Bakalar v. Dunleavy et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ELIZABETH BAKALAR,
Plaintiff,
vs.
MICHAEL J. DUNLEAVY, in his
individual and official capacities;
TUCKERMAN BABCOCK; and the
STATE OF ALASKA.
Defendants.
Case No. 3:19-cv-00025-JWS
ORDER ON MOTIONS FOR
SUMMARY JUDGMENT
[Docs. 56, 76]
I. 	MOTIONS PRESENTED
At docket 56 Defendants Governor Michael J. Dunleavy (“Governor
Dunleavy”), Tuckerman Babcock (“Babcock”), and the State of Alaska (collectively
“Defendants”) filed a motion for summary judgment as to all claims asserted against
them 	by 	Plaintiff 	Elizabeth 	Bakalar 	(“Plaintiff”), 	who 	alleges 	that 	Defendants
terminated her employment as an assistant attorney general in violation of federal and
state free speech rights, the Alaska Constitution’s merit principle, and the implied
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
judgment. Defendants filed their combined response and reply at docket 86. Plaintiff
replied at docket 93. 	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

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 2
II. 	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
that time, Plaintiff had worked as an assistant attorney general for over 12 years under
five administrations and seven Attorneys General.1 She had been steadily promoted
during her tenure with the Department of Law, and at the time of her firing she was
classified as an expert-level “Attorney V” within the Labor and Affairs Section. As an
attorney in the Labor and Affairs Section, Plaintiff was assigned to be primary counsel
for the Lieutenant Governor and the Division of Elections. She handled voting rights
cases, voter registration issues, ballot initiative certifications and referendum matters,
and she drafted regulations and legislation.2 	She also was assigned to advise or
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
numerous favorable decisions from the Alaska Supreme Court and the Ninth Circuit
and receiving praise for her proficient and efficient legal work.4
The 	criticism 	lodged 	against 	Plaintiff 	during 	her 	tenure 	with 	the
Department of Law arose in connection to her personal blog, entitled “One Hot Mess,”
and its associated social media presence. 	She began the blog in 2014, primarily
focusing on her lifestyle, parenting, and politics.5 Her commentary was personal in
1 Docket 75-3 at ¶ 3.
2 Id. at ¶¶ 3–7; Docket 75-33; Docket 75-7; Docket 56-1.
3 Docket 75-33.
4 Docket 75-2 at ¶¶ 3, 7; Docket 75-7; Docket 75-3 at ¶ 7.
5 Docket 75-3 at ¶ 15.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 2 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 3
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
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,
work, and raise kids in Alaska was read by over 20,000 people.8 Another post from
2016, a political one that opposed the candidacy of Donald Trump and criticized those
who supported him, was republished by the Anchorage Daily News.9
After the 2016 presidential election, Plaintiff started blogging more
about politics, and President Trump in particular. As Plaintiff stated in one of her blog
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
contemporaneous Handmaid’s Tale-style record of What the F[**]k You Did to Us.”10
Her commentary contained vitriolic criticism of the President and his associates. For
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
6 Docket 56-14 at 1.
7 Docket 75-23 at 1 n.1, 6.
8 Docket 56-7.
9 Docket 56-8.
10 Docket 56-23.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 3 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 4
alcoholic 	who 	legit wants 	to destroy democracy 	and
perpetuate the master race.11
Plaintiff also maintained a twitter account, entitled “One Hot Mess AK” with her name
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
mentioning President Trump is not in the record, it is undisputed that posts criticizing
or mocking President Trump number in the hundreds. She acknowledged that she let
go of any fears about “personal and/or professional reprisal borne of calling Donald
Trump a fascist cantaloupe on the internet every day.”13
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
Alaska.” The purpose of her blog was to “make[ ] the case that Blogger Libby Bakalar
of ‘One Hot Mess Alaska’ fame should not be working as an Assistant Attorney
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.
Is Ms. Bakalar the type of person we want working as an
attorney in the Attorney General’s office?
My opinion: NO.15
11 Docket 56-24.
12 Docket 56-19.
13 Docket 56-21.
14 See, e.g., Docket 75-9.
15 Docket 75-10.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 4 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 5
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
Section.16 She also accused Plaintiff of using state time and resources to conduct her
personal blogging activities, in violation of Alaska’s Executive Ethics Act.17 	She
voiced these ethics complaints to state officials.18
Thereafter, 	the 	Department 	of 	Law 	initiated 	an 	investigation 	into
Plaintiff’s blogging activities. It hired an independent third-party attorney to conduct
the investigation. 	As the investigator noted in his report, “[t]he primary impetus for
the investigation were concerns raised about the partisan political nature of ‘One Hot
Mess Alaska’ and the possible use by Ms. Bakalar of state resources or work time in
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
during work time or with the aid of state funds or resources; and (2) whether, if the
answer to the first question was “yes,” such activity violated any law or policy
applicable to Plaintiff.20 The inquiry did not consider whether Plaintiff’s publishing
of her political opinions during personal time was in any manner improper given
Plaintiff’s job as an assistant attorney general.21
16 See, e.g., Docket 75-12; Docket 75-14 at 5.
17 Docket 75-13 at 2.
18 Docket 75-14 at 5.
19 Docket 75-23 at 1.
20 Id. at 1–2.
21 Id. at 2 n.3.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 5 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 6
In March 2017, the investigator concluded that on occasion Plaintiff
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
accepted limits.22 	He also found that any incidental work by Plaintiff on her blog
during work hours did not violate the Ethics Act, which prohibits employees from
using state resources for personal financial advancement or for partisan political
purposes.23 He noted that while Plaintiff’s blog “can be interpreted to evince a liberal
or progressive worldview, few posts actually meet the definition of having a partisan
political purpose.”24 The only posts that could fit within this definition would be those
critical of President Trump during his presidential candidacy, but there was “no
evidence that any of these specific potentially partisan posts were ever worked on by
[Plaintiff] during work hours or using state resources.”25
In November 2018, after winning the election, Governor Dunleavy
selected Babcock to serve as the chair of his transition team. On November 16, 2018,
Babcock sent a memorandum to most of the state’s at-will employees. 26 	The
memorandum required employees to submit a resignation, along with a statement of
interest in remaining employed with the new administration. The memorandum stated
in part as follows:
In the coming weeks, the incoming administration will be
making numerous personnel decisions. 	Governor-Elect
22 Id. at 2, 12.
23 Id. at 3, 12–14.
24 Id. at 12–13.
25 Id. at p. 13.
26 Docket 75-30; Docket 75-31.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 6 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 7
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.
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 Team2018@alaska.gov. 	If you
wish to remain in your current position, please make your
resignation effective upon acceptance by the Dunleavy
administration.
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.
Governor-Elect Dunleavy is encouraging you and all
Alaskans to submit their names for consideration for
service to our great state.27
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
the 	local 	newspaper. 	In 	past 	transitions, 	incoming 	administrations 	requested
resignations from only around 250 employees.29 	Governor Dunleavy explained his
27 Docket 75-30.
28 Docket 75-32.
29 Docket 75-31.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 7 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 8
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
To keep their jobs employees had to actually offer up a resignation with an
accompanying statement of interest in continuing with the new administration and then
hope that the incoming administration would reject the resignation.
Plaintiff received the resignation memorandum, along with all other
lawyers in the Department of Law. 	Plaintiff submitted her resignation letter. 	She
stated as follows:
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
30 Id.
31 Id.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 8 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 9
Governor Dunleavy administration in my current position,
and hope that my resignation is not accepted.
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
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
Health and Social Services, Department of Administration, and the Department of
Public Safety.33
Governor Dunleavy was sworn in at 12:00 p.m. on December 3, 2018.
Less than twenty minutes later, Plaintiff was notified that her resignation had been
accepted and that her employment with the state had been terminated, and she was
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
other attorney’s resignation letter was accepted. Like Plaintiff, this attorney had been
publicly critical of President Trump in her Twitter postings during the month leading
up to his inauguration.35
32 Docket 75-33.
33 Id.
34 Docket 75-3 at ¶¶ 20, 21.
35 Docket 75-3 at ¶ 23; Docket 75-14; Docket 75-23 at 17.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 9 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 10
Babcock stated that he made the decision to terminate Plaintiff based
primarily on the content of her resignation letter, explaining that he believed it
demonstrated an unwillingness to work professionally with the new administration.36
This lawsuit followed. 	Plaintiff filed her complaint in state court and
Defendants removed. 	Plaintiff asserts a 42 U.S.C. § 1983 claim against Defendants
for violation of her First Amendment rights. 	She also alleges that her termination
violated her free speech rights under Article I, § 5 of the Alaska Constitution, the
Alaska Constitution’s merit principle, and the implied covenant of good faith and fair
dealing. She seeks damages, as well as injunctive and declaratory relief. Both parties
now seek summary judgment on these claims.
III. 	STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”37 The
materiality requirement ensures that “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”38 Ultimately, “summary judgment will not lie if the . . . evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” 39
However, summary judgment is mandated “against a party who fails to make a
36 Docket 87-4 at 36.
37 Fed. R. Civ. P. 56(a).
38 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
39 Id.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 10 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 11
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
dispute as to any material fact.41 Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, the moving party need not present evidence to show
that summary judgment is warranted; it need only point out the lack of any genuine
dispute as to material fact. 42 	Once the moving party has met this burden, the
nonmoving party must set forth evidence of specific facts showing the existence of a
genuine issue for trial.43 All evidence presented by the non-movant must be believed
for purposes of summary judgment and all justifiable inferences must be drawn in favor
of the non-movant. 44 	However, the nonmoving party may not rest upon mere
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
of the truth at trial.45 “[W]hen simultaneous cross-motions for summary judgment on
the same claim are before the court, the court must consider the appropriate evidentiary
material identified and submitted in support of both motions, and in opposition to both
motions, before ruling on each of them.”46
40 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
41 Id. at 323.
42 Id. at 323–25.
43 Anderson, 477 U.S. at 248–49.
44 Id. at 255.
45 Id. at 248–49.
46 Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir.
2001).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 11 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 12
IV. 	DISCUSSION
A. 	Plaintiff’s § 1983 Claim Based on the First Amendment
Plaintiff 	asserts 	her 	First 	Amendment 	retaliation 	claim 	against
Defendants pursuant to 42. U.S. C. § 1983. 	Section 1983 creates a private right of
action for those plaintiffs seeking to redress and remedy constitutional wrongs caused
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,
and officials acting in their official capacity are not considered “persons” for purposes
of § 1983 and therefore cannot be sued thereunder.49 An exception exists for § 1983
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
officials 	with 	the 	ability 	to 	provide 	such 	relief 	in 	their 	official 	capacities. 51
Section 1983 claims seeking monetary damages may only be brought against a state
official if the official is sued in his or her individual capacity, and such claims are
47 42 U.S.C. § 1983.
48 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).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 12 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 13
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
Under these principles, Plaintiff’s § 1983 claim may be brought against
Governor Dunleavy in his official capacity for prospective injunctive and declaratory
relief and against the individual defendants in their personal capacities for damages.
1. 	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
has rejected for decades now the proposition that a public employee has no right to a
government job and so cannot complain that termination violates First Amendment
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
constitutionally protected . . . freedom of speech’ even if he has no entitlement to that
benefit.”55 Based on this doctrine, “[i]t is by now black letter law that ‘a state cannot
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
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)).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 13 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 14
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
under the Elrod/Branti58 line of patronage cases and those under the Pickering59 free
speech retaliation cases. Under Elrod/Branti, as a general rule, public employees who
do not occupy a policymaking position cannot be terminated based upon their political
beliefs and associations. 60 	Such patronage practices impermissibly infringe upon
public employees’ First Amendment associational rights. “The threat of dismissal for
failure to provide [support for the favored political party] unquestionably inhibits
protected belief and association, and dismissal for failure to provide support only
penalizes its exercise.”61 Party membership of the employee is not, in and of itself, the
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
employee is required to raise the issue of unconstitutional patronage. “[T]he right not
to have allegiance to the official or party in power itself is protected under the First
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
57 O’Hare, 518 U.S. at 717.
58 Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980).
59 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563 (1968).
60 Biggs v. Best, Best & Krieger, 189 F.3d 989, 994 (9th Cir. 1999).
61 Elrod, 427 U.S. at 359 (plurality opinion).
62 Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 272 (3d Cir. 2007).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 14 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 15
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
association” and “are not narrowly tailored to serve vital government interests” when
applied to employees in non-policymaking positions.64
Pickering 	retaliation 	cases 	involve 	situations 	where 	a 	government
employer takes an adverse employment action against an employee in response to that
employee’s speech, rather than just political affiliation. 	Under these cases, it is
acknowledged that the government cannot unduly abridge employees’ free speech
rights, but it nonetheless has broader power to restrict the speech of its employees than
the speech of its constituents given the management interests at play.65 As a result,
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
a balancing test developed in Pickering to determine whether the employee’s speech
is constitutionally protected.66 Under the balancing test, the court must consider “the
interests of the [employee], as a citizen, in commenting upon matters of public concern,
and the interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.”67 This balancing test is also applied in
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.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 15 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 16
“hybrid 	speech/association” 	claims, 	where 	speech 	is 	inextricably 	linked 	with
associational activity.68
Under both types of cases—whether involving political affiliation or
political 	speech—an 	exception 	is 	carved 	out 	for 	those 	employees 	holding
policymaking or confidential positions; such employees may be fired for “purely
political reasons.”69 In the Ninth Circuit, “an employee’s status as a policymaking or
confidential employee [is] dispositive of any First Amendment retaliation claim.”70
This policymaker exception reflects the view that dissenting political affiliations and
speech from a policymaker or confidential employee is disruptive enough to the
government’s interest in implementing policy to outweigh that employee’s First
Amendment rights.71 However, “the exception is ‘narrow’ and should be applied with
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
that party affiliation is an appropriate requirement for the effective performance of the
public office involved.” 73 	Party affiliation is interpreted broadly to encompass
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.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 16 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 17
political affiliation more generally, which “includes commonality of political purpose
and support.”74
2. 	Policymaker exception
As a threshold matter, Defendants argue that they cannot be liable to
Plaintiff for any First Amendment violation because, as a level V assistant attorney
general within the Department of Law’s Labor and Affairs Section, Plaintiff occupied
a confidential/policymaker role within state government and therefore could be fired
for political reasons. 	Defendants bear the burden of establishing Plaintiff occupied
such a position.75 That is, they must show that political considerations were relevant
to her job responsibilities. The nature and extent of Plaintiff’s duties are not disputed,
and therefore whether her job was a policymaking one is a question of law amenable
to summary judgment.76
Defendants argue that almost all court decisions involving attorneys in
government 	service, 	other 	than 	public 	defenders, 	who 	raise 	First 	Amendment
retaliation claims against their government employers have held that these attorneys
function as policymakers. The Ninth Circuit acknowledged as much in Biggs v. Best,
Best & Krieger,77 where it held that an associate in a private law firm, which had been
contracted to perform the services of a city attorney, held a confidential policymaking
position with the city and therefore could be terminated for political reasons. 	As the
74 Walker v. City of Lakewood, 272 F.3d 1114, 1132 (2001) (quoting Biggs, 189 F.3d at 996).
75 DiRuzza v. Cnty. of Tehama, 206 F.3d 1304, 1311 (9th Cir. 2000).
76 Walker, 272 F.3d at 1132.
77 189 F.3d 989 (9th Cir. 1999).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 17 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 18
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
assigned policymaker status to government attorney positions, the Ninth Circuit has
not endorsed a categorical approach to the analysis. “[T]here is no per se rule in this
circuit based solely on job title. The critical inquiry is the job actually performed.”79
The Ninth Circuit has set forth nine factors that can be relevant when
determining the nature of a position for purposes of applying the policymaking
exception. 	These factors are as follows: 	(1) vague or broad responsibilities;
(2) relative pay; (3) technical competence; (4) power to control others; (5) authority to
speak in the name of policymakers; (6) public perception; (7) influence on programs;
(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
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
Elections and other agencies, had responsibilities that affected state policy. 	Plaintiff
had wide-ranging job responsibilities. 	These included not only litigating elections-
related cases, but also providing agency advice, testifying on legislation, drafting
78 Id. at 997 (quoting Fazio v. City & Cty. of San Francisco, 125 F.3d 1328, 1333 (9th Cir.
1997)). 79 DiRuzza, 206 F.3d at 1310.
80 Fazio v. City & Cty. of San Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir. 1997).
81 Hunt, 672 F.3d at 611–12.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 18 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 19
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
agencies, including the Officer of the Governor, on litigation matters, regulations,
federal compliance, and legal advice.84 She spoke on behalf of the Attorney General
in some instances, authoring opinions from the attorney general that provided guidance
to the Lieutenant Governor and the Director of the Division of Elections on election
issues.85 She reasonably could have been perceived by the public as speaking for the
Attorney General because she worked on “highly politically-charged” elections issues
that had “significant media interest” and provided comments to the media about these
cases.86
While 	these 	factors 	favor 	a 	finding 	that 	Plaintiff 	occupied 	a
confidential/policymaking role, 	they fail to adequately resolve the fundamental
question of whether favorable political affiliation is a valid qualification for her
position. 	As noted by the Supreme Court, the underlying purpose of the particular
position is relevant to the inquiry.87 	If requiring allegiance to the favored political
party “would undermine, rather than promote, the effective performance of [the
employee’s position]” then that position is not a policymaking one.88 Here, Plaintiff’s
82 Docket 75-3 at ¶¶ 3–7; Docket 75-33; Docket 75-7; Docket 56-1; Docket 87-1 at 25–26.
83 See, e.g., Docket 87-2 at 1.
84 Docket 75-33.
85 See Docket 56 at 12–13 nn.57–58.
86 Docket 87-2 at 1; Docket 56-2; Docket 56-3.
87 Walker, 272 F.3d at 1132 (citing Branti, 445 U.S. at 519).
88 Branti, 445 U.S. at 519.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 19 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 20
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
nonpartisan nature, integrity, credibility, and impartiality of the administration of
elections be maintained.”90 	Given this essential mission of impartiality, favorable
partisan affiliation cannot be a valid qualification for an assistant attorney general
serving as designated counsel for the Division of Elections. 	While Plaintiff holds a
high-level job that involves elements of influence, trust, and visibility as identified by
application of the factors listed above, it is primarily exercised within the politically
impartial landscape of election law. Stated differently, “whatever policymaking occurs
in [that] office” does not relate to “partisan political interests.”91 As noted by Plaintiff
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
Given the court’s conclusion that Plaintiff was not exempted from First
Amendment protections in the workplace context under the policymaker exception, the
court must consider whether she was in fact terminated for politically based reasons
and, if so, whether that was improper given the circumstances.
89 Alaska Stat. § 15.10.105(b).
90 Id.
91 Branti, 445 U.S. at 519.
92 Docket 75 at 31.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 20 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 21
3. 	Plaintiff’s termination
This 	court 	recently 	addressed 	the 	constitutionality 	of 	terminations
stemming from Defendants’ resignation plan in Blanford v. Dunleavy.93 In that case,
Defendants fired the plaintiffs after they refused to submit their resignations. 	It was
undisputed that the plaintiffs’ refusal to submit resignations was the reason for their
terminations. The court concluded that Defendants’ resignation plan effectively was a
patronage scheme in that it required employees to provide an ostensible commitment
of support for the newly elected governor in return for continued employment, and
their decision to fire the plaintiffs for refusing to comply violated the plaintiffs’
associational rights under the First Amendment. 	The court concluded that their
terminations also violated the plaintiffs’ free speech rights under a Pickering analysis:
the plaintiffs’ publicized refusal to comply with Defendants’ resignation plan was
expressive conduct, and Defendants’ decision to fire them because of that expressive
conduct without an outweighing government interest was a violation of the plaintiffs’
First Amendment free speech rights.
The facts are critically different here. 	While Plaintiff’s termination
occurred in conjunction with the resignation plan, unlike the plaintiffs in the Blandford
case, Plaintiff complied with the resignation requirement. 	Consequently, the reason
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
93 Case No. 3:19-cv-00036-JWS, 2021 WL 4722948 (D. Alaska Nov. 8, 2021).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 21 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 22
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.
Babcock made the decision to fire Plaintiff. 	He claims that he fired
Plaintiff because her resignation letter was unprofessional in its tone.94 Specifically,
he pointed to the portion of her letter that articulated the premise of the resignation
plan: 	“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.”95 He testified that this statement felt like “a poke in
the eye” and “very grumbling” as if she was only doing it because he told her too.96
He believed that “going out of your way to object to the request for resignation is
unprofessional.”97
Babcock also testified that he was “generally aware” of her strong
opinions and of the fact that she maintained a blog where she commented about “her
political opponents.”98 	He insisted that he did not consult with Stroup as to which
attorneys’ resignations should be accepted and was not aware of Stroup’s opinion of
Plaintiff at that time, but he was aware of “doubts among various people that she could
94 Docket 87-4 at 35–36.
95 Docket 75-33; Docket 87-4 at 35.
96 Docket 87-4 at 35.
97 Id.
98 Id. at 36.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 22 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 23
. . . 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
He admitted that he did not have any formal process or criteria for
reviewing the hundreds of resignation letters and determining which ones to accept.
He explained if a letter did not raise any concerns about professionalism or attitude,
then it was up to “anyone on the transition team or the incoming commissioners to
raise any questions or issues.”101 Despite Babcock’s insistence that the content of each
resignation letter provided the basis for his employment decisions, he did not accept
the resignation of an assistant attorney general who had used the same wording that he
had found objectionable when used by Plaintiff.102 	Indeed, the only other attorney
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
is no evidence to explain what her resignation letter stated that made Babcock or others
in Governor Dunleavy’s transition team question her ability to work cooperatively or
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
99 Id. at 32, 36–37.
100 Id. at 36.
101 Id. at 32–34.
102 Docket 75-39.
103 Docket 75-3 at ¶¶ 22–25; Docket 75-2 at ¶ 26.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 23 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 24
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
Plaintiff was motivated by reasons connected to her First Amendment rights. Although
there was not a direct refusal on Plaintiff’s part to comply with the resignation request
as in Blanford, Babcock himself stated that he viewed her letter as voicing an objection
to the request that was unacceptably defiant to the administration. That is, it failed to
convey to him an adequate show of support or commitment to work for the Dunleavey
Administration. 	As he explained, “it demonstrated her unwillingness to me to treat
this new administration professionally.”105 Defendants argue that Babcock simply did
not like the attitude she showed in the letter and that his dislike was devoid of political
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
might cause her to clash with the administration and that she wrote a blog where she
criticized her political opponents.106 Moreover, the letter itself cannot reasonably be
deemed unprofessional for stating the factual premise of the resignation plan: she did
not want to resign her job but had to in order to keep it. 	Therefore, Babcock’s
perceived defiance certainly was informed by his general knowledge of her opposing
political views and blog, and, when taken together with evidence as to how other
104 Docket 75-23; Docket 75-41.
105 Docket 87-4 at 36.
106 Id.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 24 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 25
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.
The Ninth Circuit has synthesized Pickering and its progeny into a five-
factor 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
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
burden 	shifts 	to the government 	employer 	to show 	that there were 	legitimate
administrative interests involved that outweigh the employee’s right to comment as a
private citizen about matters of public concern.
There is no dispute that Plaintiff acted as a private citizen when voicing
her political opinions and that those opinions related to matters of public concern, and
the court has concluded that these opinions were the motivating factor in her
termination. 	The issue is whether Defendants had a countervailing management
107 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 25 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 26
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
disruption resulting from the speech. 109 	Workplace disruption occurs when the
employee’s speech “impairs discipline by supervisors or harmony among co-workers,
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
Disruption 	is 	not 	limited 	to 	internal 	workplace 	relationships 	and
performance. 	Negative public perception stemming from an employee’s speech or
conduct can constitute workplace disruption when the employee holds a position where
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
that the government lawfully fired police officers who participated in a parade with
racist lampooning that was covered by local media. It stated that a police department’s
effectiveness “depends importantly on the respect and trust of the community and on
the perception in the community that it enforces the law fairly, even-handedly, and
without bias.”112 The Ninth Circuit similarly has reasoned that a government employer
108 Pickering, 391 U.S. at 568.
109 Nichols, 657 F.3d at 933–34.
110 Rankin v. McPherson, 483 U.S. 378, 388 (1987); Nichols, 657 F.3d at 933.
111 447 F.3d 159 (2d Cir. 2006).
112 Id. at 178.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 26 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 27
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
Elections made her public blogging activities particularly disruptive. The Division of
Elections is non-partisan in its mission. 	As the director of the civil division for the
Department of Law, Joanne Grace, stated in her deposition, “it’s a foundational
principle 	of 	the 	Division 	of 	Elections 	that 	the 	administration 	of 	elections 	be
nonpartisan, have credibility, integrity, and be impartial . . . .”114 She noted that public
perception is “the foundation of public trust in elections, and that public trust is
essential to people accepting the results of an election.” 115 	Public trust in the
Division’s impartiality is central to its mission and operations.
Plaintiff’s role as the division’s attorney was not insignificant to this
mission. As discussed above, her job required her to represent the division in litigation;
provide the division legal advice; testify on relevant legislation; assist with federal
compliance; and help draft legislation and regulations in the area of elections law. She
had a hand in determining legal issues around which ballots to count, how initiatives
and referendums should appear on ballots, and which summaries should go into the
election pamphlets.116 She authored many publicly available attorney general opinions
providing guidance to the Lieutenant Governor on various initiatives and referenda
113 Dible v. City of Chandler, 515 F.3d 918, 928 (9th Cir. 2008).
114 Docket 87-1 at 11.
115 Id. at 12.
116 Id. at 25–26.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 27 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 28
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-
charged” elections issues that had “significant media interest.”117 Given these duties,
the public’s perception of her impartiality is a legitimate government concern. 	As
Grace articulated in her deposition, “the more outspoken the elections attorney is, the
more partisan and . . . the more public she becomes about partisan issues, the more that
undermines her ability to stand up in court and argue that an action of the Division of
Elections, which she probably advised them to take, was impartial and fair.”118 That
is to say, frequent and widespread partisan commentary by an elections attorney is
reasonably likely to undermine the public’s trust in the integrity and credibility of
elections.
Given 	Plaintiff’s 	position 	and 	the 	public 	nature 	of 	her 	political
commentary, it would not have been unreasonable for state officials to consider her
speech a disruption to the Division of Election’s operations, warranting adverse
employment action. 	Indeed, this was a growing concern to her supervisors within
Department of Law.119 	However, as the Supreme Court has noted, “[v]igilance is
necessary to ensure that public employers do not use authority over employees to
silence discourse not because it hampers public functions but simply because superiors
117 Docket 87-2 at 1.
118 Docket 87-1 at 11–12.
119 Id. at 18–23.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 28 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 29
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
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
credibility of the Division of Elections or even state government generally. 	There is
no evidence that he or members of the transition team were aware of any concerns
raised by her supervisors within the Department of Law, legislators, or other Division
of Elections employees. 	Indeed, he maintained he did not seek advice from anyone
outside of Governor Dunleavy and his immediate staff,122 and he did not mention that
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
during 	his 	deposition 	was 	with 	regard 	to 	Plaintiff’s 	professionalism. 	The
professionalism he was concerned about was personal in nature, limited to her ability
to be respectful to a new administration with opposing political viewpoints. 	He
thought her comment that her resignation was not voluntary was “a poke in the eye” to
him and confirmation that she was unwilling “to treat the new administration
120 Rankin, 483 U.S. at 384.
121 See Locurto, 447 F.3d at 175–76.
122 Docket 87-4 at 32.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 29 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 30
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
Defendants’ resignation plan—employees were forced to resign their jobs to show they
actually wanted to keep their jobs.124 There is no evidence that Plaintiff’s work product
had ever been biased or that she failed to thoroughly represent the State of Alaska’s
interests as defined by any of the previous five administrations or as directed by
supervisors. 	Indeed, she never publicly criticized any position taken by the State of
Alaska related to her work. 	There is no evidence that she acted unprofessionally at
work 	under 	previous 	administrations. 	While 	Defendants 	now 	rely 	on 	the
unprofessional content of Plaintiff’s blog, which contained irreverent and vulgar
language, that concern was not mention by Babcock during his deposition. Indeed, he
specifically refrained from suggesting he knew anything specific or particular about
her blog or its contents. 	Rather, he maintained that he just generally was aware she
had strong opinions and a blog.
With a more measured approach to staffing decisions, Defendants
reasonably could have predicted that Plaintiff’s political blogging activities would
negatively affect the mission of the Division of Elections and relied on this reason to
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
123 Id. at 35–36.
124 See, e.g., Docket 87-1 at 24.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 30 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 31
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.
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
Defendants 	argue 	that 	regardless 	of 	any 	underlying 	constitutional
violation, they are entitled to qualified immunity that shields them from personal
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
which a reasonable person would have known.”126 Given the court has found a First
Amendment violation, the remaining issue to be determined is whether Plaintiff’s right
to be free from a politically-motivated termination was clearly established. A right is
clearly established when it has a “sufficiently clear foundation in then-existing
precedent.” 127 	The rule must be “dictated by controlling authority or a robust
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)).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 31 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 32
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
generality.”130 This is particularly so when the circumstances involve quick judgments
made by officials in uncertain and rapidly evolving circumstances, or when an outcome
is otherwise highly fact dependent.131
It is clearly established that Defendants could not lawfully fire non-
policymaking employees based on adverse political affiliation and speech. 	As such,
Defendants’ qualified immunity defense turns on whether they reasonably could have,
but mistakenly, believed that it was legally appropriate to make political loyalty a
requirement of Plaintiff’s job. As noted above, in the vast majority of cases addressing
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
well.133 The Ninth Circuit has acknowledged this body of case law.134 These cases
rely on the fact that government attorneys, even if supervised, often exercise significant
authority on behalf of the ultimate policymaker through litigation, drafting advisory
128 Id. (quoting Wesby, 138 S. Ct. at 589–90).
129 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.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 32 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 33
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
the attorney was a subordinate, she presented reports to the city’s governing council
on legal issues, worked on high-profile issues, drafted regulations and ordinances, and
spoke to the press on occasion.136 These responsibilities, notably similar to Plaintiff’s,
were enough for the court to find that she occupied a position where political alignment
was a valid job qualification. 	Based on Biggs, it was reasonable for Defendants to
think that a high-level assistant attorney undertaking the responsibilities she outlined
in her resignation letter could be fired for political reasons. While this court ultimately
concluded that Plaintiff’s position was distinguishable given her role as counsel to the
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.
Plaintiff stresses that Alaska law provides a clear and definitive answer
as to who in state government constitutes a policymaker, barring any qualified
immunity defense here. Indeed, Alaska’s State Personnel Act establishes a system of
personnel administration based upon the merit principle.137 	As such, selection and
retention of employees must be “secure from political influences.”138 However, while
135 See Latham, 395 F.3d at 268–69.
136 Biggs, 189 F.3d at 995–96.
137 Alaska Stat. § 39.25.010.
138 Id.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 33 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 34
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
partially exempt category.140 Partially exempt employees are exempt from some, but
not all, of the rules governing job classification and payment, recruiting, appointment,
and examining.141 Similarly, not all political protections afforded under the Personnel
Act apply to partially exempt employees. 	The Act provides that an employment
decision affecting a classified employee cannot be taken or withheld on the basis of
unlawful discrimination due to political beliefs, but it does not extend this protection
to partially exempt employees. 142 	While the Act protects the right of a “state
employee” to engage in political activity and express political opinions, 143 this
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
cannot conclude that the legislature, through the Personnel Act, intended to confirm
that partially exempt employees, as a matter of course, are not policymakers as that
term is understood in First Amendment analysis. 	Even if the Act does in fact confer
139 Alaska Stat. § 39.25.090.
140 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).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 34 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 35
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.
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
Plaintiff seeks relief against Defendants under state law as well.146 She
asserts that her termination was unconstitutional under state law, relying on both
Article 1, § 5, which protects citizens’ right to free speech, and Article XII, § 6, which
establishes Alaska’s merit system of public employment. She also raises a good faith
and fair dealing claim.
Generally speaking, Alaska’s public employee free speech cases rely
heavily on federal law.147 Consequently, given the First Amendment violation present
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
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).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 35 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 36
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
Despite 	this 	limitation, 	Plaintiff 	still 	is 	afforded 	relief 	for 	an
unconstitutional termination under state law through her good faith and fair dealing
claim. Pursuant to Alaska Stat. § 09.50.250, a person with a contract, quasi-contract,
or tort claim against the state may raise such a claim in state court. 	Implicit in an
employee’s contract of employment with the State is a promise that the employee will
not be terminated for an unconstitutional reason. 150 	“[W]hen the State fires an
employee for an unconstitutional reason, [it] amounts to unfair dealing as a matter of
law and gives rise to contract remedies.”151 Here, Plaintiff was fired in violation of her
free speech rights, which necessarily amounts to unfair dealing under state law.
Plaintiff also asserts her termination ran afoul of Article XII, § 6, which
establishes a merit system of public employment. However, the court concludes that
the constitutionally protected merit principle and the statute implementing it does not
provide Plaintiff with an independent cause of action against the State. 	The
constitution itself merely requires the legislature to “establish a system under which
the merit principle will govern the employment of persons by the State.”152 	The
148 Larson v. State, 284 P.3d 1, 9–10 (Alaska 2012).
149 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.
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 36 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 37
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
examining, as well as prohibitions against certain employment practices, to guarantee
this merit system, but it does not explicitly confer an independent private cause of
action.154 Nor does it supplant and provide greater protection than First Amendment
law with respect to the political speech and association of state employees. 	“As
defined, the merit principle requires the recruitment, selection, and advancement of
public employees under conditions of political neutrality . . . . In actual practice,
however, the merit principle is more complex and ambiguous than the above definition
reveals.” 155 	For example, Alaska Stat. § 39.25.160(g) protects employees in the
classified service from “unlawful discrimination due to political beliefs.”156 Partially
exempt employees are not afforded protection under this provision. 	Moreover, what
constitutes “unlawful” political discrimination is necessarily defined by constitutional
law. While Alaska Stat. § 39.25.178 declares that “a state employee” has the right to
express political opinions, there is nothing to suggest that this right is unlimited or
153 Alaska Stat. § 39.25.010(b)(5).
154 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).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 37 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 38
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
rather than simply citing the merit principle in every instance involving the speech of
an employee covered by the Act.”158
V. 	CONCLUSION
Based on the preceding discussion, Plaintiff’s motion at docket 76 is
GRANTED IN PART AND DENIED IN PART and Defendants’ motion at docket 56
is GRANTED IN PART AND DENIED IN PART as follows:
1. 	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
Governor Dunleavy and Defendant Babcock from personal liability for this
violation.
2. 	Plaintiff’s unconstitutional termination amounts to unfair
dealing under state law.
3. 	Plaintiff has no claim to relief under Alaska’s merit
principle.
157 Moore, 875 P.2d at 769.
158 Docket 86 at 30 (citing Wickwire, 725 P.2d at 700).
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 38 of 39

1
2
3
4
5
6
7
8
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. 	Case No. 3:19-cv-00025-JWS
Order on Motions for Summary Judgment 	Page 39
The parties are instructed to promptly confer and then within 14 days
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,
Alaska.
/s/ John W. Sedwick
JOHN W. SEDWICK
Senior United States District Judge
Case 3:19-cv-00025-JWS Document 97 Filed 01/20/22 Page 39 of 39