(concurring in part and dissenting in part).
{53} I concur in part and dissent in part. I concur in the Fust Amendment analysis, sex discrimination analysis, and Torts Claims Act analysis. I dissent in part, however, because I believe the district court erred by granting summary judgment in favor of Montoya and Andermann on the issue of qualified immunity with respect to Garcia-Montoya’s First Amendment claims.1
{54} We review grants of summary judgment de novo, asking whether there is a genuine issue of material fact and whether the movant was entitled to judgment as a matter of law. See Phoenix Indemnity Ins. Co. v. Pulis, 2000 NMSC 023, ¶6, 129 N.M. 395, 9 P.3d 639. We use a two-part test to determine whether qualified immunity shields officials from individual liability under Section 1983. First, we ask “whether the official’s alleged conduct violated a constitutional ... right.” Kennedy v. Dexter Consolidated Schools, 2000 NMSC 025, ¶ 10, 129 N.M. 436, 10 P.3d 115; see Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). I agree that there is a genuine issue of material fact as to whether Montoya and Andermann violated Garcia Montoya’s First Amendment rights. See Majority Opinion, ¶ 23.
{55} The next inquiry is whether the constitutional “right was clearly established at the time of the alleged conduct.” Kennedy, 2000 NMSC 025, ¶ 10, 129 N.M. 436, 10 P.3d 115; see Anderson, 483 U.S. at 640, 107 S.Ct. 3034. “To be clearly established, ‘[tjhe contours of the right must be sufficiently clear that a reasonable official understands that what he [or she] is doing violates that right.’ ” Kennedy, 2000 NMSC 025, ¶ 10 129 N.M. 436, 10 P.3d 115 (quoting Anderson, 483 U.S. at 639, 107 S.Ct. 3034). Whether the official conduct violates a clearly established right “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson, 483 U.S. at 639, 107 S.Ct. 3034; see Kennedy, 2000 NMSC 025, ¶ 14, 129 N.M. 436, 10 P.3d 115.
{56} The level of generality used to define the right reflects a balancing of competing interests. The purposes of Section 1983, fully compensating victims of constitutional torts and protecting individual liberties by deterring future constitutional violations, are balanced against “the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Anderson, 483 U.S. at 638, 107 S.Ct. 3034. Accordingly, the right must not be defined so generally that it converts qualified immunity into “virtually unqualified liability.” Id. at 639, 107 S.Ct. 3034. However, relying on Anderson, this Court recently emphasized that we should not “requir[e] too specific a correlation between the misconduct and the established law.” Kennedy, 2000 NMSC 025, ¶ 13, 129 N.M. 436, 10 P.3d 115. The requirement that the right be clearly established does not mean that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Instead, the test is whether, under the law that existed at the time, a reasonable official would have understood that his or her conduct was unconstitutional. See id.
{57} In order to determine whether Montoya and Andermann are immune from liability with respect to Gareia-Montoya’s First Amendment claims, it is necessary to determine, at the proper level of generality, what Garcia-Montoya’s clearly established First Amendment rights were in 1995. As a general rule, the First Amendment prohibits political patronage in the context of public employment; it is generally unconstitutional to dismiss, demote, or transfer a public employee based on political affiliation or belief. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion). However, there is an exception to the general rule; it is constitutionally permissible to use political affiliation or belief as the basis for dismissing, demoting, or transferring public employees who occupy “policymaking positions.” Elrod, 427 U.S. at 367, 96 S.Ct. 2673. This exception only applies if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti 445 U.S. at 518, 100 S.Ct. 1287. Only “certain high-level employees” are subject to the exception. Rutan, 497 U.S. at 74, 110 S.Ct. 2729 (emphasis added). The exception is “narrow,” Burns v. County of Cambria, 971 F.2d 1015, 1023 (3d Cir. 1992); see Elrod, 427 U.S. at 368, 96 S.Ct. 2673, and “doubt should be resolved in favor of the public employee,” Dickeson v. Quarberg, 844 F.2d 1435, 1442 (10th Cir.1988).
{58} Cases decided prior to September of 1995 would not lead a reasonable official to conclude that Gareia-Montoya’s position fell within the policymaking, or Elrod-Branti exception. A public official who occupies a position that requires communication with the public, the press, and policymaking government bodies may be subject to the Elrod-Branti exception. See Branti 445 U.S. at 518, 100 S.Ct. 1287. Garcia-Montoya did not serve any such role. See Majority Opinion, ¶ 22. In addition, the exception applies to “employee[s] with responsibilities that are not well defined or are of broad scope.” Elrod, 427 U.S. at 368, 96 S.Ct. 2673. Garcia-Montoya’s responsibilities were well defined and not of such broad scope that particular political affiliations or beliefs were necessary for her to perform her duties effectively.
{59} The Court concludes that it was not clear in September of 1995 whether the Elrod-Branti exception applied to Gareia-Montoya because of her involvement in personnel and budgetary matters. See Majority Opinion, ¶26. According to the majority, the right to freedom of political belief and association was not defined clearly enough in this context. The Court states “that the contours of the right are generally well-defined and that reasonable officials in the majority of cases will be aware of a violation of the freedom of political belief,” Majority Opinion, ¶ 25, but concludes that “with respect to the position involved in this case, we believe that the contours of the right are not sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right,” id., ¶ 26 (internal quotation marks and quoted authority omitted).
{60} I think the Court requires too much specificity in this ease. Qualified immunity does not shield individual defendants whenever the right has not been defined precisely under the exact facts in question. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034. There may not have been any case decided prior to September of 1995 that was perfectly, or even very closely, analogous to this case, but the law was clear enough to allow a reasonable official to conclude that transferring Gareia-Montoya based on her political affiliation would violate her constitutional rights. The result of defining the right too specifically, as the majority has, is overly-expansive immunity for constitutional tortfeasors. Anderson and Kennedy warn against this, instructing us to define the right at an intermediate level of generality in order to strike a balance between the competing interests. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034; Kennedy, 2000 NMSC 025, ¶ 13, 129 N.M. 436, 10 P.3d 115.
{61} Garcia-Montoya’s right not to be transferred based on her political associations was clearly established in September of 1995 despite her involvement in personnel and budgetary matters. Although involvement in budgetary matters may weigh in favor of finding that an employee is subject to the Elrod-Branti exception, Garcia-Montoya’s involvement in implementing the budget of the State Treasurer’s Office was not extensive enough to subject her to that exception. Cases decided before September of 1995 holding that a position falls within the exception based on involvement in budgetary matters seem to require a higher level of involvement and to rely on additional facts in reaching the conclusion that political affiliation or loyalty “is an appropriate requirement for the effective' performance of the public office involved.” Branti 445 U.S. at 518, 100 S.Ct. 1287. I think the precedent in September of 1995 would have led a reasonable official to believe that an employee’s limited involvement in implementing a budget is insufficient constitutional justification for a transfer based on political affiliation or belief.
{62} For example, in Peters v. Delaware River Port Authority of Pennsylvania and New Jersey, 16 F.3d 1346 (3rd Cir.1994), the court listed involvement in the preparation of a budget as one of several factors supporting its holding that the Secretary of the Delaware River Port Authority (DRPA) was subject to the Elrodr-Branti exception. Garcia-Montoya had a more limited role in budgetary matters than the Secretary in Peters; political affiliation is more relevant to budget preparation than to budget implementation. Moreover, unlike Gareia-Montoya, the Secretary in Peters had many other duties that made party affiliation an appropriate requirement for the position he held. The Secretary was “assigned sensitive and important responsibilities on a variety of important policy matters.” Id. at 1359. His duties included “participating in high-level DRPA matters” with other government agencies and bodies, “participating in all policy-forming discussions during executive sessions of the DRPA,” “acting as liaison and maintaining good public relations with other agencies,” “interpreting and executing DRPA policy,” and recommending significant changes in the DRPA’s organizational structure. Id. at 1358-59. It seems to me that Peters would not lead a reasonable official to believe that merely being involved in budgetary matters brings an official within the Elrod-Branti exception. On the contrary, based on Peters, a reasonable official would conclude that a high level of involvement in budgetary matters or additional policymaking duties are required for the Elrod-Branti exception to apply. This case presents neither scenario.
{63} Similarly, based on the cases decided before September of 1995, a reasonable official would not believe that Garcia-Montoya’s involvement in personnel matters subjected her to the Elrod-Branti exception. The majority recognizes that political affiliation was not relevant to many of GareiaMontoya’s duties but concludes that it might be relevant to her limited involvement in personnel matters. See Majority Opinion, ¶¶ 18-22, 26. However, it was clear in 1995 that involvement in personnel matters does not subject an otherwise protected position to political patronage. See Dickeson, 844 F.2d at 1443-44 (holding that an official who supervised other employees was not subject to the Elrod-Branti exception). In 1995 there was nothing in the case law suggesting that a public employee’s political beliefs or affiliations would adversely affect that employee’s ability to perform limited duties in the area of personnel such as handling paperwork and advising a superior about adding new positions that might benefit the office.
{64} I think it would have been clear to a reasonable official in 1995 that particular political beliefs and associations were not necessary for the effective performance of Garcia-Montoya’s duties as Deputy Director of Administrative Services for the State Treasurer’s Office. It was clear in 1995 that Garcia-Montoya did not have broad power with respect to partisan political issues and was therefore “not in a position to thwart the goals of the in-party.” Elrod, 427 U.S. at 367, 96 S.Ct. 2673.
{65} For these reasons, I disagree with the Court’s conclusion that Montoya and Andermann enjoy qualified immunity with respect to Garcia-Montoya’s First Amendment claims and would reverse on this point and remand for trial. Accordingly, I respectfully concur in part and dissent in part.
. The majority holds that Montoya and Andermann enjoy qualified immunity with respect to all of Garcia-Montoya’s First Amendment claims. The holding that tire individual defendants are qualifiedly immune with respect to the free speech claim depends on its holding regarding the freedom of association claim. Because I do not join the holding on the freedom of association claim, I also dissent with respect to the free speech claim.