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ACLU seeks default judgment against Gov. Dunleavy, Tuckerman Babcock in wrongful termination suits

The American Civil Liberties Union (ACLU) of Alaska has filed motions for default judgment in two lawsuits they brought against Governor Michael J. Dunleavy and his Chief of Staff, Tuckerman Babcock, in January. The lawsuits stem from the firings of Libby Bakalar, a former State attorney, and Anthony Blanford and John Bellville, two former psychiatrists at the Alaska Psychiatric Institute.

Blanford and Belleville refused to sign the loyalty pledge that Dunleavy requested of all exempt and partially exempt State employees. Bakalar did sign it, but was terminated minutes after Dunleavy took office. Many felt Bakalar was a target because of her blog, One Hot Mess, and her sharp and sometimes vulgar criticisms of President Trump.

In the lawsuits, the ACLU claims their firings violated their First Amendment rights of free speech. The lawsuits were originally filed in state court but were removed and transferred to federal court on February 6 by request of counsel for Dunleavy and Babcock.

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AK Resource

The ACLU requested default judgement citing that Dunleavy and Babcock have failed to respond to the lawsuits. Here are the motions and declarations:

Bakalar

Default Application.Bakalar.4.19.19

Default Declaration (Koteff).4.19.19

Blanford and Belleville

Default Application.Blanford.4.19.19

Default Declaration (Koteff 1).4.19.19

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However, there is an outstanding motion from the ACLU to consolidate the two lawsuits into one. This may be the reason counsel for Dunleavy and Babcock have yet to respond to the original lawsuit. Here is that motion:

Motion to Consolidate Cases (Blanford-Belville case into the Bakalar case)

Why would the ACLU file a motion to consolidate the two lawsuits they originally filed separately? Likely for tactical reasons. Lawyers sometimes file separate lawsuits and then move to consolidate both lawsuits with whichever judge appears more favorable to them.

For some expert legal analysis, I turned to my lawyer buddy Lee Baxter. Lee is often referred to as “corporate counsel” for the Landmine. This means I call him whenever I have a legal question and don’t pay him any money. I’m not sure how much longer this will last. Lee is a great lawyer and I appreciate his analysis on this.

Lee’s Analysis

Linda Johnson is defending Dunleavy and Babcock. She is a very aggressive litigator. She represented the Municipality of Anchorage in a bitter and LONG lawsuit brought by two minority APD officers: Kennedy & Feliciano v. Municipality. She is known as a very zealous advocate for her client, and I’ve heard she really frustrates opposing counsel. Now here’s my specific take on the ACLU’s request for default judgment:

The ACLU has filed for entry of default against Defendants Tuckerman Babcock, Governor Michael J. Dunleavy, and the State of Alaska. An entry of default occurs when a defendant has not responded to a lawsuit filed against them in a timely manner or otherwise defended against the lawsuit. A lawsuit starts with a plaintiff’s filing a complaint with the court and serving the defendant with the complaint (The service of a complaint is often depicted in television shows and movies, where someone walks up to a person, asks their name and then says “you’ve been served” and hands them the legal document). The defendant then has a certain amount of time to file an answer to the complaint. If the defendant does not file an answer within the time frame required by the Federal Rules of Civil Procedure and does not “otherwise defend,” then the plaintiff can seek an entry of default against the defendant. The clerk of the federal court (not the judge) will determine whether the time for the defendants to answer has passed and whether the defendants have otherwise made it clear they do not intend to participate in the lawsuit, and if it has then the clerk must enter the defendants’ default. Then, the matter goes before the judge to conduct hearings to determine the appropriate judgment to be entered against the defaulting party.

Courts disfavor entries of default and default judgments because our justice system is supposed to resolve disputes on the merits and not based on a party’s failure to file court papers. But, a clerk will enter a default against a party that is very late in filing an answer to the complaint, and judges will enter a default judgment if the defendant is steadfastly refusing to answer the complaint or failing to “otherwise defend” against the lawsuit.

Here, given the sophisticated parties and their experienced legal counsel, it seems unlikely that Dunleavy and Babcock’s counsel just dropped the ball for several months and forgot to file an answer. Drafting and filing an answer is very simple and usually only takes a couple of hours from start to finish. And Dunleavy and Babcock have participated in the lawsuit, as they removed the case from state to federal court in early February 2019. A review of the court docket shows that there is an outstanding motion filed by the ACLU to consolidate the Blanford-Bellville lawsuit (former API administrators’ wrongful termination lawsuit) with the Bakalar lawsuit. It’s likely that Dunleavy and Babcock are waiting for the court to decide that motion before filing their answers to the complaint. As with most defendants, Dunleavy and Babcock likely are in no rush for a resolution of this case. And the ACLU’s motion to consolidate gave them a reason not to answer yet. Conversely, ACLU would like this case to go forward and filing for entry of default is a way to prod the court to decide the motion to consolidate and to get Babcock and Dunleavy to file answers.

Most likely the clerk will deny entry of default until the court decides ACLU’s motion to consolidate the Blanford-Belville cases with the Bakalar lawsuit. As the standard for entry is failure to timely answer the complaint and failing to “otherwise defend,” it’s likely the clerk will determine that Dunleavy and Babcock are defending and that entry of default is not appropriate. The ACLU will jump start the court into ruling on the motion to consolidate and getting an answer from Dunleavy and Babcock.

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Update: Not long after this article was published, the ACLU agreed to withdraw its request for entry of default if defendants file a (1) motion to dismiss, or (2) answer by April 23. Here is a link to the agreement:

Agreement with ACLU and SOA

Update:

Here is a comment provided by the Department of Law:

“The motion for entry of default was completely frivolous, and in my opinion, amounted to conduct that could have been sanctioned by the court. Our counsel called ACLU and explained that we would be asking for sanctions. We have now come to a stipulated agreement and ACLU is withdrawing their motion. I’m glad we can avoid wasting everyone’s time with such a ridiculous motion.” – Kevin G. Clarkson, Attorney General

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