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Trump-Bashing Alaska State Attorney Mostly Wins Free Speech Suit

Jan. 21, 2022, 5:50 PM

A former assistant attorney general in Alaska who regularly bashed President Donald Trump on her personal blog and on Twitter was fired in violation of her free speech rights, a federal judge in Anchorage ruled.

Tuckerman Babcock, the chair of then-newly elected Gov. Michael Dunleavy (R)'s transition team, didn’t cite Elizabeth Bakalar’s blog and Twitter posts as the reason for her termination, the U.S. District Court for the District of Alaska said. He instead said he believed Bakalar’s letter of resignation, which all attorneys in the state’s department of law were required to submit after Dunleavy’s win, demonstrated an unprofessional attitude, the court said.

But “the letter itself cannot reasonably be deemed unprofessional,” Judge John W. Sedwick said. It merely states the factual premise that Bakalar and other at-will state employees were forced to resign and had to express their interest in continuing under the new administration in order to have their resignations rejected, Sedwick said.

Bakalar indicated in her letter that her resignation was involuntary, she resigned only because she otherwise would have been terminated, and she wished to continue in her job, the court said.

According to Babcock, he was generally aware of Bakalar’s strong political views and concluded from her letter that she was unacceptably defiant towards the new administration, the court said.

That showed Babcock’s decision to accept Bakalar’s resignation, which was made within 20 minutes of Dunleavy’s swearing-in, “was motivated by reasons connected to her First Amendment rights,” Sedwick said Thursday.

The resignation of another state attorney who used similar language to Bakalar’s in her resignation letter wasn’t accepted by Babcock, the judge said. And the only other attorney whose resignation was accepted didn’t apparently include anything in her letter that could have been viewed as uncooperative or unprofessional, the judge said.

But like Bakalar, that attorney had also “been publicly critical of President Trump,” Sedwick said.

Bakalar’s firing also violated the Alaska Constitution and the covenant of good faith and fair dealing, Sedwick said. But her claim under Alaska’s merit principle failed, he said.

Dunleavy and Babcock are immune from Bakalar’s free speech claims because they could have reasonably viewed her as a policy-maker with reduced free speech rights in light of the high-level job she held, the court said.

Bakalar’s postings referred to Trump as “likely senile, sociopathic,” and treasonous. She also acknowledged referring to him as “a fascist cantaloupe.”

Choate Law Firm LLC, Apollo Law LLC, 49th State Law LLC, and the ACLU of Alaska Foundation represent Bakalar. Lane Powell LLC represents the defendants.

The case is Bakalar v. Dunleavy, 2022 BL 19686, D. Alaska, No. 3:19-cv-00025, 1/20/22.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com