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RINI v. ZWIRN

May 5, 1995

THOMAS RINI, DIANE O'DONNELL, RICHARD E. RYAN, EDWARD WINROW, BARBARA LAUMENEDE, LAWRENCE RAGONA, JOHN INFRANCA, HELEN DELANEY HARRIS, JOHN CIBOROWSKI, VINCENT ANTHONY, RHODA BECKER, GIACOMO CICCONE, AND CHARLES J. O'CONNOR, Plaintiffs, against BENJAMIN L. ZWIRN, in his individual capacity and as Supervisor of the Town of North Hempstead, MAY NEWBURGER, ANTHONY D'URSO, BARBARA JOHNSON, in their individual capacities, and as council members of the Town of North Hempstead, GERARD CUNNINGHAM, in his capacity as council member of the Town of North Hempstead Board, RICHARD MIDDLEMARK, in his individual capacity, and as Executive Assistant to the Supervisor of the Town of North Hempstead, the TOWN OF NORTH HEMPSTEAD, PAUL NEHRICH, individually and as President of the Town of North Hempstead Civil Service Employees Association, WILLIAM BIAMONTE, in his individual capacity, and as Director of Legislative Affairs, LAWRENCE NEDELKA, in his individual capacity and as Commissioner of Finance, FRIENDS OF BEN ZWIRN and ALICE PECKELIS, in her capacity as Treasurer of FRIENDS OF BEN ZWIRN, Defendants.


The opinion of the court was delivered by: MICHAEL L. ORENSTEIN

 ORENSTEIN, United States Magistrate Judge:

 The plaintiffs in this action, former employees of the Town of North Hempstead, challenge the termination of their employment under 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), 42 U.S.C. § 1988, 18 U.S.C. § 1961 et seq. (Racketeer Influenced and Corrupt Organizations, hereinafter "RICO"), and common law fraud. Plaintiffs bring this action against the Town of North Hempstead, the former town supervisor, members of the Town Council, other former town officials, the president of the town Civil Service Employees Association and the town supervisor's political fund-raising organization and its treasurer. Plaintiffs assert that they were terminated from their positions as public employees solely on the basis of their political affiliation and in retaliation for their political activities. (Compl. P 2.)

 Defendants move to dismiss the Complaint. Fed. R. Civ. P. 12(b)(6), 12(c), and 9(b). Defendants Town of North Hempstead, Benjamin L. Zwirn, May Newburger, Anthony D'Urso, Gerard Cunningham, Richard Middlemark, William Biamonte, and Lawrence Nedelka (hereinafter collectively referred to as "Municipal" or "Town" defendants) move to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure (hereinafter "FRCP") 12(b)(6) or in the alternative pursuant to FRCP 9(b) for failure to plead allegations of fraud with particularity. Defendant Paul Nehrich as "President of the Town of North Hempstead Civil Service Employees Association" (hereinafter "CSEA") moves to dismiss all claims pursuant to FRCP 12(c). (CSEA Mem. of Law at 1.) Defendant "Friends of Ben Zwirn" also moves to dismiss pursuant to FRCP 12(c). *fn1"

 BACKGROUND

 Thomas Rini was Administrative Assistant to the Superintendent of Highways. (Compl. P 5.) Diane O'Donnell was a Traffic Technician I. (Compl. P 6.) Richard E. Ryan was also a Traffic Technician I. (Compl. P 7.) Edward Winrow was Administrative Assistant to the Commissioner of Community Services. (Compl. P 8.) Barbara Laumenede was a Payroll Supervisor. (Compl. P 9.) Lawrence Ragona was a Laborer II. (Compl. P 10.) John Infranca was a Recreation Aide. (Compl. P 11.) Helen Delaney Harris was an Investigator Aide. (Compl. P 12.) John Ciborowski was a Laborer I. (Compl. P 13.) Vincent Anthony was Chief Research Assistant. (Compl. P 14.) Rhoda Becker was Commissioner of Planning and Research Development of the Town of North Hempstead. (Compl. P 15.) Giacomo Ciccone was a Labor Supervisor I. (Compl. P 16.) Charles O'Connor was a Multiple Residence Inspector I. (Compl. P 17.) Eight of the plaintiffs were elected members of the Nassau County Republican Committee. (Compl. PP 5-17.) Plaintiffs further allege that defendants knew these plaintiffs to be active Republicans. (Compl. P 18.)

 Benjamin L. Zwirn was Supervisor of the Town of North Hempstead, and a member of the Town Board; he is a Democrat. (Compl. P 19.) May Newburger, Anthony D'Urso, and Barbara Johnson were Town Board members and are Democrats. (Compl. PP 20-22.) Gerard Cunningham was a Republican Town Board member. (Compl. P 23.) Richard Middlemark was the Executive Assistant to the Supervisor. (Compl. P 24.) Paul Nehrich is an employee of the Town of North Hempstead (Compl. P 25), and is Unit President of the North Hempstead Unit of Local 830, Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, which Unit on May 1, 1993, became part of Nassau County Municipal Employees Local 882 of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO. (Answer of Defendant Nehrich, Individually, at P 26.) William Biamonte was Administrative Assistant to the Supervisor and Director of Legislative Affairs. (Compl. P 26.) Lawrence Nedelka is Commissioner of Finance. (Compl. P 27.) The Town of North Hempstead ("Town") is a municipal corporation according to the laws of the State of New York. (Compl. P 28.) Friends of Ben Zwirn was and is an unincorporated political committee formed to promote the election of defendant Zwirn. (Compl. P 29.) Alice Peckelis is Treasurer of Friends of Ben Zwirn. (Compl. P 30.) Plaintiffs are suing all defendants in their official and individual capacities except Cunningham and Peckelis, who are being sued in their official capacities only. (Compl. P 32.)

 Plaintiffs allege that Zwirn and defendants Middlemark, Nedelka, and Biamonte created a budget for the Town as well as to

 
engage in a scheme and conspiracy to defraud the Town, as well as plaintiffs and other Republicans and the Nassau County Civil Service Commission through the use of implied extortion, strong-armed tactics and other threats and harassing measures for the purpose of demonstrating to Town employees who were members of the Republican Party that in the event they did not disavow their loyalties to the Republican Party and/or switch their registration from Republican to another, they would be terminated.

 (Compl. P 44.) Plaintiffs claim that defendants' true motivation in terminating them was so that

 (Compl. P 45.) It is alleged that Zwirn "and/or his agents" told Republican employees at various Town forums that they would be terminated, as Zwirn did not intend to continue to employ individuals who had worked under the previous Republican Town administration. (Compl. P 46.) Plaintiffs claim they had "implied knowledge . . . that all active Republican Town employees were being targeted for termination." (Compl. P 47.)

 DISCUSSION

 On a motion to dismiss, the factual allegations of the complaint are accepted as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1161 (1993); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bolt Electric v. City of New York, 53 F.3d 465, slip op. at 3316-17; Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993), cert. denied 130 L. Ed. 2d 489, 115 S. Ct. 572 (1994). In addition, the court will draw all inferences in plaintiffs' favor. Ferran, 11 F.3d at 22. Thus defendants must demonstrate that plaintiffs' claims cannot succeed under any interpretation of the facts. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).

 The complaint seeks compensatory and punitive damages, attorney's fees, and injunctive relief against the defendants based upon violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and 42 U.S.C. § 1983, 1985(3) through violations of the plaintiff's First, Fourth, Fifth, and Ninth Amendment rights, and common-law fraud.

 I. SECTION 1983 CLAIMS

 Plaintiffs' fourth and fifth causes of action allege violations of 42 U.S.C. § 1983 for the loss of their employment on the basis of their political affiliation. (Compl. PP 112, 120.) The fourth cause of action alleges violations of the First and Fourteenth Amendments; the fifth cause of action alleges violations of the Fourth, Fifth, and Ninth amendments. (Compl. PP 112, 120.) Each defendant moves to dismiss the § 1983 claims for failure to state a claim.

 A. MUNICIPAL DEFENDANTS' LEGISLATIVE IMMUNITY

 Each Town Board member, including Zwirn, is named in their official and individual capacity except Cunningham, who is named only in his official capacity. The Complaint alleges that plaintiffs' employment was terminated by implementation of the 1992 Town budget. (Compl. PP 45, 49.) The Town Board members move to dismiss the complaint against them in all respects, asserting legislative immunity from suit. (Municipal Defendants' Memorandum of Law in Support of Motion to Dismiss, hereinafter "Mun. Defs.' Mem. of Law" at 21.)

 The common-law doctrine of official immunity governs civil liability for public servants acting in their legislative capacity. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731-32, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980) (citing Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951) (recognizing legislative immunity of state legislators in § 1983 suits for both damage and equitable relief)); see also Star Distributors, Ltd. v. Marino, 613 F.2d 4, 6-7 (2d Cir. 1980). Absolute legislative immunity has been extended to regional legislators. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 405, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979). A majority of circuit courts have held that local legislators are also entitled to legislative immunity, by finding no distinction between the policy of applying legislative immunity to state, regional or municipal legislators. Goldberg v. Town of Rocky Hill, 973 F.2d 70, 72 (2d Cir. 1992) (collecting cases). The Second Circuit concurs in this holding. Orange Lake Assoc., Inc. v. Kirkpatrick, 21 F.3d 1214, 1224 (2d Cir. 1994) (Town Board members); Goldberg, 973 F.2d at 72-73 (dicta); see also Orange v. County of Suffolk, 830 F. Supp. 701, 704 (E.D.N.Y. 1993) (applying legislative immunity to county executive and county legislators). This Court holds that the legislators of the Town of North Hempstead are entitled to legislative immunity for acts within the scope of their legislative authority. However, it is well settled that the municipal entity has no claim to § 1983 immunity. See Ferran v. Town of Nassau, 11 F.3d 21, 23 (2d Cir. 1993) (citing Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980) and Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1992)), cert. denied, 115 S. Ct. 572, 130 L. Ed. 2d 489 (1994).

 1. Official-Capacity Claims

 The Municipal defendants assert that the claims should be dismissed against them in all respects on the basis of their legislative immunity. (Mun. Defs.' Mem. of Law at 21.) Granting such a motion would presumably include the claims made against them in their official-capacity. However, a public officer named as a defendant in his/her official-capacity in a § 1983 suit is not entitled to assert personal immunity defenses, but only the immunities available to the governmental entity. Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 362, 116 L. Ed. 2d 301 (1991); see also Kentucky v. Graham, 473 U.S. 159, 167, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (citing Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980)); Goldberg v. Whitman, 740 F. Supp. 118 (D. Conn. 1989) (denying motion to dismiss official-capacity suits on basis of legislative immunity), aff. sub. nom Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1992); Herbst v. Daukas, 701 F. Supp. 964, 969-70 (D. Conn. 1988) (same). As the Town of North Hempstead cannot claim immunity under § 1983, Ferran v. Town of Nassau, 11 F.3d at 23, the Town defendants in their official capacity cannot assert immunity. Nevertheless, "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. Dep't of Social Services of City of N.Y., 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). A plaintiff who prevails in an official-capacity suit must look to the government entity as the real party in interest. See Hafer, 112 S. Ct. at 361; Graham, 473 U.S. at 166. Where the governmental entity can itself be held liable for damages as a result of its official policy, a suit naming the legislators in their official capacity is redundant. Graham, 473 U.S. at 166-67 & n.14.; Brandon v. Holt, 469 U.S. 464, 471, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985) (official capacity claim against public officer is claim against the office held by that person, rather than against the particular individual who occupies that office at the time the claim arose).

 Here the claimed injury is allegedly the result of a policy of the municipality, i.e., the passage of a budget reduction plan. (Compl. P 119.) Therefore, claims against its officers in their official capacities are in reality claims against the Town of North Hempstead itself. See Graham, 473 U.S. at 165. Consequently, the official-capacity claims against Zwirn, both as Supervisor and Board Member, and Newburger, D'Urso, Johnson and Cunningham, as Town Board Members, must be dismissed, not because these parties have immunity but merely because the Town is the real party in interest. See e.g., Orange v. County of Suffolk, 830 F. Supp. at 706-07 (official-capacity claims redundant because claim is made against local governmental entity) (citing Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991) and Kohn v. Mucia, 776 F. Supp. 348 (N.D. Ill. 1991); cf. Goldberg v. Whitman, 740 F. Supp. at 120-21 (motion to dismiss official-capacity claims on legislative immunity denied); Dusanenko v. Maloney, 560 F. Supp. 822, 827-28 (S.D.N.Y. 1983) (finding immunity from personal liability for individual defendants but no immunity for the municipality), aff'd, 726 F.2d 82 (2d Cir. 1984).

 2. Individual-Capacity Claims

 The Municipal defendants also move to dismiss all claims against them in their individual capacity based upon legislative immunity. (Mun. Defs. Mem. of Law at 21.) These defendants maintain that because the complained of actions involve the approval of resolutions effecting budget cuts, they are "absolutely immune from suit." (Id.)

 a. Individual Board Members

 Legislative immunity protects a legislator from being sued under § 1983 in his/her individual capacity for legitimate legislative acts. Tenney v. Brandhove, 341 U.S. 367, 377, 95 L. Ed. 1019, 71 S. Ct. 783 (1951); Orange Lake Assoc. v. Kirkpatrick, 21 F.3d at 1224 (town board members); Goldberg, 973 F.2d at 72-73 (same); Orange v. County of Suffolk, 830 F. Supp. 701, 704 (E.D.N.Y. 1993) (county executive and county legislators); Dusanenko, 560 F. Supp. at 827 (town board members). The Supreme Court has endorsed a "functional" analysis to determine whether legislative immunity is available. Forrester v. White, 484 U.S. 219, 224, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). A court identifies and analyzes the "nature of the functions with which a particular official or class of officials has been lawfully entrusted, and . . . evaluate[s] the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions." Id.

 Here, the plaintiffs claim that their positions were eliminated by resolutions passed by a majority of the Town Board (Compl. P 49.) Defendants argue that such budgeting decisions are properly within the legislative function of a Town Board under New York Town Law §§ 51, 60, 64, 106-109 (McKinney 1987). The plaintiffs, relying on Forrester, argue that employment decisions are administrative, not legislative, and therefore not entitled to immunity. (Plaintiffs' Memorandum of Law in Opposition to Motion to Dismiss, hereinafter "Pls. Mem. in Opp'n" at 23.) In the alternative, plaintiffs argue it is premature to determine the nature of the exercise here. (Id.)

 The alleged facts establish that budget lines for many civil service positions of the Town were eliminated by the vote of the Town Board. (Compl. P 49.) As a result of this official act, the plaintiffs' employment was terminated. *fn2" The decision to hire or fire any particular employee within a position is arguably administrative. See Visser v. Magnarelli, 542 F. Supp. 1331 (N.D.N.Y. 1982) (decision to deny rehiring particular former city employee, even though by vote of city council, administrative function); Detz v. Hoover, 539 F. Supp. 532, 543 (E.D. Pa. 1982) ("whether defendants' failure to rehire plaintiff was an administrative or legislative function does not admit to facile resolution. However, we believe that a municipality's employment decisions whether they regard hiring, firing or a failure to reinstate, are essentially administrative in nature"); contra Dusanenko v. Maloney, 560 F. Supp. 822, 827 (S.D.N.Y 1983) (members of town board acted in legislative capacity in failing to reappoint deputy town attorney and reducing salary of supervisor's confidential secretary). However, the elimination of the position itself is a legislative act, notwithstanding that the employee who holds that position is then terminated or otherwise adversely effected. See Baker v. Mayor and City Council of Baltimore, 894 F.2d 679, 682 (4th Cir.) (elimination of city employees positions by budget resolution "uniquely legislative function"), cert. denied, 498 U.S. 815, 112 L. Ed. 2d 31, 111 S. Ct. 56 (1990); Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988) (elimination of certain jobs by budgetary decision "quintessential legislative function, reflecting the legislators' ordering of policy priorities in the face of limited financial resources"); Drayton v. Mayor and Council of Rockville, 699 F. Supp. 1155 (D. Md. 1988) (defendants entitled to legislative immunity for budgetary elimination of plaintiff's position notwithstanding claims of discriminatory motive), aff'd, 885 F.2d 864 (4th Cir. 1989); Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir. 1983) (elimination of assistant building inspector position by enacting ordinance was legislative function); Orange, 830 F. Supp. at 705 (adoption of budgetary resolution which eliminated plaintiffs' positions was legislative act); Herbst, 701 F. Supp. at 968 (elimination of police lieutenant's position by budget reduction resulting in demotion of plaintiff "clearly a legislative action").

 The plaintiffs argue that immunity should be unavailable, notwithstanding that the positions were eliminated, because the plaintiffs lost their jobs and their functions were assumed by employees in remaining positions. (Pls. Mem. in Opp'n at 23.) This argument is of no avail. In Rateree, the Seventh Circuit found the defendant City Commissioners absolutely immune from suit for voting to eliminate funding for the plaintiffs' positions, notwithstanding the plaintiffs' claim that they were first harassed and then discharged based on their political views rather than budgetary considerations. 852 F.2d at 951. The Rateree court held that the fact that individuals lost their jobs did not transform a legislative act to one of an administrative nature. Id. at 950. In fact, the very policy underlying legislative immunity is premised on the fact that

 
because government officials are engaged by definition in governing, their decision will often have adverse effects on other persons. When officials are threatened with personal liability for acts taken pursuant to their official duties, they may well be induced to act with an excess of caution or otherwise skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct.

 Forrester, 484 U.S. at 223.

 Therefore, this Court finds that plaintiffs' § 1983 cause of action against the Town Board members personally, must be dismissed. The Town Board members acted within the scope of their legitimate legislative capacity in voting to eliminate the funding for plaintiffs' positions. Even assuming an illegitimate motive in voting for the budget resolutions, the Board members are entitled to personal immunity for these legislative acts. See e.g. Rateree, 852 F.2d at 951; Orange, 830 F. Supp. at 705.

 b. Zwirn as Town Supervisor

 Also relying on Forrester, plaintiffs assert that Zwirn, as chief executive of the Town, is not a legislator and therefore not entitled to assert legislative immunity. (Pls. Mem. in Opp'n at 24.) Presumably plaintiffs are analogizing the dictum of Forrester that state executive officials are not entitled to absolute immunity for their official acts to the same extent as the President of the United States. See 484 U.S. at 226. However, the Municipal defendants do not assert Zwirn's immunity as an executive, but only with respect to his participation in approving legislated Board resolutions. (Mun. Defs. Mem. of Law at 21.)

 Although defendant Zwirn is chief executive of the Town, he has legislative responsibilities in his dual capacity as a Town Board member. N.Y. Town Law §§ 60, 63 (McKinney 1987); see also Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir. 1983) (holding that a mayor, although the executive officer, may still have legislative functions); Orange, 830 F. Supp. at 706 (county executive entitled to legislative immunity for act of signing resolution eliminating county civil service positions). Active participation in the legislative process entitles an executive to absolute immunity. Aitchison, 708 F.2d at 99. Zwirn is therefore entitled to legislative immunity and therefore the § 1983 claims against him personally must be dismissed.

 The Court holds that Middlemark, Biamonte, and Nedelka are also extended legislative immunity in their individual capacities for the § 1983 claims. As noted above, these three individuals are named in the complaint as a result of their capacity as high-level advisors to the supervisor and Board with respect to the development of the planned elimination of the plaintiffs' positions by Board resolution. (Compl. PP 57, 58.)

 The official immunity available to legislators is extended to legislative aides "insofar as the conduct of the [aide] would be a protected legislative act if performed by the Member himself." Gravel v. United States, 408 U.S. 606, 618, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972). This "legislative aide" immunity has been extended to both state and local government officials. Hudson v. Burke, 617 F. Supp. 1501, 1509-10 (N.D. Ill. 1985), aff'd, 913 F.2d 427 (7th Cir. 1990) (city finance committee chairman); Aitchison v. Raffiani, 708 F.2d 96, 99-100 (3d Cir. 1983) (borough attorney acting as legal aide in the course of legislative drafting); Green v. DeCamp, 612 F.2d 368, 371 (8th Cir. 1980) ("committee counsel" to state senatorial committee members).

 Although the Municipal defendants, which include these three particular defendants (Mun. Defs. Mem. of Law at 2), do not explicitly assert the legislative privilege with respect to Middlemark, Biamonte, and Nedelka, it nevertheless follows from the assertion of the argument in favor of the individual Board members (Mun. Defs. Mem. of Law at 21), that for the reasons stated, the aides are entitled to legislative immunity in that the complaint questions their conduct in the course of their duties in assisting to develop this legislation. Therefore the individual-capacity § 1983 claims against Middlemark, Biamonte, and Nedelka must be dismissed.

 B. SUFFICIENCY OF THE § 1983 CLAIMS

 Plaintiffs allege that the elimination of their positions, resulting in termination of their employment, was solely based on their political affiliation. (Compl. P 2.) Plaintiffs assert that these terminations violated their rights under the First and Fourteenth Amendments (Compl. P 112), and the Fourth, Fifth, and Ninth, Amendment. (Compl. P 120.) The defendants argue that the First Amendment § 1983 causes of action should be dismissed for failure to state a claim because the defendants were not "fired" but that their positions were merely eliminated by a policy-based, large-scale budget cut, and therefore no constitutional claim can arise. (Mun. Defs. Mem. of Law at 16.) As to the other constitutional claims, the defendants argue that they are simply "makeweight." (Id. at 17.)

 1. First Amendment Claim

 a. Town of North Hempstead

 Plaintiffs argue that these budget cut job eliminations were conceived in a manner which violated their First and Fourteenth Amendment rights under the trilogy of Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980), and Rutan v. Republican Party, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990). (Pls. Mem. in Opp'n at 14-15.) The sum of this trilogy of cases is that a governmental employment decision based upon political patronage may be actionable as a First Amendment violation. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 69-71, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990) (discussing Branti and Elrod).

 The Municipal Defendants assert that the § 1983 causes of action should be dismissed because the above noted cases do not apply to the facts here. (Mun. Defs. Mem. of Law at 15.) Defendants attempt to distinguish each of the above referenced cases and the instant circumstances based on the fact that the Elrod trilogy involves political patronage employment decisions regarding existing positions, whereas here the positions were eliminated altogether by budget resolutions. (Id. at 16.) The defendants assert that the plaintiffs' First Amendment claim is thus one of first impression and does not fall within the doctrine first articulated in Elrod. (Mun. Defs. Mem. of Law at 14.) The Municipal defendants argue that no First Amendment claim arises because the plaintiffs were not "fired," but that their positions were merely eliminated by "large scale, unconditional, and unaltered elimination of government jobs." (Mun. Defs. Mem. of Law at 16.) The defendants further argue that the First Amendment is not implicated as under Elrod, Branti, or Rutan, because no plaintiff alleges their position was lost to a Democrat. (Mun. Defs. Reply Br. at 16.)

 The United States Court of Appeals for the Second Circuit has previously recognized a § 1983 cause of action where a public employee asserted that his position was eliminated by legislative action in retaliation for exercising his First Amendment rights. Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994); Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1992); see also Herbst v. Daukas, 701 F. Supp. 964, 967 n.2 (D. Conn. 1988). This district, on facts very similar to those presented here, also recognized a § 1983 cause of action based on the First Amendment where civil service positions were eliminated by legislation. Orange v. County of Suffolk, 830 F. Supp. 701 (E.D.N.Y. 1993). *fn3" In addition, the Third and Seventh Circuit Courts of Appeal, and lower courts in the Sixth and Ninth Circuits have also found similar claims cognizable in the face of budget reduction defenses. Rateree v. Rockett, 630 F. Supp. 763, 772-73 (N.D. Ill. 1986) (denying motion to dismiss § 1983 claim against city for alleged politically motivated budget cuts eliminating plaintiffs' positions), aff'd, 852 F.2d 946 (7th Cir. 1988); Aitchison v. Raffiani, 708 F.2d 96, 99-100 (3d Cir. 1983) (substantively recognizing claim against municipality for ordinance abolishing plaintiff's position, but dismissing complaint on statute of limitations grounds); Lupo v. Voinovich, 858 F. Supp. 699, 703-04 (S.D. Ohio 1994) (upholding claim of politically motivated abolishment of position); Rabkin v. Dean, 856 F. Supp. 543, 548-49 (N.D. Cal. 1994) (recognizing allegation of politically motivated legislated salary reduction against city). *fn4"

 The defendants' attempt to distinguish Elrod and its progeny on the basis of a budget induced abolishment of the positions, as opposed to dismissal, fails to acknowledge the thrust of the plaintiffs' allegation; that the particular positions selected for elimination were selected based upon a bad faith motive to retaliate against the individuals holding those positions for their notable support for the prior political administration. This allegation brings the complaint within Elrod and its progeny. See Vezzetti, 22 F.3d at 488 (claim of job elimination cognizable under Branti-Elrod where there exists evidence of political retribution).

 The key to plaintiffs' position is the allegation that the defendants have attempted to shield their improperly motivated employment decision by pretexually formalizing it within budget resolutions. (Compl. P 45.) The plaintiffs allege that the defendants created a list of active Republicans, from which the plaintiffs' positions were selected for budget elimination. (Compl. PP 60, 66.) Plaintiffs assert that the only basis for selecting their particular positions for elimination is that the individuals holding those positions were known to be especially active Republican supporters. (Compl. P 66.) The defendants assert that plaintiffs' First Amendment rights were not infringed because elimination of their positions for budgetary reasons is a permissible policy decision. Even if the plaintiffs have no right" to their positions, and "even though the government may deny [plaintiffs] the benefit for any number of reasons, there are some reasons upon which the government may not rely." Elrod, 427 U.S. at 360-61 (quoting Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)). Therefore, at this preliminary stage of the proceedings, the plaintiffs' sufficiently allege a First Amendment violation to sustain their § 1983 claim against the Town.

 Moreover, even assuming that the defendants are correct in arguing that to state a claim the plaintiffs must allege that their positions were filled by members of the opposing party, the plaintiffs still allege a valid claim on the basis of political retaliation. Retaliatory state action aimed at a person's exercise of their First Amendment rights is actionable under § 1983. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir. 1991) (allegation of retaliatory political discharge not subject to threshold "public concern" requirement); Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir.) (allegation that police investigation was conducted in retaliation for protected First Amendment conduct actionable under § 1983), cert. denied, 488 U.S. 968, 102 L. Ed. 2d 534, 109 S. Ct. 497 (1988); Lieberman v. Reisman, 857 F.2d 896 (2d Cir. 1987) (retaliation for partisan opposition political campaign actionable as First Amendment violation under § 1983); Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986) ("State action designed to retaliate against and chill political expression strikes at the heart of the First Amendment" (citing Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)), cert. denied, 479 U.S. 1054, 107 S. Ct. 928, 93 L. Ed. 2d 979 (1987).

 The plaintiffs allege they were approached by representatives of the Zwirn administration and offered a choice to either renounce their support for the Republican party or lose their jobs. (Compl. PP 69-71.) In retaliation for their refusal to renounce their Republican support, their jobs were eliminated. The plaintiffs' allegation infers that had they openly renounced their support for the Republican Party their particular positions would not have been subjected to the budget cuts. Therefore, the plaintiffs have alleged a prima facie claim against the Town under § 1983 for retaliation for their exercise of First Amendment rights. See ...


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