The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
In Elrod v. Burns
and again in Branti v. Finkel,
the Supreme Court of the United States held that certain public employees, who served at the pleasure of their superiors, were deprived of their constitutional rights under the First and Fourteenth Amendments when they were discharged or threatened with discharge solely because of their partisan political affiliations or beliefs. The question raised by the present motion is whether plaintiff, a hold-over term appointee, is entitled to invoke these constitutional protections in a suit alleging that he is threatened with replacement rather than reappointment solely because of partisan considerations? None of the several opinions in Elrod and Branti answer that question directly, for in both cases, "the only practice at issue was the dismissal of public employees for partisan reasons." Branti, supra, 100 S. Ct. at 1292, n. 7 (emphasis added). Thus, the question here involved may be reframed as follows: Is there a constitutional difference between the attempted replacement of a hold-over appointee solely for partisan reasons and the patronage discharges proscribed by the Supreme Court in Elrod and Branti?
The State defendants contend that such a distinction exists because under New York State law, a hold-over term appointee has no constitutionally protectable property interest in continued public employment, and therefore plaintiff has failed to state a constitutional claim even if he is to be replaced solely because of his political beliefs.
The validity of this argument depends, however, on the assumption that due process concepts of state-created property interests are coextensive with the scope of First and Fourteenth Amendment protections. However, even if this Court were to agree that under no circumstances can a hold-over appointee acquire a protectable interest in continued employment,
the opinions in both Elrod and Branti make plain that plaintiff's alleged lack of a contractual or statutory right to continued employment is immaterial to the invocation of First Amendment protections. Accordingly, defendants' motion to dismiss for failure to state a claim must be denied.
Plaintiff Richard Brady commenced this action for injunctive and monetary relief to protect his position as Director of the Division of Cemeteries of the New York State Department of State. Plaintiff, a member of the Republican Party, was originally appointed Director on December 24, 1974 to serve out the remainder of an unexpired six year term which ended on April 15, 1980. At the time of his appointment in 1974, all three members of the State Cemetery Board
as well as the Governor of the State of New York were also members of the Republican Party. By the expiration of plaintiff's original term, however, control of the Governor's office and the Cemetery Board had shifted to the Democrats. Notwithstanding this shift in party control, the Cemetery Board permitted plaintiff to continue in office beyond the expiration of his original term. Since the Cemetery Board did not formally reappoint plaintiff as Director, his status during the early months of this year may properly be described as that of a hold-over appointee.
Plaintiff's suit alleges that at a meeting of the Cemetery Board on March 25, 1981, defendant Basil Paterson, as Secretary of State and Chairman of the Cemetery Board, nominated and the full Board voted to appoint Pearce M. O'Callaghan to the position of Director for a term to expire on April 15, 1986. Plaintiff further alleges that the appointment was to become effective on April 23, 1981.
On April 22, 1981, plaintiff commenced this action and, by order to show cause, sought a temporary restraining order and a preliminary injunction enjoining the defendants from taking any action to terminate or replace plaintiff as Director of the Division of Cemeteries. The named defendants include the Secretary of State of the State of New York, the Attorney General and the Commissioner of Health; they are sued in their official capacities both individually and as constituting the State Cemetery Board of the New York State Department of State. Plaintiff's suit alleges that the defendants attempt to replace him and to appoint O'Callaghan as his successor "based solely on political grounds because of plaintiff's affiliation with the Republican Party..." Plaintiff further alleges that party affiliation is not an appropriate requirement for the effective performance of the office of Director of the Division of Cemeteries. Plaintiff therefore claims that the defendants' attempt to replace him for partisan reasons violated his rights under the First and Fourteenth Amendments and in violation of 42 U.S.C. §§ 1983, 1985, 1986 and 1988.
On April 22, 1981, I issued the requested temporary restraining order, which was to remain in effect for ten days so as to permit the development of a factual record at an evidentiary hearing scheduled for April 29, 1981. At the start of that hearing, the defendants orally moved to dismiss the complaint on the ground that it failed to state a cause of action.
I reserved on the motion and ordered the hearing to proceed. Evidence was presented on April 29th and again on May 1, 1981. With respect to the issue of plaintiff's likelihood of success on the merits, counsel were informed that the evidence adduced would be considered on the merits upon the plenary trial. I also stated that if at the conclusion of the preliminary injunction hearing, the parties indicated that no further proof would be forthcoming, then the plenary trial would be consolidated with the present hearing pursuant to Rule 65(a) of the Federal Rules of Civil Procedure. In an effort to focus the presentation of evidence, I identified the three basic issues found by the Court to be crucial to a disposition on the merits:
1. As a threshold matter, can plaintiff establish by a preponderance of the evidence that his attempted replacement was based solely on partisan political considerations?
2. If so, can the State hiring authority meet its burden of demonstrating that Party affiliation is an appropriate requirement for the effective performance of the office of the Director of the Division of Cemeteries?
3. Finally, if plaintiff meets his burden on the threshold issue and if the defendants fail to establish that party affiliation is an appropriate requirement for the effective discharge of the office of Director, is there an analytic distinction for First and Fourteenth Amendment purposes between the replacement of a hold-over employee and the dismissal of a public employee who serves at the pleasure of his or her superior and who may be discharged for any reason or for no reason at any time?
Following a discussion among the Court and counsel, the defendants renewed their motion to dismiss on the ground that an affirmative answer to the third issue set out above would dispose of the need to proceed further in the case. Accordingly, the hearing was adjourned pending decision on the motion to dismiss and the temporary restraining order was extended by consent of the parties.
As noted at the outset of this opinion, plaintiff's claim rests primarily on the Elrod and Branti decisions, and the defendants' motion to dismiss asserts that the principles there established have no application to this or other so-called "failure to reappoint" cases. Since this is a motion to dismiss, the Court must accept as true plaintiff's allegation that the defendants attempted to replace him solely for partisan political considerations and the further allegation that party affiliation is not an appropriate requirement for the effective performance of the office of Director of the Division of Cemeteries. It is the defendants' position that even assuming the truth of these two allegations, the First and Fourteenth Amendment protections established in Elrod and Branti cannot be invoked by a public employee who lacks a contractual or statutory right to continued employment. For the reasons stated below, this Court disagrees.
It is true that both Elrod and Branti involved discharges or threats to discharge public employees for partisan reasons. But it is equally clear that neither case lends support to the proposition that due process concepts of state-created property interests are an appropriate measure of the First and Fourteenth Amendment principles enunciated in those cases. In fact, both Justice Brennan's plurality opinion and Justice Stewart's concurrence in Elrod relied expressly on ...