Tenth Circuit Discusses Split Re Role of Jury in Pickering Balancing Test in Retaliatory Discharge Cases

Per Weaver v. Chavez, --- F.3d ---, 2006 WL 2294840 (10th Cir. Aug. 10, 2006):

It is well-settled that the balancing assessment [of an employee’s interest in commenting on public matters against the interest of a state in retaliatory discharge cases] must be performed by the court, not the jury. See Gardetto v. Mason, 100 F.3d 803, 811 (10th Cir.1996); see also Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). (noting that "[t]he inquiry into the protected status of speech is one of law, not fact"). The circuits are split, however, as to whether the jury has any role in the Pickering balancing, especially where the application of the balancing might turn on disputed questions of fact. See Lytle v. City of Haysville, 138 F.3d 857, 864 n. 1 (10th Cir.1998) (recognizing the circuit split but not reaching the issue because appellant failed to allege that any underlying factual disputes affected the Pickering balancing). Compare Johnson v. Ganim, 342 F.3d 105, 114-15 (2d Cir.2003) (stating "factual disputes pertaining to the potential for disruption and defendants' motivations in suspending and terminating plaintiff" are issues which "would properly be regarded as a question of fact, to be answered by the jury prior to the district court's application of the Pickering balancing test") (quotations omitted), and Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir.2000) ("Although the balancing of interests is a matter of law for the district court, the underlying factual questions should be submitted to the jury, generally through interrogatories or a special verdict form."), with Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.1987) (holding "the advisory jury had no role to play" in resolving the question of "constitutional law for the court").