Baraka v. McGreevey, 05-2361.

Citation481 F.3d 187
Decision Date21 March 2007
Docket NumberNo. 05-2361.,05-2361.
PartiesAmiri 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.).
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

William D. Manns, Jr., Esquire, (Argued), Lee & Sanchez, Newark, NJ, Robert T. Pickett, Esquire, South Orange, NJ, for Appellant.

Lewis A. Scheindlin, Esquire, (Argued), Office of Attorney General of New Jersey, Department of Law & Public Safety, Trenton, NJ, for Appellees.

Before SCIRICA, Chief Judge, NYGAARD, Circuit Judge, and YOHN, District Judge.*

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 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 § 52:16A-26.9 (repealed 2003)).1 The statute provided the governor would biennially appoint a State poet laureate who would serve for two years and receive an honorarium of $10,000.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. Id.

Two months after his appointment, Baraka read his poem entitled "Somebody Blew Up America" at the Geraldine R. Dodge Poetry Festival in Stanhope, New Jersey. The poem commented generally on American society and politics, and on terrorism, specifically referencing the terror attacks of September 11, 2001, and read, in part: "Who knew the World Trade Center was gonna get bombed/Who told 4000 Israeli workers at the Twin Towers to stay home that day/Why did Sharon stay away?"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 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 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 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, 432 F.3d 493, 494 (3d Cir.2006). A Rule 12(b)(6) motion will be granted "`if it appears to a certainty that no relief could be granted under any set of facts which could be proved.'" Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.2005) (quoting D.P. Enter. Inc. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984)). We must accept all factual allegations in Baraka's complaint as true, but we are not compelled to accept "unsupported conclusions and unwarranted inferences," Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or "a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). We review a district court's dismissal of pendent state law claims for abuse of discretion. Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir.1990); Cooley v. Pa. Hous. Fin. Agency, 830 F.2d 469, 471 (3d Cir.1987).

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, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). Legislative immunity shields from suit not only legislators, but also public officials outside of the legislative branch when they perform legislative functions. See id. (affording absolute legislative immunity to a mayor); Sup.Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 734, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (same, to the Virginia Supreme Court and its members); Gallas v. Sup.Ct. of Pa., 211 F.3d 760, 776-77 (3d Cir.2000) (same, to the Pennsylvania Supreme Court and its members); Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir. 1983) (same, to members of a city council, a mayor, and a city attorney). The relevant question is whether Governor McGreevey and Chair Harrington's actions were "`in the sphere of legitimate legislative activity.'" Bogan, 523 U.S. at 54, 118 S.Ct. 966 (quoting Tenney, 341 U.S. at 376, 71 S.Ct. 783).

1.

In Youngblood v. DeWeese, 352 F.3d 836 (3d Cir.2004), we addressed the distinction between legislative and political activities on the part of state legislators. As examples of legislative activities, we cited "voting for a resolution, subpoenaing and seizing property and records for a committee hearing, preparing investigative reports, addressing a congressional committee, and, of course, speaking before the legislative body in session." Id. at 840 (internal citations omitted). We contrasted these with examples of political activities, including "`a wide range of legitimate "errands" performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called "news letters" to constituents, news releases, and speeches delivered outside the Congress.'" Id. (quoting United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (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...

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