dissenting.
The opinion of the Court holds that as a matter of law the dismissal of the road-graders is not excepted from the rule of Elrod-Branti. Acknowledging that disagreement exists among the circuits as to whether such determinations are questions of fact or law, ante at 478, the Court concludes that the record contains insufficient evidence to raise a factual issue in this respect and, hence, that “we properly may rule on the issue as a matter of law.” Ante at 478. The problem with the Court’s approach is that it effectively establishes a new rule of Constitutional law: one appointed to a low-level government job on the basis of party affiliation can never be fired on the basis of party affiliation. I find nothing in Elrod or Branti or any of their progeny that would compel — or even provide a coherent rationale for — such an extraordinary reading of the Constitution.
Essentially, today’s decision reverses the results of an election that the plaintiffs and their party lost in 1982. The District Court specifically found that “the plaintiffs in this case had their jobs simply because their political party was in office prior to January of 1983. They were beneficiaries of the system that had been in effect in that county undoubtedly since the beginning of the history of the county.” Horton v. Taylor, 585 F.Supp. 224, 229 (W.D.Ark. Apr. 6, 1984). The District Court also specifically found that the road-grader operators “are generally perceived by the voting public in Searcy County, Arkansas, to represent the county judge.” Id. at 229. The court further found that:
Not only did the plaintiffs in this case not have any legally enforceable expectation of continued employment, the court is convinced that they had, in reality, no such expectation, even in their own minds. They were a part of ‘the system.’ They were hired because of ‘the system’ and they knew that when the county judge that employed them left office, they would probably be replaced just as they had been in the past after other changes of administrations, and as their predecessors in their very jobs were when their judge, Willis Dale Horton, defeated his predecessor in office.
Id. at 231.
I would hold that these findings, summed up in the District Court’s conclusion that the members of the road crew are in fact the “alter ego” of the county judge, amount to a finding of Branti justification, i.e., to a finding of fact that party affiliation is an appropriate requirement for the jobs in question. Although the record in support of these findings is not overwhelming, I do not agree that the evidence on these matters was insufficient to raise an issue for the trier of fact. I believe that the subsidiary findings as well as the ultimate finding of Branti justification should be reviewed under the clearly erroneous standard. Further, I believe that if reviewed under that standard, the findings in this case should be upheld. See Anderson v. City of Bessemer, — U.S. -, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Accordingly, I would affirm the judgment of the District Court.