative process itself,’” are not. Id. (quoting

Brewster, 408 U.S. at 528).

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).

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. Both officials played

12

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.

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.” N.J. Const. art. V, §

1. The New Jersey Governor, therefore, is constitutionally

authorized to recommend legislative measures. Furthermore,

this is consistent with the type of activity designated as

“legislative” in Brewster and Youngblood. As the Governor’s

appointee, Harrington’s actions in advising and counseling

Governor McGreevey and the Legislature are also legislative.

See Aitchison, 708 F.2d at 99 (affording legislative immunity to

an attorney who advised a city council in drafting an ordinance).

Though neither Governor McGreevey nor Harrington were

legislators, their actions as public officials in proposing and

advocating the repealer are properly characterized as legislative.

13

Despite Baraka’s characterization, his cause of action

also necessarily encompasses the Governor’s actions in signing

the repealer into law. The position of poet laureate was

eliminated by legislative repealer, which required gubernatorial

approval (absent legislative override of a veto).6 Governor

McGreevey’s act of signing the repealer into law is properly

characterized as a legislative action, like those designated in

Brewster and Youngblood. See Edwards v. United States, 286

U.S. 482, 490 (1932) (noting “the legislative character of the

President’s function in approving or disapproving bills”); Smiley

v. Holm, 285 U.S. 355, 372–73 (1932) (discussing a governor’s

actions in signing or vetoing a bill as part of the legislative

process).

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,

6

Like other state constitutions, the New Jersey Constitution

grants the governor a role in the finalization of all legislation.

All legislation passed by both houses of the state Legislature

must be presented to the governor, who is authorized to enact

the law by signing it, or to veto the law by returning it to the

legislature with objections. If the governor takes no action

within 45 days, the bill becomes law by default. The Legislature

can override a veto only by a two-thirds super-majority in both

houses. N.J. Const. art. V, § 1, par. 14.

14

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 (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

15

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

7

We further noted that in Ryan “we did not mean to imply

that a legislative body, passing a de jure law affecting only a

single person, would not be entitled to legislative immunity.”

Gallas v. Sup. Ct. of Pa., 211 F.3d 760, 774 n.14 (3d Cir. 2000).

16

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).8

8

In Youngblood, we found support in Bogan for our decision

not to apply the two-part inquiry. We stated,

We similarly decline to apply the Carver analysis

to this case, especially in light of language from

the Supreme Court that, we believe, casts doubt

on the propriety of using any separate test to

examine municipal-level legislative immunity, see

Bogan, 523 U.S. at 49, 118 S.Ct. 966 (holding

that local legislators are “likewise” absolutely

immune from suit under § 1983), particularly a

two-part, substance/procedure test, id. at 55, 118

S.Ct. 966 (refusing to require that an act must be

“legislative in substance” as well as of “formally

legislative character” in order to be a legislative

act).

352 F.3d at 841 n. 4. But the Court in Bogan did not “refuse” to

require an act be both procedurally and substantively legislative

for immunity to apply. Rather, it concluded that because the

acts in question were legislative in both respects, there was no

need to determine whether the procedurally legislative character

of the actions was “alone sufficient to entitle petitioners to

17

Regardless of the level of government, we believe the

two-part substance/procedure inquiry is helpful in analyzing

whether a non-legislator performing allegedly administrative

tasks is entitled to immunity.9 We note that in Youngblood and

Larsen—the cases declining to apply the two-part inquiry to

state actors—there was no allegation that the actions in question

were administrative, and no need for this inquiry as a means of

distinguishing between administrative and legislative actions.

See Youngblood, 352 F.3d at 840–41; Larsen, 152 F.3d at 252.

In addition, these cases addressed legislators’ actions. Gallas,

in contrast, addressed non-legislators’ actions. Here, we

similarly address the actions of non-legislators (Governor

legislative immunity.” Bogan, 523 U.S. at 55.

We believe Bogan’s analysis illustrates that the two-part

substance/procedure inquiry provides a useful means of

determining whether allegedly administrative actions meet the

standard set forth by the Supreme Court—whether the actions

are “in the sphere of legitimate legislative activity.” Bogan, 523

U.S. at 54 (quoting Tenney, 341 U.S. at 376). We use the

substance/procedure inquiry not to establish a separate and

distinct standard for certain actors, but to determine whether the

Court’s standard has been met.

9

In Larsen, we explained our decision not to apply the two-

part inquiry to state actors. We noted, “concerns for the

separation of powers are often at a minimum at the municipal

level.” 152 F.3d at 252.

18

McGreevey and Harrington) performing allegedly legislative

tasks. In determining whether legislative immunity applies, it is

relevant to ask whether Governor McGreevey’s and

Harrington’s actions were both substantively and procedurally

legislative. If they were, they meet the standard set by the

Supreme Court—they were “in the sphere of legitimate

legislative activity.” Bogan, 523 U.S. at 54 (quoting Tenney,

341 U.S. at 376).

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. 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.

19

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.

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 Fed. R. Civ. P. 12(b)(6)

motion—cannot affect our analysis.

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 id.

20

at 47. A jury agreed with plaintiff, finding defendants’ actions

had been motivated by a desire to punish plaintiff for her

constitutionally protected speech. Relying on this jury finding,

the Court of Appeals for the First Circuit held that because

defendants’ actions targeted plaintiff, they were not legislative.

But the Supreme Court concluded the Court of Appeals

“erroneously relied on [defendants’] subjective intent in

resolving the logically prior question of whether their acts were

legislative.” Bogan, 523 U.S. at 54. The Court explained “it

simply is ‘not consonant with our scheme of government for a

court to inquire into the motives of legislators.’” Id. at 55

(emphasis omitted) (quoting Tenney, 341 U.S. at 377). The

relevant inquiry was whether, “stripped of all considerations of

intent and motive, [defendants’] actions were legislative.” Id.

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

21

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 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

22

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. 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. 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 dissenting colleague’s

views on the structure and history of the Speech and Debate

Clause, we believe modern jurisprudence has amplified and

transformed our understanding of this constitutional provision.

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.

23

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 (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. 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

24

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.” N.J. Const., art. V, § 1.10 These functions are integral

steps in the legislative process, authorized by the state

Constitution to the governor and, by extension, his appointees.

No private lobbyist can claim such a constitutional authority to

participate in the legislative process.

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

10

The governor is additionally given broad power to grant

pardons and reprieves, and to suspend and remit fines and

forfeitures, powers that necessarily overlap with the powers

assigned to the judicial branch of government. N.J. Const. art.

V, § 2.

25

capacities. He notes that legislative immunity is a personal

immunity defense, citing Kentucky v. Graham, 473 U.S. 159

(1985), for the proposition that personal immunity defenses are

unavailable in official-capacity actions.

In Kentucky, the Court noted in dicta, “[t]he only

immunities that can be claimed in an official-capacity action are

forms of sovereign immunity that the entity, qua entity, may

possess, such as the Eleventh Amendment.” Id. at 167.

Kentucky addressed whether a plaintiff—who prevailed in a suit

against a governmental entity’s employees in their personal

capacities—could recover attorneys’ fees from the entity. Id. at

161. It did not involve, as does this case, a claim for injunctive

or declaratory relief. Accordingly, the case has limited

relevance to determining whether legislative immunity bars

Baraka’s claim for reinstatement.

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

11

We also concluded we erred in Acierno v. Cloutier when

we stated “the Supreme Court has never held that legislative

immunity applies to both claims for damages and injunctive

relief.” Larsen, 152 F.3d at 252 (citing Acierno v. Cloutier, 40

F.3d 597, 607 n.8 (3d Cir. 1994) (en banc)). We recognized that

“in fact the Supreme Court in Consumers Union did resolve the

26

253; Consumers Union, 446 U.S. at 732. 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

issue of the application of absolute legislative immunity to

claims for prospective relief and answered that question in the

affirmative.” Id. (citing Sup. Ct. of Va. v. Consumers Union of

the U.S., Inc., 446 U.S. 719 (1980)).

27

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 N.J. Const. art.

VIII, § 2, par. 2 (“No money shall be drawn from the State

treasury but for appropriations made by law.”); see also N.J.

Stat. Ann. § 52:18-27 (West 2003) (“No money shall be drawn

12

Baraka states the District Court held the legislature’s

failure to appropriate the $10,000 as of the date of Baraka’s

appointment “retroactively nullified,” “repeal[ed],” or

“eliminat[ed]” the honorarium provided by § 52:16A-26.9. This

mischaracterizes the District Court’s holding. Because the

legislature had not appropriated funds to pay the honorarium,

the court held defendants had no legal authority to withdraw the

$10,000 from the state treasury to pay Baraka.

28

from the state treasury unless it has been explicitly appropriated

to the purpose for which it was drawn.”). The court cited the

New Jersey Supreme Court’s opinion in Camden v. Byrne, 411

A.2d 462, 470 (N.J. 1980), for the proposition 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.” The court rejected Baraka’s

contention that section 52:16A-26.9 vested in him a

constitutionally protected property interest that overcame this

mandate.

Under New Jersey law, a statute that devotes state

revenue to a particular purpose needs a corresponding

appropriation authorizing payment, and a court cannot compel

the appropriation. Camden, 411 A.2d at 470. In Camden,

municipalities challenged the State’s failure to appropriate and

expend funds in accordance with certain statutes that purported

to devote tax revenues to local governments. The municipalities

requested a court order requiring the legislature to make the

necessary appropriations. Id. at 466. The court held the

Appropriations Clause “firmly interdicts the expenditure of state

monies through separate statutes not otherwise related to or

integrated with the general appropriation act governing the state

budget for a given fiscal year.” Id. at 468. Furthermore, even

if the requesting party could prove a statutorily defined

substantive right, a court could not compel an appropriation. Id.

at 469 (citing Amantia v. Cantwell, 213 A.2d 251 (N.J. App.

Div. 1965); see also New Jersey Div. of Youth & Family Serv.

v. D.C., 571 A.2d 1295, 1301 (N.J. 1990) (“There can be no

29

redress in the courts to overcome either the Legislature’s action

or refusal to take action pursuant to its constitutional power over

state appropriations. . . . That principle applies even if a party

is clearly entitled to compensation.”).

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

30

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, 351 A.2d 713 (N.J. 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

13

The court also rejected the argument that it should find the

necessary authorization in general statutory appropriation

clauses. The court explained:

[T]he statutory schemes for all departments,

divisions, agencies and other units of State

government include general-appropriation

clauses. Thus, under its theory, we could always

find that general-appropriation clauses enable us

to compel the legislature to pay for whatever

services we feel the state should provide. We are

not persuaded that all general appropriation

clauses necessarily give us such carte blanche.

New Jersey Div. of Youth & Family Serv. v. D.C., 571 A.2d

1295, 1300 (1990).

31

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.

Baraka contends payment of the honorarium was

constitutionally mandated because New Jersey law vested in

him constitutionally protected property and liberty interests

when he was appointed to the position of poet laureate. He

claims he was denied these interests without due process of law

when the position was abolished and the $10,000 honorarium

withheld.

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 (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.

32

“[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 (1982) (quoting Nat. Mut. Ins. Co.

v. Tidewater Transfer Co., 337 U.S. 582, 646 (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 (“[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

(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-

14

We look to New Jersey law in determining whether Baraka

was a public employee. See Bishop v. Wood, 426 U.S. 341, 344

(1976) (“[T]he sufficiency of the claim of entitlement [to a

property interest in employment] must be decided by reference

to state law.”). New Jersey courts use two different tests to

determine whether an individual qualifies as an employee. See

Lowe v. Zarghami, 731 A.2d 14, 19–20 (N.J. 1999). The

“control test” considers the following factors: “(1) the degree of

control exercised by the employer over the means of completing

33

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

the work; (2) the source of the worker's compensation; (3) the

source of the worker's equipment and resources; and (4) the

employer's termination rights.” Id. The “relative nature of the

work test” considers “the extent of the economic dependence of

the worker upon the business he serves and the relationship of

the nature of his work to the operation of that business.” Id. at

20 (quotation omitted). “Although used primarily in workers’

compensation cases,” this test is appropriate in other cases as

well, such as those “involving work performed by professional

employees,” and where the nature of work necessarily involves

independent, professional judgment. Id. at 20–21. Under either

test, Baraka was not a state employee. The State did not

exercise control over his work, provide him with facilities or

resources, or pay him a regular salary. Baraka was not

economically dependent on the State, nor was his work central

to the operation of any State business.

34

cases, the relevant inquiry is whether the claimant has a

‘legitimate claim of entitlement.’” Id. (quoting Roth, 408 U.S.

at 577). 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 (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). 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.” N.J. Stat. Ann.

§ 52:16A-26.9(d). The statute did not provide the poet laureate

35

would receive the honorarium upon appointment. Nor did it

provide the poet laureate would be entitled to the honorarium

whether or not he completed his term.

Terms in New Jersey statutes not otherwise defined are

to be given their generally accepted meanings. N.J. Stat. Ann.

§ 1:1-1. An honorarium is generally defined as “an honorary

payment or reward usually given as compensation for services

on which custom or propriety forbids any fixed business price

to be set or for which no payment can be enforced at law.”

Webster’s Third International Dictionary (Unabridged) (1981);

see also Oxford English Dictionary (2d ed. 1989) (defining an

honorarium as “an honorary reward”). The statute did not create

a “mutually explicit understanding” that Baraka was legally

entitled to the honorarium upon appointment, giving rise to a

property interest.

Nor did § 52:16A-26.9 create a contractual obligation

giving rise to a property interest. As the District Court noted,

“absent some clear indication that the legislature intends to bind

itself contractually, the presumption is that ‘a law is not intended

to create private contractual or vested rights but merely declares

a policy to be pursued until the legislature shall ordain

otherwise.’” Baraka, No. 04-1959, slip op. at 11 (quoting Nat’l

R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co.,

470 U.S. 451, 465-66 (1985)). The language of § 52:16A-26.9

does not demonstrate an intent on the part of the State to bind

itself contractually. The statute provides “[t]he poet laureate

shall receive an honorarium.” § 52:16A-26.9. “Honorarium”

36

implies a voluntary payment and not a contractual obligation.

We see nothing in the statute demonstrating the state intended

to enter a formal contract with Baraka.

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

(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.

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 Fourteenth Amendment.

See Unger v. Nat’l. Residents Matching Program, 928 F.2d

1392, 1397–98 (3d Cir. 1991). Generally, the two types of

contracts that create protected property interests are those that

confer a protected status—those “‘characterized by a quality of

37

either extreme dependence in the case of welfare benefits, or

permanence in the case of tenure, or sometimes both, as

frequently occurs in the case of social security benefits’”—and

those where “‘the contract itself includes a provision that the

state entity can terminate the contract only for cause.’” Linan-

Faye Const. Co., Inc. v. Hous. Auth. of Camden, 49 F.3d 915,

932 (3d Cir. 1995) (quoting Unger, 928 F.2d at 1399).

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, §

52:16A-26.9 provided Baraka with a “unilateral expectation” of

a voluntary award. Roth, 408 U.S. at 577. It did not provide

him with a “legitimate claim of entitlement.” Id. Nor is an

honorarium a form of property on which he would rely in his

daily life. See id. (“It is a purpose of the ancient institution of

property to protect those claims upon which people rely in their

daily lives, reliance that must not be arbitrarily undermined.”).

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

15

Baraka contends he has a property interest in his

reputation. Generally, if reputational harm implicates a

constitutionally protected interest, it is a liberty interest. See

Paul v. Davis, 424 U.S. 693, 711 (1976); Kelly v. Borough of

Sayreville, N.J., 107 F.3d 1073, 1077–78 (3d Cir. 1997). But

see San Filippo, 961 F.2d at 1134 (implying reputational harm

38

“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,

can constitute a deprivation of a protected property interest).

16

Baraka cites San Filippo for the proposition that

“[w]henever a ‘person’s good name, reputation, honor, or

integrity is at stake because of what the government is doing to

him,’ a property interest is involved and due process

requirements apply.” 961 F.2d at 1134 (quoting Roth, 408 U.S.

at 572). In Paul, the Supreme Court recited a nearly identical

statement. See 424 U.S. at 708 (“‘Where a person’s good name,

reputation, honor, or integrity is at stake because of what the

government is doing to him, notice and an opportunity to be

heard are essential.’”) (quoting Wisconsin v. Constantineau, 400

U.S. 433, 437 (1971)). The Court recognized this statement

“could be taken to mean that if a government official defames a

person, without more, the procedural requirements of the Due

Process Clause of the Fourteenth Amendment are brought into

play.” Id. But the Court rejected this reading, which would

represent “a significant broadening” of previous cases. Id.

Instead, the Court read the phrase “because of what the

government is doing to him,” to refer to “the fact that the

governmental action taken in that case deprived the individual

of a right previously held under state law.” Id. This right was

“the right to purchase or obtain liquor in common with the rest

39

424 U.S. 693, 711–12 (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. 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

of the citizenry,” and the governmental action in question was

a state statute that allowed government officials to post notices

prohibiting sale of alcoholic beverages to certain people

(including the plaintiff) because of their history of problems

with alcohol. Id. The statute “significantly altered” the

plaintiff’s status under state law, and “it was that alteration of

legal status which, combined with the injury resulting from the

defamation, justified the invocation of procedural safeguards.”

Id. at 708–09. The Court’s conclusion that reputational harm

alone cannot form the basis of a due process claim was

“reinforced by our discussion of the subject” in Roth. Id. at 709.

40

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,

17

Moreover, to state a valid claim for deprivation of a

protected interest based on reputational harm, a plaintiff must

allege harm that forecloses future opportunities. In Roth, the

plaintiff contended harm to his reputation, resulting from the

non-renewal of his contract, amounted to deprivation of a

protected liberty interest. The Court acknowledged that

“nonretention in one job . . . might make him somewhat less

attractive to some other employers.” Roth, 408 U.S. at 574 n.13.

But it concluded this harm “would hardly establish the kind of

foreclosure of opportunities amounting to a deprivation of

‘liberty.’” Id. In Unger, a plaintiff alleged harm to her

reputation based on discontinuation of a university’s graduate

residency program, to which she had been accepted. In

addressing her claim for deprivation of a protected liberty

interest in her reputation, we noted she had not alleged the

university’s actions had “imposed upon her a stigma or other

disability that generally foreclosed her freedom to take

advantage of other educational opportunities.” 928 F.2d at

1396. In other words, she had not established the “kind of

foreclosure of opportunities” required by Roth. 408 U.S. at 574

n.13; see also Ersek, 102 F.3d at 84 (discussing the requisite

showing of future harm to establish deprivation of liberty based

on harm to reputation). Here, Baraka alleges defendants caused

“irreparable damage to his reputation, embarrassment,

humiliation and emotional distress,” but he does not specifically

41

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.

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.

The liberty interests protected by procedural due process

are broad in scope, including

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.

Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Harm to

reputation can, in certain circumstances, constitute deprivation

of a liberty interest. See Paul, 424 U.S. at 711. But as noted,

Baraka has not properly alleged a protected interest in his

allege a foreclosure of future opportunities.

42

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. 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.

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.

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 § 1983, the named

defendants could not be held liable for the actions of the

unknown defendants. A defendant in a civil rights action “must

43

have personal involvement in the alleged wrongs to be liable,”

Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (quotation

omitted), and “cannot be held responsible for a constitutional

violation which he or she neither participated in nor approved,”

C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000).

Baraka does not allege specific, personal involvement on the

part of the unknown defendants, and, accordingly, the District

Court did not err in dismissing the claims against them.

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.

Moreover, Baraka’s claims against the unknown

defendants are barred by the Eleventh Amendment to the extent

defendants are either state agencies or state officials sued in

their official capacities. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 66 (1989); M.A. ex rel. E.S. v. State-Operated Sch.

Dist. of Newark, 344 F.3d 335, 345 (3d Cir. 2003). His claims

are barred by the doctrine of legislative immunity to the extent

the claims are based on the involvement of these unidentified

defendants in the passage of the legislation abolishing the

position of poet laureate.

44

G.

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)).

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.

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.

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

45

legal conclusions disguised as factual allegations. Schuylkill

Energy, 113 F.3d at 417; Papasan, 478 U.S. at 286.

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.

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. 2

U.S.C. § 177. The national poet laureate receives a stipend

funded by a private gift. Some states began naming their own

poets laureate earlier in the century, as early as 1919.18 A

review of the history of state poets laureate reveals that of the

thirty-nine states that currently have a poet laureate, twenty-nine

legislatures have codified their state poet laureate position; the

remaining ten positions were created by executive order of the

18

Detailed information on the history and current status of

the poet laureate post in each state is available on the web site

of the Library of Congress at: Main Reading Room,

http://www.loc.gov/rr/main/poets/current.html (last visited on

March 15, 2007). A history of the national poet laureate is

available at: About the Position of Poet Laureate,

http://www.loc.gov/poetry/about_laureate.html (last visited on

March 17, 2007).

46

governor. These posts are typically described as “honorary,”

sometimes include a statutory provision for a modest stipend,

but not always, and sometimes are left vacant. Some states have

designated specific poets as poet laureate, either by executive

order or legislation, and in several cases the post has run its

course when its holder has died. Some states have codified a

previously unofficial poet laureate post.

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.

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.

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.

For the reasons set forth, we will affirm the judgment of

the District Court.

47

NYGAARD, J., dissenting.

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.

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,

19

There is no disagreement on this fact. What the majority

specifically holds is that the actions which fall within the

legislative immunity doctrine are Governor McGreevey’s

“orchestrat[ion] and direct[ion] [of] the New Jersey legislature

to abolish the position of Poet Laureate.” Maj. Op. at 12.

48

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.

Historically, the Speech and Debate Clause, from which

legislative immunity is derived, was intended to preserve the

independence and integrity of the Legislature from the

Executive. It was designed to prevent other branches of the

government from interfering with the legislators in the

performance of their duties.20 As Justice Harlan taught, “since

20

The Speech and Debate Clause in Article I, Section 6, of

our Constitution is the product of a long lineage of free speech

or debate guarantees that began with the English Bill of Rights

of 1689, continued on to some of the first state constitutions, and

also appeared in the Articles of Confederation. Id. (citing

Tenney v. Brandhove, 341 U.S. 367, 372-75 (1951). Because

the principle was so firmly rooted, there was little discussion of

the clause during the debates of the Constitutional Convention

and it was hardly mentioned at all in the ratification debates. Id.

Specifically, the Speech and Debate Clause provides that, “for

any Speech or Debate in either House, [Senators and

Representatives] shall not be questioned in any other Place.”

U.S. CONST. Art. I, Sect. 6, cl. 1; see also Youngblood v.

Deweese, 352 F.3d 836, 839 (3d Cir. 2004).

49

the Glorious Revolution in Britain, and throughout United States

history, the privilege has been recognized as an important

protection of the independence and integrity of the legislature.

In the American governmental structure the clause serves the

additional function of reinforcing the separation of powers so

deliberately established by the Founders.” United States v.

Johnson, 383 U.S. 169, 176, 86 S.Ct. 749, 754 (1966) (citing

Story, Commentaries on the Constitution; II The Works of James

Wilson 37-38 (Andrews ed. 1896)).

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 (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:

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

50

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.

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.

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,

51

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).

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 (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). 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

52

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.

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 (1998) (citing Edwards v. United States, 286 U.S. 482,

490 (1932)).21

21

The majority’s opinion ignores the question of whether

McGreevey’s and Harrington’s actions are “integral steps in the

legislative process,” focusing instead on whether their actions

were undertaken within the “sphere of legislative activity.” See

53

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

(1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376

(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 (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

Bogan, 523 U.S. at 54. Many actions can be said to take place

within the sphere of legislative activity — including lobbying.

That does not mean, however, that all such actions are entitled

to legislative immunity.

54

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

(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).

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

22

The District Court grasped onto language contained within

a 1994 District Court case, Hughes v. Lipscher, 852 F.Supp. 293

(D.N.J. 1994), for the proposition that “[i]ndividuals who are not

55

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.

Hence, I must respectfully dissent.

legislators but whose acts have a substantial legislative nexus

are also imbued with this absolute legislative immunity.”

Hughes, 852 F.Supp. at 296. To the extent that it overreads and

over-extends the scope of the immunity doctrine, it should be

affirmatively rejected. Nowhere has this standard been

explicitly advocated or adopted, especially not in the case cited

for it support, Gravel. The “substantial nexus” test would

envelop a much too broad set of behavior under the doctrine,

allowing non-legislators to claim legislative immunity for acts

not just integral to the legislative process generally (such as the

signing or introducing of a bill) but also for acts that could be

seen as lobbying, politicking, and the like. The doctrine was

plainly not intended to cover such behavior, even for legislators.

56