this case because this case has been presented to this panel once before so i'm not going to dwell on the facts but there are three issues that were addressed in the brief that i'm going to focus on this afternoon the first is that the district court in court error is a matter of night judge summers rule fifty motion with regard to ms beauty's free speech claim because her speech simply was not protected she was not speaking as a private citizen but was speaking pursuant to her public duties the second issue is that the district court it is a matter of law when it denied judge summers rule fifty motion in finding that the plaintiff's interest in her speech outweighed the court's interest in promoting efficiency that would be addressed in the district court's pickering balancing test and lastly that the district court erred as a matter of law when it found that judge summers had waived a defense of the court reorganization and that waiver the court's determination that judge summers had waived that defense affected the presentation and the jury instructions given to the jury as a related to the due process argument and further that because the court held that the reorganization defense was waived the plaintiffs were a defendant was never allowed to argue that due process wasn't required in this case because of there being a reorganization the organization the court simply would not consider that issue with regard to the first amendment argument in this case it's clear from the facts first of all i want to state at the point in time when we got to trial there was no dispute about what the statements were and this court in w versus sutherland household the whether in that speech is protected is a question of law when there is no dispute about what the speech was at trial and here today there is no dispute about what the speech was so it was a question of law i want i point that out because earlier this court interest in determining whether or not a qualified immunity existed in the prior appeal how that that was and it that issue was a question of fact as to whether she was speaking as a private citizen or a poet or a public citizen and that it was a question of fact that had to be presented to the jury the court didn't affirmatively state as plaintiffs would have the score believe that she was speaking as a public citizen they said it was a question of fact for the jury to be determined when we got to trial evidence was presented there was no evidence offered to contradict what the statements were in under westmoreland that became a question of war here times but she was only able to specifically remember to one she instigated and called up and made a complaint not just to a random person at scale but her contact the contact that she is  court administrator would go to within the michigan court system jan hunt cost the regional administrator to address these types of issue and the evidence was clear from judge four and who was the prior chief judge of the court from jan hunt cause and from disputes she herself that these types of issues were routinely addressed with the court if she had an issue with the court as accorded court administrator in the efficient operation of the court it was her duty to address it with scale ould that be fanned in her assigned duties well actually the fact that that was part of her saying duties cannot cost testified that when they wanted to determine who would be best appropriate to be the chief judge dismissed second complaint about this issue she specifically asked the in this system the regional administrator would go to the court administrator and say we're looking at naming a chief judge how do you think this person would be do you think he would make a good judge was in that context that she said no because of these religiosity issues it affected the operation of the court and the services that the court were delivering and it was proud of what she had to do and there was no evidence to dispute that presented at court she testified that she would routinely contact them in g m cars testify i contacted her when i wanted to know about who would be the best chief judge well all the remarks the complaints were not in the context of someone asking her a question about which judge was best suited to be chief judge you don't like that representation the court do you know she she testified to two specific instance questioning her to show up that is the sort of things that scale would rely on the court administrators to determine who was the best functioning judge to serve in this position that's the type of information scale wanted from its court administr scale didn't expect its court administrators to provide those sorts of information jan pronk column cut cost wouldn't have asked or she would have simply relied upon the judges but they rely on that when a stranger heard that would be the most administrator or calling a higher court or calling whomever to complain about the judges that would be a very usual court administrative structure g m cars testified that is what they did and she testified pucci wasn't the only one who brought these sorts of sensitive issues to her it was routine to get calls recorded ministry errors and that was how she functioned with her court administrators and it was in that context  chant cost because she said i wanted to go to investigate that would it be different if she made the complaint to the judicial and commission i think it would be different because she didn't have that interface give and take relationship with the judicial tenure commission she had that with scale and she went to the person scale designated for her to deal with on court issues so i do think it would be different if she went to th but the fact that she went to the scale appointed person for this and the school appointed person in fact sought her out for this issue i think it's important to the fact that she's speaking is a not speaking as a private citizens  speaking pursuant to her public duties that doesn't end the inquiry though because even if disclosure were to determine yes and she has a public duty to answer the question about whether or just summers would be a good cheap administrator regarding the selection of the chief judge i do think she has an obligation to provide that information but that does not end the inquiry here because even if it's determined that she's speaking as a private citizen and a manner of public concern the court then has to apply the pickering balancing test and in this case we have some guidance from the jury because the specific interact or it was asked of the jury did miss complaints comments cause or could they have caused this harmony in the workplace and in effect in the workplace and the jury said yes and the district court disregarded that in making the pickering balancing test the court disregarded it and said in focus not on the operation of the court which is the appropriate function which is the appropriate inquiry in a pickering balancing test but the court said there was already problems and disharmony among the judges and the court focused so lee i'm looking at the interpersonal relationships between court personnel in not the efficient operation of the court and the court  administrator is the highest now and where now plaisance lawyer working in the court and has to have a good relation working relationship with the chief judge and the jury found in their own right which way the disharmony could have been caused and i think refused to allow judge summers to present a defense that the reorganization of the court affected the amount of in type of due process that was to be allowed or be required the court found that because judge summers had not raised that issue and of some motion for summary disposition that somehow he had ways that defense the reorganization defense would not be an affirmative defense that would be eligible to be waived and judge summers was not required to raise every legal issue motion for summary disposition in order to preserve it for trial there are lots of strategic reasons you don't race certain issues maybe the belief that could've been a question of fact and so the judge determining that the issue was waived was improper and by the judge determining that that issue had been waived it impaired the presentation of the issue to the jury because the jury was not allowed to consider whether answer the question whether or not the reorganization was a sham and if it was what the due process was that was required in this situation here sit here simply she did get due process she had minutes she said she was notified in advance of what was going to happen that she had time to sit down with judge summers and she also claimed to be a member of the civil service and had post terminations due process rights as well o of a deputy court administrator or any minister it went far beyond her duties as a court administrator which is why she was outraged as a citizen she made those complaints she voiced those concerns and she was retaliate for that in a jury found following this court's mandate and this court's ruling that they have to resolve that question they did it on the facts support of retaliation they found that julie pucci spoke up as a citizen not as a deputy court administrator there is no evidence to support the suggestion that she spoke out otherwise and they made the proper determination george wallace and gave a full written explication of his pickering balancing test factor chappie we don't want to do so i don't understand how you bring that here today there were judge walton was right on the eleventh hour you can't raise a new defense that is a matter of law i could have determined in this court could have passed on back december of two thousand and ten you could have looked at it the bottom line is this the centerpiece of the defense a trial was that judge summers implemented it legitimately organization plan that was his entire defense the jury rejected that defense the jury found that it was a sham that it wasn't so that it was simply a vehicle to remove a public employee because she engaged a protected activity under the first amendment and in his zeal to do so gave her no due process pretty in a memo and somebody is box that they are fire is not due process make a determination months before you tell them their fired is not due process as far as the post  proceedings go julie had on the city of dearborn under michigan corporal eight point one one zero c three i believe cannot tell judge summers bring her back we want her as an administrator they have no power to he found that they did not raise them properly before trial and therefore they were waived and forfeited and he provided his reasons for that but even assuming had they raised it the idea that somehow the reorganization was going to justif determination the jury rejected it was a pretext under any circumstance assuming they didn't get any pretext instructions to my plea i believe that i thought that i would get protect instructions i do believe that the argument was made by the defense basically the argument is made and there are no instructions on that point how is that fair because then the jury can determine that the motivation was not retaliatory and how can the how can the jury determine whether reorganization is an appropriate defense or not if they're not told one way or the other because in the context of the trial that was the entire dispute well i appreciate the fact that there was a lot of evidence in the case now we're getting reorganization but if the judge doesn't address reorganization in the instructions isn't the problem i don't think it is one because i  factor was that goes to cause a sion and it will probably under those circumstances not necessary to give a specific instruction about reorganization when reorganization is the cause that was asserted bad the defendant the defendant whether he was a some sort of reorganization exception to finance he nevertheless got to explore that issue fully with the jury it would have been relevant to the due process kline that's reorganizations wouldn't affect whether or not an employee was entitle to due process it would only go to the first amendment client act and the issue it would go to cause a sion correct and so i guess what the defendant lost if i'm understanding this correctly it was perhaps an opportunity for a jury instruction or opportunity for some different way of describing what happened or a ruling is a matter of law that would take the case out of the jury right the jury's purview so i'm not sure what was lost to the defendant and perhaps it's more and more appropriate for your adversary to address that because our position is nothing was lost that was the entire beef essentially was the entire r well quite frankly the jury just flatly rejected an explanation that charge somebody to come up with especially that one so quite a few more questions i'll be happy to send our ok thank you so much i appreciate when the issue is reorganization and it effects whether due process is required at all and the level of due process so it goes to the very how to do process in the upshot  due process if the whole reason for due process is of someone's being fired for performance reasons that they can address those before that decision is made when you have a reorganization defense that's not an process becomes an issue when reorganization is an issue because the l the things the due process seeks to protect are not at issue there is no stigmatizing negative information being put out there about the plaintiff it's interesting that in this appeal and her attorney just argued that she was not entitled rejected the fact that organization was the motive in to the extent the jury was determining what process with steve it would necessarily have rejected the reorganization exception wouldn't it we don't know that that means is it because a she and you're absolutely right causation does perhaps go to both the due process clause and the first amendment but if you can't convince the jury of the correctness of the reorganisation defense you don't even get to the point you're arguing well we don't know because we were not allowed to give the jury instructions on that defense and ask a specific iraqi trial like we were the picture in no way did the new speech he could have prevailed on the first amendment kline without the rejection of the reorganization if the current had allowed if the court i don't know what did you decide because the court wouldn't allow that to be argued as a defense in it with instructions like he did with pickering with a specific it arrived we just don't know because he didn't allow it i would also like one final point the plaintiff wants to argue that she wasn't entitled to post terminations due process because she wasn't subjected to the civil service rules and regulations but there is a very civil service rules and regulations she relied on to establish your property interest so she wants to have a cake you need it to she if she's if they can create a property interest she's entitled to the post deprivation procedures to which would mean she would she did have the opportunity for due process deserve a can grow once between the two proofs necessary for the claim to prove for their first when they found for the plaintiff on the first amendment claim and the totally rejected the notion that reorganization was a was a factor i wish i could answer that question because not having had the jury be instructed on this it dead issue and get to specific directory i don't know there's an argument that could be made that it is but we just don't know because the clerk prohibited us from presenting that defense simply because we didn't file a summ disposition motion on  a motion for reconsideration as well so it was in the hearing and the plaintiff's motion in limine e and then in response to our motion for reconsideration in the transcript not a written ruling i don't believe there was a written ruling on the motion for reconsideration  ruling on the for most of the first time i don't believe with either motion i don't remember seeing one but i don't know if that's typically i don't i don't recall there being opinions on emotionally many or the motion for reconsideration i believe it's in  the transcripts which are part of the record