Opposition Brief — Baraka v. McGreevey (No. 07-79)

FILED

OCT 10 2097

7

OFFICE OF THE CLERK :

No. 07-79 SUPREME COURT, U.S._:

In the

Supreme Court of the United States

On Writ of Certiorari to the

of New Jersey

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

ANNE MILGRAM

ATTORNEY GENERAL OF NEW JERSEY

(609) 292-3212

*Counsel of Record

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

COUNTERSTATEMENT OF THE CASE

ARGUMENT

POINT I

CERTIORARI IS NOT WARRANTED BECAUSE THE

THIRD CIRCUIT CORRECTLY HELD, CONSISTENT

WITH THE DECISIONS OF THIS COURT AND THE

CIRCUIT COURTS, THAT THE GOVERNOR AND HIS

AIDE ENGAGED IN ACTS THAT WERE PART OF

THE LEGISLATIVE PROCESS WHERE, ACCORDING

TO THE PETITIONER, THEY ORCHESTRATED AND

DIRECTED THE PASSAGE OF LEGISLATION AND

THE GOVERNOR SIGNED THAT LEGISLATION

INTO LAW

A. The Third Circuit Properly Held That

Governor McGreevey And Harrington

Performed Legislative Functions In Directing

The Legislature’s Passage Of Legislation And

In Signing It Into Law

The Third Circuit Properly Followed Bogan v.

Scott-Harris, 523 U.S. 44 (1998) In Determining

That The New Jersey Legislature’s Enactment Of

Legislation Repealing The Poet Laureate Statute

Was A Substantively Legislative Act

POINT II

THE THIRD CIRCUIT’S DECISION THAT

LEGISLATIVE IMMUNITY BARS PETITIONER’S

CLAIM AGAINST DEFENDANTS IN THEIR

OFFICIAL CAPACITIES FOR INJUNCTIVE RELIEF —

REINSTATEMENT TO THE LEGISLATIVELY

REPEALED POST OF POET LAUREATE OF NEW

JERSEY — IS FULLY CONSISTENT WITH THE CASE

LAW OF THIS COURT AS WELL AS ALL CIRCUIT

A. The Law Is Settled That Legislative Immunity

Bars Official Capacity Claims For Injunctive

Relief

The Prospective Relief Sought By Petitioner Is

Barred By Legislative Immunity Because It

Would Require Legislators To Rescind Their

Votes On The Challenged Legislation And

Cast Votes Enacting New Legislation

CONCLUSION

ill

TABLE OF AUTHORITIES

CASES CITED

Acevedo-Garcia v. Vera-Monroig,

204 F.3d 1 (1* Cir. 2000)

Aitchison v. Raffiani,

708 F.2d 90 (3d Cir. 1983)

Alexander v. Holden,

66 F.3d 62 (4 Cir. 1995)

Alia v. Michigan Supreme Court,

906 F.2d 1100 (6" Cir. 1990)

Almonte v. City of Long Beach,

478 F.3d 100 (2d Cir. 2007)

Bechard v. Rappold,

287 F.3d 827 (9" Cir. 2002)

Bogan v. Scott-Harris,

523 U.S. 44 (1998)

Bryan v. City of Madison,

312 F.3d 267 (SthCir. 2000), cert. denied,

531 U.S. 1145 (2001)

Buckley v. Valeo,

424 US. 1 (1976)

Burge v. Parish of St. Tammany,

187 F.3d 452 (5™ Cir. 1999)

Canary v. Osborn,

211 F.3d 3224 (6" Cir. 2000)

iv

Colon Berrios v. Hernandez Agosto,

716 F.2d 85 (1* Cir. 1985)

Cutting v. Mazzey,

724 F.2d 259 (1* Cir. 1984)

De la Biblia Abierta v. Banks,

129 F.3d 899 (7" Cir. 1997)

Doe v. McMillan,

412 U.S. 306 (1973)

Dombrowski v. Eastland,

387 U.S. 82 (1967)

Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491 (1975)

Gallas v. Supreme Court of Penn.,

211 F.3d 71 (2d Cir. 2007)

Gravel v. Untied States,

408 U.S. 606 (1972)

Hansen v. Bennett,

948 F.2d 397 (7" Cir. 1991)

Haskell v. Washington Tp.,

864 F.2d 1266 (6" Cir. 1988)

Hughes v. Tarrant County,

948 F.2d 918 (5" Cir. 1991)

Kaahumanu v. County of Maui,

315 F.3d 1215 (9" Cir. 2003)

Kentucky v. Graham,

473 U.S. 159 (1985)

Vv

Larsen v. Senate of Commonwealth of Pa.,

152 F.3d 240 (3d Cir. 1998)

Minton v. St. Bernard Parish School Bd.,

803 F.2d 129 (5" Cir. 1986)

Powell v. McCormack,

395 U.S. 486 (1969)

Rateree v. Rockett,

852 F.2d 946 (7" Cir. 1988)

Risser v. Thompson,

930 F.2d 549 (7 Cir. 1991)

Scott v. Taylor,

405 F.3d 1251 (11 Cir. 2005)

Smiley v. Holm,

285 U.S. 355 (1932)

Spallone v. United States,

493 U.S. 265 (1990)

Star Distribution, Ltd. v. Marino,

613 F.2d 4 (2d Cir. 1980)

State Employees Bargaining Agent Coalition v. Rowland,

494 F.3d 71 (2d Cir. 2007)

Supreme Court of Virginia v. Consumers Union of the

U.S., Inc.,

446 U.S. 719 (1980)

Supreme Video, Inc. v. Schauz,

15 F.3d 1435 (7 Cir. 1994)

Tenney v. Brandhove,

341 U.S. 367 (1951)

Torres Rivera v. Calderon Serra,

412 F.3d 205 (1* Cir. 2005)

Turner v. Houma Mun. Fire and Police Civ. Serv.,

229 F.3d 478 (5™ Cir. 2000)

United States v. Brewster,

408 U.S. 501 (1972)

United States v. Johnson,

383 U.S. at 184

Youngblood v. DeWeese,

352 F.3d 836 (3d Cir. 2003)

STATUTES CITED

ail a aE as Sa 3

42 U.S.C. §1983

42 U.S.C. §1988

N.J. Stat. Ann. §52:16A-26.9

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BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TATE OF C

Petitioner asks this Court to review the Third Circuit’s

unexceptional application of the settled law which provides that

state officials who engage in acts that are part of the legislative

process are immune from suit. In this case, petitioner alleges

that a former Governor of New Jersey and his aide orchestrated

the passage of a statute, signed into law by the Governor, which

repealed a statute that had provided for the position of poet

laureate of New Jersey. The Third Circuit followed this Court’s

precedent and properly determined that legislative immunity

barred petitioner’s claims concerning the enactment of this

statute. Intervention by this Court is not warranted, where the

standards governing legislative immunity are clear and the

circuit courts have applied them consistently.

In 1999, the New Jersey Legislature enacted a statute

which established the “New Jersey William Carlos Williams

Citation of Merit” to be presented to a poet “who shall be

considered the poet laureate of the State of New Jersey for a

period of two years.” P.L. 1999, c. 228, codified at N.J. Stat.

Ann. §52:16A-26.9. The legislation provided that the poet

laureate would be selected by a panel convened by the New

Jersey Council for the Humanities, in consultation with the New

Jersey State Council on the Arts, and would receive an

honorarium of $10,000. /bid.

Pursuant to this statute, petitioner Amiri Baraka was named

the New Jersey poet laureate in July 2002 (Pa3).' On

September 19, 2002, Baraka publicly read one of his poems at

the Geraldine R. Dodge Poetry Festival in Stanhope, New

' “Pa” refers to the appendix to the petition for

certiorari.

2

Jersey. This poem,’ entitled “Somebody Blew Up America,”

commented on the World Trade Center attack of September 11,

2001 with the following lines:

Who found Bin Laden, maybe they Satan/Who pay

the CLA/Who knew the bomb was gonna blow/Who

know why the terrorists/Learned to fly in Florida, San

Diego/Who know why Five Israelis was filming the

explosion/And cracking they sides at the notion/ ...

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?

The poem, with its suggestion of Israeli complicity in the

September 11 terrorist attack, provoked an outcry and calls for

Baraka’s resignation as poet laureate. Petition for certiorari at

3-4 and Pa4. Baraka refused to resign or apologize for the

poem. Almost a year later, the New Jersey Legislature passed

a statute which repealed N.J. Stat. Ann. §52:16A-26.9, the

legislation which had provided for the New Jersey William

Carlos Williams Citation of Merit and the selection of a poet

laureate. Governor McGreevey signed this bill into law on July

2, 2003. P.L. 2003, c. 123.

On April 26, 2004 Baraka filed a complaint in the United

States District Court, District of New Jersey. The complaint

named as defendants Governor McGreevey; Sharon Harrington,

the Chairperson of the New Jersey State Council on the Arts;

the State; the Arts Council; and unknown individuals and

agencies.

? The complete text of the poem was attached to the

complaint filed by Baraka in this matter. It is also available at

the web site indicated in the Third Circuit’s opinion below at

Pa4, n.2.

3

The complaint, brought under 42 U.S.C. §§1983 and 1988

and 28 U.S.C. §2201 et seq., alleged that as a result of plaintiff's

refusal to resign as poet laureate, Governor McGreevey directed

defendant Harrington, as Chairperson of the Arts Council, not

to pay to plaintiff the statutorily-authorized $10,000

honorarium. It further alleged that the New Jersey Legislature

enacted legislation “orchestrated and directed” by the

Governor’s “office, agents and staff,” and that Governor

McGreevey signed this statute into law, abolishing the position

of poet laureate. The complaint claimed that these actions were

directed at plaintiff because of his poem, in violation of the

First and Fourteenth Amendments (Pa5). The complaint sought

payment of the honorarium, reinstatement to the poet laureate

position, damages and attorneys fees (Pa6).

Defendants moved to dismiss the complaint under

Fed. R. Civ. P. 12(b)(6), on the basis that accepting the

allegations for purposes of the motion as true, the complaint

failed to state a claim upon which relief can be granted. In an

opinion dated March 21, 2005, the Honorable Garrett E. Brown,

Jr., U.S.D.J., granted defendants’ motion to dismiss the

complaint (Pa46 to PaS9). Judge Brown held that the Eleventh

Amendment barred plaintiffs claims against the State, the Arts

Council and unknown government employees and entities. He

further determined that claims against the unknown employees

and entities must be dismissed because plaintiff failed to

attribute any conduct to them. Judge Brown also dismissed all

claims related to non-receipt of the $10,000 honorarium, based

on the conclusion that plaintiff had no contractual or other

legally-enforceable entitlement to such payment where the

Legislature did not appropriate funds for the honorarium.

Finally, he dismissed the claims concerning the abolition of the

poet laureate position on the basis that Governor McGreevey

and Harrington had absolute legislative immunity in this regard.

In an opinion dated Mach 21, 2007, the United States

Court of Appeals for the Third Circuit affirmed the dismissal of

the complaint. (Pal to Pa43), reported at 481 F.3d 187 (3d Cir.

2007). With regard to the legislative immunity accorded to

4

Governor McGreevey and Harrington, which is the sole aspect

of the decision below challenged by the petition for certiorari,

the court held that because the complaint alleged that the

actions of McGreevey and Harrington were legislative, they

were entitled to absolute immunity (Pa9). The Third Circuit

followed the rule established by the Supreme Court that

absolute legislative immunity shields from suit not only

legislators, but also public officials outside of the legislative

branch when they perform legislative functions. (Pa8, citing

Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998); Supreme Court

of Virginia v. Consumers Union of the U.S., Inc., 446 U.S. 719,

734 (1980); Tenney v. Brandhove, 341 U.S. 367 (1951)). The

Third Circuit stated that the issue here is whether the actions of

the defendants were “in the sphere of legitimate legislative

activity.” (Pa8, quoting Bogan and Tenney). It noted that in

Bogan, the Supreme Court held that legislative immunity

applied to a mayor and a city council member who

played central roles 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.

[Pa9-Pal 0].

The Third Circuit determined that Baraka had conceded

that Governor McGreevey and Harrington had similarly

“actively participated in the legislative process.” (Pa9). The

court found that Baraka’s claim, as stated in his complaint and

in his briefs, is that these two public officials had

“advocat[ed],” “promotefed],” and “orchestrated” the

legislation in question (Pa9, Pal0). The Third Circuit therefore

noted its agreement with the District Court’s conclusion that the

gravamen of the complaint is that the above two officials

5

“orchestrated and directed’ the New Jersey legislature to

abolish the position of Poet Laureate.’” (Pal4).

The court further determined that Baraka had “conceded”

that Governor McGreevey’s actions were “central, or integral,”

to the legislative process (Pal0). The court observed that the

New Jersey Constitution authorizes the Governor to recommend

legislation (Pal0). The court concluded further that the cause

of action here also necessarily encompassed the Governor’s

legislative action of signing the statute into law (Pal0-Pal 1).

Harrington, as the Governor’s appointee, was also entitled to

immunity for her role in assisting the Governor in the legislative

process (Pa9-Pal0).’

The Third Circuit also rejected petitioner’s argument that

the actions of the Governor and Harrington were administrative

rather than legislative. Relying on Bogan, the Court determined

that the applicable test for evaluating this claim is whether the

officials’ activities were both substantively and procedurally

legislative in nature (Pal3 to Pal4). The Court held that

pursuant to this standard, the defendants were properly afforded

legislative immunity. The Court reiterated that the actions of

which Baraka complained — the orchestration and direction of

the New Jersey Legislature’s enactment of a statute — were

procedurally legislative (Pal4). The Court concluded that these

actions also were substantively legislative because they

involved elimination, by statute, of a position that had been

legislatively created, thus constituting “the type of ‘policy-

making’ that traditional legislation entails....” (Pal 5).

> Judge Nygaard dissented on the basis that the act of

orchestrating and directing the enactment of legislation by a

governor and his aide does not fall within the protection of

legislative immunity. The majority opinion commented that

this view is contrary to the Supreme Court’s decisions in Bogan

‘ and Tenney (Pali ‘9 Pal9).

6

In this regard, the Court further stated:

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. [Pal7].

The Third Circuit also considered Baraka’s contention that

legislative immunity did not bar his claim for reinstatement as

poet laureate against the Governor and Harrington in their

official capacities. The Court indicated that it has interpreted

the Supreme Court’s opinion in Supreme Court of Virginia,

supra, as holding that in appropriate cases, legislative immunity

applies to claims for declaratory and injunctive relief against

officials in their official capacities (Pa20). The Court relied on

its prior opinion in Larsen v. Senate of Commonwealth of Pa.,

152 F.3d 240 (3d Cir. 1998), in which it considered a complaint

brought by a Pennsylvania Supreme Court justice against state

senators who had impeached him. In Larsen, the Third Circuit

held that the senators were entitled to absolute legislative

immunity. This immunity extended to the plaintiff’ s request for

reinstatement to his judicial position. The Third Circuit

explained here that in Larsen, it had determined that legislative

immunity barred the claim for reinstatement because such a

remedy, which would require the legislators to rescind their

impeachment votes, interfered with the legislative process. The

court concluded here:

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

7

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.” 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. [Pa21 (citations omitted)].

On July 19, 2007, Baraka filed a petition for certiorari with

regard to the Third Circuit’s grant of legislative immunity. By

letter dated September 10, 2007, the Supreme Court directed

that a response be filed on behalf of the respondents.

ARGUMENT

CERTIORARI IS NOT WARRANTED BECAUSE

THE THIRD CIRCUIT CORRECTLY HELD,

CONSISTENT WITH THE DECISIONS OF THIS

COURT, THAT THE GOVERNOR AND HIS AIDE

ENGAGED IN ACTS THAT WERE PART OF THE

LEGISLATIVE PROCESS WHERE, ACCORDING

TO THE CLAIM OF THE PETITIONER, THEY

ORCHESTRATED AND DIRECTED THE PASSAGE

OF LEGISLATION AND THE GOVERNOR SIGNED

THAT LEGISLATION LAW.

The Supreme Court has held that officials outside the

legislative branch have legislative immunity where they engage

in actions integral to the legislative process. See Bogan, supra.

The actions of Governor McGreevey and Arts Council

Chairperson Harrington which are challenged here —

orchestrating and directing the passage of legislation and

signing that legislation into law — are unquestionably acts

integral to the legislative process, pursuant to this Court’s

8

precedents as well as the consistent rulings of circuit courts

which have considered similar activities by officials.

In addition to being procedurally legislative, the activities

of the Governor and his aide were substantively legislative. In

Bogan, this Court unambiguously held-that legislation which

abolishes a position meets the substantively legislative criterion,

and that the intent underlying enactment the legislation may not

be considered. The Third Circuit properly followed this rule in

concluding that legislative immunity applied here.

A. The Third Circuit Properly Held That Governor

McGreevey And Harrington Performed Legislative

Functions In Directing The Legislature’s Passage Of

Legislation And In Signing It Into Law.

It has been settled by the Supreme Court that legislative

immunity applies both to legislators and other public officials

when they perform legislative functions. Bogan, supra, 523

U.S. at 55; Supreme Court of Virginia, supra, 446 U.S. at 734.

According to the Supreme Court, whether such immunity

applies requires a determination as to whether the officials’

actions were ““‘in the sphere of iegitimate legislative activity.’”

Bogan, supra, 523 U.S. at 54, quoting Tenney, supra, 341 U.S.

at 376, The standard which governs this inquiry, according to

this Court, is that legislative immunity applies to activities that

are “pat cf the legislative process,” as distinguished from those

that are “casually or incidentally related to legislative affairs.”

United States v. Brewster, 408 U.S. 501, 516 (1972). See also

Gravel v. United States, 408 U.S. 606, 625 (1972).

The overarching principle is that an activity is part of the

legislative process for immunity purposes where it is, as the

Supreme Court has stated with regard to Congress, “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 of proposed legislation

or with respect to other matters which the Constitution places

within the jurisdiction of either House.” /d at 625. The

9

immunity enjoyed by members of Congress for their legislative

actions is equivalent to the legislative immunity accorded to

state and local officials. See Bogan, supra, and Tenney, supra.

Based on this standard, the Court has identified examples of

activities that are part of the legislative process for immunity

purposes, such as voting for legislation or a resolution,

preparing investigative reports, addressing a legislative

committee or body, introducing a budget and signing or vetoing

legislation. See Bogan, supra; Gravel, supra; Powell v.

McCormack, 395 U.S. 486 (1969); Doe v. McMillan, 412 U.S.

306 (1973); United States v. Johnson, 383 U.S. 169, 184

(1966). See also Almonte v. City of .ong Beach, 478 F.3d 100,

107 (2d Cir. 2007) (legislators’ meetings with interested parties,

including executive officers, concerning pending legislation);

Aitchison v. Raffiani, 708 F.2d 90 (3d Cir. 1983) (borough

attorney’s advising legislative body with regard to drafting

ordinance).

In contrast, activities that are not considered being part of

the legislative process include services performed for

constituents, such as assisting in procuring government

contracts; sending newsletters to constituents; issuing news

releases; and delivering speeches outside of Congress. United

States v. Brewster, supra, 408 U.S. at 512. The Seventh Circuit

cases upon which petitioner principally relies (petition at 13),

further illustrate the distinction between legislative actions and

those that are “incidentally related to legislative affairs.”

Hansen v. Bennett, 948 F.2d 397 (7" Cir. 1991), cert. den. 504

U.S. 910 (1992), involved the latter type of activity. A mayor’s

action in ordering the removal of the plaintiff from a city

council meeting was deemed non-legislative. Jd. at 400. See

also id. at 402-03 (emphasizing that the portion of the meeting

from which plaintiff was ejected did not involve discussion of

any legislative issues). In contrast, in De la Biblia Abierta v.

Banks, 129 F.3d 899 (7® Cir. 1997), the court held that an

alderman’s request to postpone a legislative hearing was

entitled to legislative immunity; such action was “inextricably

intertwined with the legislative process of introducing and

10

voting on the zoning ordinances and cannot be separated from

those legislative functions.” /d at 906.

The Third Circuit appropriately followed Supreme Court

precedents in concluding that Governor McGreevey and

Harrington engaged in acts that were integral parts of the

legislative process, rather than in conduct only incidentally

related to legislative affairs. Indeed, the complaint here

specifically contends that these defendants performed acts

integral to the legislative process by orchestrating and directing

the Legislature’s passage of the statute in question. Moreover,

the complairt states that Governor McGreevey signed the

legislation into law.

The act of a Governor in signing a statute into law is

unquestionably an integral step in the legislative process for

purposes of legislative immunity. Bogan, supra; Edwards v.

U.S., 386 U.S. 482, 490 (1932); Smiley v. Holm, 285 U.S. 355,

372-73 (1932). Indeed, petitioner does not dispute this.

Petition at 13. Since it is also undisputed that Governor

McGreevey signed the statute here into law, the Third Circuit

properly granted legislative immunity.

Petitioner’s characterization of the Governor’s and

Harrington’s other actions as merely involving the

communication of their views to legislators (Petition at 15), is

flatly contradicted by the complaint itself, which says that these

officials orchestrated and directed the Legislature to enact the

legislation. The Third Circuit determined that these allegations

constituted a concession by petitioner that the officials’ actions

were integral to the legislative process (Pal0). Petitioner

cannot now disavow his complaint’s allegations.

A Governor’s orchestration of the Legislature to pass a

legislative measure that he supports is an activity that is

“quintessentially legislative.” See Bogan, supra, 523 U.S. at

55. The Third Circuit’s determination rests on the inarguable

premise that a Governor and his aides are critical participants in

the process of securing enactment of legislation. The New

11

Jersey Constitution requires that every bill that passes the

Legislature shall be presented to the Governor, who may sign or

veto it. N.J. Const. art. V, §1, 914. In view of the Governor’s

power to veto legislation, his position on pending bills must be

accommodated by the Legislature. Cf. Buckley v. Valeo, 424

U.S. 1, 121 (1976) (“The President is a participant in the law-

making process by virtue of his authority to veto bills enacted

by Congress”). See also N.J. Const. art. V, §1, 912 (governor’s

power to recommend measures to the Legislature). Thus, the

Governor and Harrington were not mere “lobbyists.” As the

Third Circuit observed here, such a characterization “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.” (Pal9). Petitioner

himself recognized this in his complaint, which claims that

Governor McGreevey and Harrington directed and orchestrated

the Legislature’s enactment of legislation sought by the

Governor.

In short, the conclusion that the defendants’ activities were

integral steps in the legislative process is fully in accord with

well-settled law. Indeed, this result is compelled by the

essential purpose of legislative immunity as expressed by this

Court. Absolute legislative immunity is designed to protect the

“deliberative and communicative processes” which are at the

heart of the enactment of legislation. Gravel v. United States,

supra, 408 U.S. at 625. As a result, legislative immunity

affords protection against suits which inquire into how ... [the

legislator] spoke, how he debated, how he voted, or anything he

did in the chamber or in committee....” Brewster, supra, 408

U.S. at 526. This is precisely the inquiry petitioner seeks here

with regard to defendants’ actions in directing and orchestrating

the enactment of the legislation in question.

12

The Third Circuit Properly Followed

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

Determining That The New Jersey

Legislature’s Enactment Of Legislation

Repealing The Poet Laureate Statute Was

A Substantively Legislative Act.

As stated by petitioner, and as recognized by the Third

Circuit here, the Supreme Court has held that legislative

immunity requires that the act in question be legislative both

substantively and procedurally. The Third Circuit applied this

two-part test in concluding that Governor McGreevey and

Harrington are entitled to legislative immunity. Petitioner’s

claim that the Third Circuit used an incorrect test, or one that

differs from that used by other circuits, is without merit.

Petitioner’s untenable argument is based on cases which

involve markedly different facts from the situation in this case.

The Third Circuit’s application of the appropriate test to the

facts presented here was fully consistent with this Court’s ruling

in Bogan and the decisions of the circuit courts following

Bogan.

In Bogan, the Supreme Court conferred legislative

immunity in a case that is factually similar to the present one.

The plaintiff was the sole employee of the Department of

Health and Human Services of the City of Falls River. The City

adopted a budget ordinance which eliminated this department

and thereby terminated plaintiff's employment. She filed a

§1983 suit against the mayor and members of the city council,

based on their roles with regard to enactment of the ordinance.

The case was tried and the jury found defendants liable on the

ground that plaintiff's constitutionally-protected speech was a

substantial or motivating factor in the elimination of her

position by way of the ordinance. 523 U.S. at 47-48.

The Supreme Court reversed and held that the defendants

were entitled to absolute immunity. The Court stated that for

13

purposes of legislative immunity analysis, a court should not

examine the defendants’ intent, but instead must resolve “the

logically prior question of whether their acts were legislative.

Whether an act is legislative turns on the nature of the act,

rather than on the motive or intent of the official performing it."

Id. at 54. With regard to the mayor, the Court concluded that

his actions of introducing the budget and signing the ordinance

into law were legislative. Jd. at 55. The Court emphasized that

"officials outside the legislative branch are entitled to legislative

immunity when they perform legislative functions," and the

mayor's "actions were legislative because they were integral

steps in the legislative process." Jbid.

The Court further determined that the defendants’ actions

were shielded from suit because the ordinance was

substantively legislative.‘ As noted above, the Court

emphasized that the focus is on the nature of the challenged

action, rather than on the intent underlying it. According to the

Court, the ordinance “bore all the hallmarks of traditional

legislation." Jbid. The Court explained:

The ordinance reflected a discretionary, policymaking

decision implicating the budgetary priorities of the

city and the services the city provides to its

constituents. Moreover, it involved the termination of

a position, which, unlike the hiring or firing of a

particular employee, may have prospective

implications that reach well beyond the particular

occupant of the office. And the city council, in

* Petitioner incorrectly states the Court in Bogan

“reserved judgment” on the issue of whether an activity must

be substantively legislative (Petition at 16). Instead, the Court

addressed this issue and determined that the acts of defendants

were both procedurally and substantively legislative. Jd. at 55.

The Third Circuit opinion below expressly stated that this is its

understanding of Bogan, and therefore the Third Circuit applied

the two-part “procedural and substantive” test here (Pal3, n.8).

14

eliminating DHHS, certainly governed "in a field

where legislators traditionally have power to act.”

Tenney, supra, at 379, 72 S.Ct., at 789. [/bid. }.

The Third Circuit applied precisely these standards here in

determining that the New Jersey statute in question fulfills the

substantively legislative test as set forth in Bogan. The statute

of which plaintiff complains, in repealing N.J. Stat. Ann.

§52:16A-26.9, plainly constituted “traditional legislation.” In

enacting it, the Legislature made the policy determination that

New Jersey should not continue to have the position of poet

laureate and should no longer award the William Carlos

Williams citation and an honorarium every two years. The

termination of the award program and the poet laureate position

has "prospective implications that reach well beyond the

particular occupant of the office." See Bogan, supra, 523 U.S.

at 55. The repeal statute had numerous prospective

implications that are the hallmarks of legislation: it abolished

a position and an award program; it had the budgetary impact

of eliminating the need to appropriate funds in the State budget

for an honorarium; and it relieved the State Arts Council of the

duty to convene, on a biennial basis, poet laureate selection

panels of the New Jersey Council for the Humanities.

Thus, the decision here is fully consistent with the rule that

the elimination of a position by legislation is a substantively

legislative act because of its prospective effect beyond the

holder of that office. See also State Employees Bargaining

Agent Coalition v. Rowland, 494 F.3d 71 (2d Cir. 2007); Gallas

v. Supreme Court of Penn., 211 F.3d 760, 776 (3" Cir. 2000);

Rateree v. Rockett, 852 F.2d 946 (7 Cir. 1988). There is no

disagreement among the circuits as to how to determine

whether an act is substantively legislative. The Supreme

Court’s standards in this regard are clear, and consequently the

lower courts have had no difficulty in applying them.

The cases cited by petitioner do not demonstrate a conflict

between the Third Circuit decision below and other circuit court

decisions. Instead, these cases involve facts which are

15

materially different from the facts here, and therefore legislative

immunity did not apply in those matters. Unlike the present

case, the cases cited involve administrative actions taken

against an individual, rather than the legislative action of

elimination of a position. Acevedo-Garcia v. Vera-Monroig,

204 F.3d 1 (1* Cir. 2000) (selective layoffs of particular

employees); Canary v. Osborn, 211 F.3d 324 (6" Cir. 2000)

(termination of specific employees); See also Bryan v. City of

Madison, 213 F.3d 267 (5® Cir. 2000), cert. denied, 531 U.S.

1145 (2001) (holding that municipal decisions concerning

development applications are not legislative); Haskell v.

Washington Tp., 864 F.2d 1266 (6" Cir. 1988) (enforcement of

zoning ordinance); Cutting v. Mazzey, 724 F.2d 259 (1® Cir.

1984) (conditions imposed on a developer’s application);

Hughes v. Tarrant County, 948 F.2d 918 (5™ Cir. 1991) (denial

of an employee’s request to be reimbursed for attorney fees);

Alexander v. Holden, 66 F.3d 62 (4" Cir. 1995) (“this case does

not involve the elimination of a position....”); Kaahumanu v.

County of Maui, 315 F.3d 1215 (9" Cir. 2003) (denial of permit

request to a specific applicant); Bechard v. Rappold, 287 F.3d

827 (9" Cir. 2002) (termination of employee seventeen months

before eliminating his position).

It is apparent that the cases cited by petitioner underscore

the point that the Third Circuit correctly followed Bogan and

other case law in concluding that the New Jersey statute was a

substantively legislative action.

Plaintiff also attempts to avoid legislative immunity by

claiming that there is no such immunity where, as here, it is

alleged that defendants’ legislative actions were motivated by

the intent to abridge plaintiff's First Amendment rights.

However, as discussed above, legislative immunity applies

without regard to considerations of defendants’ intent or

motive. Bogan, supra, 423 U.S. at 55; Youngblood v. DeWeese,

352 F.3d 836, 841 (3d Cir. 2003). Indeed, petitioner relies upon

cases which applied this rule and granted legislative immunity

in the face of a claim that the official acted with ill-intent

toward the plaintiff. See Torres Rivera v. Calderon Serra, 412

16

F.3d 205, 213 (1* Cir. 2005) (Petition at 13, n.6) (granting

legislative immunity to Governor for signing legislation and

rejecting argument that this immunity may be abrogated if the

legislation’s enactment was motivated by impermissible intent);

De la Biblia Abierta v. Banks, supra, 129 F.3d at 903 (petition

at 13). In the other cases upon which plaintiff relies, the courts

considered defendants’ intent only after determining — as Bogan

requires — that the nature of the act in question was not

substantively legislative. In the present matter, in contrast, the

substantively legislative nature of the statute forecloses

consideration of the alleged improper intent underlying

enactment of this legislation.

Petitioner’s contention that immunity does not apply

because the statute in question, as opposed to the individual

defendants, had the purpose of removing him from the poet

laureate position simply is not supported by Bogan. The

plaintiff in Bogan made precisely the same claim in alleging

that the city council had enacted an ordinance aimed exclusively

at removing her from office due to the exercise of her First

Amendment rights. A jury found that the ordinance was so

motivated and the District Court denied legislative immunity on

the basis that the ordinance “was an individually-targeted

administrative act....” 523 U.S. at 48. The Supreme Court

firmly rejected this approach and held that the only relevant

consideration is whether the defendant’s act is legislative. /d.

at 54. See also State Employees, supra, 494 F.3d at 90.

Thus, the Third Circuit correctly determined that legislative

immunity applied. No circuit court conflict, deviation from

Supreme Court precedent, or unsettled legal issue is presented

here.

17

Il. THE THIRD CIRCUIT’S DECISION THAT

LEGISLATIVE IMMUNITY BARS PETITIONER’S

CLAIM AGAINST DEFENDANTS IN THEIR

OFFICIAL CAPACITIES FOR INJUNCTIVE

RELIEF -- REINSTATEMENT TO THE

LEGISLATIVELY REPEALED POST OF POET

LAUREATE OF NEW JERSEY — IS FULLY

CONSISTENT WITH THE CASE LAW OF THIS

COURT AS WELL AS ALL CIRCUIT COURTS. _

In accordance with the holding of this Court in Supreme

Court of Virginia, the Third Circuit held that legislative

immunity barred petitioner’s official capacity claims for

injunctive relief. Contrary to petitioner’s assertion, in fact there

is no conflict among the circuit courts with regard to this

principle of law; all circuit courts have agreed with the Third

Circuit that Supreme Court of Virginia extends legislative

immunity to prospective relief sought against officials in their

official capacity.

In addition, there is another reason why Supreme Court

review is unwarranted. Petitioner seeks reinstatement to a

position which no longer exists by virtue of the legislation

repealing the poet laureate statute. Accordingly, as the Third

Circuit appropriately recognized, the relief sought would

require New Jersey legislators to rescind their votes on the

repeal statute and to vote in favor of re-enactment of the former

statute. Such judicial intrusion into legislative affairs is plainly

contrary to this Court’s legislative immunity jurisprudence.

A. The Law Is Settled That Legislative

Immunity Bars Official Capacity Claims

In Supreme Court of Virginia v. Consumers’ Union, 446

U.S. 719 (1980), plaintiffs challenged attorney disciplinary

rules promulgated by the Supreme Court of Virginia and sued

the Virginia Court and its chief justice. The chief justice was

sued in both his individual and official capacity. Jd. at 724.

18

This Court held that the Virginia Court and its chief justice

were entitled to legislative immunity with regard to their

promulgation of the rules. Jd. at 732-34. The Court observed

that pursuant to its precedents, the Speech or Debate Clause

“immunizes Congressmen from suits for either prospective

relief or damages,” id. at 731, with the purpose of protecting

legislators “‘not only from the consequences of litigation’s

results but also from the burden of defending themselves.’” /d.

at 732, quoting Dombrowski v. Eastland, 387 U.S. 82, 85

(1967). The Court noted that the state legislators enjoy

immunity similar to that accorded to Congressmen under the

Speech or Debate Clause, citing Tenney v. Brandhove, supra.

Ibid. The Court stated that Tenney held that §1983 did not

abrogate the common law immunity of state legislators, and

although Tenney involved an action for damages, “its holding

is equally applicable to §1983 actions seeking declaratory or

injunctive relief.” bid. The Court emphasized that in Tenney,

We did not distinguish between actions for damages

and those for prospective relief. Indeed, we have

recognized elsewhere that ‘a private civil action,

whether for an injunction or damages, creates a

distraction and forces [legislators] to divert their time,

energy, and attention from their legislative tasks to

defend the litigation.’ [/d at 733, quoting Eastland

v. U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975].

For these reasons, the Court held that the Virginia Court and its

members were immune from suit on the basis of legislative

immunity. /d. at 734.

Thus, Supreme Court of Virginia unambiguously holds that

legislative immunity bars official capacity claims for injunctive

relief. Every circuit court which has considered the issue has

understood this to be the rule established in Supreme Court of

Virginia. Most recently, in State Employees Bargaining Agent

Coalition v. Rowland, 494 F.3d 71 (2d Cir. 2007), the Second

Circuit, in considering the legislative immunity of Connecticut

officials (including the Governor) for abolition of state

19

employee positions in the budget process, held that Supreme

Court of Virginia established the rule that legislative immunity

bars claims for injunctive relief against state officials in their

official capacities. Jd. at 83-84. The Court characterized that

Supreme Court opinion as “squarely-applicable precedent.” Jd.

at 86-87. It also noted that in Supreme Court of Virginia, the

Supreme Court cited approvingly the Second Circuit’s decision

in Star Distribution, Ltd. v. Marino, 613 F.2d 4 (2d Cir. 1980),

which held that legislative immunity bars an action for

declaratory and injunctive relief. Jd at 24, citing Supreme

Court of Virginia, 446 U.S. at 732 n.10.

The Eleventh Circuit has similarly held that Supreme Court

of Virginia requires the conclusion that legislative immunity

covers official capacity prospective relief claims. Scott v.

Taylor, 405 F.3d 1251, 1253-56 (11™ Cir. 2005). The Third

Circuit, of course, reached the same conclusion in the present

case. In addition, it has previously determined 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.” Larsen, supra, 152 F.3d at 252. The First, Sixth,

and Seventh Circuits have reached the same result. Risser v.

Thompson, 930 F.2d 549, 551 (7 Cir. 1991); Alia v. Michigan

Supreme Court, 906 F.2d 1100, 1101 (6" Cir. 1990) (legislative

immunity “applies whether the relief sought is money damages

or injunctive relief’); Colon Berrios v. Hernandez Agosto, 716

F.2d 85, 91 (1* Cir. 1985).

In contrast, petitioner is unable to cite a single reported

case in which a circuit court has construed Supreme Court of

Virginia differently and has held that legislative immunity does

not bar official capacity injunctive relief claims. Petitioner

instead points to cases which indicate that other immunities,

such as prosecutorial and qualified, do not apply to official

capacity suits. See Turner v. Houma Mun. Fire and Police Civ.

Serv., 229 F.3d 478, 483 (5 Cir. 2000); Burge v. Parish of St.

Tammany, 187 F.3d 452, 466 (5" Cir. 1999); Supreme Video,

20

Inc. v. Schauz, 15 F.3d 1435, 1442 (7 Cir. 1994). These cases

have no relevance to the settled law which pertains specifically

to the protection from suit, not just damages, afforded by

legislative immunity.

Accordingly. there is no circuit court conflict, or indeed

any uncertainty in this area of the law. The circuit courts have

consistently followed the unequivocal holding of Supreme

Court of Virginia that legislative immunity cuts off official

capacity injunctive relief claims which are based on legislative

conduct.

Petitioner’s reliance on dicta in Kentucky v. Graham, 473

U.S. 159 (1985) is unavailing. Petitioner places undue weight

on a comment in that opinion to the effect that personal

immunity defenses are unavailable in an official capacity action.

Id. at 167. As the Second Circuit has noted, this general dicta

plainly does not overrule the “squarely-applicable precedent” of

Supreme Court of Virginia on the specific question of

legislative immunity in an official capacity action. State

Employees, supra. \ndeed, petitioner’s interpretation of

Kentucky v. Graham is contradicted in the Court’s opinion,

where the Court observed that in Supreme Court of Virginia it

considered a suit against the Virginia Court and chief justice “in

his official capacity” and “we held that absolute immunity

shielded these defendants for acts taken in their legislative

capacity.” Jd. at 164. See also Spallone v. United States, 493

U.S. 265, 278 (1990) (“We applied this same doctrine of

legislative immunity ... to actions for both damages and

injunctive relief in Supreme Court of Virginia”).

> Minton v. St. Bernard Parish School Bd., 803 F.2d

129, 135 (5™ Cir. 1986) does not address the holding of

Supreme Court of Virginia in this regard presumably because

the Minton court did not resolve the issue of whether the

defendants engaged in legislative or administrative actions.

21

As noted, no circuit court has understood the rule to be

other than what the Third Circuit held here — that legislative

immunity bars official capacity injunctive relief claims. Since

the purpose of legislative immunity, according to the Supreme

Court, is to free legislators from the distractions of suits

concerning their legislative actions, Supreme Court of Virginia,

supra, 446 U.S. at 733, there is no basis for the argument that

official capacity suits for injunctive relief against legislators

may proceed.

B. The Prospective Relief Sought By

Petitioner is Barred by Legislative

Immunity Because it Would Require

Legislators To Rescind Their Votes On The

Challenged Legislation And Cast Votes

Dp

The Third Circuit concluded that there is an additional

reason to apply legislative immunity to the injunctive relief

claim: the remedy sought by petitioner would infringe on the

role of the New Jersey Legislature. Petitioner seeks

reinstatement as poet laureate of New Jersey. However, there

is no such position in existence as a result of the enactment of

the statute which repealed the prior legislative creation of the

position. As a result, the relief sought by petitioner necessarily

requires that the court undo the Legislature’s repeal statute and

order the Legislature to re-enact the repealed law. It cannot be

reasonably disputed that this result would, as the Third Circuit

said, “seriously interfere with the role assigned exclusively to

the Legislature.” (Pa21).

The Third Circuit’s earlier decision in Larsen, upon which

it relied here, presented a similarly improper request for

injunctive relief against legislators. Larsen, a state Supreme

Court justice, challenged the state Senate’s impeachment of him

and sought reinstatement to his judicial post. Since such

reinstatement would require that individual senators rescind

their impeachment votes, the court declined to interfere with the

legislators in such fashion. 152 F.3d at 254.

22

In State Employees, supra, the Second Circuit explained

further the rationale underlying the foregoing principle. The

court indicated its agreement with the Third Circuit that, “in

considering whether the doctrine of legislative immunity is

available to foreclose claims for injunctive relief in official-

capacity suits, we must also look more specifically to whether

granting the particular relief sought would enjoin defendants in

their legislative capacities.” Jd at 88 (emphasis in original).

The Second Circuit observed that this analysis is required by

Supreme Court of Virginia. \n that case, the Supreme Court

held that legislative immunity barred injunctive relief seeking

to compel performance of legislative actions such as repeal or

amendment of the bar code that had been promulgated.

However, as the Second Circuit recognized in State Employees,

the Supreme Court stated in Supreme Court of Virginia that

injunctive relief claims could be brought with regard to future

actions that involve the administrative function of enforcing the

code’s provisions. See 446 U.S. at 736. Enforcement is not a

legislative act and therefore is not subject to legislative

immunity.

The Second Circuit properly applied this distinction and

held that legislative immunity did not prohibit reinstatement of

plaintiffs to other existing state positions, rather than their

abolished positions. According to the court, placement of the

plaintiffs in other existing positions would compel

administrative action only. /d. at 93. In contrast, legislative

immunity bars reinstatement to the previously-held positions

“because ordering such relief would require no less than a

judicial order compelling defendants, in their official capacities,

to re-create positions that would have been eliminated through

prior legislative actions.” /d. at 94. In other words, this “would

compel the rescission of an existing budget agreement and the

enactment of new budget legislation — precisely the activity

which the legislative immunity privilege seeks to protect.” Jbid.

Similarly, in this case, petitioner seeks a judicial order that

would compel rescission of legislators’ votes enacting

legislation — P.L. 2003, c. 123, the repealer statute — and the

23

enactment of new legislation providing for re-creation of the

legislatively-eliminated poet laureate position. Without such

votes by individual legislators, there is no poet laureate position

in existence and therefore no reinstatement remedy.

Petitioner cites no cases which suggest that a court may

order legislators to enact legislation. He simply states that he

seeks a court order compelling state officials to reinstate him to

the poet laureate position. The obvious flaw in this argument

is that, pursuant to statute, there is no poet laureate position in

which petitioner could be placed.

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

in the petition with regard to remedy, is not applicable as it

deals with the different situation of a consent decree covering

a city council. More important, Spallone actually confirms that

legislative immunity precludes the courts from fashioning

injunctive relief which intrudes upon the legislative process.

The Court held that in view of principles of legislative

immunity, the district court erred in holding the council

members in contempt for refusing to vote in favor of legislation

implementing the consent decree. /d. at 278-80.

Thus, petitioner has not raised a question worthy of

certiorari. The Supreme Court has issued clear precedent

stating that legislative immunity bars official capacity injunctive

relief, and the circuit courts, including the Third Circuit, have

rendered consistent rulings upholding this principle.

24

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

ANNE MILGRAM

Attorney General of New Jersey

PATRICK DEALMEIDA*

Assistant Attorney General

LEWIS A. SCHEINDLIN

Assistant Attorney General

R.J. Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, New Jersey 08625-0112

(609) 292-3212

* Counsel of Record

Dated: October 8, 2007