This is an update on the ACLU’s representation of former State attorney Elizabeth Bakalar in a wrongful termination lawsuit against Governor Dunleavy, the Governor’s Chief of Staff, Tuckerman Babcock, and the State of Alaska. Generally, in the lawsuit Bakalar alleges that Dunleavy, Babcock, and the State violated the First Amendment by terminating her employment because of her political advocacy outside of work hours.
Yesterday, the State of Alaska filed a motion asking Judge John Sedwick to stay all discovery until Judge Sedwick decided whether Governor Dunleavy and his Chief-of-Staff, Tuckerman Babcock, (“COS”) are immune from Ms. Bakalar’s wrongful discharge lawsuit. The only quirk is that the State has yet to file any motion with the Court, to establish that the Governor or his COS are entitled to qualified immunity. Without a motion to establish qualified immunity pending, the State had to promise that “The motion for summary judgment on qualified immunity will be filed expeditiously.” Expect Judge Sedwick to impose a quick deadline on the State to get its qualified immunity motion filed.
What is qualified immunity? Qualified immunity shields government officials and employees from personal liability. The reason for qualified immunity is to safeguard a normal functioning government. In the words of the U.S. Courts of Appeal for the Ninth Circuit, “Qualified immunity protects government officers in the performance of their public, governmental functions. It does so not to benefit the agents of the government, but to safeguard the government itself, and thereby to protect the public at large.” In other words, qualified immunity is meant to ensure that government officials aren’t bogged down in litigation (preparing for depositions, answering discovery, etc.) instead of fulfilling the public duties they were elected to perform.
What happens if the Governor and his COS successfully show they are entitled to qualified immunity? If the Governor and his COS are successful in proving they are entitled to qualified immunity, the court will dismiss them from the lawsuit and they cannot be held personally civilly liable for Ms. Bakalar’s claims. Ms. Bakalar’s claims against the State of Alaska remain live whether or not the Governor and his COS have qualified immunity.
Who is entitled to qualified immunity? This is where things get tricky. According to the U.S. Supreme Court, “The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” A “clearly established right” is one that is sufficiently clear that every reasonable official would have understood that what they are doing violates that right. This occurs when caselaw places the statutory or constitutional question “beyond debate.” As the U.S. Supreme Court has matter-of-factly stated, “Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.”
What to expect next. Now that the Governor and his COS have filed this motion, it will now be litigated before anything further of substance takes place. Under the rules for Alaska’s federal court, Ms. Bakalar has 14 days from today to oppose the motion to stay. During this time, the State will likely be drafting its motion for summary judgment on the qualified immunity issue.
The qualified immunity issue is the real fight. Expect that to last into the fall season. That fight will likely focus on whether – assuming Ms. Bakalar’s factual claims are true – there is clearly established law that a government official cannot fire a person in Ms. Bakalar’s former position for her political advocacy outside of work. Look for the State to read cases from the Ninth Circuit and U.S. Supreme Court narrowly to show that there is no such clearly established law. Look for Ms. Bakalar to read Ninth Circuit and U.S. Supreme Court cases more broadly to show – again assuming Ms. Bakalar’s claims are true – that it was unreasonable for her to be terminated from employment.
Side note: One of Alaska’s most infamous court cases was a qualified immunity case, that came out of Juneau, and was presided over by Judge Sedwick: Morse v. Frederick aka the “Bong Hits 4 Jesus Case.” It demonstrates how qualified immunity works in practice. In that case, a senior at Juneau Douglas High School sued his principal for suspending him for waiving a banner at school sanctioned event to watch the 2002 Olympic Torch Relay pass through the town. The student wanted monetary damages from the principal. Judge Sedwick ruled that the principal was entitled to qualified immunity because there was no U.S. Supreme Court or Ninth Circuit cases holding that a principal violates the First Amendment by suspending a student for holding a sign advocating illegal drug use at a school sponsored event.
The Ninth Circuit reversed Judge Sedwick. Judge Andrew Kleinfeld of Fairbanks wrote the opinion for the Ninth Circuit, and reasoned that the U.S. Supreme Court’s free-speech decision sufficiently explained the contours of the First Amendment that the principal should have known her conduct violated the student’s clearly established free-speech rights. But, the U.S. Supreme Court granted review, reversed the Ninth Circuit and re-instituted Judge Sedwick’s ruling. A majority of the Court reasoned that not only was the student’s right to hold the “Bong Hits 4 Jesus” sign up not sufficiently established in caselaw to hold the principal personally liable, but that the student had no right to free speech to be free from school discipline for doing so. Interestingly, Kenneth Starr, the former judge from the D.C. Circuit and special prosecutor of President Clinton, represented the Juneau principal before the U.S. Supreme Court.
Lee Baxter is a practicing Anchorage attorney. He provides periodic legal analysis for the Landmine in his spare time.