Federal judge rules Alaska Gov. Mike Dunleavy and his former chief of staff illegally fired state attorney in 2018

A federal judge ruled on Thursday that Alaska Gov. Mike Dunleavy and his former chief of staff unconstitutionally fired a state attorney soon after the governor took office in 2018.

It’s the latest legal defeat for the governor, who has faced a series of lawsuits after asking hundreds of state employees to file letters of resignation during the transition from former Gov. Bill Walker.

The state settled one lawsuit for $75,000, and Thursday’s decision by Alaska District Court Judge John Sedwick follows a similar ruling last fall in a case brought by two Alaska Psychiatric Institute doctors. That case is expected to result in a settlement this month.

Echoing his decision in the doctors’ case, Sedwick said in a legal order that the firing of former Assistant Attorney General Elizabeth “Libby” Bakalar “violated her free speech and associational rights under the federal and state constitutions.” Bakalar was primary counsel for the lieutenant governor and the Division of Elections, according to the ruling.

Attorney Mark Choate, representing Bakalar, said he intends to seek a trial for damages and is pursuing an order that would block future governors from taking actions similar to Dunleavy’s.

“We are going to ask the court to to issue an injunction because this should not happen again,” he said. “I have strong feelings that this administration has been the most overtly political in creating a litmus test for who it likes and who it doesn’t like, and been totally, really lawless in many ways, and they continue doing it. And if you don’t hold them accountable, and you don’t pursue these things, they’ll just continue to get away with it.”

An attorney representing Dunleavy and former chief of staff Tuckerman Babcock declined comment, and Babcock did not return a message left on his cellphone.

The governor’s deputy communications director referred questions to the Alaska Department of Law. The department’s communications director, Aaron Sadler, said the department is still reviewing the decision but that it “would strictly limit the ability of future governors to hold employees in sensitive positions accountable for actions that ultimately affect their work for the people of Alaska.”

Bakalar, now the city attorney for Bethel, said she was pleased with the decision.

She said she believes the case proves that non-unionized state employees don’t “check their constitutional rights at the door” when they work for the state.

“I think that’s an important ruling, as a general matter, for all for all partially exempt, non-unionized state employees,” she said.

“I would like to see this never happen to any other state employee,” she said.

Governors frequently ask political employees to submit letters of resignation during the transition from one governor to another, but when he entered office, Dunleavy expanded the practice to include more employees than usual.

Most of the employees who submitted resignation notices were allowed to keep their jobs, but Bakalar, an active blogger critical of former President Donald Trump, was one of two Alaska Department of Law employees whose resignations were accepted. The other employee, who did not file suit, also had posted public statements critical of Trump.

In her job with the Department of Law, the ruling said, Bakalar “handled voting rights cases, voter registration issues, ballot initiative certifications and referendum matters, and she drafted regulations and legislation. She also was assigned to advise or represent other state agencies in high-profile or complex matters.”

Sedwick concluded that because Bakalar submitted a letter of resignation, her case was fundamentally different from that of the two API doctors, who refused to do so.

Babcock said he accepted Bakalar’s resignation because the tone of her letter was unprofessional, but he did not accept the resignation of a different attorney who used the same wording he criticized.

With that fact, plus the fact that both fired attorneys had been critical of Trump, Sedwick said that “it is clear that Babcock’s decision to terminate plaintiff was motivated by reasons connected to her First Amendment rights.”

He concluded that the unconstitutional firing “amounts to unfair dealing under state law.”

Sedwick’s decision was not entirely in Bakalar’s favor. The judge said Dunleavy and Babcock have qualified immunity in this case, a decision that means they are not personally liable and the state will pay any damages.

Sedwick also determined that the language of Bakalar’s blog could have interfered with her work as an attorney advising the Alaska Division of Elections, saying that “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.”

He went on to write that the state failed to prove that, rather than a political motive, was the reason for her firing.

“It is disappointing that the court would recognize the plaintiff could have been terminated if not for the process by which her resignation was accepted,” Sadler said. “The state will evaluate the impacts of this decision and consider its next steps.”