Bakalar v. Dunleavy et al

Filing 97

ORDER granting in part and denying in part 56 Motion for Summary Judgment; granting in part and denying in part 76 Motion for Summary Judgment. Parties to confer and within 14 days file notice identifying remaining issues and propose schedule for resolving same. Signed by Judge John W. Sedwick on 1/20/22. (LLR, CHAMBERS STAFF)

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IN THE UNITED STATES DISTRICT COURT 1 2 FOR THE DISTRICT OF ALASKA 3 4 5 ELIZABETH BAKALAR, Plaintiff, 6 7 8 9 10 vs. MICHAEL J. DUNLEAVY, in his individual and official capacities; TUCKERMAN BABCOCK; and the STATE OF ALASKA. 11 Case No. 3:19-cv-00025-JWS ORDER ON MOTIONS FOR SUMMARY JUDGMENT [Docs. 56, 76] Defendants. 12 13 14 15 16 I. MOTIONS PRESENTED At docket 56 Defendants Governor Michael J. Dunleavy (“Governor 17 Dunleavy”), Tuckerman Babcock (“Babcock”), and the State of Alaska (collectively 18 “Defendants”) filed a motion for summary judgment as to all claims asserted against 19 20 them by Plaintiff Elizabeth Bakalar (“Plaintiff”), who alleges that Defendants 21 terminated her employment as an assistant attorney general in violation of federal and 22 state free speech rights, the Alaska Constitution’s merit principle, and the implied 23 24 25 covenant of good faith and fair dealing. At dockets 75 and 76, Plaintiff filed a response to Defendants’ motion for summary judgment and a cross motion for summary 26 judgment. Defendants filed their combined response and reply at docket 86. Plaintiff 27 replied at docket 93. 28 Oral argument would not be of assistance to the court’s determination. Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 1 of 39 II. 1 2 3 4 BACKGROUND On December 3, 2018, Plaintiff was notified that her employment as an assistant attorney general with the Alaska Department of Law had been terminated. At 5 that time, Plaintiff had worked as an assistant attorney general for over 12 years under 6 five administrations and seven Attorneys General. 1 She had been steadily promoted 7 8 during her tenure with the Department of Law, and at the time of her firing she was 9 classified as an expert-level “Attorney V” within the Labor and Affairs Section. As an 10 attorney in the Labor and Affairs Section, Plaintiff was assigned to be primary counsel 11 12 for the Lieutenant Governor and the Division of Elections. She handled voting rights 13 cases, voter registration issues, ballot initiative certifications and referendum matters, 14 and she drafted regulations and legislation. 2 She also was assigned to advise or 15 16 17 represent other state agencies in high-profile or complex matters. 3 By all accounts, Plaintiff was a well-regarded attorney within the Department of Law, securing 18 numerous favorable decisions from the Alaska Supreme Court and the Ninth Circuit 19 and receiving praise for her proficient and efficient legal work. 4 20 The criticism lodged against Plaintiff during her tenure with the 21 22 Department of Law arose in connection to her personal blog, entitled “One Hot Mess,” 23 and its associated social media presence. She began the blog in 2014, primarily 24 25 26 focusing on her lifestyle, parenting, and politics. 5 Her commentary was personal in 1 27 2 28 4 3 5 Docket 75-3 at ¶ 3. Id. at ¶¶ 3–7; Docket 75-33; Docket 75-7; Docket 56-1. Docket 75-33. Docket 75-2 at ¶¶ 3, 7; Docket 75-7; Docket 75-3 at ¶ 7. Docket 75-3 at ¶ 15. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 2 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 2 of 39 1 2 3 4 5 nature, discussing embarrassments, insights, and opinions, often in irreverent terms. Plaintiff described her blog as a way “[t]o explore and probe with authenticity and sometimes vulgarity, and hopefully some depth, the things we don’t like to face” and the things people do not talk about.6 6 7 8 The blog was shared on Plaintiff’s Facebook account and was intended to be public and widely shared. 7 One post from 2015 about why Plaintiff chose to live, 9 work, and raise kids in Alaska was read by over 20,000 people. 8 Another post from 10 2016, a political one that opposed the candidacy of Donald Trump and criticized those 11 12 who supported him, was republished by the Anchorage Daily News. 9 13 After the 2016 presidential election, Plaintiff started blogging more 14 about politics, and President Trump in particular. As Plaintiff stated in one of her blog 15 16 17 posts, “[b]efore Trump, I wrote a lot more about parenting. Now I feel compelled to write about Trump so that . . . if the sh[**] hits the fan my kids will have a 18 contemporaneous Handmaid’s Tale-style record of What the F[**]k You Did to Us.” 10 19 Her commentary contained vitriolic criticism of the President and his associates. For 20 21 example, she stated in one early 2017 blog post as follows: Our POTUS is manifestly delusional, likely senile, sociopathic, treasonous, semi-literate, lecherous oligarch who is scissoring the Constitution into red white and blue confetti like Edward Cheeto-Hands with the help of Congress, all at the direction of a repellent, rheumy-eyed 22 23 24 25 26 27 28 6 7 8 9 10 Docket 56-14 at 1. Docket 75-23 at 1 n.1, 6. Docket 56-7. Docket 56-8. Docket 56-23. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 3 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 3 of 39 2 alcoholic who legit wants to destroy democracy and perpetuate the master race. 11 3 Plaintiff also maintained a twitter account, entitled “One Hot Mess AK” with her name 1 4 5 6 listed as the twitter handle, where she vented about the election of President Trump and those who voted for him. 12 While the exact number of Plaintiff’s public comments 7 mentioning President Trump is not in the record, it is undisputed that posts criticizing 8 or mocking President Trump number in the hundreds. She acknowledged that she let 9 10 11 go of any fears about “personal and/or professional reprisal borne of calling Donald Trump a fascist cantaloupe on the internet every day.” 13 12 13 14 In response to Plaintiff’s blogging activities, another attorney in the state, Nancy Driscoll Stroup, started a blog of her own entitled “Ethics and One Hot Mess 15 Alaska.” The purpose of her blog was to “make[ ] the case that Blogger Libby Bakalar 16 of ‘One Hot Mess Alaska’ fame should not be working as an Assistant Attorney 17 18 General for the State of Alaska.” 14 She criticized Plaintiff as follows: Alaskan Assistant Attorney General Libby Bakalar uses extremely profane and vulgar and mean language in her Blog. She makes fun of people based on their political affiliations (Trump supporters) and their religion (fundamental Christians) and lectures white people on how they need to behave . . . . Take a look at her blog. 19 20 21 22 23 24 Is Ms. Bakalar the type of person we want working as an attorney in the Attorney General’s office? 25 My opinion: NO. 15 26 11 27 12 28 14 13 15 Docket 56-24. Docket 56-19. Docket 56-21. See, e.g., Docket 75-9. Docket 75-10. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 4 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 4 of 39 1 2 3 4 In line with this critique, Stroup repeatedly called for Plaintiff’s termination, arguing that she could not maintain a popular political blog and continue to maintain the necessary impartiality in her job as an attorney with the Labor and State Affairs 5 Section. 16 She also accused Plaintiff of using state time and resources to conduct her 6 personal blogging activities, in violation of Alaska’s Executive Ethics Act. 17 She 7 8 voiced these ethics complaints to state officials. 18 9 Thereafter, the Department of Law initiated an investigation into 10 Plaintiff’s blogging activities. It hired an independent third-party attorney to conduct 11 12 the investigation. As the investigator noted in his report, “[t]he primary impetus for 13 the investigation were concerns raised about the partisan political nature of ‘One Hot 14 Mess Alaska’ and the possible use by Ms. Bakalar of state resources or work time in 15 16 17 the creation of articles posted on the blog.” 19 The investigation, however, was limited to two questions: (1) whether Plaintiff posted or in any manner worked on her blog 18 during work time or with the aid of state funds or resources; and (2) whether, if the 19 answer to the first question was “yes,” such activity violated any law or policy 20 21 applicable to Plaintiff.20 The inquiry did not consider whether Plaintiff’s publishing 22 of her political opinions during personal time was in any manner improper given 23 Plaintiff’s job as an assistant attorney general. 21 24 25 26 16 27 18 28 20 17 19 21 See, e.g., Docket 75-12; Docket 75-14 at 5. Docket 75-13 at 2. Docket 75-14 at 5. Docket 75-23 at 1. Id. at 1–2. Id. at 2 n.3. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 5 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 5 of 39 In March 2017, the investigator concluded that on occasion Plaintiff 1 2 3 4 engaged in activities associated with her blog during her normal work hours and with her work computer but that any such time was de minimis and within commonly 5 accepted limits. 22 He also found that any incidental work by Plaintiff on her blog 6 during work hours did not violate the Ethics Act, which prohibits employees from 7 8 using state resources for personal financial advancement or for partisan political 9 purposes. 23 He noted that while Plaintiff’s blog “can be interpreted to evince a liberal 10 or progressive worldview, few posts actually meet the definition of having a partisan 11 12 political purpose.” 24 The only posts that could fit within this definition would be those 13 critical of President Trump during his presidential candidacy, but there was “no 14 evidence that any of these specific potentially partisan posts were ever worked on by 15 16 [Plaintiff] during work hours or using state resources.” 25 In November 2018, after winning the election, Governor Dunleavy 17 18 selected Babcock to serve as the chair of his transition team. On November 16, 2018, 19 Babcock sent a memorandum to most of the state’s at-will employees. 26 The 20 21 memorandum required employees to submit a resignation, along with a statement of 22 interest in remaining employed with the new administration. The memorandum stated 23 in part as follows: 24 In the coming weeks, the incoming administration will be making numerous personnel decisions. Governor-Elect 25 26 22 27 23 28 25 24 26 Id. at 2, 12. Id. at 3, 12–14. Id. at 12–13. Id. at p. 13. Docket 75-30; Docket 75-31. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 6 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 6 of 39 Dunleavy is committed to bringing his own brand of energy and direction to state government. It is not Governor-Elect Dunleavy’s intent to minimize the hard work and effort put forth by current employees, but rather to ensure that any Alaskan who wishes to serve is given proper and fair consideration. 1 2 3 4 5 As is customary during the transition from one administration to the next, we hereby request that you submit your resignation in writing on or before November 30, 2018 to If you wish to remain in your current position, please make your resignation effective upon acceptance by the Dunleavy administration. 6 7 8 9 10 Acceptance of your resignation will not be automatic, and consideration will be given to your statement of interest in continuing in your current or another appointment-based state position. Please also include your email address and phone contact so that you can be reached to discuss your status directly. 11 12 13 14 15 Governor-Elect Dunleavy is encouraging you and all Alaskans to submit their names for consideration for service to our great state. 27 16 17 18 19 20 21 The memorandum was accompanied by a resignation form, which included a sentence where employees had to choose whether or not they wanted to be considered for their position with the Dunleavy administration. 28 The demand for the resignations of all at-will employees was reported in 22 23 24 25 the local newspaper. In past transitions, incoming administrations requested resignations from only around 250 employees. 29 Governor Dunleavy explained his 26 27 28 27 28 29 Docket 75-30. Docket 75-32. Docket 75-31. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 7 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 7 of 39 1 2 3 4 decision to broaden the scope of this practice to a reporter: “We want to give people an opportunity to think about whether they want to remain with this administration and be able to have a conversation with us.”30 Babcock was reported as saying as follows: [Governor Dunleavy] just wants all of the state employee who are at-will . . to affirmatively say, “Yes, I want to work for the Dunleavy administration” . . . . Not just bureaucracy staying in place, but sending out the message, “Do you want to work on this agenda, do you want to work in this administration? Just let us know.” . . . I do think this is something bold and different, and it’s not meant to intimidate or scare anybody. It’s meant to say, “Do you want to be a part of this?” . . . If you don’t want to express a positive desire, just don’t submit your letter of resignation . . . [a]nd then you’ve let us know you just wish to be terminated. 31 5 6 7 8 9 10 11 12 13 14 To keep their jobs employees had to actually offer up a resignation with an 15 accompanying statement of interest in continuing with the new administration and then 16 hope that the incoming administration would reject the resignation. 17 18 19 20 Plaintiff received the resignation memorandum, along with all other lawyers in the Department of Law. Plaintiff submitted her resignation letter. She stated as follows: 21 Per the November 16, 2018 request of Transition Chair, Tuckerman Babcock, please accept this letter as notice of my resignation from my position as Assistant Attorney General in the Labor & State Affairs Section of the Department of Law. My resignation is not voluntary, but is instead being made at the request of Mr. Babcock, who has indicated that if I do not submit my resignation as requested my employment will be terminated. I would like to continue serving the State of Alaska in the new 22 23 24 25 26 27 28 30 31 Id. Id. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 8 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 8 of 39 Governor Dunleavy administration in my current position, and hope that my resignation is not accepted. 1 2 I have been with the department over 12 years, and I am assigned to work primarily on elections matters on behalf of the Office of the Lieutenant Governor. In that capacity, I represent the Division of Elections in litigation; provide agency advice; testify on legislation; assist with federal compliance; and help draft legislation and regulations in the area of elections law. 32 3 4 5 6 7 8 9 10 She also stated in her letter that when her election workload is light, she is assigned to represent other state agencies, such as the Office of the Governor, the Department of 11 Health and Social Services, Department of Administration, and the Department of 12 Public Safety. 33 13 Governor Dunleavy was sworn in at 12:00 p.m. on December 3, 2018. 14 15 Less than twenty minutes later, Plaintiff was notified that her resignation had been 16 accepted and that her employment with the state had been terminated, and she was 17 18 19 given less than two hours to clean out her office and leave the building. 34 Although every attorney in the Department of Law received Babcock’s memorandum, only one 20 other attorney’s resignation letter was accepted. Like Plaintiff, this attorney had been 21 publicly critical of President Trump in her Twitter postings during the month leading 22 23 up to his inauguration.35 24 25 26 27 32 28 34 33 35 Docket 75-33. Id. Docket 75-3 at ¶¶ 20, 21. Docket 75-3 at ¶ 23; Docket 75-14; Docket 75-23 at 17. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 9 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 9 of 39 Babcock stated that he made the decision to terminate Plaintiff based 1 2 3 4 primarily on the content of her resignation letter, explaining that he believed it demonstrated an unwillingness to work professionally with the new administration. 36 5 This lawsuit followed. Plaintiff filed her complaint in state court and 6 Defendants removed. Plaintiff asserts a 42 U.S.C. § 1983 claim against Defendants 7 8 for violation of her First Amendment rights. She also alleges that her termination 9 violated her free speech rights under Article I, § 5 of the Alaska Constitution, the 10 Alaska Constitution’s merit principle, and the implied covenant of good faith and fair 11 12 13 dealing. She seeks damages, as well as injunctive and declaratory relief. Both parties now seek summary judgment on these claims. III. 14 15 Summary judgment is appropriate where “there is no genuine dispute as 16 17 STANDARD OF REVIEW to any material fact and the movant is entitled to judgment as a matter of law.” 37 The 18 materiality requirement ensures that “[o]nly disputes over facts that might affect the 19 outcome of the suit under the governing law will properly preclude the entry of 20 21 summary judgment.” 38 Ultimately, “summary judgment will not lie if the . . . evidence 22 is such that a reasonable jury could return a verdict for the nonmoving party.” 39 23 However, summary judgment is mandated “against a party who fails to make a 24 25 26 27 36 28 38 37 39 Docket 87-4 at 36. Fed. R. Civ. P. 56(a). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Id. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 10 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 10 of 39 1 2 3 showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”40 The moving party has the burden of showing that there is no genuine 4 5 dispute as to any material fact. 41 Where the nonmoving party will bear the burden of 6 proof at trial on a dispositive issue, the moving party need not present evidence to show 7 8 that summary judgment is warranted; it need only point out the lack of any genuine 9 dispute as to material fact. 42 Once the moving party has met this burden, the 10 nonmoving party must set forth evidence of specific facts showing the existence of a 11 12 genuine issue for trial.43 All evidence presented by the non-movant must be believed 13 for purposes of summary judgment and all justifiable inferences must be drawn in favor 14 of the non-movant. 44 However, the nonmoving party may not rest upon mere 15 16 17 allegations or denials but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties’ differing versions 18 of the truth at trial. 45 “[W]hen simultaneous cross-motions for summary judgment on 19 the same claim are before the court, the court must consider the appropriate evidentiary 20 21 22 material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them.”46 23 24 40 25 41 26 42 27 44 28 46 43 45 2001). Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Id. at 323. Id. at 323–25. Anderson, 477 U.S. at 248–49. Id. at 255. Id. at 248–49. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 11 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 11 of 39 IV. 1 2 3 A. DISCUSSION Plaintiff’s § 1983 Claim Based on the First Amendment Plaintiff asserts her First Amendment retaliation claim against 4 5 Defendants pursuant to 42. U.S. C. § 1983. Section 1983 creates a private right of 6 action for those plaintiffs seeking to redress and remedy constitutional wrongs caused 7 8 9 10 11 12 by a “person” acting “under the color of state law.” 47 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law.” 48 A state, its agencies, 13 and officials acting in their official capacity are not considered “persons” for purposes 14 of § 1983 and therefore cannot be sued thereunder. 49 An exception exists for § 1983 15 16 17 claims brought against state officials sued in their official capacity for prospective injunctive or declaratory relief.50 These claims, however, must be brought against state 18 officials with the ability to provide such relief in their official capacities. 19 Section 1983 claims seeking monetary damages may only be brought against a state 20 21 51 official if the official is sued in his or her individual capacity, and such claims are 22 23 24 25 26 27 28 47 42 U.S.C. § 1983. Long v. Cty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). 49 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004). 50 Will, 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the state.’” (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985))); Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007). 51 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013). 48 Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 12 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 12 of 39 1 2 3 4 subject to a possible qualified immunity defense. 52 For these personal-capacity claims, Eleventh Amendment immunity issues are not implicated because the claim actually is against the individual and not the state. 53 5 Under these principles, Plaintiff’s § 1983 claim may be brought against 6 Governor Dunleavy in his official capacity for prospective injunctive and declaratory 7 8 9 relief and against the individual defendants in their personal capacities for damages. 1. 10 11 12 First Amendment in the public employment context Plaintiff’s § 1983 claim against Defendants falls within the ambit of case law governing First Amendment rights in relation to public employment. “The Court 13 has rejected for decades now the proposition that a public employee has no right to a 14 government job and so cannot complain that termination violates First Amendment 15 16 17 rights . . . .”54 Under the Supreme Court’s “unconstitutional conditions” doctrine, “the government ‘may not deny a benefit to a person on a basis that infringes his 18 constitutionally protected . . . freedom of speech’ even if he has no entitlement to that 19 benefit.” 55 Based on this doctrine, “[i]t is by now black letter law that ‘a state cannot 20 21 22 condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’” 56 This means that “[a]bsent some 23 24 25 26 27 28 52 Suever v. Connell, 579 F.3d 1047, 1060–61 (9th Cir. 2009); Kentucky v. Graham, 473 U.S. 159, 166 (1985). 53 Suever, 579 F.3d at 1060. 54 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 716 (1996). 55 Bd. of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). 56 Nichols v. Dancer, 657 F.3d 929, 932 (9th Cir. 2011) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 13 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 13 of 39 1 2 3 reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression.” 57 Stemming from these principals are two types of cases—those falling 4 5 under the Elrod/Branti 58 line of patronage cases and those under the Pickering 59 free 6 speech retaliation cases. Under Elrod/Branti, as a general rule, public employees who 7 8 do not occupy a policymaking position cannot be terminated based upon their political 9 beliefs and associations. 60 Such patronage practices impermissibly infringe upon 10 public employees’ First Amendment associational rights. “The threat of dismissal for 11 12 failure to provide [support for the favored political party] unquestionably inhibits 13 protected belief and association, and dismissal for failure to provide support only 14 penalizes its exercise.” 61 Party membership of the employee is not, in and of itself, the 15 16 17 determinative factor in these cases. That is, neither active campaigning or affiliation with a competing party nor vocal opposition to the favored political party by the 18 employee is required to raise the issue of unconstitutional patronage. “[T]he right not 19 to have allegiance to the official or party in power itself is protected under the First 20 21 22 Amendment.” 62 Consequently, to support a First Amendment claim under these patronage cases, it is sufficient for the employee to show “that they were fired for 23 24 25 26 57 27 59 28 61 58 60 62 O’Hare, 518 U.S. at 717. Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980). Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563 (1968). Biggs v. Best, Best & Krieger, 189 F.3d 989, 994 (9th Cir. 1999). Elrod, 427 U.S. at 359 (plurality opinion). Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 272 (3d Cir. 2007). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 14 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 14 of 39 1 2 3 4 failing to endorse or pledge allegiance to a particular political ideology.” 63 In cases involving patronage practices, no consideration of the government’s interest is required, because such practices “unquestionably inhibit protected belief and 5 association” and “are not narrowly tailored to serve vital government interests” when 6 applied to employees in non-policymaking positions. 64 7 Pickering retaliation cases involve situations where a government 8 9 employer takes an adverse employment action against an employee in response to that 10 employee’s speech, rather than just political affiliation. Under these cases, it is 11 12 acknowledged that the government cannot unduly abridge employees’ free speech 13 rights, but it nonetheless has broader power to restrict the speech of its employees than 14 the speech of its constituents given the management interests at play. 65 As a result, 15 16 17 unlike the Elrod/Branti cases “where the raw test of political affiliation suffice[s] to show a constitutional violation,” these speech-related cases require the application of 18 a balancing test developed in Pickering to determine whether the employee’s speech 19 is constitutionally protected. 66 Under the balancing test, the court must consider “the 20 21 interests of the [employee], as a citizen, in commenting upon matters of public concern, 22 and the interest of the State, as an employer, in promoting the efficiency of the public 23 services it performs through its employees.” 67 This balancing test is also applied in 24 25 26 27 28 63 Gann v. Cline, 519 F.3d 1090, 1094 (10th Cir. 2008) (quoting Bass v. Richards, 308 F.3d 1081, 1091 (10th Cir. 2002)). 64 Rutan v. Republican Party of Ill., 497 U.S. 62, 69, 74 (1990). 65 Pickering, 391 U.S. at 568. 66 O’Hare, 518 U.S. at 719. 67 Pickering, 391 U.S. at 568. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 15 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 15 of 39 1 2 3 “hybrid speech/association” claims, where speech is inextricably linked with associational activity. 68 Under both types of cases—whether involving political affiliation or 4 5 political speech—an exception is carved out for those employees holding 6 policymaking or confidential positions; such employees may be fired for “purely 7 8 political reasons.” 69 In the Ninth Circuit, “an employee’s status as a policymaking or 9 confidential employee [is] dispositive of any First Amendment retaliation claim.” 70 10 This policymaker exception reflects the view that dissenting political affiliations and 11 12 speech from a policymaker or confidential employee is disruptive enough to the 13 government’s interest in implementing policy to outweigh that employee’s First 14 Amendment rights. 71 However, “the exception is ‘narrow’ and should be applied with 15 16 17 caution.” 72 Whether an employee falls within this classification is not simply a matter of labels and titles; rather, “the question is whether the hiring authority can demonstrate 18 that party affiliation is an appropriate requirement for the effective performance of the 19 public office involved.” 73 Party affiliation is interpreted broadly to encompass 20 21 22 23 24 25 26 27 28 68 Hudson v. Craven, 403 F.3d 691, 695–98 (9th Cir. 2005); Candelaria v. City of Tolleson, Ariz., 721 Fed. Appx. 588, 590 n.1 (9th Cir. 2017). 69 Hobler v. Brueher, 325 F.3d 1145, 1150 (9th Cir. 2003). 70 Biggs, 189 F.3d at 994–95 (emphasis added). 71 See Hobler, 325 F.3d at 1150 (noting that “some positions must be subject to patronage dismissals for the sake of effective governance and implementation of policy”). 72 Hunt v. Cty. of Orange, 672 F.3d 606, 611 (9th Cir. 2012) (quoting DiRuzza v. Cty. of Tehama, 206 F.3d 1304, 1308 (9th Cir. 2000)). 73 Branti, 445 U.S. at 518. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 16 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 16 of 39 1 2 3 4 political affiliation more generally, which “includes commonality of political purpose and support.” 74 2. Policymaker exception 5 As a threshold matter, Defendants argue that they cannot be liable to 6 Plaintiff for any First Amendment violation because, as a level V assistant attorney 7 8 general within the Department of Law’s Labor and Affairs Section, Plaintiff occupied 9 a confidential/policymaker role within state government and therefore could be fired 10 for political reasons. Defendants bear the burden of establishing Plaintiff occupied 11 12 such a position.75 That is, they must show that political considerations were relevant 13 to her job responsibilities. The nature and extent of Plaintiff’s duties are not disputed, 14 and therefore whether her job was a policymaking one is a question of law amenable 15 16 to summary judgment. 76 Defendants argue that almost all court decisions involving attorneys in 17 18 government service, other than public defenders, who raise First Amendment 19 retaliation claims against their government employers have held that these attorneys 20 21 function as policymakers. The Ninth Circuit acknowledged as much in Biggs v. Best, 22 Best & Krieger, 77 where it held that an associate in a private law firm, which had been 23 contracted to perform the services of a city attorney, held a confidential policymaking 24 25 position with the city and therefore could be terminated for political reasons. As the 26 27 74 28 76 75 77 Walker v. City of Lakewood, 272 F.3d 1114, 1132 (2001) (quoting Biggs, 189 F.3d at 996). DiRuzza v. Cnty. of Tehama, 206 F.3d 1304, 1311 (9th Cir. 2000). Walker, 272 F.3d at 1132. 189 F.3d 989 (9th Cir. 1999). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 17 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 17 of 39 1 2 3 4 court stated, “[a]ll circuit court decisions—and almost all other court decisions— involving attorneys in government service, other than public defenders, have held that Elrod/Branti do not protect these positions.” 78 Despite the many courts that have 5 assigned policymaker status to government attorney positions, the Ninth Circuit has 6 not endorsed a categorical approach to the analysis. “[T]here is no per se rule in this 7 8 circuit based solely on job title. The critical inquiry is the job actually performed.”79 9 The Ninth Circuit has set forth nine factors that can be relevant when 10 determining the nature of a position for purposes of applying the policymaking 11 12 exception. These factors are as follows: (1) vague or broad responsibilities; 13 (2) relative pay; (3) technical competence; (4) power to control others; (5) authority to 14 speak in the name of policymakers; (6) public perception; (7) influence on programs; 15 16 17 18 (8) contact with elected officials; and (9) responsiveness to partisan politics and political leaders. 80 These factors do not need to be applied mechanically but rather should act as a guide to the underlying purpose and intent of the exception. 81 19 20 21 Defendants argue that these factors lean in their favor. They rely on the fact that Plaintiff, as a high-level attorney working with and for the Division of 22 Elections and other agencies, had responsibilities that affected state policy. Plaintiff 23 had wide-ranging job responsibilities. These included not only litigating elections- 24 25 related cases, but also providing agency advice, testifying on legislation, drafting 26 27 28 78 1997)). Id. at 997 (quoting Fazio v. City & Cty. of San Francisco, 125 F.3d 1328, 1333 (9th Cir. 79 DiRuzza, 206 F.3d at 1310. Fazio v. City & Cty. of San Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir. 1997). Hunt, 672 F.3d at 611–12. 80 81 Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 18 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 18 of 39 1 2 3 4 legislation and ballot summaries, and assisting with federal compliance. 82 Performance of these responsibilities necessarily involved contact with and being responsive to the Lieutenant Governor. 83 She also worked for numerous other state 5 agencies, including the Officer of the Governor, on litigation matters, regulations, 6 federal compliance, and legal advice. 84 She spoke on behalf of the Attorney General 7 8 in some instances, authoring opinions from the attorney general that provided guidance 9 to the Lieutenant Governor and the Director of the Division of Elections on election 10 issues. 85 She reasonably could have been perceived by the public as speaking for the 11 12 Attorney General because she worked on “highly politically-charged” elections issues 13 that had “significant media interest” and provided comments to the media about these 14 cases. 86 15 While these factors favor a finding that Plaintiff occupied a 16 17 confidential/policymaking role, they fail to adequately resolve the fundamental 18 question of whether favorable political affiliation is a valid qualification for her 19 position. As noted by the Supreme Court, the underlying purpose of the particular 20 21 position is relevant to the inquiry. 87 If requiring allegiance to the favored political 22 party “would undermine, rather than promote, the effective performance of [the 23 employee’s position]” then that position is not a policymaking one. 88 Here, Plaintiff’s 24 25 82 26 83 27 85 28 87 84 86 88 Docket 75-3 at ¶¶ 3–7; Docket 75-33; Docket 75-7; Docket 56-1; Docket 87-1 at 25–26. See, e.g., Docket 87-2 at 1. Docket 75-33. See Docket 56 at 12–13 nn.57–58. Docket 87-2 at 1; Docket 56-2; Docket 56-3. Walker, 272 F.3d at 1132 (citing Branti, 445 U.S. at 519). Branti, 445 U.S. at 519. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 19 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 19 of 39 1 2 3 4 primary job responsibility was to handle election matters on behalf of the Lieutenant Governor and the Division of Elections. Alaska law explicitly designates the Division of Elections as a “nonpartisan” institution. 89 By statute it is “essential that the 5 nonpartisan nature, integrity, credibility, and impartiality of the administration of 6 elections be maintained.” 90 Given this essential mission of impartiality, favorable 7 8 partisan affiliation cannot be a valid qualification for an assistant attorney general 9 serving as designated counsel for the Division of Elections. While Plaintiff holds a 10 high-level job that involves elements of influence, trust, and visibility as identified by 11 12 application of the factors listed above, it is primarily exercised within the politically 13 impartial landscape of election law. Stated differently, “whatever policymaking occurs 14 in [that] office” does not relate to “partisan political interests.” 91 As noted by Plaintiff 15 16 17 18 in her briefing, “accepting Defendants’ argument that political loyalty was an appropriate requirement of Plaintiff’s work advising the division of elections would only erode the nonpartisan nature of that institution.” 92 19 20 21 Given the court’s conclusion that Plaintiff was not exempted from First Amendment protections in the workplace context under the policymaker exception, the 22 court must consider whether she was in fact terminated for politically based reasons 23 and, if so, whether that was improper given the circumstances. 24 25 26 27 89 28 91 90 92 Alaska Stat. § 15.10.105(b). Id. Branti, 445 U.S. at 519. Docket 75 at 31. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 20 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 20 of 39 1 3. 2 3 4 Plaintiff’s termination This court recently addressed the constitutionality of terminations stemming from Defendants’ resignation plan in Blanford v. Dunleavy. 93 In that case, 5 Defendants fired the plaintiffs after they refused to submit their resignations. It was 6 undisputed that the plaintiffs’ refusal to submit resignations was the reason for their 7 8 terminations. The court concluded that Defendants’ resignation plan effectively was a 9 patronage scheme in that it required employees to provide an ostensible commitment 10 of support for the newly elected governor in return for continued employment, and 11 12 their decision to fire the plaintiffs for refusing to comply violated the plaintiffs’ 13 associational rights under the First Amendment. The court concluded that their 14 terminations also violated the plaintiffs’ free speech rights under a Pickering analysis: 15 16 17 the plaintiffs’ publicized refusal to comply with Defendants’ resignation plan was expressive conduct, and Defendants’ decision to fire them because of that expressive 18 conduct without an outweighing government interest was a violation of the plaintiffs’ 19 First Amendment free speech rights. 20 The facts are critically different here. While Plaintiff’s termination 21 22 occurred in conjunction with the resignation plan, unlike the plaintiffs in the Blandford 23 case, Plaintiff complied with the resignation requirement. Consequently, the reason 24 25 26 for her termination is not as clear cut as in the prior case, and its constitutionality is not predetermined by the court’s ruling. Instead, the court must consider the record to 27 28 93 Case No. 3:19-cv-00036-JWS, 2021 WL 4722948 (D. Alaska Nov. 8, 2021). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 21 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 21 of 39 1 2 3 4 5 determine whether there is sufficient evidence to demonstrate that Plaintiff was fired for exercising her associational rights—such as not being associated with the favored political party or failing to endorse a particular political ideology—or for exercising her right to speak as a citizen on matters of public concern. 6 7 8 Babcock made the decision to fire Plaintiff. He claims that he fired Plaintiff because her resignation letter was unprofessional in its tone.94 Specifically, 9 he pointed to the portion of her letter that articulated the premise of the resignation 10 plan: “My resignation is not voluntary, but is instead being made at the request of 11 12 Mr. Babcock, who has indicated that if I do not submit my resignation as requested my 13 employment will be terminated.” 95 He testified that this statement felt like “a poke in 14 the eye” and “very grumbling” as if she was only doing it because he told her too.96 15 16 17 He believed that “going out of your way to object to the request for resignation is unprofessional.” 97 18 Babcock also testified that he was “generally aware” of her strong 19 opinions and of the fact that she maintained a blog where she commented about “her 20 21 political opponents.” 98 He insisted that he did not consult with Stroup as to which 22 attorneys’ resignations should be accepted and was not aware of Stroup’s opinion of 23 Plaintiff at that time, but he was aware of “doubts among various people that she could 24 25 26 94 27 95 28 97 96 98 Docket 87-4 at 35–36. Docket 75-33; Docket 87-4 at 35. Docket 87-4 at 35. Id. Id. at 36. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 22 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 22 of 39 1 2 3 4 . . . separate her professionalism from her strong opinions.” 99 Plaintiff’s letter confirmed these doubts to him because it “demonstrated her unwillingness . . . to treat this new administration professionally.” 100 5 He admitted that he did not have any formal process or criteria for 6 reviewing the hundreds of resignation letters and determining which ones to accept. 7 8 He explained if a letter did not raise any concerns about professionalism or attitude, 9 then it was up to “anyone on the transition team or the incoming commissioners to 10 raise any questions or issues.”101 Despite Babcock’s insistence that the content of each 11 12 resignation letter provided the basis for his employment decisions, he did not accept 13 the resignation of an assistant attorney general who had used the same wording that he 14 had found objectionable when used by Plaintiff. 102 Indeed, the only other attorney 15 16 17 within the Department of Law whose resignation was accepted was Ruth Botstein, a well-regarded and experienced attorney who worked on high-profile cases. 103 There 18 is no evidence to explain what her resignation letter stated that made Babcock or others 19 in Governor Dunleavy’s transition team question her ability to work cooperatively or 20 21 22 professionally. The evidence does show, however, that, like Plaintiff, Botstein had been publicly critical of President Trump for a period of time and was the subject of 23 24 25 26 99 27 100 28 102 101 103 Id. at 32, 36–37. Id. at 36. Id. at 32–34. Docket 75-39. Docket 75-3 at ¶¶ 22–25; Docket 75-2 at ¶ 26. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 23 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 23 of 39 1 2 3 Stroup’s social media postings about liberal attorneys within the Department of Law. 104 Given this evidence, it is clear that Babcock’s decision to terminate 4 5 Plaintiff was motivated by reasons connected to her First Amendment rights. Although 6 there was not a direct refusal on Plaintiff’s part to comply with the resignation request 7 8 as in Blanford, Babcock himself stated that he viewed her letter as voicing an objection 9 to the request that was unacceptably defiant to the administration. That is, it failed to 10 convey to him an adequate show of support or commitment to work for the Dunleavey 11 12 Administration. As he explained, “it demonstrated her unwillingness to me to treat 13 this new administration professionally.” 105 Defendants argue that Babcock simply did 14 not like the attitude she showed in the letter and that his dislike was devoid of political 15 16 17 context. Taking Babcock’s testimony that he was not “very familiar” with Plaintiff’s political beliefs as true, he was nonetheless aware that she held strong opinions that 18 might cause her to clash with the administration and that she wrote a blog where she 19 criticized her political opponents. 106 Moreover, the letter itself cannot reasonably be 20 21 deemed unprofessional for stating the factual premise of the resignation plan: she did 22 not want to resign her job but had to in order to keep it. Therefore, Babcock’s 23 perceived defiance certainly was informed by his general knowledge of her opposing 24 25 political views and blog, and, when taken together with evidence as to how other 26 27 28 104 105 106 Docket 75-23; Docket 75-41. Docket 87-4 at 36. Id. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 24 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 24 of 39 1 2 3 4 5 attorneys were treated, there is no reasonable dispute about the fact that some combination of Plaintiff’s political beliefs and speech factored into Defendants’ decision to terminate her employment. In such situations, the court must apply a Pickering analysis. 6 7 8 The Ninth Circuit has synthesized Pickering and its progeny into a fivefactor evaluation: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. 107 9 10 11 12 13 14 15 16 17 The plaintiff bears the burden at the first three steps of the inquiry. The fourth step of the analysis represents the Pickering balancing test, and it is at this step where the 18 burden shifts to the government employer to show that there were legitimate 19 administrative interests involved that outweigh the employee’s right to comment as a 20 21 private citizen about matters of public concern. 22 There is no dispute that Plaintiff acted as a private citizen when voicing 23 her political opinions and that those opinions related to matters of public concern, and 24 25 26 the court has concluded that these opinions were the motivating factor in her termination. The issue is whether Defendants had a countervailing management 27 28 107 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 25 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 25 of 39 1 2 3 4 interest at stake. They must show Plaintiff’s public opinions affected the government’s interest in providing services efficiently. 108 This burden is met with evidence of actual workplace disruption or evidence supporting a reasonable prediction of workplace 5 disruption resulting from the speech. 109 Workplace disruption occurs when the 6 employee’s speech “impairs discipline by supervisors or harmony among co-workers, 7 8 9 10 has a detrimental impact on close working relationships . . . or impedes the performance of the [employee’s] duties or interferes with the regular operation of the enterprise” or is reasonably likely to do so. 110 11 Disruption is not limited to internal workplace relationships and 12 13 performance. Negative public perception stemming from an employee’s speech or 14 conduct can constitute workplace disruption when the employee holds a position where 15 16 17 public trust and integrity are paramount to the government employer’s mission. For example, in Locurto v. Giuliani, 111 the Second Circuit applied such reasoning to hold 18 that the government lawfully fired police officers who participated in a parade with 19 racist lampooning that was covered by local media. It stated that a police department’s 20 21 effectiveness “depends importantly on the respect and trust of the community and on 22 the perception in the community that it enforces the law fairly, even-handedly, and 23 without bias.” 112 The Ninth Circuit similarly has reasoned that a government employer 24 25 26 108 27 109 28 111 110 112 Pickering, 391 U.S. at 568. Nichols, 657 F.3d at 933–34. Rankin v. McPherson, 483 U.S. 378, 388 (1987); Nichols, 657 F.3d at 933. 447 F.3d 159 (2d Cir. 2006). Id. at 178. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 26 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 26 of 39 1 2 3 can reasonably assume workplace disruption stemming from speech that when known to the public would harm the credibility of the employer’s operations. 113 Defendants argue that Plaintiff’s position as counsel to the Division of 4 5 Elections made her public blogging activities particularly disruptive. The Division of 6 Elections is non-partisan in its mission. As the director of the civil division for the 7 8 Department of Law, Joanne Grace, stated in her deposition, “it’s a foundational 9 principle of the Division of Elections that the administration of elections be 10 nonpartisan, have credibility, integrity, and be impartial . . . .”114 She noted that public 11 12 perception is “the foundation of public trust in elections, and that public trust is 13 essential to people accepting the results of an election.” 115 Public trust in the 14 Division’s impartiality is central to its mission and operations. 15 Plaintiff’s role as the division’s attorney was not insignificant to this 16 17 mission. As discussed above, her job required her to represent the division in litigation; 18 provide the division legal advice; testify on relevant legislation; assist with federal 19 compliance; and help draft legislation and regulations in the area of elections law. She 20 21 had a hand in determining legal issues around which ballots to count, how initiatives 22 and referendums should appear on ballots, and which summaries should go into the 23 election pamphlets. 116 She authored many publicly available attorney general opinions 24 25 providing guidance to the Lieutenant Governor on various initiatives and referenda 26 27 113 28 115 114 116 Dible v. City of Chandler, 515 F.3d 918, 928 (9th Cir. 2008). Docket 87-1 at 11. Id. at 12. Id. at 25–26. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 27 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 27 of 39 1 2 3 4 applications. She authored attorney general opinions providing guidance to the Director of the Division of Elections about applications seeking the recall of elected officials. Indeed, her work admittedly sometimes involved “highly politically- 5 charged” elections issues that had “significant media interest.” 117 Given these duties, 6 the public’s perception of her impartiality is a legitimate government concern. As 7 8 Grace articulated in her deposition, “the more outspoken the elections attorney is, the 9 more partisan and . . . the more public she becomes about partisan issues, the more that 10 undermines her ability to stand up in court and argue that an action of the Division of 11 12 Elections, which she probably advised them to take, was impartial and fair.”118 That 13 is to say, frequent and widespread partisan commentary by an elections attorney is 14 reasonably likely to undermine the public’s trust in the integrity and credibility of 15 16 elections. Given Plaintiff’s position and the public nature of her political 17 18 commentary, it would not have been unreasonable for state officials to consider her 19 speech a disruption to the Division of Election’s operations, warranting adverse 20 21 employment action. Indeed, this was a growing concern to her supervisors within 22 Department of Law. 119 However, as the Supreme Court has noted, “[v]igilance is 23 necessary to ensure that public employers do not use authority over employees to 24 25 silence discourse not because it hampers public functions but simply because superiors 26 27 28 117 118 119 Docket 87-2 at 1. Docket 87-1 at 11–12. Id. at 18–23. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 28 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 28 of 39 1 2 3 4 5 disagree with the content of the employees’ speech.” 120 Consequently, even though Plaintiff’s blogging could reasonably be predicted to interfere with operations, the government must show that it in fact acted in response to that likely interference and not because of a disagreement with the content. 121 6 7 8 This is where Defendants fall short. Defendant Babcock did not mention any concerns he had about her blogging or public opinions affecting the integrity and 9 credibility of the Division of Elections or even state government generally. There is 10 no evidence that he or members of the transition team were aware of any concerns 11 12 raised by her supervisors within the Department of Law, legislators, or other Division 13 of Elections employees. Indeed, he maintained he did not seek advice from anyone 14 outside of Governor Dunleavy and his immediate staff, 122 and he did not mention that 15 16 17 these people raised concerns about how her conduct was affecting the non-partisan mission of the Division of Elections or the public’s perception of the State’s attorneys. The only concern related to workplace disruption articulated by Babcock 18 19 20 21 during his deposition was with regard to Plaintiff’s professionalism. The professionalism he was concerned about was personal in nature, limited to her ability 22 to be respectful to a new administration with opposing political viewpoints. He 23 thought her comment that her resignation was not voluntary was “a poke in the eye” to 24 25 him and confirmation that she was unwilling “to treat the new administration 26 27 28 120 121 122 Rankin, 483 U.S. at 384. See Locurto, 447 F.3d at 175–76. Docket 87-4 at 32. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 29 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 29 of 39 1 2 3 4 professionally.” 123 This concern that disruption would occur because Plaintiff would not be professional in the performance of her job is unsupported by evidence. The letter itself is not objectively defiant; it simply states the convoluted premise of 5 Defendants’ resignation plan—employees were forced to resign their jobs to show they 6 actually wanted to keep their jobs.124 There is no evidence that Plaintiff’s work product 7 8 had ever been biased or that she failed to thoroughly represent the State of Alaska’s 9 interests as defined by any of the previous five administrations or as directed by 10 supervisors. Indeed, she never publicly criticized any position taken by the State of 11 12 Alaska related to her work. There is no evidence that she acted unprofessionally at 13 work under previous administrations. 14 unprofessional content of Plaintiff’s blog, which contained irreverent and vulgar 15 16 17 While Defendants now rely on the language, that concern was not mention by Babcock during his deposition. Indeed, he specifically refrained from suggesting he knew anything specific or particular about 18 her blog or its contents. Rather, he maintained that he just generally was aware she 19 had strong opinions and a blog. 20 With a more measured approach to staffing decisions, Defendants 21 22 reasonably could have predicted that Plaintiff’s political blogging activities would 23 negatively affect the mission of the Division of Elections and relied on this reason to 24 25 26 take adverse employment action against Plaintiff. As noted above, concern about this type of disruption stemming from Plaintiff’s increasingly political blog was a known 27 28 123 124 Id. at 35–36. See, e.g., Docket 87-1 at 24. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 30 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 30 of 39 1 2 3 4 5 issue within the Department of Law. However, Defendants, who made the decision to fire Plaintiff without consultation, failed to show that they had any awareness of this particular concern, or that they acted in response to it rather than a dislike of her personal views. 6 7 8 9 10 11 12 Without an adequate showing that Defendants actually were motivated by a reasonable concern for the potentially disruptive effects of Plaintiff’s publicly espoused political opinions, the court must conclude that her termination ran afoul of the First Amendment. 4. Qualified Immunity 13 Defendants argue that regardless of any underlying constitutional 14 violation, they are entitled to qualified immunity that shields them from personal 15 16 17 liability. 125 “The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established . . . constitutional rights of 18 which a reasonable person would have known.” 126 Given the court has found a First 19 Amendment violation, the remaining issue to be determined is whether Plaintiff’s right 20 21 to be free from a politically-motivated termination was clearly established. A right is 22 clearly established when it has a “sufficiently clear foundation in then-existing 23 precedent.” 127 The rule must be “dictated by controlling authority or a robust 24 25 26 27 28 125 Qualified immunity is only an immunity from suit for damages, not immunity from suit for declaratory or injunctive relief. L.A. Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993). 126 Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quotations omitted). 127 Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108, 1112 (9th Cir. 2020) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 31 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 31 of 39 1 2 3 4 consensus of cases of persuasive authority.” 128 “There does not need to be a ‘case directly on point,’ but existing precedent must place the statutory or constitutional question ‘beyond debate.’” 129 The right cannot be defined with a “high level of 5 generality.” 130 This is particularly so when the circumstances involve quick judgments 6 made by officials in uncertain and rapidly evolving circumstances, or when an outcome 7 8 is otherwise highly fact dependent. 131 9 It is clearly established that Defendants could not lawfully fire non- 10 policymaking employees based on adverse political affiliation and speech. As such, 11 12 Defendants’ qualified immunity defense turns on whether they reasonably could have, 13 but mistakenly, believed that it was legally appropriate to make political loyalty a 14 requirement of Plaintiff’s job. As noted above, in the vast majority of cases addressing 15 16 17 the issue, government attorneys have been found to be policymakers. 132 This is true not only of prosecutors and city attorneys, but state assistant attorney generals as 18 well. 133 The Ninth Circuit has acknowledged this body of case law.134 These cases 19 rely on the fact that government attorneys, even if supervised, often exercise significant 20 21 authority on behalf of the ultimate policymaker through litigation, drafting advisory 22 23 24 25 26 27 28 128 Id. (quoting Wesby, 138 S. Ct. at 589–90). Id. (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). 130 Id. 131 Id. at 1112–13; Gilbrook v. City of Westminster, 177 F.3d 839, 867 (9th Cir. 1999). 132 “[C]ircuits that have addressed the Elrod-Branti exception in the context of government attorney dismissals, whether for assistant district attorneys or other government attorneys, have held these attorneys occupy positions requiring political loyalty and are not protected from political dismissals under the First Amendment.” Aucoin v. Haney, 306 F.3d 268, 275 (5th Cir. 2002) (listing examples). 133 See Latham v. Office of Attorney Gen. of Ohio, 395 F.3d 261, 269 (6th Cir. 2005). 134 Biggs, 189 F.3d at 995. 129 Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 32 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 32 of 39 1 2 3 4 opinions and legislation, advising agencies, and preparing contracts, and therefore they play a role in shaping and implementing policy. 135 In Biggs, the Ninth Circuit held that a city attorney operated as a policymaker in city government, because, even though 5 the attorney was a subordinate, she presented reports to the city’s governing council 6 on legal issues, worked on high-profile issues, drafted regulations and ordinances, and 7 8 spoke to the press on occasion. 136 These responsibilities, notably similar to Plaintiff’s, 9 were enough for the court to find that she occupied a position where political alignment 10 was a valid job qualification. Based on Biggs, it was reasonable for Defendants to 11 12 think that a high-level assistant attorney undertaking the responsibilities she outlined 13 in her resignation letter could be fired for political reasons. While this court ultimately 14 concluded that Plaintiff’s position was distinguishable given her role as counsel to the 15 16 17 18 Division of Elections, no existing precedent or body of persuasive case law would have made this conclusion readily apparent. That is, there is no existing precedent that placed this issue beyond debate. 19 20 21 Plaintiff stresses that Alaska law provides a clear and definitive answer as to who in state government constitutes a policymaker, barring any qualified 22 immunity defense here. Indeed, Alaska’s State Personnel Act establishes a system of 23 personnel administration based upon the merit principle. 137 As such, selection and 24 25 retention of employees must be “secure from political influences.” 138 However, while 26 27 135 28 137 136 138 See Latham, 395 F.3d at 268–69. Biggs, 189 F.3d at 995–96. Alaska Stat. § 39.25.010. Id. Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 33 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 33 of 39 1 2 3 4 provisions and rules adopted pursuant to the Personnel Act apply as a matter of course to all classified employees, they only apply to the exempt and partially exempt service as “specifically provided.” 139 The position of assistant attorney general falls under the 5 partially exempt category. 140 Partially exempt employees are exempt from some, but 6 not all, of the rules governing job classification and payment, recruiting, appointment, 7 8 and examining. 141 Similarly, not all political protections afforded under the Personnel 9 Act apply to partially exempt employees. The Act provides that an employment 10 decision affecting a classified employee cannot be taken or withheld on the basis of 11 12 unlawful discrimination due to political beliefs, but it does not extend this protection 13 to partially exempt employees. 142 While the Act protects the right of a “state 14 employee” to engage in political activity and express political opinions, 143 this 15 16 17 protection is not unlimited.144 As the Alaska Supreme Court noted “the merit principle was not intended to impede the efficient management of state affairs.”145 The court 18 cannot conclude that the legislature, through the Personnel Act, intended to confirm 19 that partially exempt employees, as a matter of course, are not policymakers as that 20 21 term is understood in First Amendment analysis. Even if the Act does in fact confer 22 23 24 25 26 27 28 139 Alaska Stat. § 39.25.090. Alaska Stat. § 39.25.120(c)(3). 141 Alaska Stat. § 39.25.120(a)–(b); Alaska Stat. § 39.25.150. 142 Alaska Stat. § 39.25.160(g). 143 Alaska Stat. § 39.25.178. 144 See, e.g., Alaska Stat. § 39.25.178(3) (prohibiting the display of partisan political materials “while engaged on official business”); Alaska Stat. § 39.52.170(a) (barring outside employment or volunteer services that are “incompatible or in conflict with the proper discharge of [the employee’s] official duties”); 9 Alaska Admin. Code 52.090. 145 Moore v. State, 875 P.2d 765, 769 (Alaska 1994). 140 Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 34 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 34 of 39 1 2 3 4 5 full political protection to partially exempt employees, there is no precedent or “robust consensus of cases” holding that a state statute establishing a merit system of employment provides a definitive test for who is and who is not a policymaking employee for purposes of a First Amendment analysis. 6 7 8 9 10 The court concludes that the law governing the policymaking status of a government attorney with Plaintiff’s job responsibilities was not so clearly established that Defendants should be denied qualified immunity. B. Plaintiff’s State Law Claims 11 Plaintiff seeks relief against Defendants under state law as well. 146 She 12 13 asserts that her termination was unconstitutional under state law, relying on both 14 Article 1, § 5, which protects citizens’ right to free speech, and Article XII, § 6, which 15 16 17 establishes Alaska’s merit system of public employment. She also raises a good faith and fair dealing claim. 18 Generally speaking, Alaska’s public employee free speech cases rely 19 heavily on federal law.147 Consequently, given the First Amendment violation present 20 21 22 in the circumstances here, Plaintiff’s termination also was unconstitutional under state law, but Alaska does not recognize a constitutional claim for damages unless the case 23 24 25 26 27 28 146 The court has jurisdiction over such claims against the State because Defendants removed the case from state court to federal court, waiving any immunity defense. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 620–24 (2002) (holding that the state, which had statutorily waived its immunity from state-law claims in state court, also waived its Eleventh Amendment immunity from suit in federal court on state-law claims for money damages when it voluntarily removed case to federal court); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (“Removal waives Eleventh Amendment immunity.”). 147 See Wickwire v. State, 725 P.2d 695, 700 (Alaska 1986); State v. Haley, 687 P.2d 305, 312 (Alaska 1984). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 35 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 35 of 39 1 2 3 4 involves flagrant violations where no alternative remedies are otherwise available. 148 Plaintiff’s § 1983 claim constitutes such an alternative remedy, even if it ultimately is barred by defenses. 149 5 Despite this limitation, Plaintiff still is afforded relief for an 6 unconstitutional termination under state law through her good faith and fair dealing 7 8 claim. Pursuant to Alaska Stat. § 09.50.250, a person with a contract, quasi-contract, 9 or tort claim against the state may raise such a claim in state court. Implicit in an 10 employee’s contract of employment with the State is a promise that the employee will 11 12 not be terminated for an unconstitutional reason. 150 “[W]hen the State fires an 13 employee for an unconstitutional reason, [it] amounts to unfair dealing as a matter of 14 law and gives rise to contract remedies.” 151 Here, Plaintiff was fired in violation of her 15 16 free speech rights, which necessarily amounts to unfair dealing under state law. Plaintiff also asserts her termination ran afoul of Article XII, § 6, which 17 18 establishes a merit system of public employment. However, the court concludes that 19 the constitutionally protected merit principle and the statute implementing it does not 20 21 provide Plaintiff with an independent cause of action against the State. The 22 constitution itself merely requires the legislature to “establish a system under which 23 the merit principle will govern the employment of persons by the State.” 152 The 24 25 26 27 28 148 Larson v. State, 284 P.3d 1, 9–10 (Alaska 2012). State v. Heisey, 271 P.3d 1082, 1096-97 (Alaska 2012). While Plaintiff cannot seek damages for the state constitutional violation, she may proceed to the extent she seeks declaratory or injunctive relief under this claim. Larson, 284 P.3d at 9–10. 150 State v. Haley, 687 P.2d 305, 318 (Alaska 1984). 151 Id. 152 Alaska Const. art. XII, § 6. 149 Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 36 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 36 of 39 1 2 3 4 Personnel Act defines and implements this principle. It generally provides that selection and retention of employees must be “secure from political influences.”153 It sets forth requirements for job classification and payment, recruiting, appointment, and 5 examining, as well as prohibitions against certain employment practices, to guarantee 6 this merit system, but it does not explicitly confer an independent private cause of 7 8 action. 154 Nor does it supplant and provide greater protection than First Amendment 9 law with respect to the political speech and association of state employees. “As 10 defined, the merit principle requires the recruitment, selection, and advancement of 11 12 public employees under conditions of political neutrality . . . . In actual practice, 13 however, the merit principle is more complex and ambiguous than the above definition 14 reveals.” 155 For example, Alaska Stat. § 39.25.160(g) protects employees in the 15 16 17 classified service from “unlawful discrimination due to political beliefs.” 156 Partially exempt employees are not afforded protection under this provision. Moreover, what 18 constitutes “unlawful” political discrimination is necessarily defined by constitutional 19 law. While Alaska Stat. § 39.25.178 declares that “a state employee” has the right to 20 21 express political opinions, there is nothing to suggest that this right is unlimited or 22 23 24 25 26 27 28 153 Alaska Stat. § 39.25.010(b)(5). Cf. Walt v. State, 751 P.2d 1345, 1351 (Alaska 1988) (“[N]o sufficient justification has been advanced which persuades us that a tort cause of action grounded on AS 39.25.160(f) should be recognized.”); Peterson v. State, 236 P.3d 355, 368 n.44 (Alaska 2010) (“[T]he analysis of [the plaintiff’s] merit selection claim is subsumed within our discussion of [his] other claims concerning the hiring process, including his claims of discrimination and his claims concerning the implied covenant of good faith and fair dealing.”). 155 Alaska Pub. Employees Ass’n v. State, 831 P.2d 1245, 1249 (Alaska 1992) (citations omitted). 156 Alaska Stat. § 39.25.160(g). 154 Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 37 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 37 of 39 1 2 3 4 otherwise greater than what might be protected pursuant to Pickering. Indeed, “the merit principle was not intended to impede the efficient management of state affairs.” 157 As noted by Defendants, “[t]his is why Alaska cases follow Pickering 5 rather than simply citing the merit principle in every instance involving the speech of 6 an employee covered by the Act.”158 7 V. 8 CONCLUSION 9 Based on the preceding discussion, Plaintiff’s motion at docket 76 is 10 GRANTED IN PART AND DENIED IN PART and Defendants’ motion at docket 56 11 12 is GRANTED IN PART AND DENIED IN PART as follows: 1. 13 14 15 16 17 Plaintiff’s termination violated her free speech and associational rights under the federal and state constitutions. Plaintiff is entitled to relief under § 1983 and state law but only to the extent she seeks prospective declaratory and injunctive relief. Qualified immunity shields Defendant 18 Governor Dunleavy and Defendant Babcock from personal liability for this 19 violation. 20 2. 21 22 dealing under state law. 23 24 25 Plaintiff’s unconstitutional termination amounts to unfair 3. Plaintiff has no claim to relief under Alaska’s merit principle. 26 27 28 157 158 Moore, 875 P.2d at 769. Docket 86 at 30 (citing Wickwire, 725 P.2d at 700). Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 38 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 38 of 39 The parties are instructed to promptly confer and then within 14 days 1 2 3 4 from this order’s date to file a notice that identifies the remaining issues for litigation. The notice should also suggest a schedule for resolving the outstanding issues. IT IS SO ORDERED this 20th day of January, 2022, at Anchorage, 5 6 Alaska. 7 8 /s/ John W. Sedwick JOHN W. SEDWICK Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bakalar v. Dunleavey, et al. Order on Motions for Summary Judgment Case No. 3:19-cv-00025-JWS Page 39 Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 39 of 39

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