Tenth Circuit Discusses Split Re Jury’s Role in Pickering Balancing Test

Per Weaver v. Chavez, 458 F.3d 1096 (10th Cir. Aug. 10, 2006):

Weaver's second argument is that the district court erred in concluding that her workplace speech sufficiently interfered with the operation of the City Attorney's office to support her termination. We disagree.

We apply a four-part test to determine whether a public employer's actions unjustifiably infringe on free speech rights. Schrier v. Univ. of Colo., 427 F.3d 1253, 1262 (10th Cir.2005). Steps one and two bear on the First Amendment interests at stake:

First, we must determine whether the employee's speech involves a matter of public concern. If so, we then balance the employee's interest in commenting upon matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

. . .

A preliminary question in this case involves the relative role of the trial court and the jury in determining the balancing of interests required at step two.

It is well-settled that the balancing assessment must be performed by the court, not the jury. See Gardetto, 100 F.3d at 811; see also Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684 (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").