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March 24, 1981;

Maria GARRETTO, Plaintiff,
Arthur COOPERMAN, Chairman, William Kroeger, Vice-Chairman, George E. Yerry, Jr., Ilene J. Slater, Ernest Latham, George Bevan, Walter Shields, Seymour Posner, Ferdinand Tremidi, Dr. Henry Christman, Monica Gollub, Daniel Higgins, and Francis Griffin, comprising the New York State Workers' Compensation Board, Defendants

The opinion of the court was delivered by: LEVAL


Plaintiff Maria Garretto sues to enjoin the New York State Worker's Compensation Board from terminating her employment as a Worker's Compensation Law Judge. Plaintiff's motion for a preliminary injunction is hereby denied.

 .Plaintiff was employed as a Compensation Law Judge (or "Referee") for a seven year term which ended on September 19, 1980. The Board permitted her to continue in office until December 17, 1980. Her suit alleges that the Board failed to reappoint her "solely because she is a registered Republican, appointed by a Republican administration, and now in the employment of an agency which has become controlled by the opposing, Democratic Party." Plaintiff claims that the defendants' failure to reappoint her deprives her of her rights under the First and Fourteenth Amendments, and under 42 U.S.C. § 1983.

 In order to prevail on her preliminary injunction motion, plaintiff must demonstrate irreparable harm and either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly in her favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2 Cir. 1979).

 I find that plaintiff has failed to demonstrate either a likelihood of success on the merits *fn1" or, under the second branch, a balance of hardships tipping in her direction.

 The issue is whether plaintiff comes within the scope of two recent Supreme Court opinions, Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980).

 In Elrod the plaintiffs were Republican non-civil service clerical employees in the Cook County, Illinois, sheriff's office. When control of the office shifted from Republican to Democratic hands, the new sheriff discharged employees who did not support, or were not members of, the Democratic party, or did not have the sponsorship of the Democratic leadership.

 The Supreme Court ruled, in a plurality opinion, that such patronage dismissals violated First Amendment's guarantee of free political belief and association. It was suggested that the same protection would not apply to policy-making employees that these would be subject to dismissal by reason of political affiliation so as to protect the power of an elected administration to implement its policies. 427 U.S. at 367, 96 S. Ct. at 2686.

 The plaintiffs in Branti were Republicans and were Assistant Public Defenders in Rockland County, New York who served at the pleasure of the Rockland County Public Defender. They were terminated by a new, Democratic, Public Defender, appointed to replace a Republican predecessor. Judge Broderick of this court found at trial that plaintiffs were terminated solely because they were Republicans and lacked Democratic sponsors; Judge Broderick also found that the plaintiffs were not policymaking, or confidential employees. He concluded that their discharge violated their First and Fourteenth Amendment rights, on the authority of Elrod, Finkel v. Branti, 457 F. Supp. 1284, 1290-93 (D.C.1978). The Court of Appeals affirmed. 598 F.2d 609 (2 Cir. 1979).

 The Supreme Court also affirmed, holding that the plaintiffs could not be discharged because of their political affiliation.

 On the question whether the plaintiffs were subject to the policymaker exception outlined in Elrod, the opinion stated:

In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

 445 U.S. at 518, 100 S. Ct. at 1295.

 If the question continues to have relevance after the Branti decision, I would conclude that the position of Compensation Law Judge does fall broadly within the "policy-maker" exception discussed in Elrod. These judges, sometimes called Referees, hear and determine claims in a number of categories, including primarily claims for compensation for job-related injury, non-job-related disability benefits, discrimination, or retaliation, claims, and many other claims. In many cases these determinations are made in full formal trial of contested facts. The decision of the Referee is the decision of the Board unless the Board modifies or rescinds the decision, which happens in only a small number of cases. Board review is generally based on the record before the Referee although the Board has the power to hear evidence de novo. It seems evident given the kinds of decisions Compensation Law Judges must make on mixed questions of fact and law, such as whether an injury occurred within the scope of employment, and degree of disability, that judges who approach the task of adjudication from different points on the political spectrum will produce markedly different results in the functioning of the compensation system. A ...

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