Photo: A federal judge on Thursday ruled that former Alaska Assistant Attorney General Elizabeth Bakalar was wrongfully terminated by the then-new administration of Governor Mike Dunleavy for violating her freedom of speech rights. Above, Bakalar speaks a news conference on January 10, 2019, in Anchorage after Summons and Complaint.
MARK THIESSEN, FILE/AP PHOTO
“Libby” Bakalar, a former state assistant attorney general, is also a blogger since 2014: One Hot Mess
She describes her termination and win in Court here:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(First Amendment to the United States Constitution)
This week, a federal judge here in Alaska ruled that Governor Dunleavy violated my free speech rights under the state and federal constitutions, and also breached Alaska employment law, when he fired me for my personal blog and social media posts criticizing President Trump.
From 2006 to 2018, I was a good lawyer and valued longtime employee of the Alaska Attorney General’s Office. I had no problems at work—other than the fact that I was unwilling to stop complaining about Trump on the internet.
I started this parenting and lifestyle blog in 2014, but in 2015, I began to recognize the existential threat Trump posed—and still poses—to democracy, and felt compelled to keep calling it out. I understood the risks to my personal and professional life that this involved, but knowing I was within my legal rights, I naively assumed that the government would honor them. (Ironic, I know).
Regardless, I felt congenitally incapable of shutting up, and was unable to stop myself from identifying daily the havoc Trump was wreaking. As the main income-earner in my four-person family and the only one with health insurance, it was a big gamble.
Fast forward to December 3, 2018, when Trumpian acolyte Mike Dunleavy took office as Alaska’s 12th governor, and fired me within 20 minutes of being sworn in.
My termination came on the heels of a forced resignation letter that Dunleavy’s Chief of Staff, a Karl Rove-type operator named Tuckerman Babcock, had demanded from me and hundreds of other non-unionized state employees. This was an unprecedented, norm-shattering flex by an incoming administration. I immediately contacted the ACLU, which filed a lawsuit on my behalf the next month. The ACLU also brought a companion case for two state psychiatrists who refused to submit their resignations at all.
This past Thursday, Judge Sedwick, who was appointed by George Bush, issued a long order in my case making a few important findings under complicated U.S. Supreme Court precedent governing public employees’ free speech rights. (The order came three months after a ruling in the psychiatrists’ case from the same judge that the resignation demands were an unlawful “patronage scheme” or loyalty pledge and therefore inherently unconstitutional).
Because I was not in a union, I lacked automatic constitutional protections in my job. So the question became whether I could be fired for political (associational and free speech) reasons. The answer would be yes, if I were a “policymaker” as that term is defined in this line of cases. But I was not a policymaker, so the question next became whether the government could prove that my personal speech caused legitimate and sufficient “workplace disruption” to refute the presumption that Dunleavy and Babcock fired me because they disagreed with my views.
They couldn’t show that. And because they couldn’t, the judge concluded I had been unconstitutionally fired. And because the state had fired me unconstitutionally, it acted in bad faith, giving rise to money damages under my claim for a breach of the covenant of good faith and fair dealing in Alaska employment law. So the state violated state law as well.
Judge Sedwick recognized that had the state gone about my termination differently, they could reasonably have taken “adverse employment action” against me for my blogging. But given the evidence in the case, this is a bit like saying to a burglar that had he not broken into a house and stolen things, he wouldn’t have been arrested for burglary.
The other interesting legal angle here, in both cases, was the judge’s analysis of the qualified immunity doctrine.
Qualified immunity is what protects government employees from personal liability in their work. In practice it functions more like absolute immunity, because it’s very hard to lose. You have to do something really bad and pretty much knowingly bonkers.
In the psychiatrists’ case, Judge Sedwick found that the resignation scheme was bad enough to strip Dunleavy and Babcock of qualified immunity and make them personally liable for their conduct. Not so in my case, which didn’t surprise me. As I said, it’s very rare for a defendant to lose qualified immunity, and the government has an interest in a robust qualified immunity doctrine; otherwise no one would ever risk working for the government.
Judge Sedwick’s order in my case resolved (at least at the trial court level) what’s called the “merits” phase of the lawsuit, and the next phase is damages. The constitutional violations entitle me to injunctive and declaratory (non-monetary relief), and the state law claims entitle me to monetary damages. I’m really not sure where that phase will go–that’s very much to be decided, as is the state’s appetite for an appeal.
In any event, I’ve now had some time to process the psychological and emotional toll of this “victory.”
I put victory in scare quotes because I’m not sitting here rejoicing. I’m not running around the bases after a walk-off grand slam or dining out on the press coverage. Ok, fine, I am dining out on the press coverage.
But I’m not happy. Far from it. It took three years and ten days to make one single point about free speech. It took three years and ten days to get a federal judge to say yes, this was illegal, and yes, it was unconstitutional.
As a government lawyer myself, I’ve always known that democracy is fragile, justice is glacial, and the constitution is not a self-executing document. In other words, it means nothing if it’s not enforced. The problem is, it’s hard and expensive to enforce, and there isn’t much incentive to do so.
Being a litigant is time-consuming, brutal, and humiliating. By the time the average citizen catches up with governmental misconduct, the bad actors have collected its spoils, are long gone, and have paid off the victim with public money. What do they care? Nothing but media shaming and excoriation and the occasional financial penalty seems to make even a dent.
But my hope is that this case sends a few messages beyond “Trump-bashing lawyer mostly wins free speech suit,” as a reporter at Bloomberg Business News so wryly and accurately put it. And while it’s funny that my characterization of Trump as a “fascist cantaloupe” and “Edward Cheeto-Hands” is now forever enshrined in the federal jurisprudential canon, it’s not the most important thing.
I hope this case makes future administrations think twice before demanding that everyone pledge loyalty to them or relinquish their jobs or even careers.
I hope it gives non-unionized state employees in Alaska some measure of protection in their jobs, and some assurances that they do not all unequivocally check their constitutional rights at the door just because they work for the state.
I hope it encourages good citizens to start and continue careers in government. Most of all, I hope it encourages people to continue to speak up and push back against totalitarianism, autocracy, and erosion of the rule of law, because as every scholar of authoritarianism knows, your voice is the only weapon you have in that battle.
I was in a rare and unique position to do something grandiose to prove a point. I was a practicing government lawyer and knew my rights. I had a blog with a good following and was self-destructive enough to use it to make what I thought were important observations about a very dangerous situation. And the people in power were reckless and arrogant enough to approach my firing in the perfect way to subject them to maximum liability.
In other words, the whole thing was teed up for a great free speech case.
But it came at a huge personal cost. I lost friends and colleagues. I lost what little faith I’d had in systems and structures of employment, democracy, and personal loyalty. My mental health was (and remains) shaky. I absorbed lots of online vitriol, most of which I tried—often unsuccessfully—to ignore. For three years, ten days, and counting, I’ve felt afraid, ashamed, and very much alone.
People have been thanking me for fighting the good fight and for sticking my neck out and standing up to bullies. I didn’t do it because I wanted to. I did it because I could, and because I had to. I’d do it again in a minute.”
We applaud Ms. Bakalar for sticking to her claim of wrongfully being denied her First Amendment rights to free speech and saying what she believes, even if we may disagree with some of the content of her statements.
A judge ruled on Thursday that Alaska Governor Mike Dunleavy and his former chief of staff wrongly fired Elizabeth “Libby” Bakalar, a former state assistant attorney general, violating her right to free speech.
When Dunleavy became governor in 2018, Tuckerman Babcock, head of his transition team and eventually his chief of staff, sent a memo to a large chunk of state employees asking them to send in a resignation letter and a statement of interest in continuing with the new administration, the Associated Press reported.
U.S. District Court Judge John Sedwick, who ruled in Bakalar’s case, said the state employees’ “hope” was that the new administration would reject their resignation letters.
In a statement sent to Newsweek on Friday afternoon, the Alaska Department of Law said though it is still reviewing the ruling, it thinks the decision would “strictly limit” future governors’ ability to “hold employees in sensitive positions accountable for actions that ultimately affect their work for the people of Alaska.”
“Public trust in our elections is essential to our form of government, and this extends to trust in the lawyers charged with safeguarding our elections on behalf of all voters,” it said. “Additionally, any client must trust legal counsel in order for the counsel to effectively represent them.”
The statement added that the state would evaluate the decision’s impact and “consider its next steps.”
Bakalar submitted her own letter and Babcock decided to accept the resignation. According to AP, Babcock said Bakalar’s tone in the letter was unprofessional, though Sedwick said a different assistant attorney general used similar wording and was not fired.
Bakalar thought her firing had more to do with a blog she had started in 2014 that focused on lifestyle topics like motherhood and on politics. AP reported that she started writing more about politics when former President Donald Trump was elected in 2016.
She also made comments criticizing Trump on her Twitter. According to the Anchorage Daily News, Bakalar was one of only two employees whose resignations were accepted. The other employee had also been critical of Trump online.
In Sedwick’s decision, he said that given Bakalar’s position as an attorney handling many elections-related cases “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.”
However, he added that that the defendants “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.”
In an email to Newsweek, Bakalar, now city attorney for Bethel, Alaska, said she was pleased with the ruling.
“The crux of my claims—which is that I was unconstitutionally fired from a job I loved and undisputedly succeeded at—have been vindicated,” she said. “More importantly, however, is the fact that now non-unionized state employees in Alaska can be confident that they too have free speech rights, and that they won’t be bullied out of their jobs for exercising them.”
The Anchorage Daily News reported that because Dunleavy and Babcock have qualified immunity in the case, they will not be held personally liable. Instead, the state will pay damages. Mark Choate, Bakalar’s attorney, told the newspaper they would seek a trial for damages and ask the court to issue an injunction to make sure something like this cannot happen again.
“I think it’s really important—especially now with democracy so fragile—that we push back against incursions into our civil liberties, even if it takes three years as it did for me,” Bakalar said.
In October, Sedwick also ruled in favor of two psychiatrists with the Alaska Psychiatric Institute who were fired after being asked to submit resignation letters to Dunleavy and Babcock but declining to do so, according to AP.
In his decision Sedwick said the resignation demand “undisputedly went beyond what was customary,” as the psychiatrists were not in lawmaking positions.
Update 01/21/22, 2:09 p.m. ET: This article was updated with a statement from the Alaska Department of Law.
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