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June 27, 1977

Lorraine C. CULLEN, John L. Jund, Manny Trotner, on behalf of themselves and all others similarly situated, and Civil Service Merit Council of Long Island, Plaintiffs,
NEW YORK STATE CIVIL SERVICE COMMISSION, Victor Bahou, President, Nassau County Civil Service Commission, Adele Leonard, Commissioner, the County of Nassau, Ralph G. Caso, County Executive of the County of Nassau, Town of Hempstead Civil Service Commission, Sidney Rosenthal, Commissioner, Town of Hempstead, Francis T. Purcell, Presiding Supervisor, Nassau County Republican Committee, Joseph F. Margiotta, County Leader, Defendants.

The opinion of the court was delivered by: MISHLER


MISHLER, Chief Judge.

 This lawsuit, brought pursuant to § 1983 of Title 42, United States Code, seeks monetary and injunctive relief for the alleged deprivation of constitutional rights by public officials and governmental units in the County of Nassau on Long Island. Jurisdiction is predicated on 28 U.S.C. § 1343(3). The essence of the complaint is that in order to obtain an appointment or promotion to a position with the county government, a job-seeker or holder must contribute or agree to contribute at least one percent of his annual salary to the Nassau County Republican Committee.

 The plaintiffs are present or former Civil Service employees in Nassau County, who claim to have been denied promotion or appointment because they refused to make contributions to the Republican organization. The plaintiff Civil Service Merit Council of Long Island is an unincorporated association formed, according to plaintiffs, by "collective bargaining units," whose members are civil service employees in Nassau County.

 The defendants include the Nassau County Republican Committee and the County Republican Leader, Joseph F. Margiotta; a New York State governmental unit, the New York State Civil Service Commission; and local governmental units, including the Town of Hempstead and the Nassau County Board of Supervisors. A number of local government officials are named in the caption, although it is not clear whether they are sued in their individual or in their representative capacities, or in both capacities.

 The defendants move to dismiss the complaint on the grounds that the action is barred by the doctrine of res judicata; that the complaint fails to state a cause of action; and that the court lacks jurisdiction over the defendants. The plaintiffs present a motion, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an order granting their action class status and designating them as representatives of 22,000 "similarly situated" civil service employees.

 The allegations of the complaint, which can not be dismissed for failure to state a claim unless it is clear that plaintiffs can prove no set of facts entitling them to relief, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957), suggest that the defendants have trampled on the first amendment rights of countless numbers of civil service employees in order to strengthen the financial base of the Nassau County Republican Party. Collectively, the defendants allegedly have the power to appoint individuals on the Civil Service eligibility lists to positions in the municipal and county governments. In order to obtain such a position, or to achieve a promotion within the governmental unit, the applicant or employee must contribute part of his salary to the Nassau County Republican Committee.The pressure to make contributions apparently is generated by party officials acting in concert with elected public officials who have the power to hire or fire and promote or demote thousands of civil servants in Nassau County.

 The complaint, for example, alleges that John Jund, after a competitive examination, was placed on the eligibility list for appointment to the position of Sanitation Foreman, Town of Oyster Bay & North Hempstead. He was informed, however, that appointment to the position depended on contributing to the Nassau County Republican Committee and joining a Republican Club. Jund, who refused to contribute, did not obtain the sanitation job. Later, he made political contributions in order to obtain a chauffeur's job. When he stopped contributing, he was reduced to the position of "Helper." *fn1"


 The right to associate with individuals or organizations for the promulgation and advancement of political beliefs and ideas is a form of "'orderly group activity' protected by the First and Fourteenth Amendments." Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S. Ct. 303, 307, 38 L. Ed. 2d 260 (1973), quoting NAACP v. Button, 371 U.S. 415, 430, 83 S. Ct. 328, 336, 9 L. Ed. 2d 405 (1963). At the core of the present case is the equally basic principle that the right to associate includes the right of affiliation with the political party of one's choice or the right not to affiliate with a political party at all. See Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct. 5, 10, 21 L. Ed. 2d 24 (1968). This "freedom to affiliate" can be abrogated by indirect methods such as compelled disclosure of membership in an organization committed to controversial goals or ideals, see Bates v. City of Little Rock, 361 U.S. 516, 522-23, 80 S. Ct. 412, 416, 4 L. Ed. 2d 480 (1960); NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S. Ct. 1163, 1172, 2 L. Ed. 2d 1488 (1958), or by more direct attack, such as legislation making it impossible for political parties other than Republican or Democratic to qualify for the ballot, see Williams v. Rhodes, supra. More recently, the Supreme Court recognized the subtle links between protected political activity and financial contributions to a political candidate or to political parties. In Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), involving a challenge to federal regulation of campaign spending, the Court observed that "[making] a contribution, like joining a political party, serves to affiliate a person with a candidate." Id. at 22, 96 S. Ct. at 636.

 One of the most sensitive areas involving first amendment rights is political activity by public employees. There is without question a state interest in regulating the political activity of public employees in order to efficiently serve public needs. E.g., United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947). At the same time, while there is no right to the governmental benefits of civil service employment, once those benefits are made available on the basis of merit, denial of employment or promotion may not be conditioned on the making of a financial contribution to a political party. See Abood v. Detroit Board of Ed., 431 U.S. 209, 233-237, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977); Elrod v. Burns, 427 U.S. 347, 363, 96 S. Ct. 2673, 2681, 49 L. Ed. 2d 547 (1976). See also Pickering v. Board of Ed., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). To do so is a severe and intolerable infringement of the right of association. No conceivable state interest is served by coercing public employees into making political contributions. *fn2" The employee is told, in effect, that in order to work for a county or local government he must give up his right to choose party affiliation or his right to avoid supporting party positions and political views with which he does not agree. To paraphrase Justice Brennan, the financial assistance the employee is induced to provide to a political party furthers the advancement of that party's policies to the detriment of his or his own party's beliefs, and "any assessment of his salary is tantamount to coerced belief." Elrod v. Burns, supra, 427 U.S. at 355, 96 S. Ct. at 2681. Plainly, such conduct by persons in official positions is an unacceptable invasion of constitutional rights, actionable under the civil rights statutes.

 The defendants, however, have raised a number of procedural and jurisdictional objections to the consideration of this complaint in federal court. We turn to examine those objections, as well as the motion for class certification.

 1. Res Judicata

 The defendants argue that state court proceedings involving similar claims by the plaintiffs have a res judicata effect, barring this case from federal court.

 On December 2, 1974, several of the present plaintiffs *fn3" filed an action seeking, inter alia, declaratory and injunctive relief against many of the current defendants in New York State Supreme Court in Nassau County. The complaint alleged that, in various ways, the plaintiffs were requested or urged to make political contributions to the Republican Party and that in two instances, the failure to comply resulted in denial of promotion. These actions allegedly violated provisions of the New York Civil Service Law and the New York State Election Law.

 On February 18, 1975, State Supreme Court Justice Albert granted the defendants' motions to dismiss for failure to state a cause of action. Justice Albert ruled that "[the] allegations of the complaint are fatally defective in that said allegations are totally speculative and conclusory and fail to state a cause of action against the named defendants." Justice Albert found no actual allegation in the complaint that the defendants had been involved in a conspiracy or in any way linked to the "serious charges" raised by plaintiffs, and that, at best, "plaintiffs were allegedly prejudiced by the 'suggestion' or 'instructions' of certain unnamed individuals." The complaint was dismissed without leave to replead, pursuant to N.Y.C.P.L.R. § 3211(e) (McKinney 1970). Cullen v. Margiotta, 81 Misc.2d 809, 367 N.Y.S.2d 638, No. 74-19518 (1975).

 Subsequently, on May 16, 1975, Justice Albert denied the plaintiffs' motion for reargument and for leave to replead on the ground that it was untimely and that, in any event, "the deficiencies contained in the original complaint [had] not been cured by the proposed amended complaint." The plaintiffs appealed both of Justice Albert's rulings, but, on October 1, 1976, the appeal was dismissed by the Appellate Division because the plaintiffs had failed to appear on the call of the calendar.

 The plaintiffs retained a different law firm and applied to Justice Albert for reargument, requesting leave to file an amended complaint. The proposed amended complaint, nearly identical to the complaint later filed in this court, included the allegation that the defendants had violated the first amendment. On November 15, 1976, Justice Albert denied the application, treating it as a motion to reargue. The Justice found that the only additional facts alleged in the proposed complaint were the indictments of Town of Hempstead employees, none of whom were named as defendants in the civil matter, for alleged coercion of political contributions. The State Supreme Court Justice dismissed these allegations as a "bootstrap" argument that failed to show the existence of a conspiracy on the part of the named defendants. He went on to state that

 when high public officials in our government are charged with violations of law, conclusory labels, assumptions and conjecture are no substitutes in judicial proceedings for facts which should initially be derived from disciplined investigation.Justice Albert also concluded that the motion for reargument was not timely and that, rather, the appropriate recourse for the plaintiffs was the appeal to the Appellate Division.

 With respect to the motion for class status, Justice Albert found it unnecessary to decide that question, although he noted that

 just a cursory review of the allegations of the proposed amended complaint indicates on the face thereof that it fails to properly allege a conspiracy among the named defendants to violate the applicable laws herein, such as is required in pleading such an action....

 Cullen v. Margiotta, No. 74-19518 (Sup.Ct.Nov. 15, 1976) (citation omitted).

 The familiar principles underlying the doctrine of res judicata do not need to be elaborated here. In this case, since the parties are essentially the same as in the state proceedings, the critical issue is whether "the right, question or fact" determined in the state proceedings is the same as that presented by the federal action. Mitchell v. NBC, 553 F.2d 265 at 268 (2d Cir. 1977), quoting Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 719, 92 L. Ed. 898 (1948).As we analyze the state proceedings, there were two distinct determinations in the state courts that must be examined for res judicata effect. The first was the dismissal of the original complaint without leave to replead. The second was the denial, on two occasions, of what apparently were motions to reargue the original dismissal.

 The dismissal of a complaint for failure to state a claim "is res judicata as to the then existing claim which plaintiff was attempting to state." Carter v. Money Tree Company, 532 F.2d 113, 115 (8th Cir.), cert. denied, 426 U.S. 925, 96 S. Ct. 2636, 49 L. Ed. 2d 380 (1976); Glick v. Ballentine Produce, Inc., 397 F.2d 590, 593 (8th Cir. 1968). A judgment on the pleadings where, as here, the complaint is dismissed for lack of a necessary allegation, does not preclude filing a new complaint with new allegations. In Gould v. Evansville and C.R.R. Co., 91 U.S. 526, 534, 23 L. Ed. 416, 419 (1876), the Supreme Court observed that it is

 well settled, that, if the plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right; for the reason that the merits of the cause, as disclosed in the second declaration, were not heard and decided in the first action.

 Aurora City v. West, 74 U.S. (7 Wall.) 82 [19 L. Ed. 42]; Gilman v. Rives, 35 U.S. (10 Pet.) 298 [9 L. Ed. 432]; Richardson v. Barton [Boston], 65 U.S. (24 How.) 188 [16 L. Ed. 625].

 Accord, Rinehart v. Locke, 454 F.2d 313, 314 (7th Cir. 1971); Thomas v. Consolidation Coal Co., 380 F.2d 69, 81-82 (4th Cir.), cert. denied, 389 U.S. 1004, 88 S. Ct. 562, 19 L. Ed. 2d 599 (1967); Restatement of Judgments, § 50C (1942), discussed in 1B Moore's Federal Practice [*] 0.409[1], at 1006-07 (1974 ed.). See ...

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