Bakalar v. Dunleavy

• Decision Date: 20 January 2022
• Docket Number: Case No. 3:19-cv-00025-JWS
• Citation: 580 F.Supp.3d 667
• Parties: Elizabeth BAKALAR, Plaintiff, v. Michael J. DUNLEAVY, in his individual and official capacities; Tuckerman Babcock; and the State of Alaska, Defendants.
• Court: U.S. District Court — District of Alaska

580 F.Supp.3d 667

Elizabeth BAKALAR, Plaintiff,

v.Michael J. DUNLEAVY, in his individual and official capacities; Tuckerman Babcock; and the State of Alaska, Defendants.

Case No. 3:19-cv-00025-JWS

United States District Court, D. Alaska.

Signed January 20, 2022

Adam William Hansen, Pro Hac Vice, Eleanor Emmons Frisch, Pro Hac Vice, Apollo Law LLC, Minneapolis, MN, Amanda Joy Harber, 49th State Law LLC, Soldotna, AK, Mark C. Choate, Choate Law Firm LLC, Juneau, AK, for Plaintiff.

Brewster H. Jamieson, Michael Bruce Baylous, Peter C. Partnow, Lane Powell LLC, Anchorage, AK, for Defendants Michael J. Dunleavy, Tuckerman Babcock, State of Alaska.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JOHN W. SEDWICK, Senior United States District Judge

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.

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 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 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

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

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 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

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