Not exactly Garcetti II, but the United State Supreme Court yeserday granted certiorari in a case involving a ruling affirming a jury verdict for a police chief claiming retaliation under the First Amendment’s Petition Clause.  The case is Duryea v. Guarnieri (No. 09-1476).  (Here is the Third Circuit opinion below and the petition for writ of certiorari).

Although the Borough argues that this case should be handled like other free speech cases and be dismissed because the dispute does not meet the Connick “matter of public concern” test, the police chief argues that there should be different standards applied for Petition Clause claims as opposed to free speech claims.

Interestingly, a similar argument arises over whether the Connick/Pickering/Garcetti framework should apply in association claim cases under the First Amendment. 

In Reflections on the Techicolor Rights in American Labor and Employment Law, I observed:

There is some dispute over whether an association claim must relate to a matter of public concern before the Pickering balance applies. See Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138 n.3 (not reaching the question but observing that “[f]ive Circuits have adopted the public concern requirement for freedom of association claims and two have not . . . . The 11th Circuit recently reaffirmed its allegiance to the no public concern test faction. See Cook v. Gwinnett County School Dist., 414 F.3d 1313 (11th Cir. 2005)).

Bill Herbert has also written on this topic in The First Amendment and Public Sector Labor Relations.  Bill points out:

Keep in mind that the right to petition was one of the arguments against granting exclusive collective bargaining representation in the public sector to an employee organization. Also, the clause has a distinct history for those on the Court who claim to be originalists (never mind the history of the congressional refusal to accept anti-slavery petitions).

So all and all, Guarnieri has the makings for a very interesting public employment decision. I will certainly have additional thoughts on the question presented after oral argument in the case, so stay tuned.