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)

IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ALASKA

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ELIZABETH BAKALAR,
Plaintiff,

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vs.
MICHAEL J. DUNLEAVY, in his
individual and official capacities;
TUCKERMAN BABCOCK; and the
STATE OF ALASKA.

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Case No. 3:19-cv-00025-JWS
ORDER ON MOTIONS FOR
SUMMARY JUDGMENT
[Docs. 56, 76]

Defendants.

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I.

MOTIONS PRESENTED

At docket 56 Defendants Governor Michael J. Dunleavy (“Governor

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Dunleavy”), Tuckerman Babcock (“Babcock”), and the State of Alaska (collectively

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“Defendants”) filed a motion for summary judgment as to all claims asserted against

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them by Plaintiff Elizabeth Bakalar (“Plaintiff”), who alleges that Defendants

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terminated her employment as an assistant attorney general in violation of federal and

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state free speech rights, the Alaska Constitution’s merit principle, and the implied

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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

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judgment. Defendants filed their combined response and reply at docket 86. Plaintiff

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replied at docket 93.

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Oral argument would not be of assistance to the court’s

determination.

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II.

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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

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that time, Plaintiff had worked as an assistant attorney general for over 12 years under

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five administrations and seven Attorneys General. 1 She had been steadily promoted

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during her tenure with the Department of Law, and at the time of her firing she was

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classified as an expert-level “Attorney V” within the Labor and Affairs Section. As an

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attorney in the Labor and Affairs Section, Plaintiff was assigned to be primary counsel

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for the Lieutenant Governor and the Division of Elections. She handled voting rights

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cases, voter registration issues, ballot initiative certifications and referendum matters,

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and she drafted regulations and legislation. 2 She also was assigned to advise or

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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

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numerous favorable decisions from the Alaska Supreme Court and the Ninth Circuit

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and receiving praise for her proficient and efficient legal work. 4

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The criticism lodged against Plaintiff during her tenure with the

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Department of Law arose in connection to her personal blog, entitled “One Hot Mess,”

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and its associated social media presence. She began the blog in 2014, primarily

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focusing on her lifestyle, parenting, and politics. 5 Her commentary was personal in
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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.

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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

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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,

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work, and raise kids in Alaska was read by over 20,000 people. 8 Another post from

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2016, a political one that opposed the candidacy of Donald Trump and criticized those

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who supported him, was republished by the Anchorage Daily News. 9

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After the 2016 presidential election, Plaintiff started blogging more

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about politics, and President Trump in particular. As Plaintiff stated in one of her blog

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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

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contemporaneous Handmaid’s Tale-style record of What the F[**]k You Did to Us.” 10

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Her commentary contained vitriolic criticism of the President and his associates. For

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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

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Docket 56-14 at 1.
Docket 75-23 at 1 n.1, 6.
Docket 56-7.
Docket 56-8.
Docket 56-23.

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alcoholic who legit wants to destroy democracy and
perpetuate the master race. 11

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Plaintiff also maintained a twitter account, entitled “One Hot Mess AK” with her name

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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

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mentioning President Trump is not in the record, it is undisputed that posts criticizing

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or mocking President Trump number in the hundreds. She acknowledged that she let

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go of any fears about “personal and/or professional reprisal borne of calling Donald
Trump a fascist cantaloupe on the internet every day.” 13

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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

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Alaska.” The purpose of her blog was to “make[ ] the case that Blogger Libby Bakalar

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of ‘One Hot Mess Alaska’ fame should not be working as an Assistant Attorney

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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.

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Is Ms. Bakalar the type of person we want working as an
attorney in the Attorney General’s office?

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My opinion: NO. 15

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Docket 56-24.
Docket 56-19.
Docket 56-21.
See, e.g., Docket 75-9.
Docket 75-10.

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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

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Section. 16 She also accused Plaintiff of using state time and resources to conduct her

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personal blogging activities, in violation of Alaska’s Executive Ethics Act. 17 She

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voiced these ethics complaints to state officials. 18

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Thereafter, the Department of Law initiated an investigation into

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Plaintiff’s blogging activities. It hired an independent third-party attorney to conduct

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the investigation. As the investigator noted in his report, “[t]he primary impetus for

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the investigation were concerns raised about the partisan political nature of ‘One Hot

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Mess Alaska’ and the possible use by Ms. Bakalar of state resources or work time in

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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

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during work time or with the aid of state funds or resources; and (2) whether, if the

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answer to the first question was “yes,” such activity violated any law or policy

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applicable to Plaintiff.20 The inquiry did not consider whether Plaintiff’s publishing

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of her political opinions during personal time was in any manner improper given

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Plaintiff’s job as an assistant attorney general. 21

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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.

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In March 2017, the investigator concluded that on occasion Plaintiff

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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

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accepted limits. 22 He also found that any incidental work by Plaintiff on her blog

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during work hours did not violate the Ethics Act, which prohibits employees from

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using state resources for personal financial advancement or for partisan political

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purposes. 23 He noted that while Plaintiff’s blog “can be interpreted to evince a liberal

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or progressive worldview, few posts actually meet the definition of having a partisan

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political purpose.” 24 The only posts that could fit within this definition would be those

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critical of President Trump during his presidential candidacy, but there was “no

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evidence that any of these specific potentially partisan posts were ever worked on by

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[Plaintiff] during work hours or using state resources.” 25
In November 2018, after winning the election, Governor Dunleavy

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selected Babcock to serve as the chair of his transition team. On November 16, 2018,

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Babcock sent a memorandum to most of the state’s at-will employees. 26 The

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memorandum required employees to submit a resignation, along with a statement of

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interest in remaining employed with the new administration. The memorandum stated

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in part as follows:

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In the coming weeks, the incoming administration will be
making numerous personnel decisions. Governor-Elect

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Id. at 2, 12.
Id. at 3, 12–14.
Id. at 12–13.
Id. at p. 13.
Docket 75-30; Docket 75-31.

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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.

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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 [e-mail]. If you
wish to remain in your current position, please make your
resignation effective upon acceptance by the Dunleavy
administration.

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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.

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Governor-Elect Dunleavy is encouraging you and all
Alaskans to submit their names for consideration for
service to our great state. 27

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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

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the local newspaper.

In past transitions, incoming administrations requested

resignations from only around 250 employees. 29 Governor Dunleavy explained his

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Docket 75-30.
Docket 75-32.
Docket 75-31.

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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

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To keep their jobs employees had to actually offer up a resignation with an

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accompanying statement of interest in continuing with the new administration and then

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hope that the incoming administration would reject the resignation.

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Plaintiff received the resignation memorandum, along with all other
lawyers in the Department of Law. Plaintiff submitted her resignation letter. She
stated as follows:

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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

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Id.
Id.

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Governor Dunleavy administration in my current position,
and hope that my resignation is not accepted.

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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

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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

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Health and Social Services, Department of Administration, and the Department of

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Public Safety. 33

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Governor Dunleavy was sworn in at 12:00 p.m. on December 3, 2018.

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Less than twenty minutes later, Plaintiff was notified that her resignation had been

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accepted and that her employment with the state had been terminated, and she was

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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

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other attorney’s resignation letter was accepted. Like Plaintiff, this attorney had been

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publicly critical of President Trump in her Twitter postings during the month leading

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up to his inauguration.35

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Docket 75-33.
Id.
Docket 75-3 at ¶¶ 20, 21.
Docket 75-3 at ¶ 23; Docket 75-14; Docket 75-23 at 17.

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Babcock stated that he made the decision to terminate Plaintiff based

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primarily on the content of her resignation letter, explaining that he believed it
demonstrated an unwillingness to work professionally with the new administration. 36

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This lawsuit followed. Plaintiff filed her complaint in state court and

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Defendants removed. Plaintiff asserts a 42 U.S.C. § 1983 claim against Defendants

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for violation of her First Amendment rights. She also alleges that her termination

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violated her free speech rights under Article I, § 5 of the Alaska Constitution, the

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Alaska Constitution’s merit principle, and the implied covenant of good faith and fair

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dealing. She seeks damages, as well as injunctive and declaratory relief. Both parties
now seek summary judgment on these claims.
III.

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Summary judgment is appropriate where “there is no genuine dispute as

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STANDARD OF REVIEW

to any material fact and the movant is entitled to judgment as a matter of law.” 37 The

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materiality requirement ensures that “[o]nly disputes over facts that might affect the

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outcome of the suit under the governing law will properly preclude the entry of

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summary judgment.” 38 Ultimately, “summary judgment will not lie if the . . . evidence

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is such that a reasonable jury could return a verdict for the nonmoving party.” 39

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However, summary judgment is mandated “against a party who fails to make a

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Docket 87-4 at 36.
Fed. R. Civ. P. 56(a).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id.

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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

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dispute as to any material fact. 41 Where the nonmoving party will bear the burden of

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proof at trial on a dispositive issue, the moving party need not present evidence to show

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that summary judgment is warranted; it need only point out the lack of any genuine

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dispute as to material fact. 42 Once the moving party has met this burden, the

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nonmoving party must set forth evidence of specific facts showing the existence of a

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genuine issue for trial.43 All evidence presented by the non-movant must be believed

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for purposes of summary judgment and all justifiable inferences must be drawn in favor

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of the non-movant. 44 However, the nonmoving party may not rest upon mere

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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

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of the truth at trial. 45 “[W]hen simultaneous cross-motions for summary judgment on

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the same claim are before the court, the court must consider the appropriate evidentiary

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material identified and submitted in support of both motions, and in opposition to both
motions, before ruling on each of them.”46

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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.

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IV.

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A.

DISCUSSION

Plaintiff’s § 1983 Claim Based on the First Amendment
Plaintiff asserts her First Amendment retaliation claim against

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Defendants pursuant to 42. U.S. C. § 1983. Section 1983 creates a private right of

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action for those plaintiffs seeking to redress and remedy constitutional wrongs caused

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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,

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and officials acting in their official capacity are not considered “persons” for purposes

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of § 1983 and therefore cannot be sued thereunder. 49 An exception exists for § 1983

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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

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officials with the ability to provide such relief in their official capacities.

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Section 1983 claims seeking monetary damages may only be brought against a state

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official if the official is sued in his or her individual capacity, and such claims are

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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).
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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

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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

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Under these principles, Plaintiff’s § 1983 claim may be brought against

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Governor Dunleavy in his official capacity for prospective injunctive and declaratory

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relief and against the individual defendants in their personal capacities for damages.
1.

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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

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has rejected for decades now the proposition that a public employee has no right to a

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government job and so cannot complain that termination violates First Amendment

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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

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constitutionally protected . . . freedom of speech’ even if he has no entitlement to that

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benefit.” 55 Based on this doctrine, “[i]t is by now black letter law that ‘a state cannot

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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

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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)).
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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

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under the Elrod/Branti 58 line of patronage cases and those under the Pickering 59 free

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speech retaliation cases. Under Elrod/Branti, as a general rule, public employees who

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do not occupy a policymaking position cannot be terminated based upon their political

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beliefs and associations. 60 Such patronage practices impermissibly infringe upon

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public employees’ First Amendment associational rights. “The threat of dismissal for

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failure to provide [support for the favored political party] unquestionably inhibits

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protected belief and association, and dismissal for failure to provide support only

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penalizes its exercise.” 61 Party membership of the employee is not, in and of itself, the

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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

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employee is required to raise the issue of unconstitutional patronage. “[T]he right not

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to have allegiance to the official or party in power itself is protected under the First

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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

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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).

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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.
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“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.
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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).

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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

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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.

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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.

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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).

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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.

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. . . 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.

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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.

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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).

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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.

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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.

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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.

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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

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120
121
122

Rankin, 483 U.S. at 384.
See Locurto, 447 F.3d at 175–76.
Docket 87-4 at 32.

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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

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Defendants’ resignation plan—employees were forced to resign their jobs to show they

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actually wanted to keep their jobs.124 There is no evidence that Plaintiff’s work product

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had ever been biased or that she failed to thoroughly represent the State of Alaska’s

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interests as defined by any of the previous five administrations or as directed by

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supervisors. Indeed, she never publicly criticized any position taken by the State of

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Alaska related to her work. There is no evidence that she acted unprofessionally at

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work under previous administrations.

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unprofessional content of Plaintiff’s blog, which contained irreverent and vulgar

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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

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her blog or its contents. Rather, he maintained that he just generally was aware she

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had strong opinions and a blog.

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With a more measured approach to staffing decisions, Defendants

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reasonably could have predicted that Plaintiff’s political blogging activities would

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negatively affect the mission of the Division of Elections and relied on this reason to

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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

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123
124

Id. at 35–36.
See, e.g., Docket 87-1 at 24.

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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.

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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

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Defendants argue that regardless of any underlying constitutional

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violation, they are entitled to qualified immunity that shields them from personal

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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

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which a reasonable person would have known.” 126 Given the court has found a First

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Amendment violation, the remaining issue to be determined is whether Plaintiff’s right

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to be free from a politically-motivated termination was clearly established. A right is

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clearly established when it has a “sufficiently clear foundation in then-existing

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precedent.” 127 The rule must be “dictated by controlling authority or a robust

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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)).
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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

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generality.” 130 This is particularly so when the circumstances involve quick judgments

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made by officials in uncertain and rapidly evolving circumstances, or when an outcome

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is otherwise highly fact dependent. 131

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It is clearly established that Defendants could not lawfully fire non-

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policymaking employees based on adverse political affiliation and speech. As such,

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Defendants’ qualified immunity defense turns on whether they reasonably could have,

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but mistakenly, believed that it was legally appropriate to make political loyalty a

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requirement of Plaintiff’s job. As noted above, in the vast majority of cases addressing

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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

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well. 133 The Ninth Circuit has acknowledged this body of case law.134 These cases

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rely on the fact that government attorneys, even if supervised, often exercise significant

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authority on behalf of the ultimate policymaker through litigation, drafting advisory

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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

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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

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the attorney was a subordinate, she presented reports to the city’s governing council

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on legal issues, worked on high-profile issues, drafted regulations and ordinances, and

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spoke to the press on occasion. 136 These responsibilities, notably similar to Plaintiff’s,

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were enough for the court to find that she occupied a position where political alignment

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was a valid job qualification. Based on Biggs, it was reasonable for Defendants to

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think that a high-level assistant attorney undertaking the responsibilities she outlined

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in her resignation letter could be fired for political reasons. While this court ultimately

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concluded that Plaintiff’s position was distinguishable given her role as counsel to the

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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.

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Plaintiff stresses that Alaska law provides a clear and definitive answer
as to who in state government constitutes a policymaker, barring any qualified

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immunity defense here. Indeed, Alaska’s State Personnel Act establishes a system of

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personnel administration based upon the merit principle. 137 As such, selection and

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retention of employees must be “secure from political influences.” 138 However, while

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135

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137

136
138

See Latham, 395 F.3d at 268–69.
Biggs, 189 F.3d at 995–96.
Alaska Stat. § 39.25.010.
Id.

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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

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partially exempt category. 140 Partially exempt employees are exempt from some, but

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not all, of the rules governing job classification and payment, recruiting, appointment,

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and examining. 141 Similarly, not all political protections afforded under the Personnel

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Act apply to partially exempt employees. The Act provides that an employment

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decision affecting a classified employee cannot be taken or withheld on the basis of

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unlawful discrimination due to political beliefs, but it does not extend this protection

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to partially exempt employees. 142 While the Act protects the right of a “state

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employee” to engage in political activity and express political opinions, 143 this

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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

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cannot conclude that the legislature, through the Personnel Act, intended to confirm

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that partially exempt employees, as a matter of course, are not policymakers as that

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term is understood in First Amendment analysis. Even if the Act does in fact confer

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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

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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.

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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

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Plaintiff seeks relief against Defendants under state law as well. 146 She

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asserts that her termination was unconstitutional under state law, relying on both

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Article 1, § 5, which protects citizens’ right to free speech, and Article XII, § 6, which

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establishes Alaska’s merit system of public employment. She also raises a good faith
and fair dealing claim.

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Generally speaking, Alaska’s public employee free speech cases rely

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heavily on federal law.147 Consequently, given the First Amendment violation present

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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

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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).
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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

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Despite this limitation, Plaintiff still is afforded relief for an

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unconstitutional termination under state law through her good faith and fair dealing

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claim. Pursuant to Alaska Stat. § 09.50.250, a person with a contract, quasi-contract,

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or tort claim against the state may raise such a claim in state court. Implicit in an

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employee’s contract of employment with the State is a promise that the employee will

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not be terminated for an unconstitutional reason. 150 “[W]hen the State fires an

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employee for an unconstitutional reason, [it] amounts to unfair dealing as a matter of

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law and gives rise to contract remedies.” 151 Here, Plaintiff was fired in violation of her

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free speech rights, which necessarily amounts to unfair dealing under state law.
Plaintiff also asserts her termination ran afoul of Article XII, § 6, which

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establishes a merit system of public employment. However, the court concludes that

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the constitutionally protected merit principle and the statute implementing it does not

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provide Plaintiff with an independent cause of action against the State.

The

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constitution itself merely requires the legislature to “establish a system under which

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the merit principle will govern the employment of persons by the State.” 152 The

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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

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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

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examining, as well as prohibitions against certain employment practices, to guarantee

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this merit system, but it does not explicitly confer an independent private cause of

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action. 154 Nor does it supplant and provide greater protection than First Amendment

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law with respect to the political speech and association of state employees. “As

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defined, the merit principle requires the recruitment, selection, and advancement of

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public employees under conditions of political neutrality . . . . In actual practice,

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however, the merit principle is more complex and ambiguous than the above definition

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reveals.” 155 For example, Alaska Stat. § 39.25.160(g) protects employees in the

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classified service from “unlawful discrimination due to political beliefs.” 156 Partially
exempt employees are not afforded protection under this provision. Moreover, what

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constitutes “unlawful” political discrimination is necessarily defined by constitutional

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law. While Alaska Stat. § 39.25.178 declares that “a state employee” has the right to

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express political opinions, there is nothing to suggest that this right is unlimited or

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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

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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

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rather than simply citing the merit principle in every instance involving the speech of

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an employee covered by the Act.”158

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V.

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CONCLUSION

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Based on the preceding discussion, Plaintiff’s motion at docket 76 is

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GRANTED IN PART AND DENIED IN PART and Defendants’ motion at docket 56

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is GRANTED IN PART AND DENIED IN PART as follows:
1.

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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.

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dealing under state law.

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24
25

Plaintiff’s unconstitutional termination amounts to unfair

3.

Plaintiff has no claim to relief under Alaska’s merit

principle.

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157
158

Moore, 875 P.2d at 769.
Docket 86 at 30 (citing Wickwire, 725 P.2d at 700).

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The parties are instructed to promptly confer and then within 14 days

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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,

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Alaska.

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/s/ John W. Sedwick
JOHN W. SEDWICK
Senior United States District Judge

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