the reasons which follow, defendants' motion will be granted.
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Elrod was a suit by Republican non-civil service employees of the Cook County, Illinois sheriff's office who were dismissed for failure to affiliate with or obtain the sponsorship of the Democratic Party after Democrat Richard Elrod was elected Sheriff. Plaintiffs contended that their dismissal was in violation of the First and Fourteenth Amendments. The district court dismissed the complaint, the Seventh Circuit reversed, and a divided Supreme Court affirmed.
The plurality opinion emphasized that free political association is the very core of the First Amendment and that when that freedom is impinged by a coerced pledge of allegiance to a political party or other compelled orthodoxy, true beliefs are compromised. 427 U.S. at 355-356. Elrod served to extend the holdings in Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967) (New York statutes barring individuals from state employment because of membership in "subversive" organizations invalid) and Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) (public school teacher may not be fired for exercising first amendment rights; state college teacher has property interest in his job and might be entitled to hearing under fourteenth amendment before he could be dismissed), in that it held that tethering government employment to partisan affiliation imposed an unconstitutional condition on receipt of a public benefit. 427 U.S. at 359.
The plurality balanced the suspect character of patronage dismissals against the purported, least restrictive, vital government end of ensuring against public employee lack of commitment and diligence because of sympathy with the party that is out of power and rejected the argument that efficiency was promoted by patronage dismissals. Id. at 364, 367. The prevailing justices concluded that permitting political dismissals of policy-making individuals sufficed to ensure that the policies of the party in power were not undercut because of partisanship on the part of public employees. Id. at 367-368. These justices also refused to conclude that barring most patronage dismissals would result in the demise of party politics. Id. at 369.
What is of importance here is that the holding in Elrod, while recognizing that "political patronage comprises a broad range of activities," is expressly limited to "the constitutionality of dismissing public employees for partisan reasons." Id. at 353. Plaintiffs in Elrod included the Chief Deputy of the Process Division of the sheriff's office, a bailiff, a process server and an office employee. Id. at 350-351. There is no hint that any of these individuals were not part of a mass of public employees, in the commonly accepted understanding of that phrase, who had been subject to partisan dismissal
or that they had anything resembling independent contractor status. Justice Stewart, concurring, emphasized that "This case does not require us to consider the broad contours of the so-called patronage system, with all its variations and permutations." Id. at 374.
In Branti v. Finkel, supra, the Court, while reaffirming the unconstitutionality of patronage dismissals, narrowed the Elrod policy maker exception to the general proscription against such dismissals. Branti arose from the planned dismissal of six of nine assistant public defenders in Rockland County, New York by a public defender who had been appointed by the Democratic-dominated county legislature. Two of those dismissed were Republicans, who filed suit to enjoin their dismissals. The district court, relying on Elrod, had granted the injunction and the Second Circuit had affirmed without opinion. In affirming, the Court, per Stevens, J., reformulated the Elrod policy maker exception, stating that "the ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S. at 518. It concluded that assistant public defenders did not fit into that exception. Id. at 519. While highly critical of the patronage system generally,
arguing that its benefits accrued only to the party in power and not to the government, the majority opinion again concerned only those who were obviously public employees.
With some exceptions, Elrod-Branti principles have been applied quite narrowly and have not been employed to curb other patronage personnel actions such as hirings, transfers, reassignments, demotions, and failures to promote. See Note, First Amendment Limitations on Patronage Employment Practices, 49 University of Chicago L. Rev. 181 (1982); but see Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982); Delong v. United States, 621 F.2d 618, 623-24 (4th Cir. 1980) (retribution short of discharge actionable). These principles have not been expanded to include protection for persons other than public employees, such as independent contractors, because sharp differences in the needs of public employees and contractors are perceived. See LaFalce v. Houston, 712 F.2d 292, 295 (7th Cir. 1983) ("Some day the Supreme Court may extend the principle of its public-employee cases to contractors, but there are enough differences in the strength of the competing interests in the two classes of cases to persuade us not to attempt to do so."), cert. denied, 464 U.S. 1044, 104 S. Ct. 712, 79 L. Ed. 2d 175 (1984).
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N.J.S.A. 39: 3-3 provides that the Director of the Division of Motor Vehicles in the Department of Law and Public Safety
. . . shall designate at least 1 person in each county for each 300,000 inhabitants or fraction thereof to be his agent for the registering of motor vehicles, issuing registration certificates and licensing of drivers, subject to the requirements of this subtitle and to any rules and regulations the director imposes. The agent shall so act until his authority is revoked by the director. All moneys received by such agents for registrations and licenses granted under the provisions of this chapter shall forthwith be deposited as received with the State Treasurer. The fee allowed the agent for registration certificates issued by him and for every license granted by him shall be fixed by the director on the basis of the registration or license fees collected by the agent. The director may limit the fee so paid to a maximum. Such fee shall be paid to the agent by the State Treasurer upon the voucher of the director in the same manner as other State expenses are paid.
Defendant Snedeker, in answer to interrogatories, stated that as of September, 1982 there were about fifty motor vehicle agents operating in New Jersey. Approximately nine of the agencies were acknowledged to be operated directly by employees of the DMV.
It is undisputed that plaintiffs' positions as "private" agents were "at-will" because they acknowledged, as a condition of employment, that they would retain their "appointment at the pleasure of the incumbent Director of the Division of Motor Vehicles and his successors." See Snedeker Aff. 9/82, Exh. C1-C5.
Each "privately operated" agency functions as a profit-making enterprise for the agent, with the state reimbursing agents for virtually all operating expenses, except wages, and guaranteeing a minimum net profit. Torlini Aff. at paras. 4, 8. The agent, who is without Civil Service protection, is unsupervised with respect to the number, salary, hours and qualifications of his or her employees and the mode of their hiring, promotion or dismissal. The agent pays wages from his commissions and deducts his employees' state and federal withholding tax, unemployment tax, and FICA. Id. at PP 4, 8-9. The agent must obtain, at his own expense, a public performance bond to protect against the loss of monies collected, as well as his own Workers' Compensation, theft and general liability insurance. However, the agent determines whether or not to provide health and pension benefits for his employees, since neither the agent nor his employees are eligible to participate in the State Health Benefits Program and state employee pension programs. Id. at 10. See also N.J.S.A. 17: 2-2.3(a). A tally of responses to interrogatories propounded by defendants reveals that only one plaintiff provided health and pension benefits to her employees.
Moreover, appointed agents are not required to be present in the agency during business hours and a large percentage of agency heads maintain other full-time employment by delegating day-to-day operational responsibilities to others. In 1982, only approximately one-half of the agencies were administered by the agents themselves. With reference to the five original individual plaintiffs, Torlini reports that
. . . only Ms. Horn is present in her agency on a full-time basis during its business hours. Thus, Mr. Tango's primary responsibilities during the day involve his insurance company. Mr. Olinsky retains full-time employment in New York as an Account Manager for Reuben H. Donnelly, a division of Dun & Bradstreet. Mr. Reid, who works in Delaware, has delegated his administrative responsibilities to his wife, Mary Jane Reid. Mr. Munley who heads the Washington agency is a high school teacher in Phillipsburg.