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February 18, 1983

PETER A. GLASCOTT, Esq., Ind. and as Clerk of Courts of the County of Bucks, ELAINE P. ZETTICK, ANDREW L. WARREN and CARL F. FONASH, Ind. and as Commissioners of the County of Bucks, THE BOARD OF COMMISSIONERS OF BUCKS COUNTY and The COUNTY OF BUCKS, PENNSYLVANIA

The opinion of the court was delivered by: LORD

Lord, S.J.

 Eugene Mitman has sued officials of Bucks County and the county itself alleging that his employment by the county was terminated because of his affiliation with the Democratic party. The case was tried before me without a jury December 15 through 17, 1982. I now make the following findings of fact and conclusions of law.

 I. Liability

 A. Conclusions of Law

 Mitman claims he was discharged from public employment solely because of his membership in the Democratic party. Mitman's political activities are protected by the first amendment. The defendants' actions are clearly under color of state law. Mitman therefore has stated a cause of action under 42 U.S.C. ยง 1983.

 The dimensions of Mitman's claim were outlined in Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980) and Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Both opinions showed the Court's concern with "[conditioning] public employment on partisan support." Elrod, 427 U.S. at 356. Patronage dismissals essentially force employees to choose between jobs they would otherwise continue to hold and protected political beliefs. Branti and Elrod make clear that this is impermissible under the first and fourteenth amendments. *fn1"

 The more difficult question is the quantum of proof required of plaintiff. Must the political affiliation or nonaffiliation be the sole cause of the dismissal, or is it sufficient that the political posture be a substantial or motivating factor, although not the sole reason? It is true that in Branti the Court said, "to prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged 'solely for the reason that they were not affiliated with or sponsored by the Democratic Party.'" Branti 445 U.S. at 517, quoting Elrod, 427 U.S. at 350.

  However, in Mount Healthy School District v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), Doyle sued the school district, claiming that the failure to renew his contract was based upon the exercise of his first amendment rights. The Court found the district court's original analysis inadequate and remanded for a determination of the motivation for the firing with the following guidelines: "Initially . . . the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a 'substantial factor' -- or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire him." Mount Healthy, 429 U.S. at 287 (footnote omitted).

 Mount Healthy can only be read as not demanding that the political association (or non-association) be the sole factor. I do not believe that Branti and Elrod dictate a contrary result.

 In the first place, the question of "sole cause" versus "substantial or motivating factor" was not before the Court in those cases. Mr. Justice Brennan defined the issue in Elrod : "This case presents the question whether the public employees who allege that they were discharged or threatened with discharge solely because of their partisan political affiliation or nonaffiliation state a claim for deprivation of constitutional rights secured by the First and Fourteenth Amendments." Elrod, 427 U.S. at 349.

 Both Elrod and Branti focused on the definition of policy-making positions and not on the quantum of proof.

 Of probably more importance is the nature of the freedom involved. If there are degrees of importance among the rights guaranteed by the first ten amendments -- and I believe there are -- freedom of speech and thought stands pre-eminent as the guarantor of a free democratic society. For example, as our society has evolved and the character of the country has changed, the third amendment prohibiting the quartering of soldiers in private homes has faded into relative inconsequentiality. The first amendment, on the other hand, has grown in its broad protections to the point where an actual interference with freedom of expression is not required to invoke its protections. A mere "chilling effect" is sufficient. Dombrowski v. Pfister, 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965).

 A rule that would require proof that political considerations be the sole reason for discharge would significantly narrow the ambit of first amendment guarantees. This is so because of man's inevitable imperfections. I venture to say that there is no human who has not made one mistake or more in the performance of his job. Based upon this quality of human nature, any boss in a political position would never be at a loss to find some error which could be made the basis of a charge of incompetence, a charge which could be asserted as at least a contributing reason for the discharge. Such a resolution would not adequately protect the employee's constitutional rights. "The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of the constitutionally protected conduct." Mount Healthy City Board of Education v. Doyle, 429 U.S. at 285-86. *fn2" An employee who shows that he or she would not have been fired but for the protected conduct must prevail if the right to engage in that conduct is to be meaningful. I therefore conclude that the only rule consonant with first amendment aims is that stated in Mount Healthy.

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