9th Circuit: Garcetti Poses Mixed Question of Law and Fact
Thanks to Ross Runkel for providing this summary of an interesting new Garcetti public employee free speech case, Posey v. Lake Pend (9th Cir. 10/15/2008), considering whether the determination of if an employee is speaking pursuant to his official duties is a question of law or fact. Of course, this is an important question because it goes to whether these cases can be disposed of by the court on summary judgment:
Posey sued the public employer, asserting a claim for 1st Amendment retaliation. The trial court granted summary judgment in favor of the employer. The 9th Circuit reversed.
The court framed the primary issue on appeal as “whether, following the Supreme Court’s recent decision in Garcetti v. Ceballos, 547 IS 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead now presents a mixed question of fact and law.”