Appendix — Baraka v. McGreevey (No. 07-79)

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2361

AMIRI BARAKA,

Appellant

JAMES E. McGREEVEY, individually;

*RICHARD J. CODEY, in his official capacity

as Acting Governor of the State of New Jersey;

STATE OF NEW JERSEY, a body corporate and politic;

NEW JERSEY STATE COUNCIL OF THE ARTS,

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

SHARON HARRINGTON, individually and in her

official capacity as Chairperson of the

New Jersey State Council on the Arts;

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

UNKNOWN AGENCIES and

GOVERNMENT ENTITIES 1-10, unknown to plaintiff

at this time, individually and in their o**icial capacities

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

On Appeal from the United States District Court

for the District of New Jersey

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

(Honorable Garrett E. Brown, Jr.)

Argued April 24, 2006

Before: SCIRICA, Chief Judge,

NYGAARD, Circuit Judge, and YOHN, District Judge’

(Filed March 21, 2007)

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

Lee & Sanchez

Nevada Court Mall

21-23 Court Street

Newark, New Jersey 07102

ROBERT T. PICKETT, ESQUIRE

15 Village Plaza, Suite 1C

South Orange, New Jersey 07079

Attorneys for Appellant

LEWIS A. SCHEINDLIN, ESQUIRE (ARGUED)

Office of Attorney General of New Jersey

Department of Law & Public Safety

Richard J. Hughes Justice Complex

P.O. Box 112

* The Honorable William H. Yohn Jr., United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

3a

Trenton, New Jersey 08625

Attorney for Appellees

OPINION OF THE COURT

SCIRICA, Chief Judge.

This appeal arises from an action brought by Amiri Baraka

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

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

Jersey. Baraka alleges defendants violated his constitutional

rights by eliminating his position as poet laureate of New

Jersey. The District Court dismissed Baraka’s complaint under

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

relief can be granted. We will affirm.

I.

Amini Baraka, a poet, was appointed poet laureate of New

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

recommendation of the New Jersey State Council for the Arts.

The New Jersey State Legislature created the position of poet

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

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 § 52:16A-26.9 (repealed 2003)).'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

' Section 52:16A-26.9, provided:

a. There is hereby established the New Jersey William Carlos

Williams Citation of Merit to be presented to a distinguished poet

from New Jersey who shall be considered the poet laureate of the

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

shall receive an honorarium of $10,000.

The New Jersey Council for the Humanities, in consultation with

the New Jersey State Council on the Arts, shall biennially appoint

and convene a panel of four persons who are either distinguished

poets or persons who represent a range of stylistic approaches in

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provided the governor would biennially appoint a State poet

laureate who would serve for two years and receive an

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

poetry within the State and give at least two public Stati

each year. Jd.

Two months after his appointment, Baraka read his poem

entitled “Somebody Blew Up America” at the Geraldine R.

Dodge Poetry Festival in Stanhope, New Jersey. The poem

commented generally on American society and politics, and on

terrorism, specifically referencing the terror attacks of

September 11, 2001, and read, in part: “Who knew the World

Trade Center was gonna get bombed/Who told 4000 Israeli

workers at the Twin Towers to stay home that day/Why did

Sharon stay away?”

After an outcry, a spokesman for Governor McGreevey

issued a statement that “(t]he governor strictly criticizes any

the field of poetry. Each member of the first such panel shall be

from New Jersey. After the term of the first poet laureate and

each subsequent poet laureate has expired, that person shall serve

as one of the members of the panel for a period of two years and

participate in the selection of the next poet laureate. The panel

shall submit to the Governor the name of the poet to whom the

citation of merit shall be presented and who shall be considered

poet laureate of the State for the subsequent two years.

The Governor shall present biennially the New Jersey William

Carlos Williams Citation of Merit.

The poet laureate shall engage in activities to promote and

encourage poetry within the State and shall give no fewer than two

public readings within the State each year while the poet holds the

laureate designation.

The New Jersey Council for the Humanities, in consultation with

the New Jersey State Council on the Arts, shall establish such

guidelines as are deemed necessary to effectuate the purposes of

this section.

? The full text of the poem is available at a Web page registered to Baraka,

http://www.amiribaraka.cony/blew.html (last visited on March 15, 2007).

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racist or anti-Semite behavior. The style of Baraka’s recent

verse implies that Israelis had known about the September 11

terrorism attacks.” (Second Am. Compl. § 15.) Governor

McGreevey asked Baraka to resign. Baraka refused,

contending the poem was neither anti-Semitic nor racist.

Baraka alleges Governor McGreevey then instructed

Sharon Harrington, the chair of the New Jersey State Council

for the Arts, to withhoid payment of the $10,000 honorarium.

Baraka also alleges Governor McGreevey and other defendants

“commenced a concerted campaign” to remove him from his

position or to abolish the position of poet laureate altogether.

Soon thereafter, the New Jersey State Legislature passed P.L.

2003, c. 123, which repealed section 52:16A-26.9 and

abolished the position of poet laureate.’ Governor McGreevey

signed the repealer into law on July 2, 2003.

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

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

his individual and official capacities, Harrington, in her

individual and official capacities, the New Jersey State Council

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

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

of New Jersey, in their individual and official capacities.

Baraka alleged that by abolishing the position of poet laureate

and denying him the honorarium to punish him for expressing

his views, defendants violated his right to free speech under the

First Amendment and his right to due process of law under the

Fourteenth Amendment. Baraka also alleged various causes of

action under the New Jersey Constitution and New Jersey state

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

> The bill lists nine state senators and three assembly members as sponsors,

anc fifteen state senators and fifty-five assembly members as co-sponsors.

It passed with 21 votes and 19 abstentions in the State Senate, and it passed

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

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

6a

honorarium for two years,‘ immediate reinstatement to the

position of poet laureate, compensatory and punitive damages,

and attorneys’ fees.

The District Court granted defendants’ motion to dismiss

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

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

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

government employees and entities on the basis of Eleventh

Amendment immunity. It dismissed the claims against

Governor McGreevey and Harrington on the basis of absolute

legislative immunity. The court dismissed Baraka’s claim for

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

no legally enforceable right to payment. It dismissed the claims

against unknown government individuals and entities because

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

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

declined to exercise pendent jurisdiction over Baraka’s state

law claims.

On appeal, Baraka contends the District Court erred by:

holding Governor McGreevey and Harrington were protected

by absolute legislative immunity; (2) holding Baraka was not

deprived of a constitutionally protected property interest

without due process of law; (3) declining to address Baraka’s

claim he was deprived of a constitutionally protected liberty

interest; (4) dismissing the case as to various unknown

government individuals, entities, and agencies; and (5) failing

to exercise pendent jurisdiction over the state law claims.°

a

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

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

* Baraka does not appeal the District Court’s holding that claims against the

State, the Arts Council, and unknown government entities and employees in

their official capacities were barred by the Eleventh Amendment.

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Il.

The District Court had subject matter jurisdiction under 42

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

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

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

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

12(b)(6) motion will be granted “if it appears to a certainty that

no relief could be granted under any set of facts which could be

proved.’” Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005)

(quoting D.P. Enter. Inc. v. Bucks County Cmty. Coll., 725 F.2d

943, 944 (3d Cir. 1984)). We must accept all factual

allegations in Baraka’s complaint as true, but we are. not

compelled to accept “unsupported conclusions and unwarranted

inferences,” Schuylkill Energy Res., Inc. v. Pa. Power & Light

Co., 113 F.3d 405, 417 (3d Cir. 1997), or “a legal conclusion

couched as a factual allegation,” Papasan v. Allain, 478 U.S.

265, 286 (1986). We review a district court’s dismissal of

pendent state law claims for abuse of discretion. Markowitz v.

Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Cooley v. Pa.

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

Il.

A.

Baraka contends his claims against Governor McGreevey

and Harrington are not barred by legislative immunity because

neither is a legislator and their actions were not legislative in

nature. He contends their actions were political—advocating

legislation—and administrative—targeting a single person for

punitive treatment. We believe Governor McGreevey’s and

Harrington’s actions are properly characterized as legislative

and are entitled to immunity.

“Absolute legislative immunity attaches to all actions taken

‘in the sphere of legitimate legislative activity.” Bogan v.

Scott-Harris, 523 U.S. 44, 54 (1998) (quoting Tenney v.

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Brandhove, 341 U.S. 367, 376 (1951)). Legislative immunity

shields from suit not only legislators, but also public officials

outside of the legislative branch when they perform legislative

functions. See id. (affording absolute legislative immunity to

a mayor); Sup. Ct. of Va. v. Consumers Union of the U.S., Inc.,

446 U.S. 719, 734 (1980) (same, to the Virginia Supreme Court

and its members); Gallas v. Sup. Ct. of Pa., 211 F.3d 760,

776-77 (3d Cir. 2000) (same, to the Pennsylvania Supreme

Court and its members); Aitchison v. Raffiani, 708 F.2d 96, 99

(3d Cir. 1983) (same, to members of a city council, a mayor,

and a city attorney). The relevant question is whether Governor

McGreevey and Chair Harrington’s actions were “‘in the sphere

of legitimate legislative activity.” Bogan, 523 U.S. at 54

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

1,

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

we addressed the distinction between legislative and political

activities on the part of state legislators. As examples of

legislative activities, we cited “voting for a resolution,

subpoenaing and seizing property and records for a committee

hearing, preparing investigative reports, addressing a

congressional committee, and, of course, speaking before the

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

omitted). We contrasted these with examples of political

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

performed for constituents, the making of appointments with

Government agencies, assistance in securing Government

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

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

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

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

to refer to patronage practices and activities by officials, not

directly related to enacting legislation. Baraka also appears to

use the term to express this narrow meaning.

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But as these examples illustrate, activities by legislators

that directly affect drafting, introducing, debating, passing or

rejecting legislation, are “‘an integral part of the deliberative

and communicative processes,’” and are properly characterized

as legislative, not political patronage. Jd. (quoting Gravel v.

United States, 408 U.S. 606, 625 (1972)). Activities that are

“casually or incidentally related to legislative affairs but not a

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

Brewster, 408 U.S. at 528).

Baraka describes the actions of Governor McGreevey and

Harrington as “advocating and promoting legislation.” He

contends legislative immunity does not apply because they are

not legislators and because these are political, not legislative,

activities. But when a governor and a governor’s appointee

advocate bills to the legislature, they act in a legislative

Capacity.

Baraka appears to concede as much. He alleges Governor

McGreevey and Harrington actively participated in the

legislative process. The repealer was allegedly passed at the

“urging, direction and request” (Second Am. Compl. ¢ 19) of

defendants. It was signed into law by Governor McGreevey.

As the District Court noted, “[t}he gravamen of [Baraka’s]

complaint is that Governor McGreevey and Harrington

‘orchestrated and directed’ the New Jersey legislature to

abolish the position of Poet Laureate.” Baraka v. McGreevey,

No. 041959, slip op. at 6 (D. N.J. March 22, 2005). These

actions were “an integral part of the deliberative and

communicative processes,” Youngblood, 352 F.3d at 840

(quotation omitted), by which the repealer was enacted, and fail

squarely “‘within the sphere of legitimate, legislative activity.

Id. at 841 (quoting Tenney, 341 U.S. at 376).

399

In Bogan, the Supreme Court considered whether absolute

legislative immunity applied to a mayor and to a member of a

city council. 523 U.S. at 47. Both officials played central roles

10a

in advocating, promoting, and passing an ordinance that

eliminated a government office of which plaintiff was the sole

employee. Jd. In concluding absolute legislative immunity

applied, the Court held the city council member’s acts of voting

for the ordinance were “in form, quintessentially legislative,”

and the mayor’s acts of introducing a budget and signing the

ordinance into law “also were formally legislative.” Jd. at 55.

Baraka contends he named Governor McGreevey as a

defendant not because the Governor signed the repealer, but

because he advocated and orchestrated the legislation that

abolished the position of poet laureate. His argument appears

to concede the Governor’s actions were central, or integral, to

the legislative process. The New Jersey Constitution authorizes

the Governor to “recommend such measures as he may deem

desirable,” and to convene the Legislature “whenever in his

opinion the public interest shall require.” N.J. Const. art. V,

§ 1. The New Jersey Governor, therefore, is constitutionally

authorized to recommend legislative measures. Furthermore,

this is consistent with the type of activity designated as

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

appointee, Harrington’s actions in advising and counseling

Governor McGreevey and the Legislature are also legislative.

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

to an attorney who advised a city council in drafting an

ordinance). Though neither Governor McGreevey nor

Harrington were legislators, their actions as public officials in

proposing and advocating the repealer are properly

characterized as legislative.

Despite Baraka’s characterization, his cause of action also

necessarily encompasses the Governor’s actions in signing the

repealer into law. The position of poet laureate was eliminated

by legislative repealer, which required gubernatorial approval

lla

(absent legislative override of a veto).° Governor McGreevey’s

act of signing the repealer into law is properly characterized as

a legislative action, like those designated in Brewster and

Youngblood. See Edwards v. United States, 286 U.S. 482, 490

(1932) (noting “the legislative character of the President’s

function in approving or disapproving bills’”’); Smiley v. Holm,

285 U.S. 355, 372-73 (1932) (discussing a governor’s actions

in signing or vetoing a bill as part of the legislative process).

2.

Baraka’s contention that defendants’ actions were

administrative does not change our conclusion. As noted,

Baraka contends that in abolishing the position of poet laureate,

defendants targeted him for punitive action and engaged in

administrative—as opposed to legislative—activity.

In determining whether legislative immunity attaches to

municipal actors engaging in arguably administrative activities,

we ask whether the activities are “both substantively and

procedurally legislative in nature.” Jn re Montgomery County,

215 F.3d 367, 376 (3d Cir. 2000); see Carver v. Foerster, 102

F.3d 96, 100 (3d Cir. 1996) (asking whether the act is

“substantively legislative,” as involving “policy-making” or

“‘line-drawing,” and “procedurally legislative,” as being “passed

by means of established legislative procedures”) (quoting Ryan

v. Burlington County, 889 F.2d 1286, 1290-91 (3d Cir. 1989));

see also Bogan, 523 U.S. at 55 (affording legislative immunity

to a non-legislator who performed functions that were

* Like other state constitutions, the New Jersey Constitution grants the

governor a role in the finalization of all legislation. All legislation passed by

both houses of the state Legislature must be presented to the governor, who

is authorized to enact the law by signing it, or to veto the law by remrning

it to the legislature with objections. If the governor takes no action within

45 days, the bill becomes law by default. The Legislature can override a

veto only by a two-thirds super-majority in both houses. N.J. Const. art. V,

§ 1, par. 14.

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substantively and procedurally legislative). In Gallas we

explained this two-part inquiry:

First, the act must be “substantively” legislative, i.e.,

legislative in character. Legislative acts are those

which involve policy-making decision [sic] of a

general scope or, to put it another way, legislation

involves linedrawing. Where the decision affects a

small number or a single individual, the legislative

power is not implicated, and the act takes on the

nature of administration. In addition, the act must be

“procedurally” legislative, that is, passed by means of

established legislative procedures. This principle

requires that constitutionally accepted procedures of

enacting the legislation must be followed in order to

assure that the act is a legitimate, reasoned decision

representing the will of the people which the

governing body has been chosen to serve.

211 F.3d at 774 (quoting Ryan, 889 F.2d at 1290-91).

Here, defendants are public officers and state actors. Our

cases differ as to whether the two-part substance/procedure

inquiry, first applied to municipal actors, is also appropriate for

actors at the state level. In Gallas, we applied the two-part

inquiry to Pennsylvania Supreme Court justices and concluded

the justices were entitled to legislative immunity for their

actions in reorganizing one of the state’s judicial districts. /d.

But in other cases we declined to extend the two-part inquiry to

state actors. See Youngblood, 352 F.3d at 841 n.4 (“We have

since recognized . . . that the substance/procedure test was

‘developed for municipalities,” where individual officials are

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

body, passing a de jure law affecting only a single person, would not be

entitled to legislative immunity.” Gallas v. Sup. Ct. of Pa., 211 F.3d 760,

773 2.14 (3d Cir. 2000).

13a

more likely to perform a mixing of administrative and

legislative functions, and thus have ‘decline[d] to extend [the

Carver ] analysis . . . to other levels of government.’’’) (quoting

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

252 (3d Cir. 1998)) (“[B]ecause concerns for the separation of

powers are often at a minimum at the municipal level, we

decline to extend our analysis developed for municipalities to

other levels of government.”). Instead, we articulated the

relevant inquiry as whether the actions in question were “within

the sphere of legitimate, legislative activity.” Youngblood, 352

F.3d at 841 (quoting Tenney, 341 U.S. at 376).

® In Youngblood, we found support in Bogan for our decision not to apply

the two-part inquiry. We stated,

We similarly decline to apply the Carver analysis to this case,

especially in light of language from the Supreme Court that, we

believe, casts doubt on the propriety of using any separate test to

examine municipal-level legislative immunity, see Bogan, 523

U.S. at 49, 118 S.Ct. 966 (holding that local legislators are

“likewise” absolutely immune from suit under § 1983),

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

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

substance” as well as of “formally legislative character” in order

to be a legislative act).

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

act be both procedurally and substantively legislative for immunity to apply.

Rather, it concluded that because the acts in question were legislative in both

respects, there was no need to determine whether the procedurally legislative

character of the actions was “alone sufficient to entitle petitioners to

legislative immunity.” Bogan, 523 US. at 55.

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

substance/procedure inquiry provides a useful means of determining whether

ailegedly administrative actions meet the standard set forth by the Supreme

Court—whether the actions are “in the sphere of legitimate legislative

activity.” Bogan, 523 U.S. at 54 (quoting Tenney, 341 U.S. at 376). We use

the substance/procedure inquiry not to establish a separate and distinct

standard for certain actors, but to determine whether the Court’s standard

has been met.

14a

Regardless of the level of government, we believe the

two-part substance/procedure inquiry is helpful in analyzing

whether a non-legislator performing allegedly administrative

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

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

state actors—there was no allegation that the actions in

question were administrative, and no need for this inquiry as a

means of distinguishing between administrative and legislative

actions. See Youngblood, 352 F.3d at 840-41; Larsen, 152 F.3d

at 252. In addition, these cases addressed legislators’ actions.

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

we similarly address the actions of non-legislators (Governor

McGreevey and Harrington) performing allegedly legislative

tasks. In determining whether legislative immunity applies, it

is relevant to ask whether Governor McGreevey’s and

Harrington’s actions were both substantively and procedurally

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

Supreme Court—they were “in the sphere of legitimate

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

341 U.S. at 376).

We have already focused on the procedural nature of

Governor McGreevey’s and Harrington’s actions. We noted

that their actions in recommending and, in the Governor’s case,

signing the repealer were similar to those of the defendants in

Bogan—actions that were “in form, quintessentially

legislative.” Bogan, 523 U.S. at 55. We agreed with the

District Court that “[t]he gravamen of [Baraka’s] complaint is

that Governor McGreevey and Harrington ‘orchestrated and

directed’ the New Jersey legislature to abolish the position of

Poet Laureate.” Baraka, No. 04-1959, slip op. at 6. In sum, we

concluded their actions were procedurally legislative.

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

state actors. We noted, “concerns for the separation of powers are often at

a minimum at the municipal level.” 152 F.3d at 252.

lSa

Their actions in support of the repealer were .also

substantively legislative. This law, formally enacted,

eliminated the position of poet laureate, a position that was

legislatively created. Eliminating the position of poet laureate

constitutes the type of “policy-making” that traditional

legislation entails, and the actions here were substantively

legislative. See Gallas, 211 F.3d at 774.

In the context of public employment, we have drawn a

distinction between the elimination of a position and the

termination of an individual employee. See id. at 775 (“[T]he

elimination of a public employment position—as opposed to

the firing of a single individual—constitutes a ‘legislative’

act.”); Montgomery County, 215 F.3d at 377 (holding decision

to terminate director of county department of housing services

was administrative because “[f]iring a particular employee is a

personnel decision that does not involve general policy

making”’).

Nevertheless, Baraka contends the purpose of the repealer

was to remove him specifically as poet laureate after he refused

to resign, and its effect is better analogized to the termination

of an individual’s employment than to the elimination of a

position. Baraka contends he was punished for his speech,

which his detractors termed anti-Semitic. In his view, the

intent and motive behind the purpose of the repealer was

perceived anti-Semitism. But a defendant’s intent and motive

are immaterial to whether certain acts are entitled to legislative

immunity. See Bogan, 523 U.S. at 54-55. Accordingly,

Baraka’s allegation as to Governor McGreevey’s and

Harrington’s intent and motive—which we accept as true in

reviewing the denial of a Fed. R. Civ. P. 12(b)(6)

motion—cannot affect our analysis.

In Bogan, plaintiff alleged defendants’ actions in passing

an ordinance were motivated by racial animus, and were in

retaliation for her exercise of First Amendment rights. See id.

l6a

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

had been motivated by a desire to punish plaintiff for her

constitutionally protected speech. Relying on this jury finding,

the Court of Appeals for the First Circuit held that because

defendants’ actions targeted plaintiff, they were not legislative.

But the Supreme Court concluded the Court of Appeals

“erroneously relied on [defendants’] subjective intent in

resolving the logically prior question of whether their acts were

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

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

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

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

relevant inquiry was whether, “stripped of all considerations of

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

In Youngblood, a state representative contended two other

representatives denied her adequate budget allocation for office

staffing in retaliation for her complaints against their party

leadership. 352 F.3dat 838. Citing Bogan we emphasized that

a court does not consider intent and motive to determine

whether legislative immunity applies to a defendant’s actions.

Id. at 841. Defendants’ acts of allocating office-staffing

appropriations among individual representatives were

legislative acts to which immunity extended. Jd. at 841. It was

immaterial that the acts may have been intended to punish the

plaintiff because “legislators’ motives are irrelevant to whether

their activities enjoy legislative immunity.” Jd. at 839-40; see

also Gallas, 211 F.3d at 773 (“In determining whether an

official is entitled to legislative immunity, we must focus on the

nature of the official’s action rather than the official’s motives

or the title of his or her office.’’).

Baraka cites Canary v. Osborn, 211 F.3d 324 (6th Cir.

2000), and Kamplain v. Curry Board of Commissioners, 159

F.3d 1248 (10th Cir. 1998), in contending an improper motive

is relevant to a court’s determination of whether legislative

immunity applies. But neither case supports this position. In

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Canary, the Court of Appeals for the Sixth Circuit concluded

individual school board members were not entitled to absolute

legislative immunity for their role in voting against the renewal

of an employee’s contract as an assistant principal. 211 F.3d at

330-31. Because they were assessing the performance and

actions of an individual employee, their actions “did not have

prospective implications that reach{ed] well beyond the

particular occupant of the office,” and accordingly were not

covered by legislative immunity. /d. at 330 (quotation

omitted). In Kamplain, the Court of Appeals for the Tenth

Circuit concluded defendants acted in an administrative

capacity foreclosing legislative immunity when they banned

plaintiff's attendance, participation, and speech at meetings of

a county board of commissioners. 159 F.3d at 1252. The court

concluded, “[bJecause the circumstances of this case did not

concern the enactment or promulgation of public policy, we

cannot say that the bans were related to any legislation or

legislative function.” Jd. at 1252. Neither Canary nor

Kamplain relied on defendants’ subjective intent or motive in

determining whether legislative immunity applied. Both cases

cited Bogan’s directive that “[w]hether an act ts legislative

turns on the nature of the act, rather than on the motive or

intent of the official performing it.” See Canary, 211 F.3d at

329; Kamplain, 159 F.3d at 1251.

Baraka asks us to do what the Supreme Court has labeled

erroneous—“rel[y] on [defendants’}] subjective intent in

resolving the logically prior question of whether their acts were

legislative.” Bogan, 523 U.S. at 54. Governor McGreevey’s

and Harrington’s subjective intent plays no role in our analysis

of whether or not their acts were legislative. The relevant

question is whether, “stripped of all considerations of intent

and motive, {defendants’] actions were legislative.” Jd. at 55.

Both in form and in substance, the actions of both defendants

were legislative. Accordingly, the District Court did not err in

18a

holding Baraka’s claims against them were barred by legislative

immunity.

3.

Although we join in much of our dissenting colleague’s

views on the structure and history of the Speech and Debate

Clause, we believe modern jurisprudence has amplified and

transformed our understanding of this constitutional provision.

The separation of powers doctrine, and its attendant checks

and balances, undergirds the development of the speech and

debate protections afforded legislators by the United States and

state constitutions. The Constitution’s framers created a

structure of government that would engender competition for

power among the branches.

But the Constitution also establishes legislative functions

for the president, quite similar to those established for the

governor in the New Jersey Constitution and at issue here.

Whether these legislative functions may entitle executive

branch officers to absolute legislative immunity is a question

the Supreme Court answered in Tenney and, more recently, in

Bogan. We applied these standards in Youngblood, and we

believe our decision here is consistent with both the Supreme

Court’s precedent and our own.

Our dissenting colleague insists legislative immunity is

intended to shield only legislators. But this view disregards

modern jurisprudence and, most strikingly, undercuts the

Supreme Court’s recent guidance on the issue, in Bogan,

clearly extending absolute legislative immunity to a

non-legislator public official (a mayor) who was integrally

involved in the proposal, promotion and passage of legislation

eliminating a municipal department. There the Supreme Court

noted that “{a]bsolute legislative immunity attaches to all

actions taken in the sphere of legitimate legislative activity.”

Bogan, 523 U.S. at 54 (internal quotes omitted). Later, the

19a

Court noted “[w]e have recognized that officials outside the

legislative branch are entitled to legislative immunity when

they perform legislative functions,” adding that an executive’s

actions with respect to enacting legislation are “integral steps

in the legislative process.” Jd. at 55. Subsequently, we noted

this extension of legislative immunity to public officials outside

the legislature in our description of Bogan. See Youngblood,

352 F.3d at 840 (Bogan held “municipal officials were immune

from a plaintiff's claim that the officials violated her civil

rights when they enacted a budget that eliminated her

position”).

If our dissenting colleague’s concern is that legislative

immunity would be extended to basic lobbying activity, we

cannot agree. This ignores the fundamentally different roles

played by a governor and his appointees in the legislative

process from those played by a private party who lobbies for

legislation. As noted, the New Jersey Constitution requires the

governor to play a role in enacting legislation, through signing

or vetoing it. It also authorizes the governor to “recommend

such measures as he may deem desirable,” and to convene the

Legislature “whenever in his opinion the public interest shall

require.” N.J. Const., art. V, § 1.'° These functions are

integral steps in the legislative process, authorized by the state

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

No private lobbyist can claim such a constitutional authority to

participate in the legislative process.

B.

Baraka contends that even if legislative immunity bars his

claim for damages, it does not bar his claim for reinstatement

'© The governor is additionally given broad power to grant pardons and

reprieves, and to suspend and remit fines and forfeitures, powers that

necessarily overlap with the powers assigned to the judicial branch of

government. N.J. Const. art. V, § 2.

20a

against Governor McGreevey and Harrington in their official

capacities. He notes that legislative immunity is a personal

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

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

unavailable in official-capacity actions.

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

immunities that can be claimed in an official-capacity action

are forms of sovereign immunity that the entity, gua entity, may

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

Kentucky addressed whether a plaintiff—who prevailed in a

suit against a governmental entity’s employees in their personal

capacities—could recover attorneys’ fees from the entity. /d.

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

injunctive or declaratory relief. Accordingly, the case has

limited relevance to determining whether legislative immunity

bars Baraka’s claim for reinstatement.

Moreover, in Larsen, we interpreted the Supreme Court’s

opinion in Supreme Court of Virginia v. Consumers Union to

hold that at least in “appropriate cases,” legislative immunity

can apply to claims for declaratory and injunctive relief against

officials in their official capacities.'' See Larsen, 152 F.3d at

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

whether a Pennsylvania Supreme Court justice’s § 1983 claim

for reinstatement against state senators who impeached him

was an “appropriate case,” we asked “whether Larsen’s request

for prospective relief from the Senators could be accorded

'' We also concluded we erred in Acierno v. Cloutier when we stated “the

Supreme Court has never held that legislative immunity applies to both

claims for damages and injunctive relief.” Larsen, 152 F.3d at 252 (citing

Acierno v. Cloutier, 40 F.3d 597, 607 n.8 (3d Cir. 1994) (en banc)). We

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

the issue of the application of absolute legislative immunity to claims for

prospective relief and answered that question in the affirmative.” /d. (citing

Sup. Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719 (1980)).

2la

consistent with the policies underlying legislative immunity.”

Id. Because Larsen sought “reinstatement—nothing less than

that the individual senators rescind their guilty vote on this

impeachment,” we concluded: “It is difficult to imagine a

remedy that would more directly interfere with the role

assigned exclusively to the Senators by the Pennsylvania

Constitution.” Jd. at 254. Accordingly, the senators were

entitled to absolute legislative immunity.

Like the relief sought in Larsen, the relief sought by

Baraka would infringe on the role of the New Jersey

Legislature. Baraka seeks to require New Jersey legislators to

rescind their votes repealing the statute and to enact legislation

recreating the position. We agree with the District Court’s

conclusion that this “would be inconsistent with the general

policies underlying legislative immunity,” and “would seriously

interfere with the role assigned exclusively to the Legislature.”

Baraka, No. 041959, slip op. at 8-9. Debating, voting on, and

passing statutes are “role[s] assigned exclusively” to the

Legislature, and this case is an “appropriate case” for

application of legislative immunity to a claim for prospective

relief. Larsen, 152 F.3d at 254. Accordingly, the District

Court did not err in concluding that Baraka’s request for

reinstatement was barred by legislative immunity.

C.

The District Court dismissed Baraka’s claim for the

honorarium because the Legislature never appropriated funds

for payment of the $10,000 provided for by § 52:16A-26.9. In

the absence of an appropriation, the court held, defendants were

not authorized to pay Baraka the honorarium. Accordingly,

there could be no liability for withholding payment.’ The

‘2 Baraka states the District Court held the legislature’s failure to

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

“retroactively nullified,” “repeal[ed],” or “eliminat[ed]” the honorarium

22a

court explained that under the Appropriations Clause of the

New Jersey State Constitution, funds can only be withdrawn

from the State treasury by legislative appropriation. See N.J.

Const. art. VII, § 2, par. 2 (“No money shall be drawn from the

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

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

drawn from the state treasury unless !t has been explicitly

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

court cited the New Jersey Supreme Court’s opinion in Camden

v. Byrne, 411 A.2d 462, 470 (N.J. 1980), for the proposition

that “[t]here can be no redress in the courts to overcome either

the Legislature’s action or refusal to take action pursuant to its

constitutional power over state appropriations.” The court

rejected Baraka’s contention that section 52:16A-26.9 vested

in him a constitutionally protected property interest that

overcame this mandate.

Under New Jersey law, a statute that devotes state revenue

to a particular purpose needs a corresponding appropriation

authorizing payment, and a court cannot compel the

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

municipalities challenged the State’s failure to appropriate and

expend funds in accordance with certain statutes that purported

to devote tax revenues to local governments. The

municipalities requested a court order requiring the iegislature

to make the necessary appropriations. /d. at 466. The court

held the Appropriations Clause “firmly interdicts the

expenditure of state monies through separate statutes not

otherwise related to or integrated with the general appropriation

act governing the state budget for a given fiscal year.” /d. at

468. Furthermore, even if the requesting party could prove a

provided by § 52:16A-26.9. This mischaracterizes the District Court’s

holding. Because the legislature had not appropriated funds to pay the

honorarium, the court held defendants had no legal authority to withdraw the

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

23a

statutorily defined substantive right, a court could not compel

an appropriation. Jd. at 469 (citing Amantia v. Cantwell, 213

A.2d 251 (N.J. App. Div. 1965); see also New Jersey Div. of

Youth & Family Serv. D.C., 571 A.2d 1295, 1301 (N.J. 1990)

(“There can be no redress in the courts to overcome either the

Legislature’s action or refusal to take action pursuant to its

constitutional power over state appropriations... . That

principle applies even if a party is clearly entitled to

compensation.”).

Based on the timing of the appropriations process, Baraka

contends the lack of an appropriation is immaterial to whether

he was entitled to the honorarium. He notes that in

1999—-when the Legislature created the position of poet

laureate—it appropriated $10,000 to pay the first person who

held the position. Since the first poet served for two years

starting in early 2000, further appropriation was not needed

until late 2002, when the next poet (Baraka) was appointed. At

this time, the Legislature had already adopted the State budget

for fiscal year 2002-2003. Baraka contends that had the

position of poet laureate not been abolished in July, the

appropriation would have been made in the budget for fiscal

year 2003-2004. But whether the Legislature’s failure to

appropriate funds was intentional or the result of indifference

or oversight, the absence of an appropriation is determinative.

Regardless of the legislative intent, § 52:16A-26.9 could not

authorize payment of the honorarium in the absence of a

corresponding appropriation of state revenue. Baraka’s

assertion that “it is undisputed that [defendants] refused to pay

Baraka the $10,000 guaranteed by the statute” is inaccurate

because it implies defendants were authorized to make a

payment but chose not to do so.

There appears to be an exception to the general rule

requiring a legislative appropriation. If there is a constitutional

right to payment, a court may compel payment even in the

absence of an appropriation. See Youth & Family Serv., 571

24a

A.2d at 1301; Robinson v. Cahill, 351 A.2d 713 (N.J. 1975).

In New Jersey Division of Youth and Family Services, the issue

was whether the New Jersey Supreme Court could require the

legislature to disburse state funds to pay attorneys—appointed

to represent indigent parents and their minor children—who

were Clearly entitled to compensation. The court qualified the

principle that “[t]here can be no redress in the courts to

overcome either the Legislature’s «ction or refusal to take

action pursuant to its constitutional power over state

appropriations,” by noting an exception “when funds are

constitutionally mandated.” Youth & Family Serv.,571 A.2d

at 1301. Because the attorneys had no constitutional nght to

compensation, the court concluded the absence of a legislative

appropriation was fatal to their claims. Here, whether the

absence of an appropriation is fatal to Baraka’s claims depends

on whether payment of the honorarium was constitutionally

mandated.

D.

Baraka contends payment of the honorarium was

constitutionally mandated because New Jersey law vested in

him constitutionally protected property and liberty interests

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

claims he was denied these interests without due process of law

'> The court also rejected the argument that it should find the necessary

authorization in general statutory appropriation clauses. The court

explained:

{T]he statutory schemes for ail departments, divisions, agencies

and other units of State government include

general-appropriation clauses. Thus, under its theory, we couid

always find that general-appropriation clauses enable us to

compel the legislature to pay for whatever services we feel the

State should provide. We are not persuaded that all general

appropriation clauses necessarily give us such carte blanche.

New Jersey Div. of Youth & Family Serv. v. D.C., 571 A.2d 1295, 1300

(1990).

25a

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

withheld.

In evaluating a procedural due process claim, we first

determine “whether the asserted individual interests are

encompassed within the fourteenth amendment’s protection of

life, liberty, or property.” Alvin v. Suzuki, 227 F.3d 107, 116

(3d Cir. 2000) (quotations omitted). Property interests are

“created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as

state law—trules or understandings that secure certain benefits

and that support claims of entitlement to those benefits.” Bd.

of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972).

“To have a property interest in a benefit, a person clearly must

have more than an abstract need or desire for it. He must have

more than a unilateral expectation of it. He must, instead, have

a legitimate claim of entitlement to it.” Jd.

“[T he types of interests protected as ‘property’ are varied

and, as often as not, intangible, relating ‘to the whole domain

of social and economic fact.’” Logan v. Zimmerman Brush Co.,

455 U.S. 422, 430 (1982) (quoting Nat. Mut. Ins. Co.

Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter,

J., dissenting)). For example, individuals can have protected

property interests in positions of public employment. See Roth,

408 U.S. at 576-77 (“[A] public college professor dismissed

from an office held under tenure provisions and college

professors and staff members dismissed during the terms of

their contracts have interests in continued employment that are

safeguarded by due process.’’) (internal citations omitted); see

also Slochower v. Bd. of Higher Educ., 350 U.S. 551, 559

(1956); San Filippo v. Bongiovanni, 961 F.2d 1125, 1134-35

(3d Cir. 1992). Baraka does not contend his protected property

interest 1s based on an employment relationship with the State,

nor would he succeed if he did. As poet laureate he was a state

26a

appointee—not an employee.’ Rather, he contends § 52:16A-

26.9 created a “mutual understanding” with the State, which

gave rise to a constitutionally protected property interest. He

alleges both he and the State understood he was legally entitled

to the honorarium.

Baraka cites Stana v. School District of Pittsburgh, 775

F.2d 122 (3d Cir. 1985), for the proposition that a mutual

understanding can give rise to property interests. In Stana, we

explained, “[p]roperty interests .. . can also arise from written

or unwritten state or local government policies or from

‘mutually explicit understandings’ between a government

employer and employee.” /d. at 126. But we clarified “[i}n all

cases, the relevant inquiry is whether the claimant has a

“legitimate claim of entitlement.’” /d. (quoting Roth, 408 U.S.

at 577). Furthermore, the “mutually explicit understanding” in

Stana grew out of an employment relationship. In holding a

'* We look to New Jersey law in determining whether Baraka was a public

employee. See Bishop v. Wood, 426 U.S. 341, 344 (1976) (“[T]he

sufficiency of the claim of entitlement [to a property interest in employment]

must be decided by reference to state law.”). New Jersey courts use two

different tests to determine whether an individual qualifies as an employee.

See Lowe v. Zarghami, 731 A.2d 14, 19-20 (N.J. 1999). The ‘ control test”

considers the following factors: “(1) the degree of control exercised by the

employer over the means of completing the work; (2) the source of the

worker's compensation; (3) the source of the worker’s equipment and

resources; and (4) the employer’s termination rights.” /d. The “relative

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

of the worker upon the business he serves and the relationship of the nature

of his work to the operation of that business.” /d. at 20 (quotation omitted).

“Although used primarily in workers’ compensation cases,” this test is

appropriate in other cases as well, such as those “involving work performed

by professional employees,” and where the nature of work necessarily

involves independent, professional judgment. /d. at 20-21. Under either

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

over his work, provide him with facilities or resources, or pay him a regular

salary. Baraka was not economically dependent on the State, nor was his

work central] to the operation of any State business.

27a

school employee’s place on an employment eligibility list

constituted a protected property interest, we accepted plaintiffs

argument that the school district’s policy for maintaining the

list created a “‘mutually explicit understanding’ that a person

who earned a place on the eligibility list will not be removed

from the list for four years.” /d. at 126. We noted the Supreme

Court had “‘frequently recognized the severity of depriving a

person of the means of livelihood,” id. at 128, and reasoned

that Stana’s interest in remaining on the list was analogous to

the plaintiffs’ employment interests in Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985), where the

Supreme Court referred to “‘the significance of [an

employee’s] private interest in retaining employment.”” Stana,

775 F.2d at 128 (quoting Loudermill, 470 U.S. at 543). The

employment relationship was central to our decision in Stana.

Because Baraka did not hold a position of public employment,

Stana is inapposite.

Furthermore, § 52:16A-26.9 shows no sign of a “mutually

explicit understanding” that Baraka was entitled to the

honorarium upon accepting the appointment. The statute

provided for payment of an honorarium to the poet laureate,

who, during a two-year period, would “engage in activities to

promote and encourage poetry within the State.” N.J. Stat. Ann.

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

would receive the honorarium upon appointment. Nor did it

provide the poet laureate would be entitled to the honorarium

whether or not he completed his term.

Terms in New Jersey statutes not otherwise defined are to

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

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

payment or reward usually given as compensation for services

on which custom or propriety forbids any fixed business price

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

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

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

28a

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

create a “mutually explicit understanding” that Baraka was

legally entitled to the honorarium upon appointment, giving

rise to a property interest.

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

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

“absent some clear indication that the legislature intends to

_ bind itself contractually, the presumption is that ‘a law is not

intended to create private contractual or vested rights but

merely declares a policy to be pursued until the legislature shall

ordain otherwise.’”” Baraka, No. 04-1959, slip op. at 11

(quoting Nat'l R.R. Passenger Corp. v. Atchison, Topeka &

Santa Fe Ry. Co., 470 U.S. 451, 465-66 (1985)). The language

of § 52:16A-26.9 does not demonstrate an intent on the part of

the State to bind itself contractually. The statute provides

“(t]he poet laureate shall receive an honorarium.”

§ 52:16A-26.9.. “Honorarium” implies a voluntary payment

and not a contractual obligation. We see nothing in the statute

demonstrating the state intended to enter a formal contract with

Baraka.

In a different context, the Supreme Court held that if there

is no obligation to pay a benefit, there can be no legitimate

claim of entitlement to the benefit. In American Manufacturers

Mutual Insurance Company v. Sullivan, the Supreme Court

held that because the Pennsylvania Workers Compensation Act

entitles an employee with a valid claim to payment for

“reasonable” and “necessary” medical treatment, “disputes over

the reasonableness and necessity of particular treatment must

be resolved before an employer’s obligation to pay—and an

employee’s entitlement to benefits—arise.” 526 U.S. 40, 60

(1999) (emphasis in original). Until the employee has a

legitimate claim of entitlement to the benefit, there can be no

constitutionally protected property interest. Here, too, because

defendants were not obligated to pay—and Baraka was not

29a

entitled to receive—the honorarium, there can be no

constitutionally protected property interest.

Moreover, even if the statute did create a contractual

obligation, it would not confer a constitutionally protected

property interest on Baraka. Only certain state contracts create

protected property interests under the Fourteenth Amendment.

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

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

contracts that create protected property interests are those that

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

either extreme dependence in the case of welfare benefits, or

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

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

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

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

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

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

Here, the right Baraka alleges the statute conferred—an

honorarium—is neither a benefit on which Baraka relies in his

daily life, nor a contract terminable only for cause. At most,

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

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

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

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

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

property to protect those claims upon which people rely in their

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

Baraka also contends he has a constitutionally protected

interest in his reputation, of which he was deprived when his

position was eliminated." He alleges defendants caused

'S Baraka contends he has a property interest in his reputation. Generally,

if reputational harm implicates a constitutionally protected interest, it is a

liberty interest. See Paul v. Davis, 424 U.S. 693, 711 (1976); Kelly v.

30a

“irreparable damage to his reputation, embarrassment,

humiliation and emotional distress.” Reputational harm can

constitute a protected interest when coupled with an additional

deprivation of a protected right or interest.'© See Paul v. Davis,

424 U.S. 693, 711-12 (1976) (holding reputation alone is not

a constitutionally protected property or liberty interest); see

also Graham v. City of Philadelphia, 402 F.3d 139, 142 (3d

Cir. 2005); Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073,

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

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

constitute a deprivation of a protected property interest).

'© Baraka cites San Filippo for the proposition that “[w]henever a ‘person’s

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

government is doing to him,’ a property interest is involved and due process

requirements apply.” 961 F.2d at 1134 (quoting Roth, 408 U.S. at 572). In

Paul, the Supreme Court recited a nearly identical statement. See 424 U.S.

at 708 (“‘Where a person’s good name, reputation, honor, or integrity is at

stake because of what the government is doing to him, notice and an

opportunity to be heard are essential.””) (quoting Wisconsin yv.

Constantineau, 400 U.S. 433, 437 (1971)). The Court recognized this

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

person, without more, the procedural requirements of the Due Process

Clause of the Fourteenth Amendment are brought into play.” /d. But the

Court rejectec this reading, which would represent “a significant

broadening” of previcus cases. Jd. Instead, the Court read the phrase

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

the governmeiiial action taken in that case deprived the individual of a right

previously held under state law.” Jd. This right was “the right to purchase

or obtain liquor in common with the rest of the citizenry,” and the

governmental action in question was a state statute that allowed government

officials to post notices prohibiting sale of alcoholic beverages to certain

people (including the plaintiff) because of their history of problems with

alcohol. /d. The statute “significantly altered” the plaintiff's status under

State law, and “it was that alteration of legal status which, combined with the

injury resulting from the defamation, justified the invocation of procedural

safeguards.” /d. at 708-09. The Court’s conclusion that reputational harm

alone cannot form the basis of a due process claim was “reinforced by our

discussion of the subject” in Roth. Id. at 709.

3la

1077-78 (3d Cir. 1997). In Paul, the Supreme Court noted that

its case law did “not establish the proposition that reputation

alone, apart from some more tangible interests such as

employment, is either ‘liberty’ or ‘property’ by itself sufficient

to invoke the procedural protection of the Due Process Clause.”

Paul, 424U.S. at 701. We have noted some confusion whether

the additional “more tangible interest” must be “a protectible

property interest,” or whether “something less than a property

interest, independently protected by the Due Process Clause,

could be [] sufficient.” Ersek v. Twp. of Springfield, 102 F.3d

79, 83 n.5 (3d Cir. 1996); see Graham, 402 F.3d at 142 n.2.

We need not decide the issue here. Baraka has pled no

additional deprivation of a protected interest to couple with the

alleged injury to his reputation.’ On a Fed. R. Civ. P. 12(b)(6)

motion, we accept his allegations of reputational harm as true,

but we conclude he has not stated an actionable claim for

'? Moreover, to state a valid claim for deprivation of a protected interest

based on reputational harm, a plaintiff must allege harm that forecloses

future opportunities. In Roth, the plaintiff contended harm to his reputation,

resulting from the non-renewal of his contract, amounted to deprivation of

a protected liberty interest. The Court acknowledged that “nonretention in

one job . . . might make him somewhat less attractive to some other

employers.” Roth, 408 U.S. at 574 n.13. But it concluded this harm “would

hardly establish the kind of foreclosure of opportunities amounting to a

deprivation of ‘liberty.”” /d. In Unger, a plaintiff alleged harm to her

reputation based on discontinuation of a university’s graduate residency

program, to which she had been accepted. In addressing her claim for

deprivation of a protected liberty interest in her reputation, we noted she had

not alleged the university’s actions had “imposed upon her a stigma or other

disability that generally foreclosed her freedom to take advantage of other

educational opportunities.” 928 F.2d at 1396. In other words, she had not

established the “kind of foreclosure of opportunities” required by Roth. 408

U.S. at 574 n.13; see also Ersek, 102 F.3d at 84 (discussing the requisite

showing of future harm to establish deprivation of liberty based on harm to

reputation). Here, Baraka alleges defendants caused “irreparable damage

to his reputation, embarrassment, humiliation and emotional distress,” but

he does not specifically allege a foreclosure of future opportunities.

32a

deprivation of a constitutionally protected interest in his

reputation.

E.

Baraka also contends the District Court erred by

“completely ignor[ing]” the deprivation of his liberty interest.

He alleges defendants deprived him of his position and of the

honorarium to punish him for his views, depriving him of a

liberty interest without due process of law.

The liberty interests protected by procedural due process

are broad in scope, including

not merely freedom from bodily restraint but also the

right of the individual to contract, to engage in any of

the common occupations of life, to acquire useful

knowledge, to marry, establish a home and bring up

children, to worship God according to the dictates of

his own conscience, and generally to enjoy those

privileges long recognized . . . as essential to the

orderly pursuit of happiness by free men.

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

reputation can, in certain circumstances, constitute deprivation

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

Baraka has not properly alleged a protected interest in his

reputation. Baraka has not identified a protected liberty interest

of which he was deprived. Denial of continued public

employment can also constitute deprivation ofa liberty interest.

See Roth, 408 U.S. at 573. But Baraka was not employed by

the state. Accordingly, the District Court did not err in

declining to address his free speech claim separately from his

claim of a constitutionally protected property interest.

Nor can Baraka properly state a First Amendment

retaliation claim. Baraka contends he was denied a

benefit—the $10,000 honorarium—in retaliation for his First

Amendment expression. But Baraka cannot state a viable claim

33a

that defendants denied him the honorarium to punish him for

his views when defendants were not legally authorized to pay

the honorarium because no appropriation was ever made.

Accordingly, Baraka does not state a cognizable First

Amendment claim. The District Court did not err in holding

defendants did not deprive Baraka of a constitutionally

protected property or liberty interest, or infringe upon his First

Amendment nights.

F,

The District Court dismissed Baraka’s claims against

various unknown government defendants because Baraka did

not allege they engaged in specific behavior that contributed to

his harm. Furthermore, the District Court held that because

there is no respondeat superior liability under § 1983, the

named defendants could not be held liable for the actions of the

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

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

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

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

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

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

Baraka does not allege specific, personal involvement on the

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

Court did not err in dismissing the claims against them.

Baraka contends “the Complaint clearly alleges that these

[defendants] were part of ‘a concerted campaign. . . to remove

999

or terminate [him] from his state position.’” In his reply brief,

he adds “more detail will be possible” once he “is able to

obtain discovery to shed light on Defendants’ actions.”

Baraka’s vague references to the conduct of the unknown

defendants are insufficient to constitute allegations that state a

claim.

Moreover, Baraka’s claims against the unknown

defendants are barred by the Eleventh Amendment to the extent

34a

defendants are either state agencies or state officials sued in

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

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

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

are barred by the doctrine of legislative immunity to the extent

the claims are based on the involvement of these unidentified

defendants in the passage of the legislation abolishing the

position of poet laureate.

G.

Baraka contends the District Court erred in declining to

exercise pendent jurisdiction over his state law claims. The

District Court noted “[w]here the federal claims are dismissed

before trial, ‘the district court must decline to decide pendent

state claims unless considerations of judicial economy,

convenience, and fairness to the parties provide an affirmative

justification for doing so.’” Baraka, No. 04-1959, slip op. at 12

(quoting Borough of West Mifflin vy. Lancaster, 45 F.3d 780,

788 (3d Cir. 1995)).

We have held “a refusal to exercise pendent jurisdiction

over a state law claim after dismissal of all federal claims prior

to trial is ordinarily not an abuse of discretion.” Edelstein v.

Wilentz, 812 F.2d 128, 134 (3d Cir. 1987). Here, it was not an

abuse of discretion for the District Court to decline to exercise

pendent jurisdiction after determining the considerations

weighing in favor of pendent jurisdiction were not present.

IV.

As noted, Baraka contends he was punished by the

Governor and the New Jersey Legislature for speaking his

views—views that were perceived to be anti-Semitic. His

alleged punishment consisted of the elimination of the position

of New Jersey poet laureate, which Baraka then held.

On a motion to dismiss, we accept the allegations as

true—any set of facts will suffice, though we are not compelled

35a

to accept unwarranted inferences, unsupported conclusions or

legal conclusions disguised as factual allegations. Schuylkill

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

This case turns not on Baraka’s First Amendment right to

speak his mind, but rather on whether he had a protected legal

interest—constitutional or otherwise—in the continued

existence of the position of New Jersey poet laureate, and his

own holding of the post.

The Library of Congress began filling a position called

“Consultant in Poetry” in 1937. In 1985, Congress passed

legislation that changed the title of the post to United States

Poet Laureate Consultant in Poetry to the Library of Congress.

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

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

poets laureate earlier in the century, as early as 1919."* A

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

thirty-nine states that currently have a poet laureate,

twenty-nine legislatures have codified their state poet laureate

position; the remaining ten positions were created by executive

order of the governor. These posts are typically described as

“honorary,” sometimes include a statutory provision for a

modest stipend, but not always, and sometimes are left vacant.

Some states have designated specific poets as poet laureate,

either by executive order or legislation, and in several cases the

post has run its course when its holder has died. Some states

have codified a previously unofficial poet laureate post.

'® Detailed information on the history and current status of the poet laureate

post in each state is available on the web site of the Library of Congress at:

Main Reading Room, http://www.loc.gov/r/main/poets/current.hnml (last

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

available at: About the Position of Poet Laureate,

http://www.loc.gov/poetry/about_ laureate. html (last visited on March 17,

2007).

36a

In summary, the position has historically been created by

legislative or executive action. Thus, despite the undeniable

artistic and cultural benefits of having a poet laureate, we are

not aware that any state constitution requires the maintenance

of the position, nor that any provision of any officially created

poet laureate post protects it from appropriate official action

(legislative or gubernatorial) designed to terminate it.

The New Jersey Legislature created the post of poet

laureate through ordinary legislative action. The repeal of the

post resulted from ordinary legislative acts by legislators and

the governor. The statute contained no provision that protected

it from the ordinary legislative process.

Baraka, like any person, was free to speak his views. But

he had no protected legal interest in the maintenance of the

position of poet laureate of New Jersey.

V.

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

the District Court.

NYGAARD, J., dissenting.

I respectfully dissent. In my view, the majority holding

expands the legislative immunity privilege to insulate almost

every action taken by executive branth 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.”

'% There is no disagreement on this fact. What the majority specifically

holds is that the actions which fall within the legislative immunity doctrine

are Governor McGreevey's “orchestrat[ion] and direct[ion] [of] the New

37a

I therefore dissent from that portion of the majority opinion

which extends legislative immunity to former Governor

McGreevey and Chairperson Harrington.

History and precedent make two things clear: First, there

is no support for the claim that the protection afforded to

legislators applies coextensively to non-legislators. Thus, the

Majority’s implication that the fact that Governor McGreevey

and Ms. Harrington are not members of the New Jersey

legislature is immaterial; and that they were acting in a

legislative capacity when they “orchestrate[] and direct[]” bills

through the legislature stands starkly at odds with both

governing jurisprudence and the history of the doctrine.

Second, by extending the protections of legislative immunity to

nonlegislators who do more than propose legislation, but who

“orchestrate[] and direct{]” legislative activities, the majority

critically weakens the very foundation of the privilege,

portending far-reaching results for both the vitality of the

privilege and for its effect on the separation of powers.

Historically, the Speech and Debate Clause, from which

legislative immunity is derived, was intended to preserve the

independence and integrity of the Legislature from the

Executive. It was designed to prevent other branches of the

government from interfering with the legislators in the

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

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

° The Speech and Debate Clause in Article 1, Section 6, of our Constitution

is the product of a long lineage of free speech or debate guarantees that

began with the English Bill of Rights of 1689, continued on to some of the

first state constitutions, and also appeared in the Articles of Confederation.

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

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

during the debates of the Constitutional Convention and it was hardly

mentioned at all in the ratification debates. /d. Specifically, the Speech and

Debate Clause provides that, “for any Speech or Debate in either House,

38a

the Glorious Revolution in Britain, and throughout United

States history, the privilege has been recognized as an

important protection of the independence and integrity of the

legislature. In the American governmental structure the clause

serves the additional function of reinforcing the separation of

powers so deliberately established by the Founders.” United

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

(citing Story, Commentaries on the Constitution; I] The Works

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

Given that the doctrine of legislative immunity derives

from a clause located in Article I, I infer that its goal is to

protect the Legislative branch from improper and untoward

intrusions by non-legislators from either of the coordinate

branches of government. Indeed, even when the question arises

as to what conduct by legislators qualifies for immunity, the

Supreme Court has cautioned that, “the courts have extended

the privilege to matters beyond pure speech or debate in either

House, but only when necessary to prevent indirect impairment

of such deliberations.” Gravel v. United States, 408 U.S. 606,

625 (1972). Here, instead of protecting the legislature from

impairment of its deliberations, we are insulating executive

intrusions into the function and deliberations of the legislature

from suit. Importantly, the Supreme Court has specifically

instructed that:

the heart of the clause is speech or debate in either

House, and insofar as the clause is construed to reach

other matters, they must be an integral part of the

deliberative and communicative processes by which

Members participate in committee and House

proceedings with respect to the consideration and

passage or rejection of proposed legislation or with

[Senators and Representatives} shall not be questioned in any other Place.”

U.S. CONST. Art. I, Sect. 6, cl. 1; see also Youngblood v. Deweese, 352

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

39a

respect to other matters which the Constitution places

within the jurisdiction of either House.

Id. Legislative immunity, as derived from the Speech and

Debate Clause, is meant to apply to the legislative branch of

government, not all who prowl the legislative halls to

importune legislators on some pet cause or another.

The bedrock of our system of government is political

competition between the legislative and executive branches.

Put in more familiar parlance, Congress and the President

would “check” and “balance” each other. The Framers

believed that “the great problem to be solved” was to design

governing institutions that would afford “practical security”

against the excessive concentration of political power. The

Federalist Papers No. 48 (Madison). As Madison explained,

“a mere demarcation on parchment of the constitutional limits

of the several departments is not a sufficient guard against

those encroachments which lead to a tyrannical concentration

of all the powers of government in the same hands.” /d. at 308.

As Professors Levinson and Pildes have pointed out, “the

solution to this great problem was, instead, to link the

power-seeking motives of public officials to the interests of

their branches.” Daryl J. Levinson and Richard H. Pildes,

Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311,

2316-17 (June 2006). By giving “those who administer each

department the necessary constitutional means and personal

motives to resist encroachments of the others,” the Framers

hoped to create a system in which competition for power

among the branches would constrain each safely within its

bounds. /d. (citing The Federalist Papers No. 51 (Madison),

at 321-22).

Of course, it might be argued that the type of behavior at

«ssue "ere is akin to such acts as preparing investigative reports,

ad iressing a congressional committee, and speaking before a

legislative body in session, all of which are accorded the

40a

imprimatur of legislative immunity. But, it is not. We have

limited legislative immunity “to include activities that are an

integral part of the deliberative and communicative processes

by which Members participate in committee and House

proceedings with respect to the consideration and passage or

rejection of proposed legislation or with respect to other

matters which the Constitution places within the jurisdiction of

either House.” Youngblood, 352 F.3d at 840 (quoting Gravel,

408 U.S. at 625 (1972)) (my emphasis). Nonetheless and

conversely, legislative immunity will not extend “to acts that

are casually or incidentally related to legislative affairs but not

part of the legislative process itself.” Youngblood, 352 F.3d at

840 (quoting Brewster, 408 U.S. at 513). Thus, to me,

activities such as “orchestrat[ing] and direct[ing]” the New

Jersey legislature into passing a personally targeted piece of

legislation -— be they undertaken by a governor or ordinary

citizen — are activities which may be casually and incidentally

related to legislative affairs, but are not part of the legislative

process itself. I would not take garden variety lobbying

activity, even if undertaken by a state governor and his

representative, and place such activity under the absolute

protection of the privilege.

I agree with the majority that the New Jersey Constitution

permits the Governor to recommend legislation to the General

Assembly. But this does not support the majority’s conclusion

that the Governor’s actions in “recommending” legislation is

“formally legislative” and entitled to the protection of a

legislative privilege. In my view the Constitutional prescription

that a New Jersey governor may recommend legislation does

not provide Constitutional imprimatur for him or other non-

legislators, to “orchestrate{] and direct[]” the legislative

process. I respectfully submit that the doctrine’s scope as it

applies to non-legislators simply does not map as the majonty

would have it, from its application to legislators, and,

additionally, that there is no immunity for practices that merely

4la

relate to legislative activities. Instead, the central inquiry for

non-legislators is whether the official was performing

legislative functions, which the Supreme Court in Bogan v.

Scott-Harris defined as acts that were “integral steps in the

legislative process.” Bogan, 523 U.S. 44, 55 (1998) (citing

Edwards v. United States, 286 U.S. 482, 490 (1932)).”'

I also agree with the majority that formal aspects necessary

to the legislative process — introduction of a bill and signing

it into law — qualify for legislative immunity. But here, the

governor and his aide went far beyond that. We have

repeatedly cautioned that “a public official’s legislative

immunity from suit attaches only to those acts undertaken in a

legislative capacity. Jt is only with respect to the legislative

powers delegated to them by the state legislatures that [non-

legislative officials] are entitled to absolute immunity.”

Carver, 102 F.3d at 100 (my emphasis). “Absolute legislative

immunity attaches to all actions taken in the sphere of

legitimate legislative activity.” Bogan v. Scott-Harris, 523

U.S. 44, 54 (1998) (quoting Tenney v. Brandhove, 341 U.S.

367, 376 (1951)) (my emphasis). But the key questions

following Bogan are, what is legitimate — what is legislative?

Indeed, even for actual legislators, the Supreme Court has

rejected a reading of the doctrine that would cover everything

“related to the due functioning of the legislative process.”

United States v. Brewster, 408 U.S. 501,513 (1972). Immunity

includes “activities that are an integral part of the deliberative

and communicative processes by which Members participate in

committee and House proceedings with respect to the

?! The majority’s opinion ignores the question of whether McGreevey's and

Harrington’s actions are “integral steps in the legislative process,” focusing

instead on whether their actions were undertaken within the “sphere of

legislative activity.” See Bogan, 523 U.S. at 54. Many actions can be said

to take place within the sphere of legislative activity — including lobbying.

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

immunity.

42a

consideration and passage or rejection of proposed legislation

or with respect to other matters which the Constitution places

within the jurisdiction of either House.” Youngblood, 352 F.3d

at 840 (quoting Gravel v. United States, 408 U.S. 606, 625

(1972)). Conversely, legislative immunity will not extend “to

acts that are casually or incidentally related to legislative affairs

but noi part of the legislative process itself.” Youngblood, 352

F.3d at 840 (quoting Brewster, 408 U.S. at 513).

Because the roots of legislative immunity seek to protect

the quintessentially legislative process, the doctrine should

protect action that might be inhibited, frustrated or impaired by

the threat of suit where that action is central to the legislative

process. Viewed in this way, it is clear that broad extension of

the doctrine advocated by the majority to non-legislators’

actions does not show true fidelity to the underlying basis of the

doctrine, which is to protect the legislative process, and would

not follow the Supreme Court’s caution that the doctrine be

extended only when necessary to prevent impairment of the

legislative function. Accordingly, I believe that only actions

that are “integral steps in the legislative process,” acts that are

inextricably linked to, and necessary for, the passage of

legislation are entitled to protection. I conclude that the actions

averred in Baraka’s complaint are not “integral steps in the

legislative process,” and, therefore, I would reverse the District

Court.”

#2 The District Court grasped onto language contained within a 1994

District Court case, Hughes v. Lipscher, 852 F.Supp. 293 (D.N.J. 1994), for

the proposition that “[i}ndividuals who are not legislators but whose acts

have a substantial legislative nexus are also imbued with this absolute

legislative immunity.” Hughes, 852 F.Supp. at 296. To the extent that it

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

affirmatively rejected. Nowhere has this standard been explicitly advocated

er adopted, especially not in the case cited for it support, Gravel. The

“substantial nexus” test would envelop a much too broad set of behavior

under the doctrine, allowing non-legislators to claim legislative immunity for

43a

Finally, I point out that by concluding that McGreevey and

Harrington are not entitled to absolute legislative immunity, we

do not deprive them of other valid defenses. Qualified

immunity remains not only a robust defense, but is the

appropriate one where defendants are public officials in the

executive branch. See Dotzel v. Ashbridge, 438 F.3d 320, 326

n.3 (3d Cir. 2006). It may be true that McGreevey and

Harrington should be protected for their role in orchestrating

and directing the passage of the bill about which Baraka

complains; however, the appropriate defense for them is

qualified immunity — not absolute legislative immunity.

Hence, I must respectfully dissent.

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

or introducing of a bill) but also for acts that could be seen as lobbying,

politicking, and the like. The doctrine was plainly not intended to cover

such behavior, even for legislators.

44a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2361

AMIRI BARAKA,

Appellant

v.

JAMES E. McGREEVEY, individually;

*RICHARD J. CODEY, in his official capacity

as Acting Governor of the State of New Jersey;

STATE OF NEW JERSEY, a body corporate and politic;

NEW JERSEY STATE COUNCIL OF THE ARTS,

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

SHARON HARRINGTON, individually and in her

official capacity as Chairperson of the

New Jersey State Council on the Arts;

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

UNKNOWN AGENCIES and

GOVERNMENT ENTITIES 1-10, unknown to plaintiff

at this time, individually and in their official capacities

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

On Appeal from the United States District Court

for the District of New Jersey

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

(Honorable Garrett E. Brown, Jr.)

45a

Argued April 24, 2006

Before: SCIRICA, Chief Judge, NYGAARD, Circuit Judge,

and YOHN, District Judge®

JUDGMENT

This cause came to be heard on the record from the United

States District Court for the District of New Jersey and was

argued by counsel on April 24, 2006. On consideration

whereof, it is now hereby |

ORDERED and ADJUDGED by this Court that the order

of the District Court entered March 22, 2005, be, and the same

is hereby affirmed. Costs taxed against appellant. All of the

above in accordance with the opinion of this Court.

ATTEST:

/s/ Marcia M. Waldron

Clerk

DATED: March 21, 2007

/seal/

Certified as a true copy and issued in lieu

of a formal mandate on April 13, 2007

Teste: /s/ Marcia M. Waldron

Clerk, U.S. Court of Appeals for the Third Circuit

* The Honorable William H. Yohn Jr., United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

et ame A Me LOO. me

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AMIRI BARAKA,

Plaintiff, Civ. No. 04-1959 (GEB)

Vv.

JAMES E. McGREEVEY,

et al., : MEMORANDUM

Defendants. : OPINION

BROWN, District Judge

This matter comes before the Court upon the Defendants’

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief can be granted. This

Court has jurisdiction over this matter pursuant to 28 U.S.C.

§ 1331. The Court, having considered the parties’ submissions

and decided the matter without oral argument pursuant to Fed.

R. Civ. P. 78, and for the reasons set forth below, will grant

Defendants’ motion to dismiss.

I. BACKGROUND

Plaintiff Amiri Baraka (‘‘Plaintiff’ or “Baraka”) was

appointed by defendant Governor James E. McGreevey

(“Governor McGreevey’), in consultation with the defendant

New Jersey State Council on the Arts (“the Arts Council”), as

the Poet Laureate for the State of New Jersey on or about July

1,2002. Second Amended Complaint at 41 2 (hereinafter “4_”).

Plaintiff accepted the position with “the understanding that he

47a

would serve in that position for a two year period and with the

expectation of receiving an honorarium of $10,000 per year

from the State.”' 413. On or about September 19, 2002,

Plaintiff read his poem, “Somebody Blew Up America,” at the

Geraldine R. Dodge Poetry Festival in Stanhope, New Jersey.

The poem was his “poetic assessment of the tragic World Trade

Center terrorist attack on September 11, 2001.” 414. It

included the lines: “Who knew the World Trade Center was

gonna get bombed/Who told 4,000 Israeli workers at the Twin

Towers to stay home that day?/Why did Sharon stay away?” Id.

Governor McGreevey was allegedly outraged by the

“anti-Semitic” tone of the poem and publicly asked Plaintiff to

resign from his position as Poet Laureate. Governor

McGreevey’s spokesman, Kevin Davitt, issued a statement that

“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.”

q15. Plaintiff publicly refused to resign or apologize for the

poem and maintains that it is not anti-Semitic. 416

As a result of Plaintiff's refusal to resign, Governor

McGreevey allegedly directed defendant Sharon Harrington

(“Harrington”), the Chairperson of the Arts Council, not to pay

Plaintiff the honorarium. Plaintiff alleges that they

“commenced a concerted campaign . . . to remove or terminate”

his position as Poet Laureate. 418. The New Jersey Legislature

then passed legislation abolishing the position of Poet Laureate

" Section 52:16A-26.9 of the New Jersey Statutes Annotated provided, in

relevant part:

There is hereby established the New Jersey William Carlos

Williams Citation of Merit to be presented to a distinguished

poet from New Jersey who shall be considered the poet laureate

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

laureate shall receive an honorarium of $10,000.

NJ. STAT. ANN. § 52:16A-26.9 (West 2003), repealed by P.L. 2003

c. 123, §1 effective July 2, 2003.

48a

allegedly “at the urging, direction and request of [Governor

McGreevey] and the other [defendants].” 19. On or about

July 2, 2003, Governor McGreevey signed the law abolishing

the position of Poet Laureate, P.L. 2003, Chapter 123. 420.

Plaintiff now brings a civil rights action pursuant to 42

U.S.C. Sections 1983 and 1988 and 28 U.S.C. Section 2201 et.

seq., claiming: (1) that suspending the honorarium and

abolishing the position of Poet Laureate violated his First

Amendment rights, including his right to freedom of speech,

(2) that suspending the honorarium without a prior hearing

violated his right to due process under the Fourteenth

Amendment, and (3) various causes of action under the New

Jersey Constitution and New Jersey state law. Plaintiff seeks

payment of the $10,000 per year honorarium for two years,

immediate reinstatement to the position of Poet Laureate,

compensatory and punitive damages, and attorneys fees. The

defendants are Governor McGreevey, Harrington, the Arts

Council, the State of New Jersey, various John and Mary Does

and unknown governmental entities or agencies (collectively

referred to as “Defendants’’).

II. DISCUSSION

A. Standard for a Motion to Dismiss

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

may be granted only if, accepting all well-pleaded allegations

in the complaint as true, and viewing them in the light most

favorable to plaintiff, plaintiff is not entitled to relief. Oran v.

Stafford, 226 F.3d 275, 279 (3d Cir. 2000); Langford v. City of

Atl. City, 235 F.3d 845, 850 (3d Cir. 2000); Bartholomew v.

Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986). The Court may not

dismiss a complaint unless plaintiff can prove no set of facts

that would entitle him to relief. Conley v. Gibson, 355 U.S. 41,

45-46 (1957); Angelastro v. Prudential-Bache Sec., Inc., 764

F.2d 939, 944 (3d Cir. 1985), cert. denied, 474 U.S. 935

(1985). “The issue is not whether a plaintiff will ultimately

49a

prevail but whether the claimant is entitled to offer evidence to

support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236

(1974).

Under Rule 12(b)(6), the Court must “accept the

allegations in the complaint as true, and draw all reasonable

factual inferences in favor of the plaintiff. [The motion can be

granted] only ifno relief could be granted under any set of facts

that could be proved.” Turbe v. Gov’t V.L, 938 F.2d

427, 428 (3d Cir. 1991) (citing Unger v. Nat’l Residents

Matching Program, 928 F.2d 1392, 1394-95 (3d Cir. 1991));

see also Langford, 235 F.3d at 850; Dykes v. SE. Pa. Transp.

Auth., 68 F.3d 1564, 1565, n.1 (3d Cir. 1995), cert. denied, 517

U.S. 1142 (1996); Piecknick v. Commw. of Pa., 36 F.3d 1250,

1255 (3d Cir. 1994); Jordan v. Fox, Rothschild, O'Brien &

Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). A complaint may

be dismissed for failure to state a claim where it appears

beyond any doubt “that no relief could be granted under any set

of facts that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

A complaint should not be dismissed unless it appears

beyond doubt that “the facts alleged in the complaint, even if

true, fail to support the claim.” Ransom v. Marrazzo, 848 F.2d

.398, 401 (3d Cir. 1988). Legal conclusions made in the guise

of factual allegations, however, are given no presumption of

truthfulness. Papasan v. Allain, 478 U.S. 265, 286 (1986); see

also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d

Cir.1997) ( “[A] court need not credit a complaint’s ‘bald

assertions’ or ‘legal conclusions’ when deciding a motion to

dismiss.”’).

The State Council On The Arts and the Unknown

Defendants Are B By Th venth

Amendment

It is well established that the Eleventh Amendment

provides states, state agencies and state officials with immunity

from suits in federal court brought by citizens against them in

their official capacities. See Will v. Michigan Dept. of State

Police, 491 U.S. 58 (1989). Plaintiff concedes in his complaint

that the Arts Council is an agency of the State of New Jersey.

q 8. Therefore, Plaintiff's claims against the State of New

Jersey and the Arts Council are barred by the Eleventh

Amendment and must be dismissed.

Further, Plaintiff names unknown government employees,

agencies and/or entities as defendants. However, Plaintiff fails

to attribute any conduct to these unknown persons and or

entities. It is “well established that a defendant in a civil rights

case cannot be held responsible for a constitutional violation

which he or she neither participated in nor approved.” C.H. ex

rel. ZH_v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000). Further,

there is no respondeat superior liability under Section 1983. Id.

_at 202. Therefore, Governor McGreevey, Harrington and the

Arts Council cannot be held liable for the actions of such

unnamed persons or entitites. See Second Amended Complaint

Count V. Accordingly, all claims related to the conduct of

unknown government employees or entities must be dismissed.

C. Plaintiff's Claims Against McGreevey and

Harmngton Must Be Dismissed

1. M-:Greevey And Harrington Are Entitled to

Absolute Legislative Immunity From Plaintiff's

Claims For Damages And Prospective Relief

State legislators are absolutely immune from suit and

liability for their legislative activities. Tenney v. Brandhove,

Sla

341 U.S. 367 (1951); Youngblood v. DeWeese, 352 F.3d 836,

839 (3d Cir. 2003). Further, “[o]fficials outside the legislative

branch are entitled to absolute immunity when they perform

legislative functions.” Bogan v. Scott-Harris, 523 U.S. 44, 55

(1998). “In determining whether an official is entitled to

legislative immunity, we must focus on the nature of the

official’s action rather than the official’s motives or the title of

his or her office.” Gallas v. The Supreme Court of Penn., 211

f.3d 760, 773 (3d Cir. 2000) (citing Bogan, 523 U.S. at 54).

Plaintiff first argues that Governor McGreevey and

Harrington are not entitled to legislative immunity because

their actions were not “integral steps in the legislative process.”

Bogan, 523 U.S. at 55. However, courts have adopted a

flexible and pragmatic approach to determining whether a

defendant’s actions fall within “the sphere of legitimate

legislative activity;” legislative immunity is not limited to

debating, drafting or voting on legislation. See Larsen v.

Senate of Com. of Pa., 152 F.3d 240, 251 (3d Cir. 1998); see

e.g. Tenney, 341 U.S. at 379 (according legislative immunity

to state legislators accused of intimidating and or silencing a

witness by holding a hearing and encouraging prosecution of

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

(according legislative immunity to members of Congress in suit

challenging the refusal by the House to seat an elected

member). The gravamen of Plaintiff's complaint is that

McGreevey and Harrington “orchestrated and directed” the

New Jersey legislature to abolish the position of Poet Laureate.

These allegations clearly suggest that the defendants actively

participated in the legislative process.

Further, case law suggests that policy formulation and

introduction can constitute integral steps in the legislative

process. For example, in Bogan, the Supreme Court held that

an executive’s introduction of a budget and signing into law an

ordinance were formally legislative. Bogan, 523 U.S. at 55; see

also Hughes v. Lipscher, 852 F.Supp. 293, 298 (D.N.J. 1994)

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(holding that legislative immunity applies to aides involved in

the formulation of policy but not empowered to effect its

adoption). Here, Governor McGreevey and Harrington

allegedly convinced or compelled the New Jersey legislature to

pass legislation and then Governor McGreevey signed the

legislation. These actions undoubtedly have a substantial nexus

to the legislative process. See Hughes, 852 F. Supp. at 296

(“Individuals who are not legislators but whose acts have a

substantial legislative nexus are also imbued with this absolute

legislative immunity.”).

Plaintiff further contends that legislative immunity is

unavailable because the defendant’s actions “were not directed

at ‘traditional legislation,’ but aimed instead at punishing

Plaintiff for the exercise of his constitutional rights.” See

Plaintiff's Opposition Brief (“P1. Opp.”) at 14. As a threshold

matter, it is well settled that “[tJhe claim of an unworthy

purpose does not destroy the privilege.” Tenney, 341 U.S. at

377; Aitchison v. Raffiani, 708 F.2d 96, 98 (3d Cir. 1983)

(citing Tenney). Therefore, this Court need not examine

whether Governor McGreevey and Harrington engaged in

activity for the purpose of retaliating against the Plaintiff. This

Court need only determine “whether, stripped of all

considerations of intent and motive, [defendants’} actions were

legislative.” Bogan, 523 U.S. at 56.

Plaintiff's attempt to cast this case as an employment

action is unavailing. Plaintiff argues that legislative immunity

is unavailable where, as here, the actions are directed at a single

individual. However, the cases Plaintiff relies upon are

factually inapposite to the present case. Each of these cases

correctly holds that the decision to terminate an individual’s

employment is not a legislative act. See In re Montgomery

County, 215 F.3d 367, 376 (3d Cir. 2000) (holding that the

decision to eliminate a particular employee rather than the

employee’s position does not constitute a legislative act);

Acevedo-Garcia v. Roberto Vera-Monroig, 204 F.3d 1 (1* Cir.

53a

2000) (holding that selective layoffs of particular employees

does not constitute a legislative act); Canary v. Osborn, 211

F.3d 324 (6" Cir. 2000) (holding that termination of specific

employees does not constitute a legislative act). But Plaintiff's

employment was not terminated in this case. Here, the New

Jersey Legislature abolished the position of Poet Laureate. This

distinction proves dispositive.

In sharp contrast to employee personnel decisions, the

elimination of a public employment position does constitute a

legislative act. As the Court in Gallas emphasized, “the

elimination of a public employment position — as opposed to

the firing of a single individual — constitutes a ‘legislative’

act.” Gallas, 211 F.3d at 775. Unlike the hiring or firing of a

particular employee, the elimination of a public employment

position “may have prospective implications that reach well

beyond the particular occupant of the office.” Bogan, 211 F.3d

at 776. Here, the Legislature’s decision to abolish the position

is properly construed as embodying a policy decision to

discontinue the position of Poet Laureate. The implications of

_ this determination extend beyond Plaintiff's employment.

Therefore, it is clear that Governor McGreevey and

Harrington’s alleged involvement in the abolishment of

Plaintiff's position qualifies as legislative activity.

Further, Plaintiffs request for reinstatement is inconsistent

with the general policies underlying legislative immunity.

Although the principles of separation of powers and state

sovereignty do not require this Court to decline jurisdiction

over Plaintiff's reinstatement claims, “meddling in the internal

affairs of a state legislature [is] ‘startlingly unattractive.’” See

Larsen, 152 F.3d at 247 (citing Davids v. Akers, 549 F.2d 120,

123 (9" Cir. 1977)). In Larsen, an impeached Supreme Court

justice brought an action against numerous Senators for their

role in his removal from office and sought reinstatement. The

Third Circuit concluded that the Senators were entitled to

legislative immunity. The panel emphasized that

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[t}his is not a case where the court, should [the

plaintiff] be successful, need merely direct the seating

of a properly elected legislator (citations omitted) . . .

[the plaintiff] seeks reinstatement — nothing less than

that the individual Senators should rescind their guilty

vote on his impeachment. It is difficult to imagine a

remedy that would more directly interfere with the

role assigned exclusively to the Senators...

Larsen, 152 F.3d at 253-54. This Court would find itself in a

similarly precarious situation should it conclude that Plaintiff

is entitled to reinstatement. In 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 of the New

Jersey Statutes Annotated (“the Statute”) and enact legislation

recreating the position of Poet Laureate. This Court declines to

order such extraordinary relief. Such a decision would

seriously interfere with the role assigned exclusively to the

Legislature. Courts are not the place for resolution of

controversies attributing improper motives to legislative

conduct. See Tenney, 341 U.S. at 378 (“In times of political

passion, dishonest or vindictive motives are readily attributed

to legislative conduct and as readily believed. Courts are not

the place for such controversies. Self-discipline and the voters

must be the ultimate reliance for discouraging or correcting

such abuses.”’). Accordingly, this Court finds that Governor

McGreevey and Harrington are entitled to absolute legislative

immunity from Plaintiff's claims for both damages and

reinstatement. See Larsen v. Senate of Com. of Pa., 152 F.3d

240, 252-53 (3d Cir. 1998) (“Reexamination of the cited cases

discloses that in fact the Supreme Court in Consumers Union

did resolve the issue of the application of absolute legislative

immunity to claims for prospective relief and answered that

question in the affirmative.”) (citing Supreme Court of Va. v.

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

731-34 (1980)).

55a

2. Plaintiff Cannot State A Claim Against

McGreevey and Harrington For Not Paying

The Honorarium Because The Legislature Did

Not Appropriate The Funds

Even accepting Plaintiff's allegations as true, he cannot

recover the $10,000 honorarium because the legislature never

appropriated the funds for disbursement. Plaintiff's

expectation of an honorarium under the Statute does not

constitute a legally-enforceable entitlement without a

legislative appropriation of the funds. Article VII, Section 2,

Paragraph 2 of the New Jersey State Constitution, the

Appropriations Clause, “is the center beam of the State’s fiscal

structure.” Camden v. Byme, 82 N.J. 133, 146 (N.J. 1980).

Under the Appropriations Clause, monies only can be

withdrawn from the State Treasury by legislative appropriation.

In Camden, the New Jersey Supreme Court stated

unequivocally that “[t}here can be no redress in the courts to

overcome either the Legislature’s action or refusal to take

action pursuant to its constitutional power over state

appropriations.” Camden, 82 N.J. at 149.

Plaintiff contends that New Jersey law created a “mutually

explicit understanding” that he would receive the honorarium

such that it created a vested property interest protected by the

Fourteenth Amendment. However, the New Jersey Supreme

Court has explicitly recognized that

the judiciary is unable to compel a requested

appropriation even where a statutorily-defined

substantive right to the monies is _ established,

observing that although the particular statute clearly

gave petitioners a substantive right to the monies they

were seeking, the court could not compel payment

since ‘the Legislature ha[d] declined to appropriate

funds’ for such a purpose.

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Id. at 148 (citing Amantia v. Cantwell, 89 N.J. Super. 7, 12-15

(N.J. Super. Ct. App. Div. 1965)). The appropriation of funds

is within the exclusive dominion of the Legislature and “even

though certain . ... statutes . . . ‘dedicate’ state revenues for a

particular purpose, the Legislature has the inherent power to

disregard prior fiscal enactments.” Camden, 82 N.J. at 147.

Here, the Legislature never appropriated the funds for payment

of the honorarium. Coupled with the Legislature’s decision to

abolish the position of Poet Laureate, it is clear that the

Legislature did not intend to award Plaintiff the honorarium.

Moreover, it is clear that the Statute did not create a

binding obligation on the State to pay the honorarium. It is

well established that “absent some clear indication that the

legislature intends to bind itself contractually, the presumption

is that ‘a law is not intended to create private contractual or

vested rights but merely declares a policy to be pursued until

the legislature shall ordain otherwise.” Nat’l Railroad

Passenger Corp. v. Atchison, Topeka & Santa Fe Railway Co.,

470 U.S. 451, 465-66 (1985) (quoting Dodge v. Bd. of Ed., 302

U.S. 74, 79 (1937)); see also Spina v. Consolidated Police and

Firemen’s Pension Fund Comm., 41 N.J. 391, 400 (N.J. 1964)

(“He who asserts the creation of a contract with the state. . .

has the burden of overcoming the presumption.”) (quoting

Dodge, 302 U.S. at. 78). This presumption is based on the

proposition that “the principal function of a legislature is not to

make contracts, but to make laws that establish the policy of the

state.” Nat’l Railroad, 470 U.S. at 466 (citing Indiana ex rel.

Anderson v. Brand, 303 U.S. 95, 104-05 (1938).

In determining whether the Statute created a contractual

obligation to pay the honorarium, the Court must focus on the

language of the Statute. See Dodge, 302 U.S. at 78. “If [the

statute] provides for the execution of a written contract on

behalf of the state the case for an obligation binding upon the

state is clear.” Id. The Statute merely provided that “(t]he poet

laureate shall receive an honorarium of $10,000.” This

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language clearly falls short of contractually binding the state to

pay the honorarium. Further, an “honorarium” is commonly

defined as a voluntary reward that cannot be enforced at law.

See Webster’s Third New International Dictionary

(Unabridged) (defining “honorarium” as “an honorary payment

or reward usually given as compensation for services on which

custom or propriety forbids any fixed business price to be set

or for which no payment can be enforced at law”); Cunningham

v. Commr. of Internal Revenue, 67 F.2d 205 (3d Cir. 1933)

(“{IjJn common understanding, [honorarium] means voluntary

reward for which no remuneration could be collected by law”).

Therefore, it is clear that Plaintiff did not have a vested

property interest in the honorarium.

Accordingly, this Court finds that Plaintiff cannot state a

viable claim against Defendants for failure to pay the $10,000

honorarium. Plaintiff did not have a legal entitlement to the

honorarium and, in the absence of a legislative appropriation,

the Defendants did not have the legal authority to confer

payment.

D. This Court Declines To Exercise Supplemental

Jurisdiction Over Plaintiff's State Law Claims

In the absenc~ of a viable federal claim, this Court declines

to exercise jurisdiction over Plaintiff's remaining state law

claims. Where tne federal claims are dismissed before trial,

“the district court must decline to decide the pendent state

claims unless considerations of judicial economy, convenience,

and fairness to the parties provide an affirmative justification

for doing so.” Borough of West Mifflin v. Lancaster, 45 F.3d

780, 788 (3d Cir. 1995) (citations omitted). The Court finds

none of these considerations to be present in this case.

Accordingly, Plaintiff's state law claims are dismissed.

Ill. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss

is granted and Plaintiffs complaint is dismissed. An

appropriate form of order is filed here* ‘th.

s/ Garrett E. Brown, Jr.

GARRETT E. BROWN, JR., U.S.D.J.

59a

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AMIRI BARAKA, ;

Plaintiff, : Civ. No. 04-1959 (GEB)

¥.

JAMES E. McGREEVEY,

et al.,

Defendants.

BROWN, District Judge

This matter comes before the Court upon the Defendants’

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief can be granted; and

the Court, having considered the parties’ submissions and

decided the matter without oral argument pursuant to Fed. R.

Civ. P. 78; and for the reasons set forth in the Memorandum

Opinion accompanying this Order;

IT IS THIS 21st day of March 2005, hereby

ORDERED that Defendants’ motion to dismiss is

GRANTED; and

IT IS FURTHER ORDERED that the Clerk is c'rected to

mark this case CLOSED.

s/ Garrett E. Brown, Jr.

GARRETT E. BROWN, JR., U.S.D.J.

60a

STATUTORY PROVISIONS INVOLVED

New Jersey P.L. 1999, c. 228, codified at Stat. Ann.

§ 52:16A-26.9, provided before its repeal in July 2003:

CHAPTER 228

AN ACT establishing the New Jersey William Carlos Williams

Citation of Merit, supplementing Title 52 of the Revised

Statutes and making an appropriation.

BE IT ENACTED by the Senate and General Assembly

of the State of New Jersey:

C.52:16A-26.9 New Jersey William Carlos Williams Citation

of Merit.

1. 2. There is hereby established the New Jersey William

Carlos Williams Citation of Merit to be presented to a

distinguished poet from New Jersey who shall be considered

the poet laureate of the State of New Jersey for a period of two

years. The poet laureate shall receive an honorarium of

$10,000.

b. The New Jersey Council for the Humanities, in

consultation with the New Jersey State Council on the Arts,

shall biennially appoint and convene a panel of four persons

who are either distinguished poets or persons who represent a

range of stylistic approaches in the field of poetry. Each

member of the first such panel shall be from New Jersey. After

the term of the first poet laureate and each subsequent poet

laureate has expired, that person shall serve as one of the

members of the panel for a period of two years and participate

in the selection of the next poet laureate. The panel shall

submit to the Governor the name of the poet to whom the

citation of merit shal] be presented and who shall be considered

poet laureate of the State for the subsequent two years.

c. The Governor shall present biennially the New Jersey

William Carlos Williams Citation of Merit.

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d. The poet laureate shall engage in activities to promote

and encourage poetry within the State and shall give no fewer

than two public readings within the State each year while the

poet holds the laureate designation.

e. The New Jersey Council for the Humanities, in

consultation with the New Jersey State Council on the Arts,

shall establish such guidelines as are deemed necessary to

effectuate the purposes of this section.

2. There is appropriated $10,000 from the General Fund

to the Department of State to effectuate the purposes of this act. —

3. This act shall take effect immediately.

Approved October 4, 1999.

62a

New Jersey P.L. 2003, c. 123, provides:

CHAPTER 123

AN ACT concerning the State poet laureate and repealing

P.L. 1999, c. 228.

BE IT ENACTED by the Senate and General Assembly

of the State of New Jersey:

Repealer.

1. P.L. 1999, c. 228 (C.52:16A-26.9) is hereby repealed.

2. This act shall take effect immediately.

Approved July 2, 2003.

63a

.\preme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

(202) 479-3011

May 30, 2007

Mr. Robert Thomas Pickett

80 Main Street SUite 430

West Orange, NJ 07052

Re: Amir Baraka

v. James McGreevey, et al.

Application No. 06A1113

Dear Mr. Pickett:

The application for an extension of time within which to

file a petition for a wnt of certiorari in the above-entitled case

has been presented to Justice Souter, who on May 30, 2007

extended the time to and including July 19, 2007.

This letter has been sent to those designated on the

attached notification list.

Sincerely,

William K. Suter, Clerk

by /s/ Heather Trant

Heather Trant

Case Analyst