Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2007

Baraka v. McGreevey
Precedential or Non-Precedential: Precedential

Docket No. 05-2361




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                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                       No. 05-2361


                   AMIRI BARAKA,
                            Appellant

                             v.

          JAMES E. McGREEVEY, individually;
     *RICHARD J. CODEY, in his official capacity
     as Acting Governor of the State of New Jersey;
STATE OF NEW JERSEY, a body corporate and politic;
  NEW JERSEY STATE COUNCIL OF THE ARTS,
an agency and a body politic of the State of New Jersey;
   SHARON HARRINGTON, individually and in her
           official capacity as Chairperson of the
           New Jersey State Council on the Arts;
          JOHN DOES 1-10; MARY DOES 1-10;
               UNKNOWN AGENCIES and
GOVERNMENT ENTITIES 1-10, unknown to plaintiff
 at this time, individually and in their official capacities

           *(Pursuant to Rule 43(c), F.R.A.P.)
      On Appeal from the United States District Court
             for the District of New Jersey
           D.C. Civil Action No. 04-cv-1959
           (Honorable Garrett E. Brown, Jr.)


              Argued April 24, 2006
         Before: SCIRICA, Chief Judge,
  NYGAARD, Circuit Judge, and YOHN, District Judge*

                   (Filed March 21, 2007)

WILLIAM D. MANNS, JR., ESQUIRE (ARGUED)
Lee & Sanchez
Nevada Court Mall
21-23 Court Street
Newark, New Jersey 07102

ROBERT T. PICKETT, ESQUIRE
15 Village Plaza, Suite 1C
South Orange, New Jersey 07079
       Attorneys for Appellant



  *
    The Honorable William H. Yohn Jr., United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.

                             2
LEWIS A. SCHEINDLIN, ESQUIRE (ARGUED)
Office of Attorney General of New Jersey
Department of Law & Public Safety
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, New Jersey 08625
       Attorney for Appellees


                  OPINION OF THE COURT


SCIRICA, Chief Judge.

        This appeal arises from an action brought by Amiri
Baraka under 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 2201
against officials, employees, and entities of the State of New
Jersey. Baraka alleges defendants violated his constitutional
rights by eliminating his position as poet laureate of New Jersey.
The District Court dismissed Baraka’s complaint under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim upon which relief can
be granted. We will affirm.
                                I.
       Amiri Baraka, a poet, was appointed poet laureate of
New Jersey in July 2002, by Governor James McGreevey, on
the recommendation of the New Jersey State Council for the
Arts. The New Jersey State Legislature created the position of


                                3
poet laureate in 1999 when it enacted P.L.1999, c.228 (codified
at N.J. Stat. Ann. § 52:16A-26.9 (repealed 2003)).1 The statute


   1
       Section 52:16A-26.9, provided:
         a.     There is hereby established the New Jersey
                William Carlos Williams Citation of Merit to be
                presented to a distinguished poet from New Jersey
                who shall be considered the poet laureate of the
                State of New Jersey for a period of two years. The
                poet laureate shall receive an honorarium of
                $10,000.
         b.     The New Jersey Council for the Humanities, in
                consultation with the New Jersey State Council on
                the Arts, shall biennially appoint and convene a
                panel of four persons who are either distinguished
                poets or persons who represent a range of stylistic
                approaches in the field of poetry. Each member
                of the first such panel shall be from New Jersey.
                After the term of the first poet laureate and each
                subsequent poet laureate has expired, that person
                shall serve as one of the members of the panel for
                a period of two years and participate in the
                selection of the next poet laureate. The panel
                shall submit to the Governor the name of the poet
                to whom the citation of merit shall be presented
                and who shall be considered poet laureate of the
                State for the subsequent two years.
         c.     The Governor shall present biennially the New

                                  4
provided the governor would biennially appoint a State poet
laureate who would serve for two years and receive an
honorarium of $10,000. The poet laureate would promote
poetry within the State and give at least two public readings
each year. 

after his appointment, Baraka read his poem
entitled “Somebody Blew Up America” at the Geraldine R.
Dodge Poetry Festival in Stanhope, New Jersey. The poem
commented generally on American society and politics, and on
terrorism, specifically referencing the terror attacks of
September 11, 2001, and read, in part: “Who knew the World
Trade Center was gonna get bombed/Who told 4000 Israeli




             Jersey William Carlos Williams Citation of Merit.
      d.     The poet laureate shall engage in activities to
             promote and encourage poetry within the State
             and shall give no fewer than two public readings
             within the State each year while the poet holds the
             laureate designation.
      e.     The New Jersey Council for the Humanities, in
             consultation with the New Jersey State Council on
             the Arts, shall establish such guidelines as are
             deemed necessary to effectuate the purposes of
             this section.

                              5
workers at the Twin Towers to stay home that day/Why did
Sharon stay away?”2
        After an outcry, a spokesman for Governor McGreevey
issued a statement that “[t]he governor strictly criticizes any
racist or anti-Semite behavior. The style of Baraka’s recent
verse implies that Israelis had known about the September 11
terrorism attacks.” (Second Am. Compl. ¶ 15.) Governor
McGreevey asked Baraka to resign. Baraka refused, contending
the poem was neither anti-Semitic nor racist.
       Baraka alleges Governor McGreevey then instructed
Sharon Harrington, the chair of the New Jersey State Council for
the Arts, to withhold payment of the $10,000 honorarium.
Baraka also alleges Governor McGreevey and other defendants
“commenced a concerted campaign” to remove him from his
position or to abolish the position of poet laureate altogether.
Soon thereafter, the New Jersey State Legislature passed P.L.
2003, c. 123, which repealed section 52:16A-26.9 and abolished




     2
        The full text of the poem is available at a Web page
registered to Baraka, http://www.amiribaraka.com/blew.html
(last visited on March 15, 2007).

                               6
the position of poet laureate.3 Governor McGreevey signed the
repealer into law on July 2, 2003.
        Baraka filed a complaint under 42 U.S.C. §§ 1983 and
1988 and 28 U.S.C. § 2201 against Governor McGreevey, in his
individual and official capacities, Harrington, in her individual
and official capacities, the New Jersey State Council for the
Arts, the State of New Jersey, and various unknown employees,
agents, legislative officials, and entities of the State of New
Jersey, in their individual and official capacities. Baraka alleged
that by abolishing the position of poet laureate and denying him
the honorarium to punish him for expressing his views,
defendants violated his right to free speech under the First
Amendment and his right to due process of law under the
Fourteenth Amendment. Baraka also alleged various causes of
action under the New Jersey Constitution and New Jersey state
law. He requested payment of the $10,000-per-year honorarium
for two years,4 immediate reinstatement to the position of poet



       3
        The bill lists nine state senators and three assembly
members as sponsors, and fifteen state senators and fifty-five
assembly members as co-sponsors. It passed with 21 votes and
19 abstentions in the State Senate, and it passed the Assembly
in a 69-to-2 vote. Laura Mansnerus, New Jersey Assembly Votes
to Cut Embattled Poet’s Job, N.Y. Times, July 2, 2003, at B2.
   4
     On appeal, Baraka recognizes § 52:16A-26.9 provided for
a single payment of $10,000 and not $10,000 per year.

                                7
laureate, compensatory and punitive damages, and attorneys’
fees.
        The District Court granted defendants’ motion to dismiss
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted. The court dismissed Baraka’s
claims against the State, the Arts Council, and the unknown
government employees and entities on the basis of Eleventh
Amendment immunity. It dismissed the claims against
Governor McGreevey and Harrington on the basis of absolute
legislative immunity. The court dismissed Baraka’s claim for
the honorarium after concluding, under New Jersey law, he had
no legally enforceable right to payment. It dismissed the claims
against unknown government individuals and entities because
Baraka failed to allege specific conduct on their part that led to
his harm. In the absence of any viable federal claim, the court
declined to exercise pendent jurisdiction over Baraka’s state law
claims.
       On appeal, Baraka contends the District Court erred by:
(1) holding Governor McGreevey and Harrington were
protected by absolute legislative immunity; (2) holding Baraka
was not deprived of a constitutionally protected property interest
without due process of law; (3) declining to address Baraka’s
claim he was deprived of a constitutionally protected liberty
interest; (4) dismissing the case as to various unknown




                                8
government individuals, entities, and agencies; and (5) failing to
exercise pendent jurisdiction over the state law claims.5
                                II.
       The District Court had subject matter jurisdiction under
42 U.S.C. § 1983 and 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291. Our review of a district court’s
dismissal of a complaint under Rule 12(b)(6) is plenary. Vallies
v. Sky Bank, 

, 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, 

, 351 (3d Cir. 2005) (quoting
D.P. Enter. Inc. v. Bucks County Cmty. Coll., 

, 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., 

, 417 (3d Cir. 1997), or “a legal conclusion couched as a
factual allegation,” Papasan v. Allain, 

, 286
(1986). We review a district court’s dismissal of pendent state
law claims for abuse of discretion. Markowitz v. Ne. Land Co.,

, 103 (3d Cir. 1990); Cooley v. Pa. Hous. Fin.
Agency, 

, 471 (3d Cir. 1987).


    5
     Baraka does not appeal the District Court’s holding that
claims against the State, the Arts Council, and unknown
government entities and employees in their official capacities
were barred by the Eleventh Amendment.

                                 9
                              III.
                               A.
        Baraka contends his claims against Governor McGreevey
and Harrington are not barred by legislative immunity because
neither is a legislator and their actions were not legislative in
nature. He contends their actions were political—advocating
legislation—and administrative—targeting a single person for
punitive treatment. We believe Governor McGreevey’s and
Harrington’s actions are properly characterized as legislative
and are entitled to immunity.
       “Absolute legislative immunity attaches to all actions
taken ‘in the sphere of legitimate legislative activity.’” Bogan
v. Scott-Harris, 

, 54 (1998) (quoting Tenney v.
Brandhove, 

, 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 

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

, 734 (1980) (same, to the Virginia Supreme Court
and its members); Gallas v. Sup. Ct. of Pa., 

,
776–77 (3d Cir. 2000) (same, to the Pennsylvania Supreme
Court and its members); Aitchison v. Raffiani, 

, 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.’” 

(quoting 

).

                               10
                                 1.
        In Youngblood v. DeWeese, 

(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.” 

(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.’”

States v. Brewster, 

, 512
(1972)). In Youngblood, therefore, we used the term “political”
to refer to patronage practices and activities by officials, not
directly related to enacting legislation. Baraka also appears to
use the term to express this narrow meaning.
        But as these examples illustrate, activities by legislators
that directly affect drafting, introducing, debating, passing or
rejecting legislation, are “‘an integral part of the deliberative and
communicative processes,’” and are properly characterized as
legislative, not political patronage. 

v.
United States, 

, 625 (1972)). Activities that are
“‘casually or incidentally related to legislative affairs but not a


                                 11
part of the legislative process itself,’” are not. 

408 U.S. at 528).
        Baraka describes the actions of Governor McGreevey and
Harrington as “advocating and promoting legislation.” He
contends legislative immunity does not apply because they are
not legislators and because these are political, not legislative,
activities. But when a governor and a governor’s appointee
advocate bills to the legislature, they act in a legislative
capacity.
        Baraka appears to concede as much. He alleges
Governor McGreevey and Harrington actively participated in
the legislative process. The repealer was allegedly passed at the
“urging, direction and request” (Second Am. Compl. ¶ 19) of
defendants. It was signed into law by Governor McGreevey.
As the District Court noted, “[t]he gravamen of [Baraka’s]
complaint is that Governor McGreevey and Harrington
‘orchestrated and directed’ the New Jersey legislature to abolish
the position of Poet Laureate.” Baraka v. McGreevey, No. 04-
1959, slip op. at 6 (D. N.J. March 22, 2005). These actions were
“an integral part of the deliberative and communicative
processes,” 

(quotation omitted), by
which the repealer was enacted, and fall squarely “‘within the
sphere of legitimate, legislative activity.’” 

(quoting

).
       In Bogan, the Supreme Court considered whether
absolute legislative immunity applied to a mayor and to a
member of a city 

. Both officials played

                               12
central roles in advocating, promoting, and passing an ordinance
that eliminated a government office of which plaintiff was the
sole employee. 

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.” 

        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 

(affording legislative immunity to
an attorney who advised a city council in drafting an ordinance).
Though neither Governor McGreevey nor Harrington were
legislators, their actions as public officials in proposing and
advocating the repealer are properly characterized as legislative.


                               13
       Despite Baraka’s characterization, his cause of action
also necessarily encompasses the Governor’s actions in signing
the repealer into law. The position of poet laureate was
eliminated by legislative repealer, which required gubernatorial
approval (absent legislative override of a veto).6 Governor
McGreevey’s act of signing the repealer into law is properly
characterized as a legislative action, like those designated in
Brewster and Youngblood. See Edwards v. United States, 

, 490 (1932) (noting “the legislative character of the
President’s function in approving or disapproving bills”); Smiley
v. Holm, 

, 372–73 (1932) (discussing a governor’s
actions in signing or vetoing a bill as part of the legislative
process).
                                2.
      Baraka’s contention that defendants’ actions were
administrative does not change our conclusion. As noted,
Baraka contends that in abolishing the position of poet laureate,


   6
     Like other state constitutions, the New Jersey Constitution
grants the governor a role in the finalization of all legislation.
All legislation passed by both houses of the state Legislature
must be presented to the governor, who is authorized to enact
the law by signing it, or to veto the law by returning it to the
legislature with objections. If the governor takes no action
within 45 days, the bill becomes law by default. The Legislature
can override a veto only by a two-thirds super-majority in both
houses. N.J. Const. art. V, § 1, par. 14.

                               14
defendants targeted him for punitive action and engaged in
administrative—as opposed to legislative—activity.
       In determining whether legislative immunity attaches to
municipal actors engaging in arguably administrative activities,
we ask whether the activities are “both substantively and
procedurally legislative in nature.” In re Montgomery County,

, 376 (3d Cir. 2000); see Carver v. Foerster, 

, 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, 

, 1290–91 (3d Cir. 1989));
see also 

(affording legislative immunity
to a non-legislator who performed functions that were
substantively and procedurally legislative). In Gallas we
explained this two-part inquiry:
       First, the act must be “substantively” legislative,
       i.e., legislative in character. Legislative acts are
       those which involve policy-making decision [sic]
       of a general scope or, to put it another way,
       legislation involves linedrawing. Where the
       decision affects a small number or a single
       individual, the legislative power is not implicated,
       and the act takes on the nature of administration.
       In addition, the act must be “procedurally”
       legislative, that is, passed by means of established
       legislative procedures. This principle requires that


                               15
       constitutionally accepted procedures of enacting
       the legislation must be followed in order to assure
       that the act is a legitimate, reasoned decision
       representing the will of the people which the
       governing body has been chosen to 

(quoting 

–91).7
       Here, defendants are public officers and state actors. Our
cases differ as to whether the two-part substance/procedure
inquiry, first applied to municipal actors, is also appropriate for
actors at the state level. In Gallas, we applied the two-part
inquiry to Pennsylvania Supreme Court justices and concluded
the justices were entitled to legislative immunity for their
actions in reorganizing one of the state’s judicial districts. 

other cases we declined to extend the two-part inquiry to
state actors. See 

n.4 (“We have
since recognized . . . that the substance/procedure test was
‘developed for municipalities,’ where individual officials are
more likely to perform a mixing of administrative and legislative
functions, and thus have ‘decline[d] to extend [the Carver ]
analysis . . . to other levels of government.’”) (quoting Larsen
v. Senate of the Commonwealth of Pa., 

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


   7
     We further noted that in Ryan “we did not mean to imply
that a legislative body, passing a de jure law affecting only a
single person, would not be entitled to legislative immunity.”
Gallas v. Sup. Ct. of Pa., 

, 774 n.14 (3d Cir. 2000).

                                16
are often at a minimum at the municipal level, we decline to
extend our analysis developed for municipalities to other levels
of government.”). Instead, we articulated the relevant inquiry as
whether the actions in question were “within the sphere of
legitimate, legislative activity.” 

(quoting 

).8


  8
    In Youngblood, we found support in Bogan for our decision
not to apply the two-part inquiry. We stated,
        We similarly decline to apply the Carver analysis
        to this case, especially in light of language from
        the Supreme Court that, we believe, casts doubt
        on the propriety of using any separate test to
        examine municipal-level legislative immunity, see
        

, 

(holding
        that local legislators are “likewise” absolutely
        immune from suit under § 1983), particularly a
        two-part, substance/procedure test, 

(refusing to require that an act must be
        “legislative in substance” as well as of “formally
        legislative character” in order to be a legislative
        

n. 4. But the Court in Bogan did not “refuse” to
require an act be both procedurally and substantively legislative
for immunity to apply. Rather, it concluded that because the
acts in question were legislative in both respects, there was no
need to determine whether the procedurally legislative character
of the actions was “alone sufficient to entitle petitioners to

                               17
        Regardless of the level of government, we believe the
two-part substance/procedure inquiry is helpful in analyzing
whether a non-legislator performing allegedly administrative
tasks is entitled to immunity.9 We note that in Youngblood and
Larsen—the cases declining to apply the two-part inquiry to
state actors—there was no allegation that the actions in question
were administrative, and no need for this inquiry as a means of
distinguishing between administrative and legislative actions.
See 

–41; 

.
In addition, these cases addressed legislators’ actions. Gallas,
in contrast, addressed non-legislators’ actions. Here, we
similarly address the actions of non-legislators (Governor



legislative immunity.” 

.
        We believe Bogan’s analysis illustrates that the two-part
substance/procedure inquiry provides a useful means of
determining whether allegedly administrative actions meet the
standard set forth by the Supreme Court—whether the actions
are “in the sphere of legitimate legislative activity.” 

(quoting 

). We use the
substance/procedure inquiry not to establish a separate and
distinct standard for certain actors, but to determine whether the
Court’s standard has been met.
   9
    In Larsen, we explained our decision not to apply the two-
part inquiry to state actors. We noted, “concerns for the
separation of powers are often at a minimum at the municipal

.

                               18
McGreevey and Harrington) performing allegedly legislative
tasks. In determining whether legislative immunity applies, it is
relevant to ask whether Governor McGreevey’s and
Harrington’s actions were both substantively and procedurally
legislative. If they were, they meet the standard set by the
Supreme Court—they were “in the sphere of legitimate
legislative activity.” 

(quoting 

).
        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.”

. We agreed with the District Court that
“[t]he gravamen of [Baraka’s] complaint is that Governor
McGreevey and Harrington ‘orchestrated and directed’ the New
Jersey legislature to abolish the position of Poet Laureate.”
Baraka, No. 04-1959, slip op. at 6. In sum, we concluded their
actions were procedurally legislative.
        Their actions in support of the repealer were also
substantively legislative. This law, formally enacted, eliminated
the position of poet laureate, a position that was legislatively
created. Eliminating the position of poet laureate constitutes the
type of “policy-making” that traditional legislation entails, and
the actions here were substantively legislative. See 

.



                               19
        In the context of public employment, we have drawn a
distinction between the elimination of a position and the
termination of an individual employee. See 

(“[T]he
elimination of a public employment position—as opposed to the
firing of a single individual—constitutes a ‘legislative’ act.”);
Montgomery 

(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 

–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 

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.” 

. The Court explained “it
simply is ‘not consonant with our scheme of government for a
court to inquire into the motives of legislators.’” 

(emphasis omitted) (quoting 

). The
relevant inquiry was whether, “stripped of all considerations of
intent and motive, [defendants’] actions were legislative.” 

a state representative contended two
other representatives denied her adequate budget allocation for
office staffing in retaliation for her complaints against their
party 

. Citing Bogan we emphasized
that a court does not consider intent and motive to determine
whether legislative immunity applies to a defendant’s actions.

. Defendants’ acts of allocating office-staffing
appropriations among individual representatives were legislative
acts to which immunity extended. 

. 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.” 

see also

(“In determining whether an official is
entitled to legislative immunity, we must focus on the nature of

                               21
the official’s action rather than the official’s motives or the title
of his or her office.”).
        Baraka cites Canary v. Osborn, 

(6th Cir.
2000), and Kamplain v. Curry Board of Commissioners, 

(10th Cir. 1998), in contending an improper motive
is relevant to a court’s determination of whether legislative
immunity applies. But neither case supports this position. In
Canary, the Court of Appeals for the Sixth Circuit concluded
individual school board members were not entitled to absolute
legislative immunity for their role in voting against the renewal
of an employee’s contract as an assistant 

–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. 

(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 

. The court
concluded, “[b]ecause the circumstances of this case did not
concern the enactment or promulgation of public policy, we
cannot say that the bans were related to any legislation or
legislative function.” 

Neither Canary nor Kamplain
relied on defendants’ subjective intent or motive in determining
whether legislative immunity applied. Both cases cited Bogan’s
directive that “[w]hether an act is legislative turns on the nature

                                 22
of the act, rather than on the motive or intent of the official
performing it.” See 

; 

.
        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.” 

. 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.” 

Both
in form and in substance, the actions of both defendants were
legislative. Accordingly, the District Court did not err in
holding Baraka’s claims against them were barred by legislative
immunity.
                                3.
       Although we join in much of our dissenting colleague’s
views on the structure and history of the Speech and Debate
Clause, we believe modern jurisprudence has amplified and
transformed our understanding of this constitutional provision.
       The separation of powers doctrine, and its attendant
checks and balances, undergirds the development of the speech
and debate protections afforded legislators by the United States
and state constitutions. The Constitution’s framers created a
structure of government that would engender competition for
power among the branches.


                               23
       But the Constitution also establishes legislative functions
for the president, quite similar to those established for the
governor in the New Jersey Constitution and at issue here.
Whether these legislative functions may entitle executive branch
officers to absolute legislative immunity is a question the
Supreme Court answered in Tenney and, more recently, in
Bogan. We applied these standards in Youngblood, and we
believe our decision here is consistent with both the Supreme
Court’s precedent and our own.
        Our dissenting colleague insists legislative immunity is
intended to shield only legislators. But this view disregards
modern jurisprudence and, most strikingly, undercuts the
Supreme Court’s recent guidance on the issue, in Bogan, clearly
extending absolute legislative immunity to a non-legislator
public official (a mayor) who was integrally involved in the
proposal, promotion and passage of legislation eliminating a
municipal department. There the Supreme Court noted that
“[a]bsolute legislative immunity attaches to all actions taken in
the sphere of legitimate legislative activity.” 

(internal quotes omitted). Later, the Court noted “[w]e have
recognized that officials outside the legislative branch are
entitled to legislative immunity when they perform legislative
functions,” adding that an executive’s actions with respect to
enacting legislation are “integral steps in the legislative
process.” 

Subsequently, we noted this extension of
legislative immunity to public officials outside the legislature in
our description of Bogan. See 

(Bogan held “municipal officials were immune from a plaintiff’s

                                24
claim that the officials violated her civil rights when they
enacted a budget that eliminated her position”).
        If our dissenting colleague’s concern is that legislative
immunity would be extended to basic lobbying activity, we
cannot agree. This ignores the fundamentally different roles
played by a governor and his appointees in the legislative
process from those played by a private party who lobbies for
legislation. As noted, the New Jersey Constitution requires the
governor to play a role in enacting legislation, through signing
or vetoing it. It also authorizes the governor to “recommend
such measures as he may deem desirable,” and to convene the
Legislature “whenever in his opinion the public interest shall
require.” N.J. Const., art. V, § 1.10 These functions are integral
steps in the legislative process, authorized by the state
Constitution to the governor and, by extension, his appointees.
No private lobbyist can claim such a constitutional authority to
participate in the legislative process.
                               B.
        Baraka contends that even if legislative immunity bars
his claim for damages, it does not bar his claim for reinstatement
against Governor McGreevey and Harrington in their official

   10
      The governor is additionally given broad power to grant
pardons and reprieves, and to suspend and remit fines and
forfeitures, powers that necessarily overlap with the powers
assigned to the judicial branch of government. N.J. Const. art.
V, § 2.

                               25
capacities. He notes that legislative immunity is a personal
immunity defense, citing Kentucky v. Graham, 

(1985), for the proposition that personal immunity defenses are
unavailable in official-capacity actions.
       In Kentucky, the Court noted in dicta, “[t]he only
immunities that can be claimed in an official-capacity action are
forms of sovereign immunity that the entity, qua entity, may
possess, such as the Eleventh Amendment.” 

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. 

It did not involve, as does this case, a claim for injunctive
or declaratory relief. Accordingly, the case has limited
relevance to determining whether legislative immunity bars
Baraka’s claim for reinstatement.
        Moreover, in Larsen, we interpreted the Supreme Court’s
opinion in Supreme Court of Virginia v. Consumers Union to
hold that at least in “appropriate cases,” legislative immunity
can apply to claims for declaratory and injunctive relief against
officials in their official capacities.11 See 

      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.” 

(citing Acierno v. Cloutier, 

, 607 n.8 (3d Cir. 1994) (en banc)). We recognized that
“in fact the Supreme Court in Consumers Union did resolve the

                               26
253; Consumers 

. In determining
whether a Pennsylvania Supreme Court justice’s § 1983 claim
for reinstatement against state senators who impeached him was
an “appropriate case,” we asked “whether Larsen’s request for
prospective relief from the Senators could be accorded
consistent with the policies underlying legislative immunity.”

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.”

Accordingly, the senators were entitled to absolute
legislative immunity.
        Like the relief sought in Larsen, the relief sought by
Baraka would infringe on the role of the New Jersey Legislature.
Baraka seeks to require New Jersey legislators to rescind their
votes repealing the statute and to enact legislation recreating the
position. We agree with the District Court’s conclusion that this
“would be inconsistent with the general policies underlying
legislative immunity,” and “would seriously interfere with the
role assigned exclusively to the Legislature.” Baraka, No. 04-
1959, slip op. at 8–9. Debating, voting on, and passing statutes
are “role[s] assigned exclusively” to the Legislature, and this


issue of the application of absolute legislative immunity to
claims for prospective relief and answered that question in the
affirmative.” 

Ct. of Va. v. Consumers Union of
the U.S., Inc., 

(1980)).

                                27
case is an “appropriate case” for application of legislative
immunity to a claim for prospective relief. 

. Accordingly, the District Court did not err in concluding
that Baraka’s request for reinstatement was barred by legislative
immunity.
                               C.
        The District Court dismissed Baraka’s claim for the
honorarium because the Legislature never appropriated funds for
payment of the $10,000 provided for by § 52:16A-26.9. In the
absence of an appropriation, the court held, defendants were not
authorized to pay Baraka the honorarium. Accordingly, there
could be no liability for withholding payment.12 The court
explained that under the Appropriations Clause of the New
Jersey State Constitution, funds can only be withdrawn from the
State treasury by legislative appropriation. See N.J. Const. art.
VIII, § 2, par. 2 (“No money shall be drawn from the State
treasury but for appropriations made by law.”); see also N.J.
Stat. Ann. § 52:18-27 (West 2003) (“No money shall be drawn


    12
        Baraka states the District Court held the legislature’s
failure to appropriate the $10,000 as of the date of Baraka’s
appointment “retroactively nullified,” “repeal[ed],” or
“eliminat[ed]” the honorarium provided by § 52:16A-26.9. This
mischaracterizes the District Court’s holding. Because the
legislature had not appropriated funds to pay the honorarium,
the court held defendants had no legal authority to withdraw the
$10,000 from the state treasury to pay Baraka.

                               28
from the state treasury unless it has been explicitly appropriated
to the purpose for which it was drawn.”). The court cited the
New Jersey Supreme Court’s opinion in Camden v. Byrne, 

, 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. 

. In Camden,
municipalities challenged the State’s failure to appropriate and
expend funds in accordance with certain statutes that purported
to devote tax revenues to local governments. The municipalities
requested a court order requiring the legislature to make the
necessary appropriations. 

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.” 

Furthermore, even
if the requesting party could prove a statutorily defined
substantive right, a court could not compel an appropriation. 

(citing Amantia v. Cantwell, 

(N.J. App.
Div. 1965); see also New Jersey Div. of Youth & Family Serv.
v. D.C., 

, 1301 (N.J. 1990) (“There can be no

                               29
redress in the courts to overcome either the Legislature’s action
or refusal to take action pursuant to its constitutional power over
state appropriations. . . . That principle applies even if a party
is clearly entitled to compensation.”).
        Based on the timing of the appropriations process, Baraka
contends the lack of an appropriation is immaterial to whether
he was entitled to the honorarium. He notes that in 1999—when
the Legislature created the position of poet laureate—it
appropriated $10,000 to pay the first person who held the
position. Since the first poet served for two years starting in
early 2000, further appropriation was not needed until late 2002,
when the next poet (Baraka) was appointed. At this time, the
Legislature had already adopted the State budget for fiscal year
2002–2003. Baraka contends that had the position of poet
laureate not been abolished in July, the appropriation would
have been made in the budget for fiscal year 2003–2004. But
whether the Legislature’s failure to appropriate funds was
intentional or the result of indifference or oversight, the absence
of an appropriation is determinative. Regardless of the
legislative intent, § 52:16A-26.9 could not authorize payment of
the honorarium in the absence of a corresponding appropriation
of state revenue. Baraka’s assertion that “it is undisputed that
[defendants] refused to pay Baraka the $10,000 guaranteed by
the statute” is inaccurate because it implies defendants were
authorized to make a payment but chose not to do so.
       There appears to be an exception to the general rule
requiring a legislative appropriation. If there is a constitutional


                                30
right to payment, a court may compel payment even in the
absence of an appropriation. See Youth & Family 

; Robinson v. Cahill, 

(N.J. 1975). In
New Jersey Division of Youth and Family Services, the issue
was whether the New Jersey Supreme Court could require the
legislature to disburse state funds to pay attorneys—appointed
to represent indigent parents and their minor children—who
were clearly entitled to compensation. The court qualified the
principle that “[t]here can be no redress in the courts to
overcome either the Legislature’s action or refusal to take action
pursuant to its constitutional power over state appropriations,”
by noting an exception “when funds are constitutionally
mandated.”13 Youth & Family 

. Because


  13
     The court also rejected the argument that it should find the
necessary authorization in general statutory appropriation
clauses. The court explained:
       [T]he statutory schemes for all departments,
       divisions, agencies and other units of State
       government include general-appropriation
       clauses. Thus, under its theory, we could always
       find that general-appropriation clauses enable us
       to compel the legislature to pay for whatever
       services we feel the state should provide. We are
       not persuaded that all general appropriation
       clauses necessarily give us such carte blanche.
New Jersey Div. of Youth & Family Serv. v. D.C., 

, 1300 (1990).

                               31
the attorneys had no constitutional right to compensation, the
court concluded the absence of a legislative appropriation was
fatal to their claims. Here, whether the absence of an
appropriation is fatal to Baraka’s claims depends on whether
payment of the honorarium was constitutionally mandated.
                                D.
       Baraka contends payment of the honorarium was
constitutionally mandated because New Jersey law vested in
him constitutionally protected property and liberty interests
when he was appointed to the position of poet laureate. He
claims he was denied these interests without due process of law
when the position was abolished and the $10,000 honorarium
withheld.
         In evaluating a procedural due process claim, we first
determine “whether the asserted individual interests are
encompassed within the fourteenth amendment’s protection of
life, liberty, or property.” Alvin v. Suzuki, 

, 116 (3d
Cir. 2000) (quotations omitted). Property interests are “created
and their dimensions are defined by existing rules or
understandings that stem from an independent source such as
state law—rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits.” Bd. of
Regents of State Coll. v. Roth, 

, 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.” 

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., 

, 430 (1982) (quoting Nat. Mut. Ins. Co.
v. Tidewater Transfer Co., 

, 646 (1949)
(Frankfurter, J., dissenting)). For example, individuals can have
protected property interests in positions of public employment.
See 

–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., 

, 559
(1956); San Filippo v. Bongiovanni, 

, 1134–35
(3d Cir. 1992). Baraka does not contend his protected property
interest is based on an employment relationship with the State,
nor would he succeed if he did. As poet laureate he was a state
appointee—not an employee.14 Rather, he contends § 52:16A-


  14
     We look to New Jersey law in determining whether Baraka
was a public employee. See Bishop v. Wood, 

, 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, 

, 19–20 (N.J. 1999). The
“control test” considers the following factors: “(1) the degree of
control exercised by the employer over the means of completing

                               33
26.9 created a “mutual understanding” with the State, which
gave rise to a constitutionally protected property interest. He
alleges both he and the State understood he was legally entitled
to the honorarium.
       Baraka cites Stana v. School District of Pittsburgh, 

(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.” 

But we clarified “[i]n all


the work; (2) the source of the worker's compensation; (3) the
source of the worker's equipment and resources; and (4) the
employer's termination rights.” 

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.” 

(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. 

–21. Under either
test, Baraka was not a state employee. The State did not
exercise control over his work, provide him with facilities or
resources, or pay him a regular salary. Baraka was not
economically dependent on the State, nor was his work central
to the operation of any State business.

                               34
cases, the relevant inquiry is whether the claimant has a
‘legitimate claim of entitlement.’” 

408 U.S.
at 577). Furthermore, the “mutually explicit understanding” in
Stana grew out of an employment relationship. In holding a
school employee’s place on an employment eligibility list
constituted a protected property interest, we accepted plaintiff’s
argument that the school district’s policy for maintaining the list
created a “‘mutually explicit understanding’ that a person who
earned a place on the eligibility list will not be removed from
the list for four years.” 

We noted the Supreme Court
had “‘frequently recognized the severity of depriving a person
of the means of livelihood,’” 

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, 

(1985), where the
Supreme Court referred to “‘the significance of [an employee’s]
private interest in retaining employment.’” 

(quoting 

). The employment
relationship was central to our decision in Stana. Because
Baraka did not hold a position of public employment, Stana is
inapposite.
       Furthermore, § 52:16A-26.9 shows no sign of a
“mutually explicit understanding” that Baraka was entitled to
the honorarium upon accepting the appointment. The statute
provided for payment of an honorarium to the poet laureate,
who, during a two-year period, would “engage in activities to
promote and encourage poetry within the State.” N.J. Stat. Ann.
§ 52:16A-26.9(d). The statute did not provide the poet laureate

                                35
would receive the honorarium upon appointment. Nor did it
provide the poet laureate would be entitled to the honorarium
whether or not he completed his term.
        Terms in New Jersey statutes not otherwise defined are
to be given their generally accepted meanings. N.J. Stat. Ann.
§ 1:1-1. An honorarium is generally defined as “an honorary
payment or reward usually given as compensation for services
on which custom or propriety forbids any fixed business price
to be set or for which no payment can be enforced at law.”
Webster’s Third International Dictionary (Unabridged) (1981);
see also Oxford English Dictionary (2d ed. 1989) (defining an
honorarium as “an honorary reward”). The statute did not create
a “mutually explicit understanding” that Baraka was legally
entitled to the honorarium upon appointment, giving rise to a
property interest.
        Nor did § 52:16A-26.9 create a contractual obligation
giving rise to a property interest. As the District Court noted,
“absent some clear indication that the legislature intends to bind
itself contractually, the presumption is that ‘a law is not intended
to create private contractual or vested rights but merely declares
a policy to be pursued until the legislature shall ordain
otherwise.’” Baraka, No. 04-1959, slip op. at 11 (quoting Nat’l
R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co.,

, 465-66 (1985)). The language of § 52:16A-26.9
does not demonstrate an intent on the part of the State to bind
itself contractually. The statute provides “[t]he poet laureate
shall receive an honorarium.” § 52:16A-26.9. “Honorarium”


                                36
implies a voluntary payment and not a contractual obligation.
We see nothing in the statute demonstrating the state intended
to enter a formal contract with Baraka.
        In a different context, the Supreme Court held that if
there is no obligation to pay a benefit, there can be no legitimate
claim of entitlement to the benefit. In American Manufacturers
Mutual Insurance Company v. Sullivan, the Supreme Court held
that because the Pennsylvania Workers Compensation Act
entitles an employee with a valid claim to payment for
“reasonable” and “necessary” medical treatment, “disputes over
the reasonableness and necessity of particular treatment must be
resolved before an employer’s obligation to pay—and an
employee’s entitlement to benefits—arise.” 

, 60
(1999) (emphasis in original). Until the employee has a
legitimate claim of entitlement to the benefit, there can be no
constitutionally protected property interest. Here, too, because
defendants were not obligated to pay—and Baraka was not
entitled to receive—the honorarium, there can be no
constitutionally protected property interest.
       Moreover, even if the statute did create a contractual
obligation, it would not confer a constitutionally protected
property interest on Baraka. Only certain state contracts create
protected property interests under the Fourteenth Amendment.
See Unger v. Nat’l. Residents Matching Program, 

, 1397–98 (3d Cir. 1991). Generally, the two types of
contracts that create protected property interests are those that
confer a protected status—those “‘characterized by a quality of


                                37
either extreme dependence in the case of welfare benefits, or
permanence in the case of tenure, or sometimes both, as
frequently occurs in the case of social security benefits’”—and
those where “‘the contract itself includes a provision that the
state entity can terminate the contract only for cause.’” Linan-
Faye Const. Co., Inc. v. Hous. Auth. of Camden, 

,
932 (3d Cir. 1995) (quoting 

).
        Here, the right Baraka alleges the statute conferred—an
honorarium—is neither a benefit on which Baraka relies in his
daily life, nor a contract terminable only for cause. At most, §
52:16A-26.9 provided Baraka with a “unilateral expectation” of
a voluntary award. 

. It did not provide
him with a “legitimate claim of entitlement.” 

an
honorarium a form of property on which he would rely in his
daily life. See 

a purpose of the ancient institution of
property to protect those claims upon which people rely in their
daily lives, reliance that must not be arbitrarily undermined.”).
       Baraka also contends he has a constitutionally protected
interest in his reputation, of which he was deprived when his
position was eliminated.15 He alleges defendants caused


      15
          Baraka contends he has a property interest in his
reputation. Generally, if reputational harm implicates a
constitutionally protected interest, it is a liberty interest. See
Paul v. Davis, 

, 711 (1976); Kelly v. Borough of
Sayreville, N.J., 

, 1077–78 (3d Cir. 1997). But
see San 

(implying reputational harm

                                38
“irreparable damage to his reputation, embarrassment,
humiliation and emotional distress.” Reputational harm can
constitute a protected interest when coupled with an additional
deprivation of a protected right or interest.16 See Paul v. Davis,



can constitute a deprivation of a protected property interest).
      16
           Baraka cites San Filippo for the proposition that
“[w]henever a ‘person’s good name, reputation, honor, or
integrity is at stake because of what the government is doing to
him,’ a property interest is involved and due process
requirements 

(quoting 

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

(“‘Where a person’s good name,
reputation, honor, or integrity is at stake because of what the
government is doing to him, notice and an opportunity to be
heard are essential.’”) (quoting Wisconsin v. Constantineau, 

, 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.” 

Court rejected this reading, which would
represent “a significant broadening” of previous cases. 

Court read the phrase “because of what the
government is doing to him,” to refer to “the fact that the
governmental action taken in that case deprived the individual
of a right previously held under state law.” 

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

                               39


, 711–12 (1976) (holding reputation alone is not a
constitutionally protected property or liberty interest); see also
Graham v. City of Philadelphia, 

, 142 (3d Cir.
2005); Kelly v. Borough of Sayreville, N.J., 

,
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.”

. 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, 

, 83 n.5 (3d Cir. 1996); see 

n.2. We
need not decide the issue here. Baraka has pled no additional


of the citizenry,” and the governmental action in question was
a state statute that allowed government officials to post notices
prohibiting sale of alcoholic beverages to certain people
(including the plaintiff) because of their history of problems
with alcohol. 

“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.”

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. 

                               40
deprivation of a protected interest to couple with the alleged
injury to his reputation.17 On a Fed. R. Civ. P. 12(b)(6) motion,


     17
        Moreover, to state a valid claim for deprivation of a
protected interest based on reputational harm, a plaintiff must
allege harm that forecloses future opportunities. In Roth, the
plaintiff contended harm to his reputation, resulting from the
non-renewal of his contract, amounted to deprivation of a
protected liberty interest. The Court acknowledged that
“nonretention in one job . . . might make him somewhat less
attractive to some other employers.” 

n.13.
But it concluded this harm “would hardly establish the kind of
foreclosure of opportunities amounting to a deprivation of
‘liberty.’” 

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 

. In other words, she had not established the “kind of
foreclosure of opportunities” required by 

n.13; see also 

(discussing the requisite
showing of future harm to establish deprivation of liberty based
on harm to reputation). Here, Baraka alleges defendants caused
“irreparable damage to his reputation, embarrassment,
humiliation and emotional distress,” but he does not specifically

                               41
we accept his allegations of reputational harm as true, but we
conclude he has not stated an actionable claim for deprivation of
a constitutionally protected interest in his reputation.
                                E.
        Baraka also contends the District Court erred by
“completely ignor[ing]” the deprivation of his liberty interest.
He alleges defendants deprived him of his position and of the
honorarium to punish him for his views, depriving him of a
liberty interest without due process of law.
       The liberty interests protected by procedural due process
are broad in scope, including
       not merely freedom from bodily restraint but also
       the right of the individual to contract, to engage in
       any of the common occupations of life, to acquire
       useful knowledge, to marry, establish a home and
       bring up children, to worship God according to
       the dictates of his own conscience, and generally
       to enjoy those privileges long recognized . . . as
       essential to the orderly pursuit of happiness by
       free men.
Meyer v. Nebraska, 

, 399 (1923). Harm to
reputation can, in certain circumstances, constitute deprivation
of a liberty interest. See 

. But as noted,
Baraka has not properly alleged a protected interest in his


allege a foreclosure of future opportunities.

                                42
reputation. Baraka has not identified a protected liberty interest
of which he was deprived. Denial of continued public
employment can also constitute deprivation of a liberty interest.
See 

. But Baraka was not employed by the
state. Accordingly, the District Court did not err in declining to
address his free speech claim separately from his claim of a
constitutionally protected property interest.
        Nor can Baraka properly state a First Amendment
retaliation claim. Baraka contends he was denied a benefit—the
$10,000 honorarium—in retaliation for his First Amendment
expression. But Baraka cannot state a viable claim that
defendants denied him the honorarium to punish him for his
views when defendants were not legally authorized to pay the
honorarium because no appropriation was ever made.
Accordingly, Baraka does not state a cognizable First
Amendment claim. The District Court did not err in holding
defendants did not deprive Baraka of a constitutionally protected
property or liberty interest, or infringe upon his First
Amendment rights.
                               F.
        The District Court dismissed Baraka’s claims against
various unknown government defendants because Baraka did
not allege they engaged in specific behavior that contributed to
his harm. Furthermore, the District Court held that because
there is no respondeat superior liability under § 1983, the named
defendants could not be held liable for the actions of the
unknown defendants. A defendant in a civil rights action “must

                               43
have personal involvement in the alleged wrongs to be liable,”
Sutton v. Rasheed, 

, 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, 

, 201 (3d Cir. 2000).
Baraka does not allege specific, personal involvement on the
part of the unknown defendants, and, accordingly, the District
Court did not err in dismissing the claims against them.
       Baraka contends “the Complaint clearly alleges that these
[defendants] were part of ‘a concerted campaign. . . to remove
or terminate [him] from his state position.’” In his reply brief,
he adds “more detail will be possible” once he “is able to obtain
discovery to shed light on Defendants’ actions.” Baraka’s vague
references to the conduct of the unknown defendants are
insufficient to constitute allegations that state a claim.
        Moreover, Baraka’s claims against the unknown
defendants are barred by the Eleventh Amendment to the extent
defendants are either state agencies or state officials sued in
their official capacities. See Will v. Mich. Dep’t of State Police,

, 66 (1989); M.A. ex rel. E.S. v. State-Operated Sch.
Dist. of Newark, 

, 345 (3d Cir. 2003). His claims
are barred by the doctrine of legislative immunity to the extent
the claims are based on the involvement of these unidentified
defendants in the passage of the legislation abolishing the
position of poet laureate.




                                44
                               G.
        Baraka contends the District Court erred in declining to
exercise pendent jurisdiction over his state law claims. The
District Court noted “[w]here the federal claims are dismissed
before trial, ‘the district court must decline to decide pendent
state claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an affirmative
justification for doing so.’” Baraka, No. 04-1959, slip op. at 12
(quoting Borough of West Mifflin v. Lancaster, 

, 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, 

, 134 (3d Cir. 1987). Here, it was not an
abuse of discretion for the District Court to decline to exercise
pendent jurisdiction after determining the considerations
weighing in favor of pendent jurisdiction were not present.
                               IV.
       As noted, Baraka contends he was punished by the
Governor and the New Jersey Legislature for speaking his
views—views that were perceived to be anti-Semitic. His
alleged punishment consisted of the elimination of the position
of New Jersey poet laureate, which Baraka then held.
       On a motion to dismiss, we accept the allegations as
true–any set of facts will suffice, though we are not compelled
to accept unwarranted inferences, unsupported conclusions or

                               45
legal conclusions disguised as factual allegations. Schuylkill

; 

.
       This case turns not on Baraka’s First Amendment right
to speak his mind, but rather on whether he had a protected legal
interest—constitutional or otherwise—in the continued
existence of the position of New Jersey poet laureate, and his
own holding of the post.
        The Library of Congress began filling a position called
“Consultant in Poetry” in 1937. In 1985, Congress passed
legislation that changed the title of the post to United States Poet
Laureate Consultant in Poetry to the Library of Congress. 2
U.S.C. § 177. The national poet laureate receives a stipend
funded by a private gift. Some states began naming their own
poets laureate earlier in the century, as early as 1919.18 A
review of the history of state poets laureate reveals that of the
thirty-nine states that currently have a poet laureate, twenty-nine
legislatures have codified their state poet laureate position; the
remaining ten positions were created by executive order of the


   18
       Detailed information on the history and current status of
the poet laureate post in each state is available on the web site
of the Library of Congress at: Main Reading Room,
http://www.loc.gov/rr/main/poets/current.html (last visited on
March 15, 2007). A history of the national poet laureate is
available at: About the Position of Poet Laureate,
http://www.loc.gov/poetry/about_laureate.html (last visited on
March 17, 2007).

                                46
governor. These posts are typically described as “honorary,”
sometimes include a statutory provision for a modest stipend,
but not always, and sometimes are left vacant. Some states have
designated specific poets as poet laureate, either by executive
order or legislation, and in several cases the post has run its
course when its holder has died. Some states have codified a
previously unofficial poet laureate post.
        In summary, the position has historically been created by
legislative or executive action. Thus, despite the undeniable
artistic and cultural benefits of having a poet laureate, we are not
aware that any state constitution requires the maintenance of the
position, nor that any provision of any officially created poet
laureate post protects it from appropriate official action
(legislative or gubernatorial) designed to terminate it.
       The New Jersey Legislature created the post of poet
laureate through ordinary legislative action. The repeal of the
post resulted from ordinary legislative acts by legislators and the
governor. The statute contained no provision that protected it
from the ordinary legislative process.
       Baraka, like any person, was free to speak his views. But
he had no protected legal interest in the maintenance of the
position of poet laureate of New Jersey.
                                V.
       For the reasons set forth, we will affirm the judgment of
the District Court.


                                47
NYGAARD, J., dissenting.
        I respectfully dissent. In my view, the majority holding
expands the legislative immunity privilege to insulate almost
every action taken by executive branch officials having some
connection, however remote, with the passage of legislative acts,
subsumes in part the qualified immunity doctrine, and
effectively abolishes accepted causes of action against executive
branch officials who meddle in the affairs of, or otherwise
insinuate themselves into, the legislative process.19 I therefore
dissent from that portion of the majority opinion which extends
legislative immunity to former Governor McGreevey and
Chairperson Harrington.
        History and precedent make two things clear: First, there
is no support for the claim that the protection afforded to
legislators applies coextensively to non-legislators. Thus, the
Majority’s implication that the fact that Governor McGreevey
and Ms. Harrington are not members of the New Jersey
legislature is immaterial; and that they were acting in a
legislative capacity when they “orchestrate[] and direct[]” bills
through the legislature stands starkly at odds with both
governing jurisprudence and the history of the doctrine. Second,


   19
     There is no disagreement on this fact. What the majority
specifically holds is that the actions which fall within the
legislative immunity doctrine are Governor McGreevey’s
“orchestrat[ion] and direct[ion] [of] the New Jersey legislature
to abolish the position of Poet Laureate.” Maj. Op. at 12.

                               48
by extending the protections of legislative immunity to non-
legislators who do more than propose legislation, but who
“orchestrate[] and direct[]” legislative activities, the majority
critically weakens the very foundation of the privilege,
portending far-reaching results for both the vitality of the
privilege and for its effect on the separation of powers.
        Historically, the Speech and Debate Clause, from which
legislative immunity is derived, was intended to preserve the
independence and integrity of the Legislature from the
Executive. It was designed to prevent other branches of the
government from interfering with the legislators in the
performance of their duties.20 As Justice Harlan taught, “since

   20
     The Speech and Debate Clause in Article I, Section 6, of
our Constitution is the product of a long lineage of free speech
or debate guarantees that began with the English Bill of Rights
of 1689, continued on to some of the first state constitutions, and
also appeared in the Articles of Confederation. 

v. Brandhove, 

, 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. 

Speech and Debate Clause provides that, “for
any Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other Place.”
U.S. CONST. Art. I, Sect. 6, cl. 1; see also Youngblood v.
Deweese, 

, 839 (3d Cir. 2004).


                                49
the Glorious Revolution in Britain, and throughout United States
history, the privilege has been recognized as an important
protection of the independence and integrity of the legislature.
In the American governmental structure the clause serves the
additional function of reinforcing the separation of powers so
deliberately established by the Founders.” United States v.
Johnson, 

, 176, 

, 754 (1966) (citing
Story, Commentaries on the Constitution; II The Works of James
Wilson 37-38 (Andrews ed. 1896)).
       Given that the doctrine of legislative immunity derives
from a clause located in Article I, I infer that its goal is to
protect the Legislative branch from improper and untoward
intrusions by non-legislators from either of the coordinate
branches of government. Indeed, even when the question arises
as to what conduct by legislators qualifies for immunity, the
Supreme Court has cautioned that, “the courts have extended the
privilege to matters beyond pure speech or debate in either
House, but only when necessary to prevent indirect impairment
of such deliberations.” Gravel v. United States, 

,
625 (1972). Here, instead of protecting the legislature from
impairment of its deliberations, we are insulating executive
intrusions into the function and deliberations of the legislature
from suit. Importantly, the Supreme Court has specifically
instructed that:
       the heart of the clause is speech or debate in either
       House, and insofar as the clause is construed to
       reach other matters, they must be an integral part


                                50
       of the deliberative and communicative processes
       by which Members participate in committee and
       House proceedings with respect to the
       consideration and passage or rejection of
       proposed legislation or with respect to other
       matters which the Constitution places within the
       jurisdiction of either House.

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." 

As
Professors Levinson and Pildes have pointed out, “the solution
to this great problem was, instead, to link the power-seeking
motives of public officials to the interests of their branches.”
Daryl J. Levinson and Richard H. Pildes, Separation of Parties,


                              51
Not Powers, 119 Harv. L. Rev. 2311, 2316-17 (June 2006). By
giving "those who administer each department the necessary
constitutional means and personal motives to resist
encroachments of the others," the Framers hoped to create a
system in which competition for power among the branches
would constrain each safely within its bounds. 

Federalist Papers No. 51 (Madison), at 321-22).
        Of course, it might be argued that the type of behavior at
issue here is akin to such acts as preparing investigative reports,
addressing a congressional committee, and speaking before a
legislative body in session, all of which are accorded the
imprimatur of legislative immunity. But, it is not. We have
limited legislative immunity “to include activities that are an
integral part of the deliberative and communicative processes by
which Members participate in committee and House
proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction of either
House.” 

(quoting 

(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.” 

(quoting 

). Thus, to me, activities
such as “orchestrat[ing] and direct[ing]” the New Jersey
legislature into passing a personally targeted piece of legislation
— be they undertaken by a governor or ordinary citizen — are
activities which may be casually and incidentally related to

                                52
legislative affairs, but are not part of the legislative process
itself. I would not take garden variety lobbying activity, even if
undertaken by a state governor and his representative, and place
such activity under the absolute protection of the privilege.
        I agree with the majority that the New Jersey Constitution
permits the Governor to recommend legislation to the General
Assembly. But this does not support the majority’s conclusion
that the Governor’s actions in “recommending” legislation is
“formally legislative” and entitled to the protection of a
legislative privilege. In my view the Constitutional prescription
that a New Jersey governor may recommend legislation does not
provide Constitutional imprimatur for him or other non-
legislators, to “orchestrate[] and direct[]” the legislative process.
 I respectfully submit that the doctrine’s scope as it applies to
non-legislators simply does not map as the majority would have
it, from its application to legislators, and, additionally, that there
is no immunity for practices that merely relate to legislative
activities. Instead, the central inquiry for non-legislators is
whether the official was performing legislative functions, which
the Supreme Court in Bogan v. Scott-Harris defined as acts that
were “integral steps in the legislative process.” Bogan, 

, 55 (1998) (citing Edwards v. United States, 

,
490 (1932)).21

    21
      The majority’s opinion ignores the question of whether
McGreevey’s and Harrington’s actions are “integral steps in the
legislative process,” focusing instead on whether their actions
were undertaken within the “sphere of legislative activity.” See

                                 53
        I also agree with the majority that formal aspects
necessary to the legislative process - introduction of a bill and
signing it into law – qualify for legislative immunity. But here,
the governor and his aide went far beyond that. We have
repeatedly cautioned that “a public official’s legislative
immunity from suit attaches only to those acts undertaken in a
legislative capacity. It is only with respect to the legislative
powers delegated to them by the state legislatures that [non-
legislative officials] are entitled to absolute immunity.” 

(my emphasis). “Absolute legislative immunity
attaches to all actions taken in the sphere of legitimate
legislative activity.” Bogan v. Scott-Harris, 

, 54
(1998) (quoting Tenney v. Brandhove, 

, 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, 

, 513 (1972). Immunity includes
“activities that are an integral part of the deliberative and
communicative processes by which Members participate in
committee and House proceedings with respect to the
consideration and passage or rejection of proposed legislation or

. Many actions can be said to take place
within the sphere of legislative activity — including lobbying.
That does not mean, however, that all such actions are entitled
to legislative immunity.

                               54
with respect to other matters which the Constitution places
within the jurisdiction of either House.” 

(quoting Gravel v. United States, 

, 625
(1972)). Conversely, legislative immunity will not extend “to
acts that are casually or incidentally related to legislative affairs
but not part of the legislative process itself.” 

(quoting 

).
        Because the roots of legislative immunity seek to protect
the quintessentially legislative process, the doctrine should
protect action that might be inhibited, frustrated or impaired by
the threat of suit where that action is central to the legislative
process. Viewed in this way, it is clear that broad extension of
the doctrine advocated by the majority to non-legislators’
actions does not show true fidelity to the underlying basis of the
doctrine, which is to protect the legislative process, and would
not follow the Supreme Court’s caution that the doctrine be
extended only when necessary to prevent impairment of the
legislative function. Accordingly, I believe that only actions
that are “integral steps in the legislative process,” acts that are
inextricably linked to, and necessary for, the passage of
legislation are entitled to protection. I conclude that the actions
averred in Baraka’s complaint are not “integral steps in the
legislative process,” and, therefore, I would reverse the District
Court.22

   22
    The District Court grasped onto language contained within
a 1994 District Court case, Hughes v. Lipscher, 

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

                                 55
       Finally, I point out that by concluding that McGreevey
and Harrington are not entitled to absolute legislative immunity,
we do not deprive them of other valid defenses. Qualified
immunity remains not only a robust defense, but is the
appropriate one where defendants are public officials in the
executive branch. See Dotzel v. Ashbridge, 

, 326
n.3 (3d Cir. 2006). It may be true that McGreevey and
Harrington should be protected for their role in orchestrating and
directing the passage of the bill about which Baraka complains;
however, the appropriate defense for them is qualified immunity
– not absolute legislative immunity.
       Hence, I must respectfully dissent.




legislators but whose acts have a substantial legislative nexus
are also imbued with this absolute legislative immunity.”

. To the extent that it overreads and
over-extends the scope of the immunity doctrine, it should be
affirmatively rejected. Nowhere has this standard been
explicitly advocated or adopted, especially not in the case cited
for it support, Gravel. The “substantial nexus” test would
envelop a much too broad set of behavior under the doctrine,
allowing non-legislators to claim legislative immunity for acts
not just integral to the legislative process generally (such as the
signing or introducing of a bill) but also for acts that could be
seen as lobbying, politicking, and the like. The doctrine was
plainly not intended to cover such behavior, even for legislators.

                                56