EMPLOYMENT LAW
United States District Court, District of Alaska (2022)
Elza Bouhassira
In Bakalar v. Dunleavy, 580 F.Supp.3d 66 (D. Alaska 2022), the district court held that an assistant
attorney general’s free speech and associational rights were violated when she was terminated by
the state government. (Id. at 691). The assistant attorney general (AAG) held her position for more
than twelve years before she was terminated in 2018. (Id. at 672, 673). Since 2014, the AAG had
maintained a blog on which she wrote about her lifestyle, parenting, and politics. (Id. at 673). After
the 2016 presidential election, the blog focused more on politics, mocking and criticizing President
Trump frequently. (Id.). After being prompted by an Alaska attorney, the Department of Law
began an investigation into the AAG’s blogging and concluded that she had not violated ethics
rules. (Id. at 674). In November 2018, Governor Dunleavy was elected and instructed most of
Alaska’s at–will employees to resign and submit a statement of interest in remaining employed
with his new administration if they wished to keep their jobs, which the AAG did. (Id. at 675).
Twenty minutes after Governor Dunleavy was sworn in, the AAG was terminated; the only other
attorney from her department who was terminated had also been critical of President Trump. (Id.
at 676). The AAG sued, claiming a violation of her First Amendment rights. (Id.). Both parties
filed motions for summary judgment. (Id. at 677). The district court applied a five–factor test to
determine whether there was a First Amendment violation: “(1) whether the plaintiff spoke on a
matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee;
(3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse
employment action; (4) whether the state had an adequate justification for treating the employee
differently from other members of the general public; and (5) whether the state would have taken
the adverse employment action even absent the protected speech.” (Id. at 684). The court reasoned
that the AAG’s opinions were on matters of public concern, that she did speak as a private citizen,
and that her speech was a motivating factor in her termination. (Id.). The court further reasoned
that although state officials may have had legitimate reasons to consider the AAG’s speech
disruptive to the mission of her department and so warranting termination, they failed to raise any
concerns about her blogging or public opinions affecting the integrity and credibility of the state
government when they terminated her. (Id. at 686). Granting the assistant attorney general’s
motion for summary judgment, the district court held that her First Amendment rights were
violated when she was terminated by the state government. (Id. at 691).
