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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1208%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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

GQ eS Reve rer rire errr eer Ty 7
Se ee ND oe co eee ea ea eS 7, 26, 27
Ree SG REY cn bob chi venyeccsbinevesewns 7
ee EG) Wee i oh A oo so OME eek Kees ROweS 15
STATUTES AND RULES
Sa ERE wk Foe bebe y oa Ok ae64s bs aeekeen 2
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1208%3A1. Public record. Not legal advice.