# Horn v. Kean

> Court of Appeals for the Third Circuit · July 16, 1986 · 796 F.2d 668

URL: https://www.frixlaw.com/law-library/cases/8942928

## Case

- **Full name:** Patricia HORN, Mary Jane Reed, Edward Munley, Marvin Olinsky, Michael Tango, and the New Jersey Motor Vehicle Agents Association, Marie Luberto, Raymond E. Littleford, Joseph Nemyo, John Letz, Florenne D. Sweethood, J. Harold Webb, Leona B. Clyde, and Ann Laonne v. Thomas KEAN, Governor of the State of New Jersey, Irwin Kimmelman, Attorney General State of New Jersey and Clifford Snedeker, Director of Motor Vehicles State of New Jersey
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** July 16, 1986
- **Citations:** 796 F.2d 668; 1 I.E.R. Cas. (BNA) 693
- **Precedential status:** Published
- **Opinion:** Concurrence by Garthhigginbotham
- **Judges:** Adams, Aldisert, Diamond, Garth, Gibbons, Higginbotham, Mann, Mans, Seitz, Sloviter, Stapleton, Whom
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668 (1996).
- Negative treatments: 2
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8942928

## How later opinions describe it (automated extraction)

- holding that constitutional protection does not protect against patronage dismissal of state motor vehicle agents because the judiciary "has an obligation to respect political choices”
- holding that independent contractors whose contracts were terminated following a change in administration were not protected by the First Amendment
- rejecting view that independent contractors can be treated differently than employees for First Amendment purposes
- applying New Jersey law to determine plaintiffs’ employment status in a civil rights action

## Opinion text

GARTH, Circuit Judge, concurring, with whom A. LEON HIGGINBOTHAM, Jr., Circuit Judge,
joins:
I do not share the views expressed in the majority opinion which are critical of the holdings and analysis of 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). In my opinion, these cases represent neither a grave threat to the democratic political process nor a sharp break with constitutional *680 tradition. Moreover, I do not share the largely benign view of political patronage implicit in the majority opinion. Indeed, I did not share those views when they were expressed in Judge Aldisert’s concurring opinion in Loughney v. Hickey, 635 F.2d 1063, 1065 (3d Cir.1980), a case in which I joined the per curiam opinion of the court. To the extent that today’s judgment in the case sub judice is based on the analysis which gave rise to the Loughney concurrence, I therefore respectfully decline to join in the majority opinion.
Nevertheless, I agree that on the facts and the record of this case, no First Amendment considerations bar the replacement of motor vehicle agents of Democratic persuasion with motor vehicle agents aligned with the Republican Party. I agree with Judge Aldisert, writing for the majority, that if the Elrod-Branti doctrine is to be substantially expanded so as to apply to the facts of this case, that task properly falls to the Supreme Court.
As the majority opinion properly notes, see at 675 n. 8, we must decide only the case that is actually before us. I therefore do not express a view on whether the present Elrod-Branti analysis might provide protection for an independent contractor so economically dependent on government business as to be indistinguishable in any principled way from a government employee.
Because I agree with the majority’s disposition on the facts and record of this case, I join in the judgment of the court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8942928. Public record. Not legal advice.