Aufiero v. Clarke, 80-1315

• Decision Date: 22 January 1981
• Docket Number: No. 80-1315,80-1315
• Citation: 639 F.2d 49
• Parties: Myron J. AUFIERO, Plaintiff-Appellant, v. Owen L. CLARKE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 49

639 F.2d 49

Myron J. AUFIERO, Plaintiff-Appellant, v. Owen L. CLARKE et al., Defendants-Appellees.

No. 80-1315.

United States Court of Appeals,

First Circuit.

Argued Oct. 7, 1980.

Decided Jan. 22, 1981.

Regina L. Quinlan, Boston, Mass., with whom John A. Aufiero, Boston, Mass., was on brief, for plaintiff-appellant.

Paul W. Johnson, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendants-appellees.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This appeal presents the question whether a Chief of Bureau in a state's department of taxation may be demoted in 1975 for his earlier service as a source of information and recommendations relating to patronage hirings and promotion.

Plaintiff brought suit under 42 U.S.C. § 1983 against defendant Clarke, the Commissioner of Corporations and Taxation, and the Governor of Massachusetts, charging that his removal as Chief of Bureau for the Bureau of District Offices was solely because of his membership in the Republican Party, and asking that such action be declared a violation of his constitutional rights, that he be reinstated, and that he be awarded $60,000 damages.

The following relevant facts were revealed in a non-jury trial. Plaintiff was first employed by the state in 1966 as a provisional sales tax examiner. In 1970 he joined the Republican Party. While working in the gubernatorial campaign of Governor Sargent, he became friendly with one Harold Greene, later the Governor's patronage secretary, and, indeed, served as Greene's advisor on appointments within the Department of Corporations and Taxation. Plaintiff, promoted in 1970 to Supervisor in the Sales Tax Bureau, and in 1972 to Chief of Bureau, Bureau of District Offices, would keep Greene informed of vacancies in his Department and would recommend for or against specific employees receiving appointments or promotions. In all, between 50 and 100 positions were filled in this manner during plaintiff's tenure. Governor Dukakis defeated Governor Sargent in 1974, and in 1975, appointed defendant Clarke the new Commissioner of Corporations and Taxation, giving him a mandate to abolish patronage and to put the department on a merit hiring basis. Clarke then fired Greene and demoted plaintiff to the position of supervisory tax examiner.

The district court, 489 F.Supp. 650, held that plaintiff had established a prima facie case that his discharge was because of his participation (i. e., his sharing of control with Greene) in patronage appointments. It also held that defendants had not proven that plaintiff would have been removed from his job for unsatisfactory performance of his duties. The court, applying Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), as modified by Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), determined that political affiliation was not relevant to plaintiff's old job of Bureau Chief, but that plaintiff was not demoted because of his political beliefs, association, or party affiliation, but only because of his patronage activity the very conduct condemned in Elrod and Branti and therefore not constitutionally protected. It accordingly rendered judgment for defendants.

We see difficulty in the district court's analysis. Under Elrod and Branti it is clear that one cannot be discharged from a position "solely for the reason that (he is) not affiliated with or sponsored by" a political party. Branti, supra, 445 U.S. at 517, 100 S.Ct. at 1294, quoting Elrod, supra, 427 U.S. at 350, 96 S.Ct. at 2678. It is also clear that patronage activities by government employees are not protected. That partisan political activities can be regulated has long been acknowledged. United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Had plaintiff been removed from his position because he was currently engaged in patronage activism, contrary to state statute or even contrary to administration policy, there could be no doubt that he was beyond the pale of protection.

The fact is, however, that plaintiff was removed from his higher level position because of something he had done in the past and which, because of the change in administration, he could not do in the present. If plaintiff, notwithstanding Elrod and Branti, can be so sanctioned, we see no reason why an administrator could not discharge employees who had played important patronage roles years, or even decades ago, or employees who had received and continued to enjoy the benefits conferred by the patronage activists. Such actions would equally well subserve the justification articulated by the state, i. e., that plaintiff's demotion "vindicates" the merit system, eliminates the appearance of political bias, and removes partisans from the work force. But we would have grave doubts of the legitimacy of such sweeping actions. They would trench upon firing for mere affiliation.

Having such questions, we prefer to decide this case on what appears to us as the clearer ground of the non-retroactivity of Elrod. ¹ The first criterion identified in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) as mandating non-retroactivity is that the decision to be applied "must establish a new principle of law, either by overruling clear past precedent ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed". Id. at 106, 92 S.Ct. at 355. Whether or not cases in factually different non-partisan contexts such as Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) and Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, ...