dissenting:
The district court concluded that the question of whether Cooper’s freedom of expression was constitutionally protected was one for resolution by the court rather than by the jury. The majority has held that this issue need not be met and, under the circumstances of this case, the speech *563was not in fact protected. I do not believe that we can avoid the issue raised by the district court and as I feel that, under the facts of this case, the balancing test in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), as supplemented by Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), may involve factual determinations for the jury, I would reverse.
There, of course, may be cases in which speech may be protected or unprotected as a matter of law. In between are those cases where the speech may or may not be protected, depending upon the nature of the employee’s job, the effect the speech may have on the job, and the intent of the employer in discharging the employee. In these latter situations, it is my belief that a jury determination is required under proper instructions from the court.
The district court properly submitted three issues,1 answered by the jury as follows:
(1) On balance, weighing plaintiff’s right of freedom of speech against the sheriff’s duty and right to preserve and promote the well-being of the sheriff’s department, has plaintiff proven by a preponderance of the evidence and under the instructions' of the court that his conduct in writing the letter to the editor and presenting the letter to the sheriff, in view of the circumstances surrounding the incident and the implications thereof, was protected by the First Amendment?
Answer, yes.
(2) Has the sheriff proven by a preponderance of the evidence that he would have reached the same decision to discharge plaintiff even in the absence of protected conduct?
Answer, no.
(3) The jury awards plaintiff actual damages in the amount of $4,000.
Assuming arguendo that the submission of the balancing test under Pickering and Mt. Healthy was proper for the jury, the record adequately supports the jury verdict. The letter, written by Cooper, was innocuous at best. It was, to a limited extent, directed to a,matter of public concern; i. e., the accuracy of newspaper reporting. It contained nothing derogatory as to the investigator, Mills, or the defendant sheriff. It was not critical of the sheriff or his department.
Manifestly, the letter was a motivating or substantial factor in the decision to discharge the plaintiff as the sheriff concedes. It was probably the sole cause as Cooper was considered to be a competent deputy sheriff and his personnel record indicated no adverse marks. Assuredly, the question as to whether the plaintiff would have been discharged in any event, without regard to the protected conduct, was for the jury and, on this issue, the jury found against the sheriff. To say now that the jury had no part to play in the balancing test is, in my judgment, error.
Wagle v. Murray, 546 F.2d 1329 (9th Cir. 1976), arose in a similar context. The case involved a determination of whether a teacher’s employment was terminated because of the exercise of First Amendment activities, or because he was an ineffective teacher.2 The teacher was chairman of the local ACLU and engaged in several allegedly radical activities. The jury awarded plaintiff the sum of $50,000 which the trial court set aside and entered judgment n. o. v. The Ninth Circuit reversed, holding that judgment n. o. v. was improper where there was evidence from which a jury could infer that a First Amendment right had been *564violated; and that a reasonable basis for the verdict existed even if, on the whole record, it appeared that the teacher was discharged for being ineffective. The Supreme Court later remanded the case, 431 U.S. 935, 97 S.Ct. 2645, 53 L.Ed.2d 252 (1977), for reconsideration in light of Mt. Healthy. On remand, 560 F.2d 401, 403, the Ninth Circuit held that the instructions given to the jury conformed to the requirements of Mt. Healthy, and that it was for the jury, not the judge, to determine whether the teacher would have been discharged in any event. The Supreme Court has since denied certiorari, 434 U.S. 1014, 98 S.Ct. 729, 54 L.Ed.2d 758 (1978).
I agree that the relationship between teacher-employer and sheriff and deputy sheriff need not be identical. It is probably true that problems of morale and discipline are more important in law enforcement bodies, but it does not follow as a matter of law that questions pertaining to the sheriff-deputy sheriff relationship are to be removed from jury consideration, especially where, as in this case, the jury was properly instructed on this issue. Byrd v. Gain, 558 F.2d 553 (9th Cir. 1977). Cf. Kannisto v. City and County of S. F., 541 F.2d 841 (9th Cir. 1976); Gasparinetti v. Kerr, 568 F.2d 311 (3rd Cir. 1977), cert. denied 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401. The Byrd case would support the views of the majority herein as the court granted summary judgment. In that case, however, the officers’ comments were obviously critical of the department whereas, in the present case, we cannot hold as a matter of law that Cooper was attempting to publicly criticize investigator Mills or the defendant.
Two cases considered by the district court do require discussion. In Norbeck v. Davenport Comm. Sch. Dist., 545 F.2d 63 (8th Cir. 1976), a school principal was not rehired, at least in part due to the fact that he acted as a negotiator for the local teachers’ union. The jury found for the school district. On appeal, the court did say that whether Norbeck was exercising a constitutional right was for the court and not for the jury. However, as I read the opinion in Norbeck it would appear that the Eighth Circuit was holding that his actions were not constitutionally protected as a matter of law as the opinion goes on and discusses the inherent conflict between a person acting in a supervisory position who is also a member of a union and, as to Norbeck, since he was a school principal, he had no constitutional right to serve as a union negotiator for the teachers he supervised.
In Bertot v. School Dist. No. 1, 522 F.2d 1171 (10th Cir. 1975), the court held that plaintiff was entitled to a judgment n. o. v. because the nonrenewal of her employment contract violated her First Amendment rights where she engaged in very limited participation in an effort by students to start an underground newspaper; the court holding as a matter of law that she was being discharged for her participation in protected activity.
With the recent trend of decisions emanating from the Supreme Court demonstrating that issues of this type are for the "trier-of-fact,” I cannot agree that the present case, considered under all the facts and circumstances, was proper for review by the district court under a judgment n. o. v. proceeding. I would reverse and enter judgment on the verdict.
. Actually five questions were submitted but the last two referred to punitive damages and the jury concluded that no such damages should be awarded.
. In Cooper’s case, the sheriff attempted to prove a number of factors which, he contended at trial, prompted Cooper’s dismissal. He admits that he never complained to Cooper as to any of these matters prior to or at the time of his discharge. The jury quite properly rejected this affirmative defense. The majority now takes issue with the jury finding and appears to hold that Cooper’s acts amounted to insubordination as a matter of law.