There may well be an open question as to whether legislation is required to accomplish such a restructuring, but that hardly is a question before me. The question which has been urged upon me as something that is appropriate to consider is whether the legislative proposal put before the Legislature in the context of the discharge of registrars who are Democrats and their replacement with Republicans could be said to have been a seriously-thought-out, likely-to-succeed, avenue to reform.
In effect, Mr. Dickman has urged on this court in testimony, and defense counsel has placed great weight on this as a matter of defense, that it is the position of the Thornburgh administration that replacing Democratic registrars with Republican registrars will reduce the interest of Democratic legislators in preserving the existing registrar system since it will, from a Democratic perspective, have lost any particular patronage allure. That accomplishment will, in turn, facilitate, so the contention is, persuading the Legislature as a whole to support Governor Thornburgh's intended reform of restructuring the system by abolition of the existing local registrar structure.
In short, the view is that Governor Thornburgh can reasonably rely on the support of legislators of his own party but operates under the constant drum-fire of strong Democratic opposition and particularly in a period when one or another or both chambers of the Legislature are in Democratic hands to reforms which the Governor might want to undertake. So the strategy here was to reduce any significant political investment which the Democrats might have in the local registrar system and thereby create a situation in which the Governor could count on Democrats to be indifferent and Republicans to be supportive and thereby accomplish his intended reform.
I refer to this at length because, in turn, plaintiffs have urged upon me that such a political strategy is a counsel of the most extraordinary political fragility. In effect, their view is: Why should Democratic legislators be dazzled by so obvious a stratagem and ultimately lend themselves to a form of political suicide? The issue, though an intriguing one, is hardly of a sort one would want a court to explore, and I have no intention of exploring it further for its resolution is not necessary to the disposition of this case.
It will be apparent, I think, from what I have said up to now that the position of the defense in this case does not controvert the allegation that the plaintiffs, and, indeed, all other local registrars, discharged pursuant to the letter of August 28, were Democrats, and all their replacements were Republicans. On the contrary, defendant acquiesces in this view of the record, which is essentially indisputable, but argues, as I have tried to indicate, that the political affiliation of those discharged was relevant for the reason, and only for the reason, that the Governor and Mr. Dickman and those others helping the Governor in the management of the State's affairs were undertaking through these initial discharges to launch a process which would bring about the long-term reform of the registrar system along the lines suggested almost immediately thereafter by the Governor's address to the Legislature on October 2nd.
Against that, the plaintiffs' position is, in effect, that all the talk about firing Democrats in order to lubricate a reform process is a charade. We have to conclude, the plaintiffs suggest, that the actions taken after September 11, including the address to the Legislature and the filing of a proposed reform bill, were cosmetics which were initiated by the state administration with a view to facilitating defense against this very litigation.
I do not find myself persuaded by either the plaintiffs' view or the defendant's view of the factual record. It seems to me apparent, on the one hand, that plaintiffs are right in inferring from the facts of record that the Governor's people and, indeed, the Governor himself, were aware of the "political,' in the partisan sense, implications of the local registrar system as it was in the summer of 1979 up to July the point at which no firm decisions had been made but after which decisions were very quickly made respecting the discharge of registrars in Montgomery and Delaware Counties. Plaintiffs were Democrats who were appointed to office by the last administration, that of Governor Shapp, and I think it apparent from the press clippings to which I have referred that Mr. Dickman and the Governor were aware of the fact that Democrats were being replaced with Republicans and that that was perceivable as part of a strategy not to continue to fund persons found to be in political opposition.
At the same time, the plaintiffs' perception that the whole reform program was a sham seems to me to be quite clearly contradicted by the fact that, as early as April of 1979, before political leaders in Montgomery and Delaware Counties were beseeching Harrisburg to make room for loyal Republicans in registrarships, the Department of Health, with a view to advising Mr. Dickman and others around the Governor, was seriously exploring the perceived inefficiencies in the existing registrar structure. And I fully credit Mr. Dickman's testimony that it was his understanding as he learned more and more about the registrar arrangements that macing and related political customs involving strong pressures for financial contributions to the party by incumbent office holders were rife among local registrars in general and particularly in Delaware and Montgomery Counties.
My view of the record and I find this as a fact is that the discharges memorialized in the letters of August 28 and taking effect on September 11 were discharges which took into account political considerations in the conventional partisan sense but also were perceived by Mr. Dickman and the Governor as a first step in a reform program of substantial dimension.
In saying that the discharges took into account partisan considerations, I mean, of course, that those determining on the discharges were aware of the fact that those being discharged were, in the main, Democratic loyalists who were to be replaced by Republican loyalists and that such replacements would clearly be welcomed by local political leaders. In saying that this was also understood by the Governor and Mr. Dickman to be the first step of a major reform program, I mean that the Governor and Mr. Dickman felt in all honesty that an important reform of governmental structure could be facilitated by a process of discharging local registrars, beginning with Democratic office holders.
With that factual predicate, what is the consequence mandated by Elrod and Branti ? The plaintiffs' perception of the facts necessarily leads to a legal conclusion that the discharges were wrongful, that is to say, that they were discharges which were political in the conventional sense clearly at issue in Elrod itself and in Branti. Under the defendants' perception of the facts, these were not political firings in any sense contemplated by Elrod and Branti and, indeed, clearly fell outside of the teaching of those cases because those cases insist that political motivation be the "sole cause" of an actionable discharge.
To take the language of Judge Troutman in his recent decision, Farkas v. Thornburgh, 493 F. Supp. 1168, 1174 (E.D.Pa.1980) aff'd mem., 633 F.2d 209 (3d Cir. 1981):
A political firing violates the interdictions of the First Amendment only when the employing authority dismisses an employee "solely for political reasons.' Branti v. Finkel (445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 at 1301), Elrod v. Burns, 427 U.S. at 350 (96 S. Ct. at 2678). In other words, an independent justification coupled with a constitutionally flawed reason will not taint the Secretary's decision to terminate plaintiffs' employment. See Mt. Healthy Board of Education v. Doyle, 429 U.S. 274 (97 S. Ct. 568, 50 L. Ed. 2d 471) (1977).
Of course, in defendants' view of the record there was no "constitutionally flawed reason" coupled with an "independent justification." There was merely the "independent justification" the reform program of the Governor.
In the middle view of the facts which I take, there are two concurrent animating factors: partisan political advantage in the conventional sense and the Governor's reform program. I will not undertake to determine which of the two was paramount in some quantifiable sense. I think both were operative. I would simply say that it is not, in the nature of things, surprising that in governmental activity one gets two motivations operating concurrently.
In Village of Arlington Heights v. Metropolitan Housing Development, the Court said, through Mr. Justice Powell:
Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant' or "primary' one.