Decision Date29 July 1977
Docket NumberNo. 76 C 2247.,76 C 2247.
PartiesLorraine C. CULLEN, John L. Jund, Manny Trotner, on behalf of themselves and all others similarly situated, and Civil Service Merit Council of Long Island, Plaintiffs, v. NEW YORK STATE CIVIL SERVICE COMMISSION, Victor Bahou, President, Nassau County Civil Service Commission, Adele Leonard, Commissioner, the County of Nassau, Ralph G. Caso, County Executive of the County of Nassau, Town of Hempstead Civil Service Commission, Sidney Rosenthal, Commissioner, Town of Hempstead, Francis T. Purcell, Presiding Supervisor, Nassau County Republican Committee, Joseph F. Margiotta, County Leader, Defendants.
CourtU.S. District Court — Eastern District of New York




Jessel Rothman, P. C., Mineola, N. Y., for plaintiffs; Sheldon Rosenblum, Mineola, N. Y., of counsel.

Curtis, Hart & Zaklukiewicz, Merrick, N. Y., for Nassau County Republican Committee and Joseph F. Margiotta.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for New York State Civil Service Comn.

Peter T. King, Acting County Atty. of Nassau County, Mineola, N. Y., for Nassau County Civil Service Comn., Adele Leonard, County of Nassau and Ralph G. Caso.

W. Kenneth Chave, Jr., Town Atty., Hempstead, N. Y., for Town of Hempstead and Town of Hempstead Civil Service Comn.


MISHLER, Chief Judge.

This lawsuit, brought pursuant to § 1983 of Title 42, United States Code, seeks monetary and injunctive relief for the alleged deprivation of constitutional rights by public officials and governmental units in the County of Nassau on Long Island. Jurisdiction is predicated on 28 U.S.C. § 1343(3). The essence of the complaint is that in order to obtain an appointment or promotion to a position with the county government, a job-seeker or holder must contribute or agree to contribute at least one percent of his annual salary to the Nassau County Republican Committee.

The plaintiffs are present or former Civil Service employees in Nassau County, who claim to have been denied promotion or appointment because they refused to make contributions to the Republican organization. The plaintiff Civil Service Merit Council of Long Island is an unincorporated association formed, according to plaintiffs, by "collective bargaining units," whose members are civil service employees in Nassau County.

The defendants include the Nassau County Republican Committee and the County Republican Leader, Joseph F. Margiotta; a New York State governmental unit, the New York State Civil Service Commission; and local governmental units, including the Town of Hempstead and the Nassau County Board of Supervisors. A number of local government officials are named in the caption, although it is not clear whether they are sued in their individual or in their representative capacities, or in both capacities.

The defendants move to dismiss the complaint on the grounds that the action is barred by the doctrine of res judicata; that the complaint fails to state a cause of action; and that the court lacks jurisdiction over the defendants. The plaintiffs present a motion, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an order granting their action class status and designating them as representatives of 22,000 "similarly situated" civil service employees.

The allegations of the complaint, which can not be dismissed for failure to state a claim unless it is clear that plaintiffs can prove no set of facts entitling them to relief, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), suggest that the defendants have trampled on the first amendment rights of countless numbers of civil service employees in order to strengthen the financial base of the Nassau County Republican Party. Collectively, the defendants allegedly have the power to appoint individuals on the Civil Service eligibility lists to positions in the municipal and county governments. In order to obtain such a position, or to achieve a promotion within the governmental unit, the applicant or employee must contribute part of his salary to the Nassau County Republican Committee. The pressure to make contributions apparently is generated by party officials acting in concert with elected public officials who have the power to hire or fire and promote or demote thousands of civil servants in Nassau County.

The complaint, for example, alleges that John Jund, after a competitive examination, was placed on the eligibility list for appointment to the position of Sanitation Foreman, Town of Oyster Bay & North Hempstead. He was informed, however, that appointment to the position depended on contributing to the Nassau County Republican Committee and joining a Republican Club. Jund, who refused to contribute, did not obtain the sanitation job. Later, he made political contributions in order to obtain a chauffeur's job. When he stopped contributing, he was reduced to the position of "Helper."1


The right to associate with individuals or organizations for the promulgation and advancement of political beliefs and ideas is a form of "`orderly group activity' protected by the First and Fourteenth Amendments." Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973), quoting NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963). At the core of the present case is the equally basic principle that the right to associate includes the right of affiliation with the political party of one's choice or the right not to affiliate with a political party at all. See Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). This "freedom to affiliate" can be abrogated by indirect methods such as compelled disclosure of membership in an organization committed to controversial goals or ideals, see Bates v. City of Little Rock, 361 U.S. 516, 522-23, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960); NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958), or by more direct attack, such as legislation making it impossible for political parties other than Republican or Democratic to qualify for the ballot, see Williams v. Rhodes, supra. More recently, the Supreme Court recognized the subtle links between protected political activity and financial contributions to a political candidate or to political parties. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), involving a challenge to federal regulation of campaign spending, the Court observed that "making a contribution, like joining a political party, serves to affiliate a person with a candidate." Id. at 22, 96 S.Ct. at 636.

One of the most sensitive areas involving first amendment rights is political activity by public employees. There is without question a state interest in regulating the political activity of public employees in order to efficiently serve public needs. E. g., United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). At the same time, while there is no right to the governmental benefits of civil service employment, once those benefits are made available on the basis of merit, denial of employment or promotion may not be conditioned on the making of a financial contribution to a political party. See Abood v. Detroit Board of Ed., 431 U.S. 209, 233-237, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); Elrod v. Burns, 427 U.S. 347, 363, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976). See also Pickering v. Board of Ed., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L. Ed.2d 231 (1960). To do so is a severe and intolerable infringement of the right of association. No conceivable state interest is served by coercing public employees into making political contributions.2 The employee is told, in effect, that in order to work for a county or local government he must give up his right to choose party affiliation or his right to avoid supporting party positions and political views with which he does not agree. To paraphrase Justice Brennan, the financial assistance the employee is induced to provide to a political party furthers the advancement of that party's policies to the detriment of his or his own party's beliefs, and "any assessment of his salary is tantamount to coerced belief." Elrod v. Burns, supra, 427 U.S. at 355, 96 S.Ct. at 2681. Plainly, such conduct by persons in official positions is an unacceptable invasion of constitutional rights, actionable under the civil rights statutes.

The defendants, however, have raised a number of procedural and jurisdictional objections to the consideration of this complaint in federal court. We turn to examine those objections, as well as the motion for class certification.

1. Res Judicata

The defendants argue that state court proceedings involving similar claims by the plaintiffs have a res judicata effect, barring this case from federal court.

On December 2, 1974, several of the present plaintiffs3 filed an action seeking, inter alia, declaratory and injunctive relief against many of the current defendants in New York State Supreme Court in Nassau County. The complaint alleged that, in various ways, the plaintiffs were requested or urged to make political contributions to the Republican Party and that in two instances, the failure to comply resulted in denial of promotion. These actions allegedly violated provisions of the New York Civil Service Law and the New York State Election Law.

On February 18, 1975, State Supreme Court Justice Albert granted the defendants' motions to dismiss for failure to state a cause of action. Justice Albert ruled that "the allegations of the complaint are fatally defective in that said allegations are totally...

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