dissenting.
The jury in this case decided that a motivating factor in Thomas Bauer’s dismissal was the political work that Bauer performed in the campaign of Circuit Clerk Freeman Bosley’s opponent, Joseph Roddy.
The majority decides that, in spite of this finding, Bosley’s dismissal of Bauer is not prohibited by the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). I disagree.
The presence of an attorney-client relationship does not automatically qualify the SLA II position as a policymaking or confidential one under Elrod and Branti. Branti itself involved an attorney-client relationship. There, two assistant public defenders were discharged by their superior for political reasons. 445 U.S. at 509, 100 S.Ct. at 1290. The discharged assistant public defenders had access to confidential information, but the Court held that that information had no bearing on partisan political concerns, and thus they remained under the protection of the first amendment. Id. at 519-20, 100 S.Ct. at 1295-96.
Similarly, in this case, partisan concerns have little to do with the proper performance of the SLA II’s duties. The majority attaches great importance to the “confidentiality and loyalty” attendant to the attorney-client relationship between the SLA II and the Clerk. See supra p. 1063. But, as Branti has established, the requirement for loyalty in a position is not in itself sufficient to permit patronage firings. There must be a legitimate requirement for political loyalty.1 Does the position of SLA II appropriately and inherently require a politically loyal person?
One clearly cannot answer in the affirmative after examining the SLA II job description promulgated under the authority of the Missouri Supreme Court.2 The *1066duties described there are simply technical and legal.
In the “Definition of Work,” it is stated that the SLA II provides “legal services and technical support to judges, commissioners, circuit clerks or other administrators." (Emphasis supplied.) The description goes on to state that “[w]ork differs from the Legal Staff Assistant I in that incumbents are able to address the more complex legal issues and are required to operate independently with a minimum of supervision.” (Emphasis supplied.) Nowhere does the job description even suggest that the SLA II should act as the clerk’s “personal attorney” or political advisor.
In the portion of the job description entitled “Examples of Work Performed,” a number of duties of the SLA II are mentioned. These duties include: supervising subordinate legal staff; training personnel; reviewing and analyzing court decisions; processing suits; reading digests and excerpting pertinent points of law; preparing briefs and memoranda for judges; preparing legal orders; reviewing petitions and making recommendations thereon to judges; auditing and approving inheritance tax reports and inventories of assets; conferring with judges concerning legal matters; conferring with attorneys about matters before the court; and performing related work as required. Nowhere in the examples mentioned does SLA II appear to assume a role as the clerk’s speech writer, personal aid, or personal attorney. Instead, the examples listed are of a technical and administrative nature with the services intended to be provided to judges and clerk of court personnel alike.
Undoubtedly, in performing these duties, the SLA II must be loyal to the judges, commissioners, circuit clerks, or other administrators for whom he or she works. *1067But this loyalty could not properly be political because many of these persons may properly be of different political persuasions from each other.
The testimony of witnesses provides no more conclusive evidence of the necessity of the political loyalty of the SLA II to the clerk. That Bosley and a group of other witnesses — Julian Bush, Bauer’s predecessor, and Jimmie Edwards and Clyde Cahill, Jr., Bauer’s successors — variously testified that the Circuit Clerk appointed the SLA II, that the SLA II was responsible for advising the Clerk as to his or her official duties, and that the SLA II advised the clerk on personnel questions does not convert the SLA II position into one requiring political loyalty. These tasks appear to be very similar to the ones described in the job description, which were supposed to be available to other court personnel, such as judges.
The legal representation which the SLA II provided the clerk also seems apolitical: Bosley’s one-time SLA II Jimmie Edwards' drafting of a IBM computer contract, defending the clerk in prisoners’ suits, and making appearances before administrative tribunals. The representation in these cases seems to be of the Clerk of Court office in general, not just Freeman Bosley personally. Edwards conceded as much when he stated, “I also protected approximately 210 employees whenever they encountered any legal challenges from attorneys or the general public.”
Finally, and most convincingly, both Bosley and Edwards, directly admitted to the apolitical nature of the SLA II job. Bosley stated that he did not consider political affiliation in hiring his SLA IIs. Bosley only attempted later in his testimony to retract this statement by stating that he himself did not consider political affiliation in hiring and firing but that another clerk might properly do so. Edwards, however, testified that it would never be appropriate to consider the political allegiances of the SLA II in determining competency for the position:
Q. Hypothetically, if a person was a legal advisor and he was in a different political party than the clerk, could he harm or hamper the clerk?
A. I don’t think that that really has anything to do with it. My job was to handle the legal questions and the legal questions are very, very clear, the interpretation of the laws of the State of Missouri. I don’t think that politics has anything to do with it.
******
Q. If I understand your earlier testimony correctly, you think that particular party affiliation really doesn’t matter to the appointment process to the legal ad-visor. That he is getting somebody who is competent to do the job. Is that right? A. Definitely true.
Not only do Bosley’s and Edwards’ testimony indicate that the appropriate requirements for the SLA II position are nonpartisan in nature, the majority fails to point to any testimony or documentary evidence, other than Bosley’s modification of his statement, suggesting directly that partisan allegiance constitutes an appropriate requirement for the job of SLA II.
Thus, from the testimony of mostly partial witnesses, without any support from Missouri statutory law or administrative rules, the majority constructs an Elrod-Branti confidential relationship between the SLA II and the Clerk of Court. In doing so, however, the majority ignores the central distinction in Elrod and Branti between mere loyalty and political loyalty. The evidence in this case only shows that the SLA II position legitimately requires a loyal person; it falls far short of showing that the position requires a politically loyal person.
The outcome which I believe is correct under Elrod and Branti may seem unfair to Bosley in that he would be the first Circuit Clerk affected by Elrod and Bran-ti, particularly because Bauer himself certainly exercised powers not inherent in the office of SLA II when he actively campaigned for the reelection of Circuit Clerk Roddy. The Supreme Court, however, did *1068not exempt employees previously hired for patronage reasons from its general rule. The Supreme Court’s ruling in Elrod protected from the time it was decided all employees in positions for which political affiliation is not an appropriate job requirement. Bauer held such a position after Elrod and Branti had been decided and thus cannot be excepted from its rule.
QUALIFIED IMMUNITY
In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that government officials performing discretionary functions “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818,102 S.Ct. at 2738 (citations omitted). This defense of qualified immunity is an affirmative one which therefore must be pleaded.3 Id. at 815, 102 S.Ct. at 2736. Creamer v. Porter, 754 F.2d 1311, 1317 (5th Cir.1985) (citations omitted).
Elrod and Branti had been decided before Bosley dismissed Bauer in January of 1984. These decisions certainly established the constitutional right that government employees could not be terminated for patronage reasons from positions for which political affiliation was not an appropriate requirement. Bosley contends that the general establishment of the right is not sufficient but that it must be clearly established to be a right the plaintiff Bauer held. Bosley submits that it was not clearly established that Bauer did not fit within the Elrod-Branti exception.
There will always be some uncertainty whether it is clearly established that a particular individual possesses a given constitutional right. As the Supreme Court recently stated in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1986), regarding the prohibition of wiretaps without a warrant and whether such law was clearly established:
We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances. But in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless search violates clearly established law.
Id. 105 S.Ct. at 2820 n. 12.
In Mitchell, 472 U.S. -, 105 S.Ct. 2816-20, the general constitutional prohibition against wiretaps without probable cause had not been clearly established by the Supreme Court before the action in question took place. Here, Elrod and Branti had both been decided before Bosley dismissed Bauer.
Clearly some question still remained after Elrod and Branti as to who was to be excepted from the general rule. But as the Mitchell case clarifies, some question is not sufficient. In every valid suit for violation of constitutional rights there will remain some question as to the legitimacy of the claim. Harlow certainly was not intended to discourage such valid suits, which it would effectively do if interpreted this way, by immunizing public officials from liability in them.
Harlow especially should not be interpreted to free public officials who deliberately fire employees before serious questions of the constitutionality of such actions can be resolved. In this case, Bosley fired Bauer in the face of a proposed order of the St. Louis Circuit Court sitting en banc prohibiting such action. Such behavior by a public official should not be protected.
I therefore believe that the jury’s award of $58,000 in actual damages and $6,000 in *1069punitive damages to Bauer should be reinstated. The award of $6,000 in punitive damages was based on the jury’s finding that Bosley believed he was violating Bauer’s constitutional rights when he terminated him. Evidence was submitted that Bauer knew of the Elrod and Branti cases at the time he fired Bosley and also that Bosley knew he could not constitutionally fire Bauer for political reasons but did so in spite of such law. The jury’s verdict therefore is supported by the evidence and should not be overturned.
. In Meeks v. Grimes, 779 F.2d 417, 421 (7th Cir. 1985), a case involving bailiffs with access to confidential information, the Court stated the following about requirements for political loyalty:
Defendants stress that any access to court records when coupled with political animosity creates a serious threat of politically motivated breaches of confidentiality of the judicial process. This argument, while relevant, proves too much. These bailiffs are duty-bound to protect the sanctity of the court, and, while political affiliation may be an acceptable priority for loyalty, trust, and maybe even efficiency, it would cast the net of the Elrod exception too wide to allow political support to be used to extrapolate a tendency to breach a sworn duty, behave unprofessionally, or commit criminal acts. [Emphasis supplied.]
. DEFINITION OF WORK
This is complex and varied professional legal work in providing legal services and technical support to judges, commissioners, circuit clerks or other administrators.
Work involves the performance of a variety of legal, technical and lead person duties in facilitating the smooth operation of a large circuit court or division thereof. Work differs from the Legal Staff Assistant I in that incumbents are able to address the more complex legal issues and are required to operate independently with a minimum of supervision. In addition, employees in this class may be required to act as a lead person over subordinate legal staff or other court clerical personnel as a duty which is incidental to the primary task of providing legal services. Work is performed under the general supervision of a judge, commissioner, circuit clerk or administrator and is reviewed through conferences and written reports.
EXAMPLES OF WORK PERFORMED (Any one position may not include all of the duties listed, nor do the examples cover all the duties which may be performed.)
*1066Acts as a lead person over subordinate legal staff or other clerical or paralegal personnel as required; trains personnel as necessary.
Reviews, analyzes, studies, searches and annotates laws, court decisions, documents, opinions, briefs and related legal authorities to process suits, trials, hearings, appeals and other litigated matters; may appear at court hearings.
Reads and digests opinions, brief, motions and documents and extracts excerpts pertinent to points of law and fact.
Prepares briefs, legal memoranda and statement of issues involved, including appropriate written or oral suggestions or recommendations to the judge; prepares appropriate orders, findings of fact and conclusions of law for judge.
Compiles references on laws and decisions necessary for legal determinations.
Prepares complex service orders such as immediate restraining orders, show cause and temporary injunction; reviews and prepares forms and manuals.
Reads petitions, checks for accuracy, checks facts, allegations and legality; approves the more routine petitions; sends more complex petitions with recommendations to judge for review and approval; interviews guardian and ward relative to estate matters.
Audits and approves inheritance tax reports and inventories of assets: checks assets, deductions and property distributions; determines adequacy of surety bonds.
Confers with judge concerning legal questions, construction of documents and the granting of orders; may grant or deny continuances in routine matters.
Confers with attorney concerning the adequacy of petitions or other matters before the court; provides general information to the public.
Performs related work as required.
DESIRABLE EDUCATION AND EXPERIENCE
Graduation from an accredited law school and experience in the practice of law; or any equivalent combination of education and experience which provides the following knowledge, abilities and skills:
Considerable knowledge of one or more phases of law as required by the assigned duties.
Considerable knowledge of general law, State laws, established precedent and sources of legal reference.
Considerable knowledge of court procedures and rules of evidence.
Ability to apply legal principles and specialized knowledge to individual cases and problems.
Ability to analyze, appraise and organize facts, evidence, and precedents concerned in assigned cases and to prepare written opinions.
Ability to train and supervise subordinates if required by the position.
Ability to establish and maintain effective working relationships with others.
NECESSARY SPECIAL REQUIREMENTS
Possession of a Certificate of Admission to the Bar of the State of Missouri.
. In this case there is some question whether the defendant Bosley adequately raised the defense at trial. Compare Brown v. St. Louis Dept., et al., 691 F.2d 393, 396 (8th Cir.1982), and Johnson v. Rogers, 621 F.2d 300 (8th Cir. 1980). The issue of whether Bosley adequately raised the defense at trial, however, does not have to be resolved. Even assuming it was adequately raised, the defendant would not be protected by the qualified immunity doctrine as stated in Harlow.