Baraka v. McGreevey
This petition seeks review of a significant decision by the U.S. Court of Appeals for the Third Circuit, which held, over a dissent, that two New Jersey executive officials — former New Jersey Governor James E. McGreevey and the former chairperson of the New Jersey State Council on the Arts — were entitled to absolute legislative immunity for directing and orchestrating an effort, culminating in legislation, to eliminate Amiri Baraka's position as Poet Laureate of New Jersey in retaliation for his public reading of a controversial poem he wrote regarding the attacks against the United States on September 11, 2001. As the dissenting judge recognized and as Mr. Baraka argues here, the Third Circuit's decision extends legislative immunity far beyond the bounds set by this Court, effectively conferring absolute legislative immunity on any activity by executive officials with even a slight connection to the legislative process. Moreover, Mr. Baraka contends, in expanding legislative immunity to actions by executive officials that are not "integral steps in the legislative process" and that target a particular individual for differential treatment, the Third Circuit's decision creates a conflict among the courts of appeals that should be resolved by the Supreme Court.
The Third Circuit held not only that Governor McGreevey and Harrington were entitled to legislative immunity in their individual capacities, but also that legislative immunity barred Mr. Baraka's claims for reinstatement against them in their official capacities. In ruling that absolute legislative immunity can block an official-capacity suit for prospective injunctive relief, the Third Circuit deepened an already existing conflict in the circuits. Other courts of appeals have recognized, consistent with Supreme Court precedent, that personal immunities such as absolute legislative immunity do not apply to actions for prospective injunctive or declaratory relief against state officials in their official capacities. Mr. Baraka urges the Supreme Court to grant certiorari to resolve this important conflict as well.