Petition for Writ of Certiorari — Baraka v. McGreevey (No. 07-79)

eme Court, U.S.

() Supreme eo

No.07-07 779 JULI 9 2007

Wy Tae OFFICE OF THE CLERK _

Supreme Court of the United States

AMIRI BARAKA,

Petitioner,

V.

JAMES E. MCGREEVEY, individually; JON CORZINE,

in his official capacity as Governor of the

State of New Jersey, et al.,

: Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

WILLIAM D. MANNS ROBERT T. PICKETT

Nevada Court Mall Counsel.of Record

21-23 Court Street MICHAEL LESHER

Newark, NJ 07102 80 Main Street, Suite 430

(973) 643-6596 West Orange, NJ 07052

(973) 762-0613

BONNIE I. ROBIN-VERGEER

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Petitioner

July 2007

i

QUESTIONS PRESENTED

1. Are the former governor of New Jersey and former

chairperson of the New Jersey State Council on the Arts

entitled to absolute legislative immunity from suit in their

individual capacities for orchestrating and directing the

elimination of petitioner Amiri Baraka’s position as Poet

Laureate of New Jersey, and for their actions leading up to that

elimination, in response to Baraka’s public reading of a

controversial poem written by him? Moreover, in determining

whether state officials have engaged in legislative acts, must a

court evaluate whether their acts are substantively, as well as

formally, legislative, and if so, what test should be used to

assess whether an act is substantively legislative?

2. Even assuming that the former governor and former

agency chairperson are entitled to absolute legislative immunity

from suit in their individual capacities, does that immunity

block Baraka’s claims seeking prospective injunctive relief

against these executive officials and their successors in their

official capacities? In other words, can a personal immunity,

such as absolute legislative immunity, ever bar a claim for

prospective injunctive relief against a state official in his or her

official cat» >city?

il

PARTIES

Petitioner Amiri Baraka was the plaintiff in the district

court proceedings and the appellant in the court of appeals

proceedings.

The defendants in the di. .rict court were respondents

James E. McGreevey, individually and in his then-official

capacity as Governor of the State of New Jersey; the State of

New ‘ersey; the New Jersey State Council on the Arts; Sharon

Harrington, individually and in her then-official capacity as

chairperson of the New Jersey State Council on the Arts; John

Does 1-10, in their individual and official capacities; Mary

Does 1-10, in their individual and official capacities; and

unknown agencies and government entities 1-10. These same

defendants were also appellees in the court of appeals

proceedings, except that Richard J. Codey, in his official

capacity as Acting Governor of the State of New Jersey, was

substituted for former Governor James E. McGreevey, in his

official capacity.

In this Court, pursuant to this Court’s Rule 35.3,

respondent Jon Corzine, the current Governor of New Jersey,

_ in his official capacity, is substituted for respondent former

acting Governor Richard J. Codey. Similarly, respondent Carol

Ann Herbert, the current chair of the New Jersey State Council

on the Arts, in her official capacity, is substituted for

respondent former chair Sharon Harrington. Former Governor

McGreevey and former chairperson Harrington, in their

individual capacities, are also respondents in this Court, along

with the other defendants/appellees from the proceedings

below.

lil

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. The Facts

B. Proceedings Below

REASONS FOR GRANTING THE WRIT

I. The Third Circuit’s Decision Granting

Respondents Absolute Legislative Immunity

Is Contrary to this Court’s Precedents and

Creates a Conflict Among the Circuits on an

Important Question of Federal Law

A. The Third Circuit’s Decision is Contrary to

this Court’s Precedents on Legislative

. The Third Circuit’s Decision Conflicts with

Decisions of Other Circuits Regarding the Test

That Governs Whether an Act Is Substantively

Legislative for Legislative Immunity

Purposes

iv

Il. The Third Circuit’s Decision That Legislative

Immunity Bars Petitioner’s Uiaim for

Prospective Injunctive Relief Against Respondents

in Their Official Capacities Deepens a Conflict in

the Circuits and Is Contrary to this Court’s

Precedents

CONCLUSION

APPENDIX

Opinion of the United States Court of Appeals

for the Third Circuit (Mar. 21, 2007)

Judgment of the United States Court of Appeals

for the Third Circuit (Mar. 21, 2007)

Memorandum Opinion of the United States

District Court for the District of New Jersey

(Mar. 21, 2005)

Order of the United States District Court for the

District of New Jersey (Mar. 21, 2005)

Statutory Provisions Involved

Letter from the Supreme Court Clerk granting

the application for an extension of time for filing

a petition for a writ of certiorari (May 30, 2007) ... 63a

Vv

TABLE OF AUTHORITIES

CASES

Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1

(1st Cir. 2000)

Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994)

Akins v. Board of Governors, 840 F.2d 1371 (7th Cir.),

vacated and remanded on other grounds,

488 U.S. 920 (1988)

Alexander v. Holden, 66 F.3¢ 62 (4th Cir. 1995)

Almonte v. City of Long Beach, 478 F.3d 100

(2d Cir. 2007)

Bechard v. Rappold, 287 F.3d 827 (9th Cir. 2002) ... 19, 20

Board of County Comm'rs v. Umbehr,

518 U.S. 668 (1996)

Bogan v. Scott-Harris, 523 U.S. 44 (1998)

Bryan v. City of Madison, 213 F.3d 267

(5th Cir. 2000)

Burge v. Parish of St. Tammany, 187 F.3d 452

See, AE 6 a ea hepa eee eee ele b ak ees ber aRs 23

Canary v. Osborn, 211 F.3d 324 (6th Cir. 2000)

Carten v. Kent State University, 282 F.3d 391

(6th Cir. 2002)

Coakley v. Welch, 877 F.2d 304 (4th Cir. 1989)

Compton Police Officers Ass'n v. City of Compton,

55 Fed. Appx. 482 (9th Cir. 2003)

vi

Cutting v. Muzzey, 724 F.2d 259 (1st Cir. 1984)

De Ia Biblia Abierta v. Banks, 129 F.3d 899

(7th Cir. 1997)

Denton v. Bedinghaus, 40 Fed. Appx. 974

(6th Cir. 2002)

Doe v. Lawrence Livermore National Laboratories,

131 F.3d 836 (9th Cir. 1997)

Doe v. McMillan, 412 U.S. 306 (1973)

Dombrowski v. Eastland, 387 U.S. 82 (1967)

Eastland v. United States Servicemen’s Fund,

421 U.S. 491 (1975)

Edwards v. United States, 286 U.S. 482 (1932)

Elliott v. Hinds, 786 F.2d 298 (7th Cir. 1986)

Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1

(1st Cir. 2000)

Forrester v. White, 484 U.S. 219 (1988)

Franklin v. Massachusetts, 505 U.S. 788 (1992)

Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760

(3d Cir. 2000)

Goldberg v. Town of Rocky Hill, 973 F.2d 70

(2d Cir. 1992)

Hafer v. Melo, 502 U.S. 21 (1991)

Hansen v. Bennett, 948 F.2d 397 (7th Cir. 1991)

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Haskell v. Washington Township, 864 F.2d 1266

(6th Cir. 1988)

Vii

Herns. + z v. City of Lafayette, 643 F.2d 1188

(5th Cir. Unit A May 1981)

Hogan v. Von Raab, 959 F.2d 240, 1992 WL 61893

(9th Cir. Mar. 31, 1992) (Table)

Hughes v. Tarrant County, 948 F.2d 918

(5th Cir. 1991)

Hutchinson v. Proxmire, 443 U.S. 111 (1979)

INS v. Chadha, 462 U.S. 919 (1983)

Kaahumanu v. County of Maui, 315 F.3d 1215

(9th Cir. 2003)

Kamplain v. Curry County Board of Comm'rs,

159 F.3d 1248 (10th Cir. 1998)

Kentucky v. Graham, 473 U.S. 159 (1985)

Kilbourn v. Thompson, 103 U.S. 168 (1881)

Larsen v. Senate of Commonwealth of Pa., 152 F.3d 240 |

(3d Cir. 1998)

Meiners v. University of Kansas, 359 F)3d 1222

(10th Cir. 2004)

Minton v. St. Bernard Parish School Board, 803 F.2d 129

(5th Cir. 1986)

Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999)

Nisenbaum v. Milwaukee County, 333 F.3d 804

(7th Cir. 2003)

Parker v. Laurel County Detention Center,

No. Civ.A. 605-113-DCR, 2005 WL 1917149

(E.D. Ky. Aug. 9, 2005)

Powell v. McCormack, 395 U.S. 486 (1969)

Vili

Redwood Village Partnership v. Graham, 26 F.3d 839

(8th Cir. 1994)

Ryan v. Burlington County, 889 F.2d 1286

(3d Cir. 1989)

Scheuer v. Rhodes, 416 U.S. 232 (1974)

Scott v. Taylor, 405 F.3d 1251 (11th Cir. 2005)

Smiley v. Holm, 285 U.S. 355 (1932)

Spallone v. United States, 493 U.S. 265 (1990)

State Employees Bargaining Agent Coalition v. Rowland,

--- F.3d ---, 2007 WL 1976148

(2d Cir. July 10, 2007) 17, 22, 25, 26

Sterling v. Constantin, 287 U.S. 378 (1932)

Supreme Court of Virginia v. Consumers Union of

United States, Inc., 446 U.S. 719 (1980)

‘Supreme Video, Inc. v. Schauz, 15 F.3d 1435

(7th Cir. 1994)

- Torres-Rivera v. Calderon-Serra, 412 F.3d 205

(Ist Cir. 2005)

Turner v. Houma Municipal Fire & Police Civil Service

Board, 229 F.3d 478 (Sth Cir. 2000)

United States v. Brewster, 408 U.S. 501 (1972)

United States v. Johnson, 383 U.S. 169 (1966)

Will v. Michigan Department of State Police,

491 U.S. 58 (1989)

Women ‘'s Emergency Network v. Bush, 323 F.3d 937

(11th Cir. 2003)

Ex parte Young, 209 U.S. 123 (1908)

ix

CONSTITUTIONAL PROVISIONS

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STATUTES AND RULES

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RR EOE ii peas veces cunwd wie eueduwawerts 7

DEAE ooo so vey ovseus cease vivadicsvenee 7

Pe Ba RE ioc ks oy oes oc cee dines 7, 11, 23, 24, 26

SAR OD e505 Shoe ew ews edi pee teneereeenes 7

N.J. Stat. Ann. § 52:16A-26.9 (1999) ............. 2, 3,8

POE hk BOO Os AF CROTD 6 sv ccc ccvoutecsvneese ..4

RN GUNS FUE POD ok 55 oe cd ded eccscticu dienes ill

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

Petitioner Amiri Baraka respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Third Circuit in this case. That court held, over

a strenuous dissent, that former Governor James E. McGreevey

and former chairperson of the New Jersey State Council on the

Arts, Sharon Harrington, were entitled to absolute legislative

immunity for directing and orchestrating an effort, culminating

in legislation, to eliminate Amiri Baraka’s position as Poet

Laureate of New Jersey in retaliation for his public reading of

the controversial poem he wrote regarding the attacks against

the United States on September 11, 2001. As the dissenting

judge recognized, the Third Circuit’s decision extended

legislative immunity far beyond the bounds set by this Court,

effectively conferring absolute legislative immunity on any

activity by executive officials with even a slight connection to

the legislative process. Moreover, in expanding legislative

immunity to actions by executive officials that are not “integral

steps in the legislative process” and that target a particular

individual for differential treatment, the Third Circuit’s

decision creates a conflict among the courts of appeals that

should be resolved by this Court.

The court of appeals held not only that Governor

McGreevey and Harrington were entitled to legislative

immunity in their individual capacities, but also that legislative

immunity barred Baraka’s claims for reinstatement against

them in their official capacities. In ruling that absolute

legislative immunity can block an official-capacity suit for

prospective injunctive relief, the Third Circuit deepened an

already existing conflict in the circuits between the Eleventh

Circuit, whose side the Third Circuit—and just last week, the

Second Circuit—has joined, and several other Circuits, which

have recognized, consistent with this Court’s precedents, that

personal immunities such as absolute legislative immunity do

2

not apply to actions for prospective injunctive or declaratory

relief against state or local officials in their official capacities.

OPINIONS BELOW

The opinion of the court appeals, Pet. App. 1a-43a, is

reported at 481 F.3d 187 (3d Cir. 2007). The district court’s

memorandum opinion, id. at 46a-58a, and accompanying order

dismissing the case, id. at 59a, are not reported.

JURISDICTION

The court of appeals entered its judgment on March 21,

2007. Pet. App. 44a-45a. On May 30, 2007, Justice Souter

extended the time within which to file a petition for a writ of

certiorari to and including July 19, 2007. /d. at 63a. This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are set forth at Pet. App.

60a-62a.

STATEMENT OF THE CASE

A. The Facts

1. In 1999, the New Jersey legislature established the

New Jersey William Carlos Williams Citation of Merit, to be

presented to a distinguished poet from New Jersey, who would

serve as the Poet Laureate of the State of New Jersey for a

period of two years and receive an honorarium of $10,000. N.J.

Stat. Ann. § 52:16A-26.9(1)(a), P.L. 1999, c. 228 (Pet. App.

60a-61a). Under the statute, the New Jersey Council for the

Humanities, in consultation with the New Jersey State Council

on the Arts (“Arts Council’’), was required biennially to appoint

an expert panel to select the poet to whom the governor would

present the citation of merit and who would serve as poet

laureate for a two-year term. § 52:16A-26.9(1)(b). The poet

laureate was required to “engage in activities to promote and

3

encourage poetry within the State and .. . give no fewer than

two public readings within the State each year while the poet

holds the laureate designation.” § 52:16A-26.9(1)(d).

2. In July 2002, New Jersey Governor James E.

McGreevey presented the William Carlos Williams Citation of

Merit to internationally renowned poet Amiri Baraka, who

began serving his two-yea, term as Poet Laureate of the State

of New Jersey. Second Amended Complaint (R. 3) (“2d Am.

Cmplt.”) § 12.’ On September 19, 2002, Baraka attended the

2002 Geraldine R. Dodge Poetry Festival in Stanhope, New

Jersey, and read his poem, “Somebody Blew Up America,” a

poetic assessment of the September 11 attacks against the

United States. Jd. J 14. The poem criticized America’s

policies and actions in society and international politics,

expressing views that Baraka had stated before and after his

appointment as poet laureate. Jd. | 26. The poem included the

lines:

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?

Id. 4142

Baraka’s reading of the poem provoked an immediate

outcry and was widely publicized in the press. Numerous

organizations called on the State of New Jersey and respondent

Governor McGreevey to “fire” or “remove” petitioner from his

' These facts are drawn from the Second Amended Complaint, which the

district court dismissed before discovery.

? The full text of the poem, dated October 2001, is in petitioner’s Brief and

Appendix Volume | in the court of appeals. It is also available at

http://www.amuribaraka.conyblew. html.

4

position as poet laureate. Jd. The governor was outraged at

what he called the “anti-Semitic” tone of the poem and publicly

demanded that Baraka resign as poet laureate. The governor’s

spokesperson stated: “The 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.” Jd. 15. Baraka denied his poem was anti-

Semitic, refused to resign, and declared his intention to

complete his term as poet laureate. Id. { 16.

In response to Baraka’s refusal to resign, Governor

McGreevey directed respondent Sharon Harrington,

chairperson of the Arts Council, the agency with administrative

responsibility for paying the honorarium to the poet laureate

and coordinating his activities, id. J 8, to withhold payment of

Baraka’s $10,000 honorarium. Jd. § 17. Lacking statutory

authority to remove Baraka formally, Governor McGreevey,

together with other defendants, commenced “a concerted

campaign” to abolish Baraka’s position as poet laureate

altogether. Jd. § 18. Governor McGreevey, along with his

agents and staff, “orchestrated and directed” this campaign.

Id. 420. At “the urging, direction and request” of the governor

and other defendants, the New Jersey legislature passed

legislation in July 2003 abolishing Baraka’s position as poet

laureate, effective immediately, P.L. 2003, c. 123 (Pet. App.

62a), in retaliation for Baraka’s reading of his poem. 2d Am.

Cmplt. 4 19. Thereafter, Baraka was denied the opportunity to

complete the second year of his term as poet laureate, along

with his $10,000 honorarium. Jd. ¥ 24.

3. Legislative events and statements accompanying the

statute leave no doubt that its purpose was to remove Baraka

specifically from the position of poet laureate. An array of bills

and resolutions condemning Baraka and calling for his

resignation or proposing to eliminate the poet laureate’s

honorarium, give the Governor authority to remove the current

poet laureate, or abolish the poet laureate position altogether

5

were introduced in the New Jersey legislature as soon as

October 2002.’ Statements accompanying many of the bills

made clear that their purpose was to renounce Baraka’s views

byremoving him as poet laureate. For example, as introduced,

the Senate bill that ultimately became law would have given the

Governor the power to rescind the citation of merit and remove

the poet laureate, including the then-serving poet laureate. See

Senate Bill No. 21, as introduced on October 17, 2002. The

Statement accompanying that bill explains in part:

The bill provides that the poet laureate will be

appointed by and serve at the pleasure of the

Governor, ensuring the selection of a poet laureate

who can serve this State in a civil and positive

manner, and giving the Governor the ability to remove

a poet laureate when that person acts inappropriately,

for example by bringing shame upon the government

and people of this State.

The law creating the New Jersey William Carlos

Williams Citation of Merit was enacted as a means to

educate, ennoble, and enrich the society of this State.

> See, e.g., Assembly Resolution No. 192 (calling “for the resignation of

New Jersey’s poet laureate, Amiri Baraka”) (introduced Oct. 10, 2002);

Assembly Bill No. 2864 (proposing to eliminate the $10,000 honorarium,

which act would “apply to the poet laureate holding the designation on the

effective date of this act”) (introduced Oct. 10, 2002); Senate Bill No. 1981

& Assembly Bill No. 2907 (proposing a procedure for removing a poet

laureate “if the person is not fulfilling the duties of the position or for

actions that are determined to negatively impact the dignity, integrity, and

reputation of the position of poet laureate and serve to denigrate in any way

the good name, status, and reputation of this State and its people”) (both

introduced Oct. 17, 2002); Assembly Bill No. 2859 (authorizing the

Governor to remove the poet laureate) (introduced Oct. 10, 2002); Assembly

Resolution No. 237 (denouncing the Newark schoo! board “for appointing

Amiri Baraka as poet laureate of the Newark school district”) (introduced

Feb. 3, 2003). The bills, resolutions, and committee statement cited herein

are available at http://www.njleg.state.nj.us.

6

The poet laureate should promote humaneness,

compassion, and good will. The position has instead,

despite these intentions, become a State-sanctioned

and subsidized means to espouse some of the most

hateful and bigoted sentiments ever uttered by a

resident of this State.

Senate Bill No. 21 (2002); accord Assembly Bill No. 2857

(including same Statement) (introduced Oct. 10, 2002).

Ultimately, the legislature enacted a substitute for Senate

Bill No. 21 reported out by the Senate State Government

Committee. The substitute repealed the law creating the

position of poet laureate and was accompanied by the Senate

committee’s statement that “[b]y repealing the statute, [the

substitute] terminates the position of the current State poet

laureate.” Senate State Government Committee Statement to

Senate Committee Substitute for Senate Bills Nos. 21 and 1981

(Dec. 12, 2002); accord Assembly Bill No. 3313,

accompanying Statement (introduced Feb. 6, 2003).

Proponents of the bill stated during floor debates that the

measure was not about “readjusting or restructuring a minor

post” in New Jersey, but about whether Baraka’s “views are

going to be repudiated.” Statement of Sen. Byron Baer (Jan.

23, 2003) [01:32:10 / 02:38:39].* The bill’s primary Senate

sponsor, as he moved for a vote, maintained that discussions

were ongoing in an attempt to reach agreement on how best to

convey the “sense of displeasure and lack of confidence in the

legislature with regard to the current poet laureate.” Statement

of Sen. Peter Inverso (Jan. 23, 2003) [02:35:10 / 02:38:39].

* Recordings of the legislative debates are available on the New Jersey

Legislature’s website. The Senate debates are at http://www.njleg.

state.nj.us/media/archive_audio2.asp?7KEY=S&SESSION=2002, and

Assembly debates at http://www.njleg.state.nj.us/media/

archive_audio2.asp?7KEY=A&SESSION=2002. The times of the cited

recordings are provided in brackets.

7

Similarly, in moving the bill for a vote in the Assembly, the

principal Assembly sponsor rued that it was “unfortunate that

Mr. Baraka did not heed calls . . . to step down, necessitating

this particular legislation to eliminate the position.” She urged

her colleagues “to join [her] in standing up against anti-

Semitism and the perpetuation of hurtful lies—and dangerous

hes” by voting for the measure. Statement of Assemblywoman

Linda Greenstein (June 30, 2003) [05:51:10 / 06:07:04].

B. Proceedings Below

1. On April 26, 2004, petitioner filed a complaint in the

U.S. District Court for the District of New Jersey, naming as

defendants Governor McGreevey in his individual and official

capacities; Arts Council Chairperson Harrington, in her

individual and official capacities; the State of New Jersey; the

Arts Council; and individuals and agencies unknown to’

petitioner. The complaint sought relief pursuant to 42 U.S.C.

§§ 1983 and 1988 and 28 U.S.C. § 2201 et seg. Jurisdiction

was based on 28 U.S.C. § 1331. Petitioner alleged that the

defendants’ actions in abolishing his position as poet laureate

on the basis of “Somebody Blew Up America” violated his

right to free speech under the First Amendment and that the

defendants’ suspension of payment of the statutorily authorized

honorarium without a prior hearing violated Baraka’s

Fourteenth Amendment nght to due process. 2d Am. Cmplt.

{] 28-44, 50. He also alleged supplemental state-law claims.

Id. #9) 45-48, 51-71. Baraka requested as relief, inter alia,

payment of his $10,000 honorarium, immediate reinstatement

to the position of poet laureate for his full two-year term, and

attorneys’ fees. Jd. (prayer for relief).

2. The district court dismissed the complaint. The court

held that Baraka’s claims against the State of New Jersey and

the Arts Council were barred by the Eleventh Amendment. Pet.

App. 50a. It dismissed his claim against Governor McGreevey

and Harrington challenging the elimination of his position as

8

poet laureate on the ground that they were entitled to absolute

legislative immunity, id. at 50a-54a, and his claims reiating to

the withholding of his $10,000 honorarium because the

legislature had not appropriated the funds for disbursement. Jd.

at 55a-57a. The court rejected Baraka’s request for injunctive

relief because it believed that “[i]n order to reinstate Plaintiff

to the position of Poet Laureate, this Court must order the

Legislature to rescind their votes repealing Section 52:16A-

26.9 ...and enact legislation recreating the position of Poet

Laureate.” Jd. at 54a. The court declined to exercise

supplemental jurisdiction over Baraka’s state-law claims. /d.

at 57a.

3.a. In a 2-1 decision, the court of appeals affirmed. The

Third Circuit majority ruled that Governor McGreevey’s and

Harrington’s actions were “legislative” and, therefore, that

these officials were entitled to absolute legislative immunity.

Pet. App. 7a. The court perceived the “gravamen” of Baraka’s

complaint to be that Governor McGreevey and Harrington

“orchestrated and directed” the New Jersey legislature to

abolish the position of Poet Laureate. These actions, the court

stated, were “an integral part of the deliberative and

communicative processes . . . by which the repealer was

enacted” and fell “squarely ‘within the sphere of legitimate,

legislative activity.” Jd. at 9a (citations omitted). And

although Baraka had specifically declined to base his claims on

Governor McGreevey’s action in signing the bill into law, the

majority maintained that Baraka’s cause of action “also

necessarily encompasses the Governor’s actions in signing the

repealer into law.” Jd: at 10a. As for Harrington, the majority

explained that “[a]s the Governor’s appointee, Harrington’s

actions in advising and counseling Governor McGreevey and

the Legislature are also legislative.” /d.

The court rejected Baraka’s contention that respondents’

actions were administrative, not legislative. Under Third

Circuit precedent, the court acknowledged, an activity must be

9

“both substantively and procedurally legislative in nature” to

merit legislative immunity. /d. at 11a (citations omitted). The

majority believed, however, that the respondent’s actions in

recommending and, in the Governor’s case, signing, the

repealer were similar to those of the defendants in Bogan v.

Scott-Harris, 523 U.S. 44 (1998), and thus qualified as

procedurally legislative. Pet. App. 9a-1la, 14a. The majority

also reasoned that the officials’ actions were substantively

legislative because the law eliminated the position of poet

laureate, which “constitutes the type of ‘policy-making’ that

traditional legislation entails.” Jd. at 15a. The court ruled that

Bogan’s rejection of inquiries into legislators’ subjective

motives foreclosed Baraka’s argument that the actual purpose

of the repealer was to remove him specifically as poet laureate.

Id. at 15a-17a.

The Third Circuit held that legislative immunity barred not

only Baraka’s claims against Governor McGreevey and

Harrington in their individual capacities, but also his claim for

injunctive relief against them in their official capacities. Jd. at

19a-21a. The court rejected Baraka’s argument that legislative

immunity is a personal immunity defense and relied on an

earlier Third Circuit case that had interpreted Supreme Court of

Virginia v. Consumers Union of United States, Inc., 446 U.S.

719 (1980), to hold that in “appropriate cases,” “legislative

immunity can apply to claims for declaratory and injunctive

relief against officials in their official capacities.” Jd. at 20a

(citing Larsen v. Senate of Commonwealth of Pa., 152 F.3d

240, 253 (3d Cir. 1998)). According to the court of appeals, the

reinstatement remedy sought by Baraka “would infringe on the

role of the New Jersey Legislature” by “seek[ing] to require

New Jersey legislators to rescind their votes repealing the

10

statute and to enact legislation recreating the position.” Jd. at

21a.°

b. Judge Nygaard dissented. Pet. App. 36a-43a. In his

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.” Jd. at 36a. Legislative immunity, the dissent

contended, is limited to activities that constitute “integral steps

in the legislative process,” id. at 41a, and does not extend to

“practices that merely relate to legislative activities.” Jd. at

40a-41la. “[A]ctivities 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.” Jd. at 40a.

REASONS FOR GRANTING THE WRIT

The Third Circuit’s Decision Granting Respondents

Absolute Legislative Immunity Is Contrary to this

Court’s Precedents and Creates a Conflict Among the

Circuits on an Important Question of Federal Law.

In Supreme Court of Virginia v. Consumers Union of

United States, Inc., 446 U.S. 719, 731-34 (1980), and Bogan v.

Scott-Harris, 523 U.S. 44, 55-56 (1998), this Court held that

> The Third Circuit also affirmed the dismissal of Baraka’s claim for the

honorarium and his claim that the defendants denied him constitutionally

protected property and liberty interests without due process and its refusal

to exercise supplemental jurisdiction over his state-law claims. Pet. App.

21a-34a. These rulings are not at issue here.

1}

officials outside the legislative branch may be entitled to

legislative immunity, but only when they perform legislative

functions. In Consumers Union, the Court held that the

Virginia Supreme Court and its chief justice were absolutely

immune from suit for issuing or failing to amend the Virginia

State Bar Code because propounding the Code was an act of

rulemaking. In Bogan, the Court held a mayor entitled to

absolute legislative immunity for introducing a budget and

signing into law an ordinance enacting it. Both cases involved

challenges to actions that were formal steps in the legislative or

rulemaking process.

The Third Circuit’s decision that Govemor McGreevey

and Harrington were entitled to absolute legislative immunity

because their acts, as alleged in the complaint, likewise were

integral to the legislative process, is not only contrary to this

Court’s precedents, but creates a conflict among the circuits.

Other courts of appeals, consistent with this Court’s cases, have

generally extended absolute legislative immunity to executive

officials only when they have performed formally legislative

functions, such as introducing budgets, signing bills into law,

and vetoing bills—not for acts that are merely related to the

legislative process. Moreover, other circuits have refused to

find activities to be substantively legislative when, as here, they

target a particular individual for differential treatment.

A. The Third Circuit’s Decision is Contrary to this

Court’s Precedents on Legislative Immunity.

As Judge Nygaard emphasized in his dissenting opinion,

the Speech and Debate Clause, which this Court has generally

equated with the legislative immunity accorded state legislators

under § 1983, see Consumers Union, 446 U.S. at 733, “was

intended to preserve the independence and integrity of the

Legislature from the Executive.” Pet. App. 37a. And while

“the courts have extended the privilege to matters beyond pure

speech or debate in either House,” they have done so “only

12

when necessary to prevent indirect impairment of such

deliberations.” Jd. at 38a (quoting Gravel v. United States, 408

US. 606, 625 (1972)). This Court has found it neither “sound

[nJor wise . . . to extend the privilege beyond its intended

scope, its literal language, and its history, to include all things

in any way related to the legislative process.” United States v.

Brewster, 408 U.S. 501, 516 (1972). Because “the shield does

not extend beyond what is necessary to preserve the integrity of

the legislative process,” id. at 517; accord Hutchinson vy.

Proxmire, 443 U.S. 111, 127 (1979), legislative immunity

“does not prohibit inquiry into activities that are casually or

incidentally related to legislative affairs but not a part of the

legislative process itself.” Brewster, 408 U.S. at 528.

Accordingly, this Court has extended legislative immunity

to such formal acts as voting for a resolution, Powell v.

McCormack, 395 U.S. 486, 504-06 (1969); issuing subpoenas

for a committee hearing, Eastland v. United States

Servicemen's Fund, 421 U.S. 491, 507 (1975), and

Dombrowski v. Eastland, 387 U.S. 82, 84-85 (1967); preparing

committee investigative reports, Doe v. McMillan, 412 U.S.

306, 312-13 (1973); addressing a legislative committee, Gravel,

408 U.S. at 616; engaging in rulemaking, Consumers Union,

446 USS. at 731-34; and, of course, making a speech before the

legislative body, United States v. Johnson, 383 U.S. 169, 184-

85 (1966). Taking a “functional” approach to immunity

questions, Forrester v. White, 484 U.S. 219, 224 (1988), the

Court has recognized that executive officials also enjoy

absolute legislative immunity for their legislative acts. Thus,

the Court extended legislative immunity to Mayor Bogan for

his formal legislative acts of introducing and signing legislation

into law, 523 U.S. at 55, and has recognized that the President

and state governors act legislatively when signing or vetoing

bills. See Edwards v. United States, 286 U.S. 482, 490 (1932);

Smiley v. Holm, 285 U.S. 355, 372-73 (1932).

13

The circuits have followed suit by conferring legislative

immunity on executive officials who have undertaken similar

formal legislative actions, such as introducing budgets, voting

on bills (moie typical at the local level), and signing and

vetoing bills. The Seventh Circuit, for example, has applied

a highly formal analysis, extending legislative immunity to a

government official only when he is “acting in his ‘legislative

capacity.” Hansen v. Bennett, 948 F.2d 397, 401 (7th Cir.

1991) (citation omitted). In the Seventh Circuit’s view, this

Court “has construed the legislative capacity narrowly, holding

that legislative immunity ‘does not prohibit inquiry into

activities that are casually or incidentally related to legislative

affairs but not a part of the legislative process itself.’” Id. at

402 (quoting United States v. Brewster, 408 U.S. 501, 528

(1972)). In denying the mayor legislative immunity in Hansen,

the court emphasized that legislative immunity has been

grarited for such formal actions as voting on a resolution,

speaking on legislation or in a legislative hearing, or

subpoenaing records for use in a legislative hearing, id., actions

in which the mayor had not engaged. Jd. at 402-03; see also De

la Biblia Abierta v. Banks, 129 F.3d 899, 904 (7th Cir. 1997)

(focusing on acts that are “elements of the core legislative

® See, e.g., Torres-Rivera v. Calderdn-Serra, 412 F.3d 205, 212-14 (1st Cir.

2005) (governor entitled to legislative immunity for signing legislation into

law); Nisenbaum v. Milwaukee County, 333 F.3d 804, 808 (7th Cir. 2003)

(county executive entitled to legislative immunity for transmitting budget to

County Board); Women’s Emergency Network v. Bush, 323 F.3d 937, 950

(11th Cir. 2003) (governor has legislative immunity for signing bill into

law); Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5 (ist Cir. 2000)

(mayor entitled to absolute immunity for signing ordinance into law); Bryan

v. City of Madison, 213 F.3d 267, 272, 274 (Sth Cir. 2000) (mayor entitled

to legislative immunity for vote with board of aldermen to rezone property);

Compton Police Officers Ass'n v. City of Compton, 55 Fed. Appx. 482, 482

(9th Cir. 2003) (mayor entitled to legislative immunity for vote to disband

police department); Hernandez v. City of Lafayette, 643 F.2d 1188, 1193-94

(Sth Cir. Unit A May 1981) (mayor entitled to legislative immunity for veto

of ordinance).

14

process”); see also Kamplain v. Curry County Bd. of Comm'rs,

159 F.3d 1248, 1251-52 (10th Cir. 1998) (citing the Seventh

Circuit’s narrow formal approach). Under this formal

approach, McGreevey and Harrington would be denied

legislative immunity.

Counsel for petitioner is unaware of any court of appeals

decision (at least since Scheuer v. Rhodes, 416 U.S. 232 (1974)

announced that executive officers are generally entitled to

qualified, not absolute, immunity) that has done what the Third

Circuit did here—grant a governor legislative immunity for an

action other than signing or vetoing legislation. What the Court

said in Brewster remains true today: “In every case thus far

before this Court, [legislative immunity] has been limited to an

act which was clearly a part of the legislative process,” 408

U.S. at 515-16; see also Gravel, 408 U.S. at 626 (“part and

parcel of the legislative process’), or, as the Court put it in

Bogan, an act that constituted an “integral step[] in the

legislative process.” 523 U.S. at 55.

Where the Third Circuit has departed from this Court’s

cases and the approach of other circuits and where guidance

from this Court is needed is on the question whether executive

officers are entitled to absolute legislative immunity for actions

that are related to the legislative process but are not formal,

integral steps in that process. As the dissent below explained,

the majority “ignore[d] the question of whether McGreevey’s

and Harrington’s actions [were] ‘integral steps in the legislative

process,’ focusing instead on whether their actions were

undertaken within the ‘sphere of legislative activity.’” Pet.

App. 41a, n.21.

Here, the court of appeals majority transmuted Governor

McGreevey’s political action of instituting a concerted

campaign to oust Baraka from his post into an integral step in

the legislative process by pointing to the New Jersey

Constitution, which gives the Governor authority to

15

“recommend such measures as he may deem desirable” to the

legislature. /d. at 10a, 19a (citing N.J. Const. art. V, § 1). But

the court of appeals overlooked that the New Jersey

Constitution envisions a formal procedure by which the

governor recommends measures to the legislature:

The Governor shall communicate to the Legislature,

by message at the opening of each regular session and

at such other times as he may deem necessary, the

condition of the State, and shall in like manner

recommend such measures as he may deem desirable.

He may convene the Legislature, or the Senate alone,

whenever in his opinion the public interest shall

require.

N.J. Const. art. V, § 1, 9 12 (emphasis added). The complaint

does not allege that the governor carried out his campaign

through such a formal message, and in fact, no such formal

message from the Governor to the legislature was delivered.

Ultimately, the majority’s view that respondents’ alleged

actions were procedurally legislative boils down to nothing

more than the notion that they communicated their views to

legislators, leading the dissenting judge to respond that he

“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.”

Pet. App. 40a (Nygaard, J., dissenting). The Third Circuit

majority did not even attempt to identify a formal legislative

role for Harrington, but simply asserted that, as the governor’s

appointee, her actions “in advising and counseling Governor

McGreevey and the Legislature are also legislative.” Jd. at | Qa.

Judge Nygaard was right to protest that “activities such as

‘orchestrat[ing] and direct[ing]’ the New Jersey legislature into

passing a personally targeted piece of legislation . . . are

activities which may be casually and incidentally related to

16

legislative affairs, but are not part of the legislative process

itself.” Jd. at 40a.

By granting absolute immunity to every action undertaken

within the “sphere of legitimate legislative activity,” id. at

7a-8a, 9a, 13a & n.8, 18a; see also id. at 41a, n.21 (Nygaard, J.,

dissenting), the Third Circuit has run afoul of the care this

Court has taken “not to extend the scope of the protection

further than its purposes require.” Forrester, 484 U.S. at 224.

Qualified immunity, the norm for executive officials, see

Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982), is sufficient to

protect McGreevey and Harrington, Pet. App. 43a (Nygaard, J.,

dissenting), if, after Baraka has been given the opportunity to

engage in discovery, it turns out that their conduct merits it.

B. The Third Circuit’s Decision Conflicts with

Decisions of Other Circuits Regarding the Test

That Governs Whether an Act Is Substantively

Legislative for Legislative Immunity Purpeses.

This case presents a related question: whether, in the wake

of Bogan, which reserved judgment on the issue, 523 U.S. at

55, an activity, in addition to being formally, or procedurally,

legislative, must be “substantively” legislative to cloak its

participants with legislative immunity, and, if so, what test

applies in evaluating whether an act bears “all the hallmarks of

traditional legislation.” Jd.’ If the New Jersey legislature’s

elimination of the poet laureate position was not a substantively

legislative act, then it follows that respondents’ actions

directing and orchestrating that act likewise were not

substantively legislative. The circuits disagree regarding the

appropriate test.

” Despite reserving judgment in Bogan, the Court has previously suggested

that whether actions are legislative “depends not on their form but upon

“whether they contain matter which is properly to be regarded as legislative

in its character and effect."” See INS v. Chadha, 462 U.S. 919, 952 (1983).

17

Several circuits, including the Third, impose some sort of

requirement that an act be substantively, in addition to

procedurally, legislative to qualify for absolute immunity, but

the tests used by the circuits differ markedly and in a way that

would have been dispositive here.

The Third Circuit maintained that McGreevey’s and

Harrington’s actions leading up to the repeal of the statute were

“substantively legislative.” Pet. App. 15a. In the majority’s

view, “(e]liminating the position of poet laureate constitutes the

type of ‘policy-making’ that traditional legislation entails.” /d.

The majority analyzed the issue only superficially. In deciding

whether the repeal amounted to traditional legislation, the court

of appeals looked only to the face of the statute without

considering the act’s purpose, its legislative history, legislative

statements accompanying its passage, whether the statute

reflected policy-making and line-drawing as opposed to an

administrative action directed at an individual, or whether the

statute singled out a particular individual for differential

treatment. The Second Circuit’s analysis is similar. See State

Employees Bargaining Agent Coalition v. Rowland, --- F.3d---,

2007 WL 1976148, at *13, *15 (2d Cir. July 10, 2007). The

Tenth Circuit appears to agree with the Third Circuit that the

number of persons affected should play no role in the analysis.

Kamplain, 159 F.3d at 1251.°

* In earlier cases, the Third Circuit considered important whether a decision

affected a small number or a single individual, in which case it was

administrative, see, e.g., Ryan v. Burlington County, 889 F.2d 1286, 1291

(3d Cir. 1989), but the court has since retreated from emphasizing this

factor. See Acierno v. Cloutier, 40 F.3d 597, 610-13 (3d Cir. 1994).

Although here the Third Circuit quoted language from its earlier decision in

Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 774 (3d Cir. 2000)

(quoting Ryan, 889 F.2d at 1291), that “[w]here the decision affects a small

number or a single individual, the legislative power is not implicated,” Pet.

App. 12a, the court ultimately gave that consideration no weight.

18

Other circuits employ a broader, more probing inquiry in

assessing whether an act is substantively legislative. The First

Circuit’s two-part analysis, announced in Cutting v. Muzzey,

724 F.2d 259 (1st Cir. 1984), for determining whether an action

is legislative or administrative represents one of the primary

alternative approaches. “First, if the facts underlying the

decision are ‘generalizations concerning a policy or state of

affairs,’ the decision is legislative. If the decision stems from

specific facts relating to particular individuals or situations, the

act is administrative.” Acevedo-Garcia v. Vera-Monroig, 204

F.3d 1, 9 (1st Cir. 2000) (quoting Cutting, 724 F.2d at 261).

“Second, the court must consider the ‘particularity of the

impact of the state of action.’ ‘If the action involves

establishment ofa general policy, it is legislative; if it ‘single[s]

out specifiable individuals and affect[{s] them differently from

others,’ it is administrative.” Jd.

Accordingly, in Acevedo-Garcia, the First Circuit held that

a Puerto Rican mayor was not entitled to legislative immunity

for implementing a layoff plan in a politically partisan manner

even though the legislature subsequently ratified the mayor’s

actions. The First Circuit held that although legislation

provided a framework for the decisions of the mayor, his acts

of political discrimination were not “prospective” —that is, they

did not “reach well beyond the particular occupant of the

office”—but instead, targeted specific individuals affiliated

with the party out of power. Jd. at 8-9; see also Haskell v.

Washington Township, 864 F.2d 1266, 1278 (6th Cir. 1988) (if

“the action ‘single{s] out specifiable individuals and affect[s]

them differently from others,’ it is administrative”) (quoting

Cutting, 724 F.2d at 261).

The Fifth Circuit also has applied the First Circuit’s two-

part test, holding that seemingly formal acts—the mayor’s

vetoes of zoning determinations—were not substantively

legislative because the actions vetoed by the mayor did not

involve a “determination of a policy” but were “based on

19

specific, particular facts” that affected plaintiff's development

alone. Bryan v. City of Madison, 213 F.3d 267, 273 (5th Cir.

2000). Of various challenged actions, the Fifth Circuit found

that only the mayor’s vote to rezone the property—a decision

that was general, prospective, and affected the entire

community—deserved legislative immunity. Jd. at 273-74; see

also Hughes v. Tarrant County, 948 F.2d 918, 921 (Sth Cir.

1991) (applying the First Circuit test).

The Fourth Circuit, too, has relied on the First Circuit

analysis to hold that the elimination of the salary of the Clerk

to the Board of Commissioners was administrative because the

commissioners “were not engaged in the process of adopting

prospective, legislative-type rules” and the underlying facts and

impact were “specific, rather than general, in nature.”

Alexander v. Holden, 66 F.3d 62, 67 (4th Cir. 1995). Similarly,

the Ninth Circuit has announced a test taking a hard look at the

substance of activities before determining that they are

— legislative, considering four factors: (1) whether the act

involves ad hoc decisionmaking or the formulation of policy;

(2) whether the act applies to a few individuals or to the public

at large; (3) whether the act is formally legislative in character;

and (4) whether it bears all the hallmarks of traditional

legislation. Kaahumanu y. County of Maui, 315 F.3d 1215,

1220 (9th Cir. 2003); see also Bechard v. Rappold, 287 F.3d

827, 829 (9th Cir. 2002).

The Third Circuit’s approach in determining whether the

repeal of Baraka’s position was a legislative or an

administrative act differs from that of other circuits not only in

its analysis of what constitutes “substantively” legislative

action, but in its unwillingness to look beyond the text of the

statute to determine the true “nature of the act.” Bogan, 523

U.S. at 54. The court of appeals rejected Baraka’s claim that

the purpose of eliminating the position was to remove him

specifically as poet laureate, Pet. App. 15a-17a, reasoning that

Bogan prohibited reliance on defendants’ “subjective intent in

20

resolving the logically prior question of whether their acts are

legislative.” Jd. at 16a (quoting Bogan, 523 U.S. at 54). The

court of appeals missed Baraka’s point. Evaluating whether an

enactment’s purpose or character is legislative or

administrative is not the same as inquiring into individual

officials’ subjective intent or motives. Petitioner submits that

it was the latter, and not the former, that concerned this Court

in Bogan. Suppose the statute contained a preamble stating:

“Because the legislature of New Jersey has concluded that

Amiri Baraka should no longer hold the position of poet

laureate, we hereby abolish that position.” Even though the

action taken would still be the repeal of a position, it is difficult

to envision a majority of circuits holding that such an act would

be substantively legislative, rather than administrative action.

What actually occurred here is little different from the

hypothetical, except that the legislative purpose was expressed

in official statements accompanying the various bills proposed

to remove Mr. Baraka from his position (including in the bill

that became law) and during the legislative debates on the bill,

as well as by the Governor. See supra pages 3-7. The Third

Circuit, however, looked no further than the fact that the statute

eliminated his position, ignoring the fact that the repealer, by

taking effect during Baraka’s tenure, singled him out for

disciplinary action—as was the act’s purpose. By contrast, in

evaluating whether an act is legislative or administrative, other

circuits, such as the Sixth and Ninth, look to legislative

deliberations and history to aid in evaluating the nature or

purpose of the challenged act. See, e.g., Canary v. Osborn, 211

F.3d 324, 330 (6th Cir. 2000) (“T]he minutes indicate that the

Board went into executive session for the specific purpose of

‘discuss[ing] the employment of public employees.’ Moreover,

the circumstances of the one-hour executive session . . . suggest

that the Board was making personalized assessments of

individual employees, not engaging in an impersonal budgetary

analysis of various positions.”); Bechard, 287 F.3d at 828-32

21

(evaluating proceedings before county commissioners to

determine that their termination of plaintiff and his position

involved ad hoc decisionmaking initially affecting only

plaintiff, rather than the formulation of policy).

Thus, under various approaches applied by the First,

Fourth, Fifth, Sixth, and Ninth Circuits, Governor McGreevey

and Harrington likely would have been denied legislative

immunity on substantive (as well as procedural) grounds. Their

actions and the statute passed by the New Jersey legislature

would not qualify as substantively legislative under the tests

discussed above because they represented an ad hoc decision,

not the formulation of policy; applied not only prospectively to

would-be poet laureates, but singled out one individual, the

then-current poet laureate Amiri Baraka, to treat him differently

from others by stripping him ofhis position and his honorarium

in the middle of his term; and were based on specific facts

relating to one individual and one particular situation. The

choice of the proper test would have made all the difference in

Baraka’s case, and this Court should grant review to determine

the appropriate analysis.

II. The Third Circuit’s Decision That Legislative

Immunity Bars Petitioner’s Claim for Prospective

Injunctive Relief Against Respondents in Their Official

Capacities Deepens a Conflict in the Circuits and Is

Contrary to this Court’s Precedents.

The Third Circuit held that the doctrine of legislative

immunity barred even Baraka’s claim for prospective injunctive

relief against Governor McGreevey and Harrington (or, now,

against their successors) in their official capacities. Pet. App.

19a-21a. That ruling flies in the face of this Court’s precedents

and deepens an already existing conflict in the circuits, with the

Third and Eleventh Circuits—and, as of last week, the Second

Circuit—arrayed against several other circuits, regarding

whether a personal immunity, such as absolute legislative

22

immunity, can ever bar a claim for prospective injunctive relief

against state officials in their official capacities.

The Third Circuit held that in “appropriate cases,”

legislative immunity can apply to claims for declaratory and

injunctive relief against officials in their official capacities. /d.

at 20a; accord Larsen v. Senate of Commonwealth of Pa., 152

F.3d 240, 252-54 (3d Cir. 1998). The Eleventh Circuit agrees.

See Scott v. Taylor, 405 F.3d 1251, 1254-57 (11th Cir. 2005)

(officials entitled to legislative immunity in their individual

capacities also immune from suit seeking prospective

injunctive relief against them in their official capacities). And

last week, relying in part on the Third and Eleventh Circuits’

decisions, the Second Circuit joined their side of the circuit

split. See Rowland, 2007 WL 1976148, at *1, *6-*11 (claims

for injunctive relief against state officials sued in their official

capacities may be barred by legislative immunity).?

The Second, Third, and Eleventh Circuits’ rulings that

absolute legislative immunity can block an official-capacity

suit for prospective injunctive relief have sweeping

ramifications by potentially stripping individuals targeted by

® In previous cases involving legislative immunity, the Second Circuit had

held that “[i]mmunity, either absolute or qualified, is a personal defense that

is available only when officials are sued in their individual capacities.”

Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007); accord

Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999); Goldberg v. Town of

Rocky Hill, 973 F.2d 70, 73 (2d Cir. 1992). In Rowland, the Second Circuit

attempted to reconcile these cases with its new holding that legislative

immunity can bar a suit seeking injunctive relief from an official in his

official capacity by distinguishing the earlier cases as involving official-

capacity claims against local-level officials rather than state officials. The

Second Circuit maintained that this Court has never held that personal

immunities from suit are unavailable to state officials sued in their official

capacities. Rowland, 2007 WL 1976148, at *9. The Eleventh Circuit

likewise distinguished between official-capacity claims against local

officials and official-capacity claims against state officials. Scott, 405 F.3d

at 1254-57 & n.6.

23

“legislative” actions of the right to secure any judicial remedy

against the enforcement ofan unconstitutional action or statute.

The Court’s landmark decision in Ex parte Young, 209 U.S.

123 (1908), and its progeny were designed to avoid just such a

result. See, e.g., Sterling v. Constantin, 287 U.S. 378, 393

(1932) (holding that a governor “‘is in no different position from

that of other state officials” in that, under Ex parte Young,

“where state officials, purporting to act under state authority,

invade rights secured by the Federal Constitution, they are

subject to the process of the federal courts in order that the

persons injured may have appropriate relief’); see also

Kilbourn v. Thompson, 103 U.S. 168 (1881) (Kilbourn entitled

to bring false imprisonment claim against the House Sergeant

at Arms who executed the warrant the House voted on to

authorize his arrest); accord Powell, 395 U.S. at 503-05; cf.

Franklin v. Massachusetts, 505 U.S. 788, 828 (1992) (Scalia,

J.,.concurring) (Presidential immunity does not “in any way

suggest[] that Presidential action is unreviewable. . .. Review

of the legality of Presidential action can ordinarily be obtained

in a suit seeking to enjoin the officers who attempt to enforce

the President’s directive.”’).

In contrast to the Second, Third, and Eleventh Circuits, the

Fifth, Sixth, Seventh, Eighth, and Ninth Circuits have held that

personal immunities (such as legislative immunity) are

available only to officials sued in their individual, not their

official, capacities. See, e.g., Turner v. Houma Mun. Fire &

Police Civil Serv. Bd., 229 F.3d 478, 483 (Sth Cir. 2000) (“[A]

§ 1983 suit naming defendants only in their ‘official capacity’

does not involve personal liability to the individual defendant(;

thus, ] defenses such as absolute quasi-judicial immunity. . . are

unavailable in official-capacity suits.”);'° Denton v.

'° See also Burge v. Parish of St. Tammany, 187 F.3d 452, 466-68 (Sth Cir.

1999) (official-capacity suit against District Attorney not barred by

prosecutorial immunity); Minton v. St. Bernard Parish Sch. Bd., 803 F.2d

24

Bedinghaus, 40 Fed. Appx. 974, 979 (6th Cir. 2002)

(defendants sued in their official capacities not shielded by

immunity defenses applicable to individual capacity suits);

Redwood Village Partnership v. Graham, 26 F.3d 839, 842

(8th Cir. 1994) (state officials’ absolute immunity for

rulemaking did not bar declaratory and injunctive relief to

challenge the regulations); Hogan v. Von Raab, 959 F.2d 240,

1992 WL 61893, at *2 n.2 (9th Cir. Mar. 31, 1992) (Table)

(qualified immunity does not apply to official-capacity suits

seeking declaratory and injunctive relief); Akins v. Board of

Governors, 840 F.2d 1371, 1377-78 (7th Cir.) (an action for

prospective injunctive relief against a state official is brought

properly in his official capacity; qualified immunity applies

only to suits for damages), vacated and remanded on other

grounds, 488 U.S. 920 (1988); see also Supreme Video, Inc. v.

Schauz, 15 F.3d 1435, 1442-43 (7th Cir. 1994) (qualified

immunity not a defense in official-capacity suits seeking

declaratory relief).

The decisions of the Second, Third, and Eleventh Circuits

have left this area of the law in a profound state of uncertainty.

As one district court observed, even before the Second and

Third Circuit rulings added to the confusion: Although “[t]here

has been a strong indication” that in § 1983 actions, “legislative

immunity is not applicable to official capacity claims,” “the

current state of the law on legislative immunity” still leaves

unanswered whether “if an action is a legislative activity,”

legislative immunity is “available to protect the defendant in

only their official capacity or in only their individual capacity

or in both capacities or in neither capacity.” Parker v. Laurel

County Detention Ctr., No. Civ.A. 605-113-DCR, 2005 WL

1917149, at *3 (E.D. Ky. Aug. 9, 2005) (citing Scott v. Taylor,

129, 134 (Sth Cir. 1986) (official immunity doctrines do not “bar injunctive

relief or suits in which officials are sued only in them official capacities and,

therefore, cannot be held personally liable”) (footnotes omitted).

25

405 F.3d 1251, 1256 (11th Cir. 2005)). The Second Circuit

forthrightly recognized that “there is arguably conflicting case

law on whether legislative immunity applies at all to claims for

injunctive relief brought against state officials in their official

capacities.” Rowland, 2007 WL 1976148, at *6.

The circuits that have rejected personal immunity defenses

to official capacity suits for injunctive relief against the

implementation of unlawful legislative actions have, unlike the

Second, Third, and Eleventh Circuits, been faithful to this

Court’s precedents. In Supreme Court of Virginia v.

Consumers Union of the United States, Inc., 446 U.S. 719

(1980), this Court held that the Virginia Supreme Court and its

chief justice enjoyed absolute legislative immunity from

damages, declaratory, and injunctive relief for either issuing or

refusing to amend the Bar Code to eliminate its

unconstitutional provisions. Jd. at 731-34. At the same time,

however, the Court recognized that the Virginia court and its

chief justice were not immune from a suit to enjoin them from

enforcing the rules, but were “proper defendants in a suit for

declaratory and injunctive relief, just as other enforcement

officers and agencies were.” Id. at 736. The Court specifically

noted that “prospective relief was properly awarded against the

chief justice in his official capacity.” Jd. at 737 n.16.

In Kentucky v. Graham, 473 U.S. 159 (1985), the Court

elaborated on the distinction between personal- and official-

Capacity suits and the defenses available in each. The Court

explained: “Personal-capacity suits seek to impose personal

liability upon a government official for actions he takes under

color of state law. Offficial-capacity suits, in contrast,

‘generally represent only another way of pleading an action

against an entity of which an officer is an agent.”” Jd. at 165

(citing Monell v. Dep't of Social Servs. of New York, 436 U.S.

658, 690, n.55 (1978)). “{A]n official in a personal-capacity

action may, depending on his position, be able to assert

personal immunity defenses... .” Jd. at 166-67. “In an.

26

official-capacity action, these defenses are unavailable. The

only immunities that can be claimed in an official-capacity

action are forms of sovereign immunity that the entity, gua

entity, may possess, such as the Eleventh Amendment.” /d. at

167 (emphasis added; citations omitted)''; accord Hafer v.

Melo, 502 U.S. 21, 25 (1991); see also Board of County

Comm'rs v. Umbehr, 518 U.S. 668, 677 n.* (1996) (“Because

only claims against the Board members in their official

capacities are before us, and because immunity from suit under

§ 1983 extends to public servants only in their individual

capacities,” “the legislative immunity claim is moot”). The

Second Circuit acknowledged that its ruling was in tension with

“arguably contradictory dicta in Graham and Umbehr.”

Rowland, 2007 WL 1976148, at *11; see also id. at 8.

In ruling that Baraka’s claim for injunctive relief against

respondents in their official capacities was barred by legislative

immunity, the Third Circuit relied heavily on its earlier ruling

in Larsen, 152 F.3d at 253, which had held that the legislative

immunity enjoyed by state legislators for impeaching and

removing from office a Pennsylvania Supreme Court Justice

also barred a claim for prospective injunctive relief against the

legislators in their official capacities. Pet. App. 20a-21a. In

Larsen, the court sought to reconcile its holding with this

Court’s precedents by pointing to the Court’s ruling in

'' The Court in Graham also reaffirmed that, under the Ex parte Young

doctrine, a governmental entity’s Eleventh Amendment immunity does not

bar an official-capacity action for injunctive relief against a state officer. /d.

at 167 n.14; see also Will v. Michigan Dep't of State Police, 491 U.S. 58,

71 &n.10 (1989). As the Second Circuit recognized, every circuit to have

considered the issue has held that claims for reinstatement are appropriate

subjects for Ex parte Young actions. Rowland, 2007 WL 1976148, at *19;

see, e.g., Meiners v. University of Kansas, 359 F.3d 1222, 1232-33 (10th

Cir. 2004); Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002);

Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 939-42 (9th Cir.

1997); Coakley v. Welch, 877 F.2d 304, 306-07 (4th Cir. 1989); Elliott v.

Hinds, 786 F.2d 298, 301-02 (7th Cir. 1986).

27

Consumers Union that legislative immunity barred prospective

injunctive relief against the Virginia court and its chief justice

for actions taken in their legislative capacity, see 152 F.3d at

252-53—such as an order compelling them to amend the Bar

Code. See Consumers Union, 446 U.S. at 731-34. Even

assuming that efforts to compel legislators to enact particular

legislation may fall within an exception to the general rule that

legislative immunity does not bar prospective injunctive relief

in an official-capacity action, the Third Circuit badly erred in

failing to appreciate the difference between a lawsuit seeking

to compel a legislator to cast or rescind a vote and an action

against an appropriate official seeking injunctive or declaratory

relief to prevent the enforcement of (or to redress the

consequences of) an unconstitutional action, statute, or

regulation. See Graham, 473 U.S. at 164 n.8 (reaffirming

Consumers Union’s holding that the Virginia chief justice in

his official capacity could be enjoined from enforcing the Bar

Code); Consumers Union, 446 U.S. at 736-37 & n.16. Here,

analogizing to its ruling in Larsen, the Third Circuit asserted

that the relief sought by Baraka would “require New Jersey

legislators to rescind their votes repealing the statute and to

enact legislation recreating the position.” Pet. App. 21a.”

'2 The possibility that Consumers Union supports an exception to the

general rule that legislative immunity does not bar prospective injunctive

relief in an official-capacity action is undermined by the Court’s flat

statements in later cases, including Graham, Hafer, and Umbehr, that

personal immunities do not apply in official-capacity suits. Limitations on

a federal court’s power to compel legislators to cast particular votes more

likely stem from general separation-of-powers principles and appropriate

limits on injunctive relief, as well as from the fact that, in most cases,

legislators are not proper defendants in an Ex parte Young action because

they play no role in enforcing the legislation they enact. See Ex parte

Young, 209 U.S. at 157; see, e.g., Scott, 405 F.3d at 1254 n.3, 1256 n.8

(noting that legislator defendants had no role in implementing the challenged

redistricting). If no state official with the appropriate enforcement authority

is named in a lawsuit, the action is barred not by a personal immunity, but

instead by Eleventh Amendment immunity because it is effectively an action

28

By that strange logic, many lawsuits seeking prospective

injunctive relief from state officials under Ex parte Young to

enjoin the enforcement of unconstitutional legislative actions

would fail on legislative immunity grounds on the theory that

legislators would have to rescind their votes or cast new ones.

But effective relief against an executive officer to redress a

constitutional violation can be devised without enjoining

legislators to recast their votes, and Baraka never sought an

injunction ordering New Jersey legislators to re-vote. The

court’s assumption that the only way to afford Baraka relief

would be to order the legislature to vote again, instead of

simply ordering McGreevey and Harrington, state officials with

enforcement authority over the poet laureate position, to

reinstate him to his position as poet laureate, is refuted by

Spallone v. United States, 493 U.S. 265 (1990). There, this

Court held that there was no need for a district court to impose

contempt sanctions against individual city council members for

failing to adopt an ordinance as required by a consent decree

when it had the power to impose contempt sanctions against the

city itself. Jd. at 278-80. Similarly, here, Baraka neither

needed nor sought relief against individual legislators to redress

his injuries.

In light of the deep circuit split regarding whether

prospective injunctive relief against a state official sued in his

official capacity may be barred by the official’s legislative

immunity and the inconsistency of the Third Circuit’s ruling on

that issue with this Court’s precedents, the Court should grant

certiorari to address the second question presented.

CONCLUSION

For the foregoing reasons, the petition for certiorari should

be granted.

against the state to which the Ex parte Young doctrine is inapplicable.

July 2007

Respectfully submitted,

ROBERT T. PICKETT

Counsel of Record

MICHAEL LESHER

80 Main Street, Suite 430

West Orange, NJ 07052

(973) 762-0613

WILLIAM UD. MANNS

Nevada Court Mall

21-23 Court Street

Newark, NJ 07102

(973) 643-6596

BONNIE I. ROBIN- VERGEER

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for Petitioner