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June 29, 1979

James M. CATTERSON, Plaintiff,
Ralph G. CASO, Robert J. Sweeney and Robert L. Ryan, Defendants

The opinion of the court was delivered by: COSTANTINO


In this action, plaintiff, James M. Catterson, Jr., alleges violations of his rights under the First and Fourteenth Amendments and under 42 U.S.C. §§ 1983, 1985, 1986, and 1988. In addition, plaintiff alleges violations of New York State law. The court's jurisdiction is based on 28 U.S.C. §§ 1331 and 1343.

 Plaintiff is an attorney and a resident of Suffolk County. He was appointed County Attorney of Nassau County, effective January 1, 1976, by defendant Ralph G. Caso, who at that time was the County Executive of Nassau County. Section 13-1.0 of the Nassau County Administrative Code ("Administrative Code") requires that except under certain circumstances, a county employee must be a resident of Nassau County for one year prior to the date of his appointment. *fn1" Defendant Caso, pursuant to Section 13-1.0(c), submitted to the Nassau County Civil Service Commission a one year waiver of the residency requirement for plaintiff. The waiver was effective January 1, 1976. On December 30, 1976, plaintiff was notified that his position as County Attorney was terminated effective midnight, December 31, 1976. Plaintiff claims that he was terminated for unlawful reasons.

 Assuming for the purposes of this motion that the allegations in plaintiff's complaint are true, in the latter part of 1976 defendant Caso announced that he would seek the Republican nomination to succeed himself as Nassau County Executive when his term of office expired on December 31, 1977. In order to further his candidacy, Caso sought to enlist the support of various Republican Party members and municipal officials, including that of the plaintiff. Caso requested the plaintiff to speak in favor of his candidacy to the Nassau County Republican Chairman. Plaintiff informed Caso that he did not intend to support his candidacy and refused to speak to the Republican chairman in Caso's behalf.

 On or about December 23, 1976 defendant Caso directed plaintiff to appoint defendant Robert J. Sweeney to the office of chief deputy county attorney which was to become vacant on December 31, 1976. Plaintiff complied with this directive on December 30, 1976. Subsequently, plaintiff was informed that his position as county attorney was terminated effective at midnight December 31, 1976. Sweeney succeeded plaintiff as county attorney.

 Plaintiff contends that he was dismissed from his position without cause and for the sole purpose of punishing him for refusing to support Caso's candidacy. He asserts that his termination was designed to intimidate other public office holders in Nassau County into supporting Caso's candidacy. Plaintiff also contends that defendants Sweeney and Ryan *fn2" aided and abetted Caso and conspired with him to have plaintiff dismissed from his position.

 Plaintiff's complaint charges that he was dismissed in violation of his First and Fourteenth Amendment rights to freely affiliate himself with the candidate of his choice. He also alleges that he was terminated in violation of his right to due process. He further claims that under state law, the defendants jointly and severally have committed a prima facie tort, libel per se, slander and defamation of character, civil conspiracy, and have violated N.Y. Civil Service Law § 107 and N.Y. Penal Law § 105.05.

 Defendants originally moved to dismiss plaintiff's cause of action pursuant to Fed.R.Civ.P. 12(b). Because the court had before it matters outside the pleadings which it wished to consider, it informed the parties that it was treating defendants' motion as one for summary judgment.

 Political Affiliation Claim

 Plaintiff claims that the First and Fourteenth Amendment accorded him the right to support the candidate of his choice for the Republican nomination for the office of Nassau County Executive and that his dismissal solely because of his failure to support defendant Caso for that nomination was in contravention of his constitutional rights. His claim is based on the Supreme Court's decision in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).

 Because Elrod was a plurality decision, the holding of the concurring Justices generally has been viewed as the holding of the court. See Alfaro de Quevedo v. De Jesus Schuck, 556 F.2d 591 (1st Cir. 1977); Tanner v. McCall, 441 F. Supp. 503 (M.D.Fla.1977); Ramey v. Harber, 431 F. Supp. 657 (W.D.Va.1977), Aff'd in part, rev'd in part, 589 F.2d 753 (4th Cir. 1978). See generally Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). But see Judge Broderick's analysis in Finkel v. Branti, 457 F. Supp. 1284, n.9 at 1289-90 (S.D.N.Y.1978), Aff'd, 598 F.2d 609 (2d Cir. 1979), Cert. granted, 443 U.S. 904, 99 S. Ct. 3095, 60 L. Ed. 2d 871 (1979), as to why Elrod may be read more broadly than the concurring Justices' holding. The holding of the concurring Justices was that "a nonpolicymaking, nonconfidential government employee can(not) be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs." Elrod v. Burns, supra 427 U.S. at 375, 96 S. Ct. at 2690 (Stewart, J., concurring).

 At issue in Elrod was the practice of the newly elected sheriff in Cook County, Illinois to replace all non-civil service employees in the sheriff's office who were not members of his own Democratic Party and who were not sponsored by one of the party leaders. The Court found that the patronage dismissals infringed upon the employees' First Amendment right to affiliate themselves with the political party of their choice. However, the Court recognized that the political loyalty of government employees may be necessary in order to avoid a situation where the implementation of an elected administration's policies is obstructed for partisan reasons. In order to balance these conflicting interests, the Court in Elrod limited its holding to prohibiting patronage dismissals of nonpolicymaking, nonconfidential employees. Those government employees who occupy policymaking or confidential positions may be dismissed for political reasons.

 It is clear to this court that the First Amendment rights discussed in Elrod are broad enough to encompass the right to support the candidate of one's choice without fear of being dismissed for doing so. Therefore, the sole issue before the court with respect to plaintiff's political affiliation claim is whether or not he was a policymaking or confidential employee. *fn3" The court finds that the office of Nassau County Attorney is a policymaking, confidential position and, therefore, plaintiff's termination did not violate his First and Fourteenth Amendment rights.

 While Mr. Justice Brennan's plurality decision recognizes that "no clear line can be drawn between policymaking and nonpolicymaking positions", Elrod v. Burns, supra 427 U.S. at 367, 96 S. ...

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