Blanford v. Dunleavy

• Court: District Court, D. Alaska
• Decided: October 8, 2021
• Docket: 3:19-cv-00036
• Status: Unknown

Opinion

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ALASKA 3

4 ANTHONY L. BLANFORD and 5 JOHN K. BELLVILLE, Case No. 3:19-cv-00036-JWS 6 Plaintiffs, 7 vs. ORDER ON MOTIONS FOR 8 SUMMARY JUDGMENT 9 MICHAEL J. DUNLEAVY, in his [Docs. 54, 55] individual and official capacities; 10 TUCKERMAN BABCOCK; and the 11 STATE OF ALASKA,

12 Defendants.

14 15 I. MOTIONS PRESENTED 16 17 At docket 54, Plaintiffs, Anthony L. Blanford and John K. Bellville 18 (collectively “Plaintiffs”), filed a motion for summary judgment on their claims that 19 Defendants, Governor Michael J. Dunleavy, Tuckerman Babcock, and the State of 20 21 Alaska (collectively “Defendants”), violated their rights under the First Amendment 22 of the United States Constitution, and Article I, § 5 of the Alaska Constitution. 23 Defendants responded at docket 61. Plaintiffs replied at docket 64. Defendants filed 24 their cross-motion for summary judgment at docket 55. Plaintiffs responded at docket 25 26 62. Defendants replied at docket 63. Oral argument was requested, but was denied at 27 docket 66 because it would not be of further assistance to the Court’s determination. 28 1 II. BACKGROUND 2 In November 2018, Defendant Michael J. Dunleavy was elected 3 Governor of the State of Alaska. He selected Defendant Tuckerman Babcock to serve 4 5 as the chair of his transition team. Part of any transition process requires appointing 6 subordinate executive branch officials, which necessarily involves replacing officials 7 that served under the prior administration. In past transitions, incoming 8 9 administrations requested resignations from around 250 employees.1 Governor 10 Dunleavy significantly broadened the scope of this practice when, on November 16, 11 2018, Mr. Babcock, as the chair of the Governor-Elect’s transition team, sent a 12 memorandum to most of the state’s at-will employees—numbering at least 800 and 13 14 including not only department heads, but also criminal prosecutors, state attorneys, 15 medical doctors, psychiatrists, pharmacists, fiscal analysts, tax code specialists, 16 investment managers, geologists, accountants, IT professionals, and administrative law 17 18 judges.2 The memorandum required employees to submit a resignation, along with a 19 statement of interest in remaining employed with the new administration. The 20 memorandum stated in part as follows: 21 22 In the coming weeks, the incoming administration will be making numerous personnel decisions. Governor- 23 Elect Dunleavy is committed to bringing his own brand 24 of energy and direction to state government. It is not Governor-Elect Dunleavy’s intent to minimize the hard 25 work and effort put forth by current employees, but rather to ensure that any Alaskan who wishes to serve is 26 given proper and fair consideration. 27

28 1 Dockets 54-4; 54-5. 2 Dockets 54-5; 54-6; 54-7. 1 As is customary during the transition from one administration to the next, we hereby request that you 2 submit your resignation in writing on or before 3 November 30, 2018 to Team2018@alaska.gov. If you wish to remain in your current position, please make 4 your resignation effective upon acceptance by the 5 Dunleavy administration.

6 Acceptance of your resignation will not be 7 automatic, and consideration will be given to your statement of interest in continuing in your current or 8 another appointment-based state position. Please also 9 include your email address and phone contact so that you can be reached to discuss your status directly. 10 Governor-Elect Dunleavy is encouraging you 11 and all Alaskans to submit their names for consideration 12 for service to our great state. . . .3

13 The memorandum was accompanied by a resignation form, which included a sentence 14 where employees had to choose whether or not they wanted to be considered for their 15 16 position with the Dunleavy administration.4 17 Plaintiffs were among the employees who received the resignation 18 memorandum. At that time, Dr. Blanford was the chief of psychiatry and Dr. Bellville 19 20 was a staff psychiatrist at Alaska Psychiatric Institute (“API”), the State’s psychiatric 21 hospital. Dr. Blanford was hired in 2016 as a staff psychiatrist and later was promoted 22 to the chief of psychiatry position. Dr. Bellville started at API in the spring of 2018. 23 Dr. Blanford was surprised that he received the resignation request and Dr. Bellville 24 25 initially disregarded his receipt of the memorandum as a mistake, because they did not 26 27

28 3 Docket 54-1. 4 Docket 54-3. 1 consider their jobs to be political in nature and both were professionally well-regarded 2 at API.5 3 The demand for the resignations of all at-will employees was reported in 4 5 the local newspaper. Governor Dunleavy explained his decision to a reporter: “We 6 want to give people an opportunity to think about whether they want to remain with 7 this administration and be able to have a conversation with us.”6 Mr. Babcock was 8 9 reported as saying as follows: 10 [Governor Dunleavy] just wants all of the state employee who are at-will . . . to affirmatively say, “Yes, 11 I want to work for the Dunleavy administration,”. . . Not 12 just bureaucracy staying in place, but sending out the message, “Do you want to work on this agenda, do you 13 want to work in this administration? Just let us know.” 14 . . . . 15

16 . . . I do think this is something bold and different, and it’s not meant to intimidate or scare anybody. It’s meant 17 to say, “Do you want to be a part of this?” 18 . . . . 19

20 If you don’t want to express a positive desire, just don’t submit your letter of resignation, . . . [a]nd then 21 you’ve let us know you just wish to be terminated.7 22 Upon reading these comments, Dr. Blanford became concerned about the propriety of 23 having to sign what he considered a “pledge . . . to a political agenda” in his role as 24 25 chief of psychiatry at API.8 He voiced his opposition to the resignation demand in a 26

27 5 Dockets 54-14 at ¶ 9; 54-15 at ¶ 8; 54-13 at 8; 56-6 at 2. 6 Docket 54-4. 28 7 Id. 8 Docket 54-14 at ¶¶ 10–13. 1 letter to the editor of the newspaper.9 He indicated in the published letter that he 2 wanted to keep his job at API, but would not submit a “symbolic gesture of deference” 3 in order to keep it.10 He stated he was hired for his expertise and not his “political 4 5 allegiance,” and that he could not voice his support for the administration’s agenda if 6 it involved “further cuts and hiring freezes, because that’s not what’s needed at API at 7 this time.”11 He stated his “moral allegiance” is to the mentally ill and staff who care 8 9 for them and that it was his belief that “[p]olitics have already cut deeply into our 10 ability to care for the mentally ill.”12 Dr. Bellville agreed with Dr. Blanford’s 11 position.13 12 Neither psychiatrist submitted his resignation. In the morning of 13 14 December 3, 2018, the day Governor Dunleavy was sworn into office, Mr. Babcock 15 notified Plaintiffs of their termination from service effective at noon that same day.14 16 While no basis was provided in the notifications, Defendants concede that Plaintiffs 17 18 were fired because they failed to submit their resignations.15 Administration officials 19 later requested to meet with Plaintiffs to encourage them to stay at API, but maintained 20 the condition that Plaintiffs reapply with the new administration. 16 Plaintiffs 21 22 understood that they could have their jobs on the original condition—by submitting a 23 24 9 Docket 54-21. 25 10 Id. 26 11 Id. 12 Id. 27 13 Docket 54-15 at ¶¶ 10–13. 14 Dockets 54-22; 54-23. 28 15 Docket 58 at ¶ 3. 16 Dockets 56-8 at 4–5; 54-25 at 9; 54-14 at ¶ 20; 54-15 at ¶ 18. 1 letter of intent or otherwise specifically articulating their interest in being employed at 2 API under the new administration, which they again refused to do, believing the 3 demand to be a political one to which they objected.17 4 5 This lawsuit followed. Plaintiffs assert a 42 U.S.C. § 1983 claim against 6 Defendants for violation of their First Amendment rights, as well as a free speech claim 7 under Article I, § 5 of the Alaska Constitution. Plaintiffs also allege a breach of the 8 9 implied covenant of good faith and fair dealing under state law. They seek monetary 10 relief, as well as injunctive and declaratory relief. 11 Plaintiffs now seek summary judgment on their federal and state free 12 speech claims. Defendants, in turn, seek summary judgment on these same claims. 13 14 They also ask for summary judgment as to Plaintiffs’ state claim for the breach of the 15 covenant of good faith and fair dealing. 16 III. STANDARD OF REVIEW 17 18 Summary judgment is appropriate where “there is no genuine dispute as 19 to any material fact and the movant is entitled to judgment as a matter of law.”18 The 20 materiality requirement ensures that “[o]nly disputes over facts that might affect the 21 22 outcome of the suit under the governing law will properly preclude the entry of 23 summary judgment.”19 Ultimately, “summary judgment will not lie if the . . . evidence 24 is such that a reasonable jury could return a verdict for the nonmoving party.”20 25 26

27 17 Dockets 54-14 at ¶¶ 20–21; 54-15 at ¶¶ 18–19. 18 Fed. R. Civ. P. 56(a). 28 19 Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 20 Id. 1 However, summary judgment is mandated “against a party who fails to make a 2 showing sufficient to establish the existence of an element essential to that party’s case, 3 and on which that party will bear the burden of proof at trial.”21 4 5 The moving party has the burden of showing that there is no genuine 6 dispute as to any material fact.22 Where the nonmoving party will bear the burden of 7 proof at trial on a dispositive issue, the moving party need not present evidence to show 8 9 that summary judgment is warranted; it need only point out the lack of any genuine 10 dispute as to material fact.23 Once the moving party has met this burden, the 11 nonmoving party must set forth evidence of specific facts showing the existence of a 12 genuine issue for trial.24 All evidence presented by the non-movant must be believed 13 14 for purposes of summary judgment, and all justifiable inferences must be drawn in 15 favor of the non-movant.25 However, the non-moving party may not rest upon mere 16 allegations or denials, but must show that there is sufficient evidence supporting the 17 18 claimed factual dispute to require a fact-finder to resolve the parties’ differing versions 19 of the truth at trial.26 “[W]hen simultaneous cross-motions for summary judgment on 20 the same claim are before the court, the court must consider the appropriate evidentiary 21 22 23 24 25

26 21 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 22 Id. at 323. 27 23 Id. at 323–25. 24 Anderson, 477 U.S. at 248–49. 28 25 Id. at 255. 26 Id. at 248–49. 1 material identified and submitted in support of both motions, and in opposition to both 2 motions, before ruling on each of them.”27 3 IV. DISCUSSION 4 5 A. Plaintiffs’ § 1983 Claim Based on the First Amendment 6 Plaintiffs assert their First Amendment retaliation claim against 7 Defendants pursuant to 42 U.S. C. § 1983. Section 1983 creates a private right of 8 9 action for those plaintiffs seeking to redress and remedy constitutional wrongs caused 10 by those acting “under the color of state law.”28 “To state a claim under § 1983, a 11 plaintiff must allege two essential elements: (1) that a right secured by the Constitution 12 or laws of the United States was violated, and (2) that the alleged violation was 13 14 committed by a person acting under the color of State law.”29 Based on Eleventh 15 Amendment considerations, a state, its agencies, and officials acting in their official 16 capacity cannot be sued under § 1983.30 An exception exists for § 1983 claims brought 17 18 against state officials sued in their official capacity for prospective injunctive or 19 declaratory relief.31 These claims, however, must be brought against state officials 20 with the ability to provide injunctive relief in their official capacities.32 Claims seeking 21 22

23 27 Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001). 24 28 42 U.S.C. § 1983. 29 Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). 25 30 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Wolfe v. Strankman, 392 F.3d 26 358, 364 (9th Cir. 2004). 31 Will, 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when 27 sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the state.’” (quoting Kentucky v. Graham, 473 U.S. 28 159, 167 n.14 (1985))); Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007). 32 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013). 1 monetary damages may only be brought against a state official if the official is sued in 2 his or her individual capacity and such claims are subject to a possible qualified 3 immunity defense.33 For these personal-capacity claims, Eleventh Amendment 4 5 immunity issues are not implicated because the claim is actually against the individual 6 and not the state.34 To establish personal liability for damages under § 1983, it is 7 enough to show that the official, acting under color of state law, caused the deprivation 8 9 of a federal right.35 10 Under these principles, Plaintiffs’ § 1983 claim against the State of 11 Alaska itself is not viable. The claim may be brought against Defendant Dunleavy in 12 his official capacity for prospective injunctive and declaratory relief, and against the 13 14 individual Defendants in their personal capacities for damages. Whether Plaintiffs are 15 entitled to summary judgment on this § 1983 claim depends on whether there has been 16 an underlying First Amendment violation and, if so, whether Defendants are entitled 17 18 to qualified immunity. 19 1. First Amendment in the public employment context 20 Plaintiffs’ § 1983 claim against Defendants falls within the ambit of case 21 22 law governing First Amendment rights in relation to public employment. “The Court 23 has rejected for decades now the proposition that a public employee has no right to a 24 government job and so cannot complain that termination violates First Amendment 25 26

27 33 Suever v. Connell, 579 F.3d 1047, 1060–61 (9th Cir. 2009); Kentucky v. Graham, 473 U.S. 159, 166 (1985). 28 34 Suever, 579 F.3d at 1060. 35 Id. 1 rights . . . .”36 Under the Supreme Court’s “unconstitutional conditions” doctrine, “the 2 government ‘may not deny a benefit to a person on a basis that infringes his 3 constitutionally protected . . . freedom of speech’ even if he has no entitlement to that 4 5 benefit.”37 Based on this doctrine, “[i]t is by now black letter law that ‘a state cannot 6 condition public employment on a basis that infringes the employee’s constitutionally 7 protected interest in freedom of expression.’”38 This means that “[a]bsent some 8 9 reasonably appropriate requirement, government may not make public employment 10 subject to the express condition of political beliefs or prescribed expression.”39 11 Stemming from these principals are two types of cases—those falling 12 under the Elrod/Branti40 line of patronage cases, and those under the Pickering41 free 13 14 speech retaliation cases. Under Elrod/Branti, as a general rule, public employees 15 cannot be terminated based upon their political associations.42 Such patronage 16 practices impermissibly infringe upon public employees’ First Amendment rights. 17 18 “The threat of dismissal for failure to provide [support for the favored political party] 19 unquestionably inhibits protected belief and association, and dismissal for failure to 20 provide support only penalizes its exercise.”43 21 22 23 36 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 716 (1996). 24 37 Bd. of Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). 25 38 Nichols v. Dancer, 657 F.3d 929, 932 (9th Cir. 2011) (quoting Connick v. Myers, 461 U.S. 26 138, 142 (1983)). 39 O’Hare, 518 U.S. at 717. 27 40 Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980). 41 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968). 28 42 Biggs v. Best, Best & Krieger, 189 F.3d 989, 994 (9th Cir. 1999). 43 Elrod, 427 U.S. at 359 (plurality opinion). 1 Pickering retaliation cases involve situations where a government 2 employer takes an adverse employment action against an employee in response to that 3 employee’s speech. Under these cases, it is acknowledged that the government cannot 4 5 unduly abridge employees’ free speech rights, but nonetheless has broader power to 6 restrict the speech of its employees than the speech of its constituents given the 7 different interests at play. As a result, unlike the Elrod/Branti cases “where the raw 8 9 test of political affiliation suffice[s] to show a constitutional violation,” these speech- 10 related cases require the application of a balancing test developed in Pickering to 11 determine whether the employee’s speech is constitutionally protected.44 Under the 12 balancing test, the court must consider “the interests of the [employee], as a citizen, in 13 14 commenting upon matters of public concern, and the interest of the State, as an 15 employer, in promoting the efficiency of the public services it performs through its 16 employees.”45 This balancing test is also applied in “hybrid speech/association” 17 18 claims, where speech is inextricably linked with the associational activity in question.46 19 Under both types of cases—whether involving political affiliation or 20 political speech—an exception is carved out for those employees holding 21 22 policymaking positions; such employees may be fired for “purely political reasons.”47 23 In the Ninth Circuit, “an employee’s status as a policymaking or confidential employee 24 [is] dispositive of any First Amendment retaliation claim[,]” not just a claim based 25 26 44 O’Hare, 518 U.S. at 719. 27 45 Pickering, 391 U.S. at 568. 46 Hudson v. Craven, 403 F.3d 691, 695–98 (9th Cir. 2005); Candelaria v. City of Tolleson, 28 Ariz., 721 Fed. Appx. 588, 590 n.1 (9th Cir. 2017). 47 Hobler v. Brueher, 325 F.3d 1145, 1150 (9th Cir. 2003). 1 solely on political affiliation.48 This exception reflects the view that dissenting 2 political speech, beliefs, or affiliations from a policymaker is disruptive enough that 3 the government’s interests will necessarily permit patronage-based dismissals.49 4 5 However, “the exception is ‘narrow’ and should be applied with caution.”50 Whether 6 an employee falls within this classification is not simply a matter of labels and titles; 7 rather, “the question is whether the hiring authority can demonstrate that party 8 9 affiliation is an appropriate requirement for the effective performance of the public 10 office involved.”51 Party affiliation is interpreted broadly to encompass political 11 affiliation more generally, which “includes commonality of political purpose and 12 support.”52 13 14 2. Dr. Blandford’s position as the chief of psychiatry at API 15 As a threshold matter, Defendants argue that they cannot be liable to 16 Dr. Blanford for any First Amendment violation because Dr. Blanford occupied a 17 18 policymaking position at API and, therefore, could be fired for purely political reasons. 19 Defendants bear the burden of establishing Dr. Blanford occupied such a position.53 20 That is, they must show that political considerations are relevant to the chief of 21 22 psychiatry position at API. The duties of this position are not disputed and, therefore, 23 24 48 Biggs, 189 F.3d at 994–95 (emphasis added). 25 49 See Hobler, 325 F.3d at 1150 (noting that “some positions must be subject to patronage 26 dismissals for the sake of effective governance and implementation of policy”). 50 Hunt v. Cnty. of Orange, 672 F.3d 606, 611 (9th Cir. 2012) (quoting DiRuzza v. Cnty. of 27 Tehama, 206 F.3d 1304, 1308 (9th Cir. 2000)). 51 Branti, 445 U.S. at 518. 28 52 Walker v. City of Lakewood, 272 F.3d 1114, 1132 (2001) (quoting Biggs, 189 F.3d at 996). 53 DiRuzza v. Cnty. of Tehama, 206 F.3d 1304, 1311 (9th Cir. 2000). 1 whether it constitutes a policymaking one is a question of law amenable to summary 2 judgment.54 3 The Ninth Circuit has set forth nine factors that can be relevant when 4 5 determining the nature of a position for purposes of the policymaking exception under 6 the First Amendment. These factors are as follows: (1) vague or broad responsibilities; 7 (2) relative pay; (3) technical competence; (4) power to control others; (5) authority to 8 9 speak in the name of policymakers; (6) public perception; (7) influence on programs; 10 (8) contact with elected officials; and (9) responsiveness to partisan politics and 11 political leaders.55 These factors do not need to be applied mechanically, but rather 12 should act as a guide to the underlying purpose and intent of the exception.56 13 14 As chief of psychiatry, Dr. Blandford supervised the medical, pharmacy, 15 and social work departments at API.57 He was involved in hiring decisions, and 16 evaluated and disciplined staff members within these departments.58 He performed 17 18 administrative tasks such as running department meetings, completing documentation, 19 and ensuring compliance with various medical laws, policies, procedures, and 20 standards of care.59 He oversaw patient care and clinical services.60 His supervisor 21 22 was the CEO, and the CEO, in turn, was supervised by API’s 11-member “Governing 23 24

25 54 Walker, 272 F.3d at 1132. 26 55 Fazio v. City & Cnty. of San Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir. 1997). 56 Hunt, 672 F.3d at 611–12. 27 57 Docket 62-2 at 2, ¶ 2. 58 Dockets 54-14 at ¶ 4; 62-2 at 3, ¶ 6. 28 59 Dockets 56-4; 56-5; 54-14 at ¶ 4. 60 Dockets 56-4; 56-5; 54-14 at ¶¶ 3–4. 1 Body.”61 The Governing Body “is responsible for broad policy making in accordance 2 with applicable State of Alaska laws and regulations.”62 Its authority is delegated to it 3 by the Commissioner of Health and Social Services, and it “is empowered to determine 4 5 and maintain the objectives, purposes, and values of the Hospital,” to hire and fire the 6 CEO, and approve budgets, bylaws, rules, regulations, policies, and procedures of 7 API.63 Dr. Blanford was not a member of the Governing Body.64 8 9 Based on the record provided, including the duties of Dr. Blanford as 10 chief of psychiatry and the structural organization of API, the Court concludes that 11 political affiliation was not a requirement for the effective performance of his job at 12 API. Gavin Carmichael, API’s CEO at that time and Dr. Blanford’s supervisor, 13 14 confirmed that Dr. Blanford’s support of Governor Dunleavy’s agenda and his 15 particular political affiliations had no influence on any of his job responsibilities.65 He 16 confirmed that Dr. Blandford’s clinical judgment was not influenced by political 17 18 considerations.66 Furthermore, the evidence does not show that he had contact with 19 elected officials or that he spoke on behalf of those officials as chief of psychiatry. His 20 duties were distinct and clear, involving patient care, compliance, and medical services 21 22 and staff management. 23 24 25

26 61 Docket 62-2 at 2, ¶ 5; id. at 5; id. at 14. 62 Id. at 17. 27 63 Id. at 14, 17, 19. 64 Id. at 4, ¶ 11. 28 65 Docket 62-1 at 8–9. 66 Id. at 10; Docket 54-13 at 10. 1 Defendants argue that Dr. Blanford’s control over subordinate medical 2 staff is a factor that weighs in favor of finding that his position was a policymaking 3 one. They argue that he supervised a large number of skilled medical staff, including 4 5 over 140 nurses. Looking at the record, however, that number is disputed. While a 6 memorandum dated June 4, 2018, from the Department of Health and Social Services 7 indicates that the duties of chief of psychiatry include supervising the nursing 8 9 department at API,67 and Mr. Carmichael testified that the nursing department reported 10 to Dr. Blanford,68 the organizational chart provided by Plaintiffs demonstrates that the 11 nursing department was overseen by a separate director of nursing, who reported to the 12 CEO.69 Both Mr. Carmichael and Dr. Blanford stated that he only directly supervised 13 14 about fifteen people.70 Even assuming the chief of psychiatry supervised the entire 15 nursing staff at API, this alone would not show that political affiliation is part of the 16 job, as simply increasing the number of medical personnel under his supervision does 17 18 not sufficiently demonstrate in and of itself that he affected the administration’s 19 political policy goals.71 20 Defendants argue that his supervision of the nurses bled into influential 21 22 policy decisions, such as when he “negotiated with the nurses’ union” and ultimately 23 solved a staffing issue.72 However, the deposition testimony that Defendants rely upon 24

25 67 Docket 56-5. 26 68 Docket 56-3 at 5. 69 Docket 62-2 at 5; id. at 2, ¶ 3. 27 70 Dockets 56-3 at 11; 62-2 at 2, ¶ 2. 71 Hunt, 672 F.3d at 614 (acknowledging that merely being a supervisor is not sufficient to 28 show status as a policymaker). 72 Docket 55 at 5. 1 does not support such a conclusion about Dr. Blanford’s role in the staffing changes. 2 Mr. Carmichael stated in his deposition that he had asked Dr. Blanford to consider 3 API’s staffing model and propose a way that would allow for continuous nursing 4 5 coverage at the facility, and that Dr. Blanford was able to come up with a solution that 6 eventually was implemented.73 There was nothing said about Dr. Blanford himself 7 advancing this solution or negotiating with the nurses’ union. Indeed, there is nothing 8 9 in the record to suggest he had such authority. 10 To the contrary, Dr. Blanford’s ability to make consequential policy 11 decisions was constrained by the hierarchical system at API. Even as the supervisor 12 of the medical staff at API, his hiring and termination decisions had to be approved by 13 14 the CEO and Governing Body.74 Similarly, his ability to implement or change policies 15 and practices at API was limited. Decisions involving clinical administrative matters, 16 whether initiated by him as chief of psychiatry or by the CEO, had to be considered 17 18 and approved by the Governing Body, which would take those matters to the applicable 19 commissioners as necessary.75 Any medical policies and procedures developed by him 20 as the chief were designed to meet medical standards of care, not policy agendas, and 21 22 even those items had to be approved by the Governing Body to go into effect.76 23 Defendants also point to Dr. Blanford’s salary of $298,000 a year, one 24 of the top salaries in the executive branch, as a factor suggesting he qualifies as a 25 26

27 73 Docket 56-3 at 11. 74 Dockets 62-1 at 6; 62-2 at 3, ¶ 6; 62-2 at 14. 28 75 Dockets 62-1 at 7; 62-2 at 3, ¶ 8. 76 Docket 62-2 at 3, ¶ 7. 1 policymaker.77 When Dr. Blanford was first hired as a staff psychiatrist, his salary was 2 $273,000.78 This salary was based on his board certification, his five years of 3 experience, and his familiarity with API.79 Dr. Bellville, who Defendants do not claim 4 5 was a policymaker, was hired with a similar salary of $262,500.80 The evidence shows 6 that the alternative to hiring staff psychiatrists was to hire locum tenens psychiatrists, 7 which cost between $550,00 and $600,000 per year, per position.81 Given these facts, 8 9 Dr. Blanford’s high salary had more to do with the cost required to hire a qualified 10 psychiatrist as a permanent staff member and less about the level of influence he 11 exerted over state policy and governance. The same can be said of the technical 12 competence possessed by Dr. Blandford. It is no more than any other psychiatrist 13 14 working at API. Defendants have failed to show how Dr. Blanford’s salary and 15 competence as a psychiatrist is relevant to the overall purpose of the policymaking 16 exception to the First Amendment analysis. Given the Court’s finding that 17 18 Dr. Blanford did not occupy a policymaking position, his termination can implicate the 19 First Amendment. 20 3. Mass resignation demand as an unconstitutional patronage practice 21 22 Plaintiffs assert their terminations under Defendants’ resignation plan 23 were political in nature, raising patronage issues. As noted above, the Supreme Court 24 has held that patronage dismissals—where public employees are discharged or 25 26 77 Docket 56-5. 27 78 Docket 56-11. 79 Id. 28 80 Docket 54-12. 81 Docket 56-11. 1 threatened with discharge solely because of their partisan affiliation or lack thereof— 2 impermissibly restrict freedoms of belief and association guaranteed under the First 3 Amendment. In cases involving patronage practices applied to employees not holding 4 5 policymaking positions, no balancing test is necessary because such practices 6 “unquestionably inhibit protected belief and association” and “are not narrowly 7 tailored to serve vital government interests.”82 The interest the government has in 8 9 securing effective employees “can be met by discharging, demoting, or transferring 10 persons whose work is deficient,” and the interest the government has in loyally 11 implementing its policies “can be adequately served by choosing or dismissing [only 12 those] high-level employees on the basis of their political view” under the policymaker 13 14 exception.83 15 The seminal cases addressing unconstitutional patronage involved 16 dismissal based on party membership. In Elrod, a newly elected Democratic sheriff 17 18 discharged certain at-will employees because they did not belong to or otherwise have 19 the support of the Democratic party. The court found that conditioning public 20 employment on political activity is “tantamount to coerced belief” and inhibits 21 22 employees from exercising their own political beliefs.84 In Branti, a newly appointed 23 public defender had threatened to dismiss two assistant public defenders on the sole 24 ground that they were Republicans. The Court, in finding a constitutional violation, 25 26 27 82 Rutan v. Republican Party of Ill., 497 U.S. 62, 69, 74 (1990). 28 83 Id. at 74. 84 427 U.S. at 355. 1 clarified that “there is no requirement that dismissed employees prove that they, or 2 other employees, have been coerced into changing, either actually or ostensibly, their 3 political allegiance.”85 Instead, it is enough for a plaintiff to prove that they were 4 5 dismissed because they were not affiliated with the favored party.86 6 In Rutan, the Court revisited the Elrod/Branti doctrine to consider 7 whether it applies to employment actions short of dismissal. In that case, the Illinois 8 9 governor issued an executive order instituting a hiring freeze, whereby state officials 10 were prohibited from hiring any employee, filling any vacancy, or creating a new 11 position without the Governor’s express permission. Plaintiffs in that case alleged that 12 the Governor’s hiring freeze was operating as a patronage system whereby the 13 14 Governor limited employment and beneficial employment-related decisions to those 15 affiliated with his favored party to the detriment of those not affiliated with that party. 16 The Court held that, in line with Elrod and Branti, promotions, transfers, or recalls 17 18 based on political affiliation or support impermissibly infringe on public employees’ 19 First Amendment rights. 87 It found that the same First Amendment concerns 20 underlying the decisions in Elrod and Branti were implicated by the governor’s freeze: 21 22 Employees who do not compromise their beliefs stand to lose the considerable increases in pay and job 23 satisfaction attendant to promotions, the hours and 24 maintenance expenses that are consumed by long daily commutes, and even their jobs if they are not rehired 25 after a “temporary” layoff. These are significant 26 27 85 445 U.S. at 517. 28 86 Id. 87 497 U.S. at 75. 1 penalties and are imposed for the exercise of rights guaranteed by the First Amendment.88 2

3 As for hiring decisions, it concluded that, under the Supreme Court’s long-standing 4 precedent, “conditioning hiring decisions on political belief and association plainly 5 constitutes an unconstitutional condition” when applied to public positions that cannot 6 7 be considered policymaking ones.89 8 Party affiliation of the employee is not, in and of itself, the determinative 9 factor in these cases. That is, neither active campaigning, nor affiliation with a 10 competing party, nor vocal opposition to the favored political party by the employee is 11 12 required to raise the issue of unconstitutional patronage. “[T]he right not to have 13 allegiance to the official or party in power itself is protected under the First 14 Amendment.”90 Consequently, to support a First Amendment claim under these 15 16 patronage cases, it is sufficient for the employee to show “that they were fired for 17 failing to endorse or pledge allegiance to a particular political ideology.”91 18 While not as direct as the patronage practices described above, 19 20 Defendants’ demand for the resignations of over 800 at-will employees, with 21 acceptance or rejection of each resignation dependent upon an accompanying 22 statement of commitment to state employment under the incoming administration, is 23 sufficiently analogous as to its purpose and effect to be considered an unconstitutional 24 25 26 88 Id. at 74. 27 89 Id. at 78. 90 Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 272 (3d Cir. 2007). 28 91 Gann v. Cline, 519 F.3d 1090, 1094 (10th Cir. 2008) (quoting Bass v. Richards, 308 F.3d 1081, 1091 (10th Cir. 2002)). 1 patronage practice. It is undisputed the resignation plan was designed to communicate 2 to employees that they needed to express a desire to work for the Dunleavy 3 administration in order to retain their jobs and the resignation and reapplication process 4 5 was the means by which they were to do this.92 This intent was made sufficiently clear 6 to its recipients. The resignation memorandum itself stated that Governor Dunleavy 7 was “committed to bringing his own brand of energy and direction to government” and 8 9 asked employees to consider whether they wanted to remain in state service.93 The 10 resignation form provided to employees included a line where, after resigning their 11 position, the employee had to indicate whether they wanted to be considered for their 12 current position “with the new administration.”94 The media reports that followed 13 14 solidified the nature of the request. Mr. Babcock was quoted as affirming that the 15 purpose of the mass resignation request was to have employees commit to working for 16 the Dunleavy administration and its agenda in particular, rather than just staying in 17 18 place as part of the usual bureaucracy.95 He stated that “[n]o public servant should 19 ever think that they are irreplaceable,”96 and he made it clear that their jobs were on 20 the line. Employees who did not offer a resignation would be terminated. More 21 22 specifically, he directed employees who did not want to “express a positive desire” to 23 work with the new administration to simply not turn in a resignation, which would, 24 25 26 92 Docket 64-1 at 7–11. 27 93 Docket 54-1. 94 Docket 54-3. 28 95 Docket 54-4. 96 Docket 54-8. 1 convolutedly, indicate a “wish to be terminated.”97 In other words, to keep their jobs, 2 employees had to actually resign it as a gesture of support and then hope that the 3 incoming administration would reject the resignation based on unknown criteria. 4 5 Based on these circumstances, Defendants were requiring an ostensible 6 commitment of political support, or at least deference, in return for continued 7 employment, the effect of which was to either interfere with or chill employees’ 8 9 exercise of protected First Amendment rights. Those that did not want to signal such 10 a commitment, like Plaintiffs, were fired. Those that complied to keep their jobs could 11 thereafter reasonably “feel a significant obligation to support political positions held 12 by their superiors, and to refrain from acting on the political views they actually hold” 13 14 that officials might find subversive in order to avoid dismissal.98 As such, this threat 15 of dismissal for failure to provide the resignation as a gesture of support for the newly 16 elected governor “unquestionably inhibit[ed] protected belief and association.”99 17 18 Defendants assert that there was nothing political about the resignation 19 plan; they issued pro forma resignation requests from at-will employees as a routine 20 part of the administrative transition process. However, the sheer scope of the demand 21 22 for resignations, which undisputedly went beyond what was customary during an 23 administration transition, and extended to employees not occupying policymaking 24 positions, demonstrates that the purpose went beyond routine employment action. 25 26 27 97 Docket 54-4. 28 98 Rutan, 497 U.S. at 73. 99 Elrod, 427 U.S. at 359. 1 They were not actually asking at-will employees to resign en mass. Rather, they were 2 asking employees to offer up their job to the new administration’s express approval on 3 a basis left unclear, but with suggestive political underpinnings. Indeed, Defendants 4 5 did not describe it to employees as a mere formality. Rather, in connection with the 6 resignation demand, Mr. Babcock stressed that “[n]o public servant should ever think 7 that they are irreplaceable” and another transition team member stated that the 8 9 resignation demand served as a reminder to state employees that they work for the 10 public and that the public elected the governor.100 Therefore, it functioned less as an 11 employment formality and more of a hedge against, and warning to, political dissenters 12 working in state government. At a minimum, the resignation demand had the purpose 13 14 and effect of infusing political concerns and considerations into the civil service 15 sector.101 16 The fact that actual party membership or activity did not factor into who 17 18 received the resignation memorandum is not dispositive here. It is sufficient if, under 19 Defendants’ plan, employees faced potential dismissal, or other adverse employment 20 action, if they did not want to affiliate with a particular political ideology. Such is the 21 22 case here. It was made clear that by submitting a resignation, the employee was 23 actually signaling a commitment to work with the new governor and on behalf of his 24 agenda. This agenda was later described by Mr. Babcock to include support for a full 25 statutory PFD, the repeal of Senate Bill 91, reorganization of government agencies, 26 27

28 100 Dockets 54-7; 54-8. 101 Dockets 54-2 at 2; 54-5; 54-8. 1 pro-life issues, and a balanced state budget.102 Plaintiffs did not want to align 2 themselves with these political priorities to the extent they involved funding cuts and 3 hiring freezes that would detrimentally affect the functioning of API, and therefore 4 5 they did not submit their resignations.103 They consequently were fired for this 6 exercise of their associational rights guaranteed under the First Amendment. 7 4. Retaliation for the exercise of First Amendment speech 8 9 Plaintiffs’ terminations based upon their refusal to provide their 10 resignations also implicates free speech issues under the Pickering line of cases. The 11 Ninth Circuit has synthesized Pickering and its progeny into a five-factor evaluation: 12 (1) whether the plaintiff spoke on a matter of public 13 concern; (2) whether the plaintiff spoke as a private 14 citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor 15 in the adverse employment action; (4) whether the state 16 had an adequate justification for treating the employee differently from other members of the general public; 17 and (5) whether the state would have taken the adverse 18 employment action even absent the protected speech.104

19 The plaintiff bears the burden at the first three steps of the inquiry. The fourth step of 20 the analysis represents the Pickering balancing test, and it is at this step where the 21 22 burden shifts to the government employer to show that there were legitimate 23 administrative interests involved that outweigh the employee’s interest in commenting 24 about matters of public concern.105 25 26

27 102 Docket 64-1 at 5. 103 Docket 54-21. 28 104 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). 105 Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir. 2004). 1 As a threshold matter, Defendants argue there is no speech actually at 2 issue here. They stress that Plaintiffs were not fired for anything they said or failed to 3 say, nor were they compelled to convey any public message in order to keep their 4 5 jobs.106 However, non-verbal conduct, such as refusing to submit a resignation, can in 6 fact be expressive. Conduct “implicates the First Amendment when it is intended to 7 convey a ‘particularized message’ and the likelihood is great that the message would 8 9 be so understood.”107 10 That requisite intent and understanding is present here. Dr. Blanford, 11 upon reading the media reports, understood the resignation demand to be politically 12 motivated. He “did not think [he] could or should have to pledge [himself] to a political 13 14 agenda in order to effectively carry out [his] duties as the chief of psychiatry [at 15 API].”108 He even penned an editorial stating as much. In it, Dr. Blanford indicated 16 that he wanted to continue in his role at API, but would not submit what he considered 17 18 to be a “symbolic gesture of deference” to a political agenda he did not necessarily 19 agree with and that actually may run counter to the best interests of patients and staff 20 21 106 The parties brief the issue as one of compelled speech. However, as shown by the 22 arguments made, this case does not fall neatly within the confines of that body of law. Indeed, as noted by the Supreme Court in Janus v. Am. Fed’n of State, Cnty., and Mun. Emps., Council 31, 138 S. Ct. 23 2448 (2018), except for speech that is part of an employee’s official duties, “it is not easy to imagine a situation in which a public employer has a legitimate need to demand that its employees recite words 24 with which they disagree. And we have never applied Pickering in such a case.” Id. at 2473. It went on to state that even if Pickering applied in a situation involving compelled speech in the public 25 employment context, “it would certainly require adjustment.” Id. Here, the speech issues are more 26 accurately viewed as expressive conduct on the part of Plaintiffs rather than speech compelled by Defendants. 27 107 Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir. 1999) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)); Thomas, 379 F.3d at 810 (quoting Spence v. Washington, 418 U.S. 405, 410–11 28 (1974) (per curium)). 108 Docket 54-14 at ¶ 13. 1 at API.109 In line with this editorial, he did not submit the resignation. Dr. Bellville 2 agreed with Dr. Blanford’s position and also did not submit the resignation.110 Their 3 refusal to resign was intended to act as a repudiation of the political underpinnings of 4 5 Defendants’ resignation requests, and the likelihood people understood their refusal as 6 sending such a message was indeed great. In fact, medical staff at API wrote a letter 7 to Defendants requesting that they not terminate Dr. Blanford despite his stated intent 8 9 not to file the resignation, which they understood to be in protest of Defendants’ 10 directive.111 Therefore, Plaintiffs’ refusal to participate clearly conveyed an implicit 11 message of disapproval of the resignation demand, and therefore was expressive.112 12 Defendants also challenge the First Amendment’s application in this 13 14 situation, arguing that the resignation request was simply a job-related directive, 15 internal to state operations, and that Plaintiffs were fired for not complying with that 16 directive. This argument touches upon the first two factors discussed above: whether 17 18 the expressive conduct addressed a matter of public concern, and whether it was 19 undertaken in their capacity as private citizens or public employees. Both of these 20 issues are questions of law.113 21 22 23

24 109 Docket 54-21. 110 Docket 54-15 at ¶¶ 10–14. 25 111 Docket 56-6. 26 112 See Nunez, 169 F.3d at 1227–28 (holding that an employee’s refusal to limit attendees at training seminars to those court employees who had worked on her supervisor’s re-election campaign 27 was expressive conduct on a matter of public concern). 113 Eng, 552 F.3d at 1070. The issue of whether the speech was made in the employee’s 28 capacity as a private citizen is a matter of law so long as the employee’s job duties are not disputed. Id. at 1071. 1 The inquiry into the public concern factor requires the court to undertake 2 a “generalized analysis of the nature of the speech.”114 The analysis considers the 3 “content, form, and context of [the expression at issue], as revealed by the whole 4 5 record”115 to decide whether it fairly relates to a “matter of political, social, or other 6 concern to the community.”116 “Of the three concerns, content is king.”117 When the 7 content of the message addresses “issues about which information is needed or 8 9 appropriate to enable the members of society to make informed decisions about the 10 operation of their government,” it constitutes a matter of public concern.118 When the 11 content involves individual personnel disputes and grievances, it does not constitute a 12 matter of public concern.119 13 14 The message Plaintiffs intended to convey by refusing to comply with 15 Defendants’ directive clearly falls within the former content category. Plaintiffs were 16 surprised to have received a resignation request, and believed the directive effectively 17 18 was requiring political loyalty. The infusion of politics into what normally would be 19 non-political civil service jobs is a matter that the community appropriately would 20 want to know about to make an informed decision about how the new administration 21 22 planned to operate. While their objection to the request was tailored to their roles as 23 24 114 Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 964 (9th Cir. 2011) (quoting 25 Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009)). 26 115 Connick v. Myers, 461 U.S. 138, 147–48 (1983). 116 Id. at 146. 27 117 Johnson, 658 F.3d at 965. 118 Desrochers v. City of San Bernardino, 572 F.3d 703, 710 (9th Cir. 2009) (quoting McKinley 28 v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)). 119 Id. 1 psychiatrists at API, it cannot fairly be characterized as simply a personnel grievance. 2 Their refusal to comply was rooted in their concern about protecting the integrity of 3 patient care at API from political interests, which clearly is a concern that would be of 4 5 importance to the general public. 6 The fact that Plaintiffs’ actual failure to turn in their resignations was not 7 publicly announced is not dispositive. Speech, or expressive conduct as is the case 8 9 here, about a matter of public concern may be protected even when made in a private 10 context to staff and superiors rather than the general public.120 Staff at API discussed 11 the matter of resignations in a meeting and were aware of Plaintiffs’ position and intent 12 not to turn in a resignation, and they in turn signaled the issue to Defendants in a letter. 13 14 Moreover, Dr. Blanford’s intent and decision not to comply with the resignation 15 demand as a form of protest was, in fact, publicized. 16 The inquiry into whether Plaintiffs were acting as private citizens or as 17 18 public employees focuses on whether an employee’s expressions were made pursuant 19 to official responsibilities.121 When an employee makes a statement as part of his 20 official job responsibilities, he is acting on behalf of the government, and when that 21 22 statement is unauthorized, incorrect, or improper, the First Amendment provides no 23 protection from disciplinary measures. Defendants argue that that Plaintiffs’ failure to 24 comply with their job-related directive falls within this category—a simple refusal to 25 follow a job directive. Determining whether the conduct at issue was job related 26 27

28 120 Thomas, 379 F.3d at 810–11. 121 Barone v. City of Springfield, Oregon, 902 F.3d 1091, 1098–99 (9th Cir. 2018). 1 requires “a ‘practical’ inquiry into an employee’s ‘daily professional activities’ to 2 discern whether the speech at issue occurred in the normal course of these ordinary 3 duties.”122 The focus is on “whether the speech at issue is itself ordinarily within the 4 5 scope of an employee’s duties, not whether it merely concerns those duties.”123 Under 6 this case law, the fact that the subject matter of the resignation request was the job 7 itself does not make Plaintiffs’ refusal to submit their resignations job related. Offering 8 9 up a resignation obviously was not part of Plaintiffs’ daily activities as psychiatrists at 10 API. 11 Given the foregoing analysis, Plaintiffs’ refusal to resign in these 12 circumstances is protected expressive conduct. There is no dispute that this conduct 13 14 was the reason Defendants fired Plaintiffs, and that they would not have been fired but 15 for this conduct. It therefore falls on Defendants to show that Plaintiffs’ First 16 Amendment rights are outweighed by the interest the government has “in promoting 17 18 the efficiency of the public services it performs through its employees.”124 They can 19 do this by demonstrating some actual disruption stemming from the message. This 20 includes speech or conduct that impairs discipline, disrupts co-worker harmony, 21 22 negatively impacts confidential working relationships, impedes the performance of an 23 employee’s duties, or interferes with regular operations.125 No such showing has been 24 made, or even asserted, here. Indeed, any such disruptive effects shown in the record 25 26

27 122 Id. at 1099 (quoting Garcetti v. Ceballos, 547 U.S. 410, 422, 424 (2006)). 123 Lane v. Franks, 573 U.S. 228, 240 (2014). 28 124 Pickering, 391 U.S. at 568. 125 Rankin v. McPherson, 483 U.S. 378, 388 (1987). 1 appear to be a product of the resignation plan itself.126 Without any outweighing 2 interests, Defendants could not terminate Plaintiffs for their protected expressive 3 conduct without running afoul of the First Amendment. 4 5 5. Qualified immunity 6 Defendants argue that regardless of any underlying constitutional 7 violation, they are entitled to qualified immunity that shields them from Plaintiffs’ 8 9 § 1983 claim for damages.127 “The doctrine of qualified immunity shields officials 10 from civil liability so long as their conduct does not violate clearly established . . . 11 constitutional rights of which a reasonable person would have known.”128 Given the 12 Court has found a First Amendment violation, the remaining issue to be determined is 13 14 whether Plaintiffs’ rights in relation to the demand for resignations and their 15 subsequent refusal to comply were clearly established. A right is clearly established 16 when it has a “sufficiently clear foundation in then-existing precedent.”129 The rule 17 18 must be “dictated by controlling authority or a robust consensus of cases of persuasive 19 authority.”130 “There does not need to be a ‘case directly on point,’ but existing 20 precedent must place the statutory or constitutional question ‘beyond debate.’”131 The 21 22 right cannot be defined with a “high level of generality.”132 This particularly is so 23 126 Dockets 54-2; 54-5; 54-7; 54-8. 24 127 Qualified immunity is only an immunity from suit for damages, not immunity from suit for declaratory or injunctive relief. L.A. Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 25 1993). 26 128 Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quotations omitted). 129 Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108, 1112 (9th Cir. 27 2020) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). 130 Id. (quoting Wesby, 138 S. Ct. at 589–90). 28 131 Id. (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). 132 Id. 1 when the circumstances involve quick judgments made by officials in uncertain and 2 rapidly evolving circumstances, or when an outcome is otherwise highly fact 3 dependent.133 4 5 With due consideration of the case law discussed in the preceding 6 sections, the Court finds that the First Amendment violation in these circumstances 7 was clearly established and would have been known to any reasonable government 8 9 official. It is beyond debate based on Supreme Court precedent that it is 10 unconstitutional to require non-policymaking employees to signal a commitment to a 11 political agenda in order to retain their jobs. The purpose and effect of Defendants’ 12 employment practice was the same as in the seminal cases discussed above, placing 13 14 Defendants on notice that their resignation plan triggered application of these long- 15 standing precedents. It is not the specific details of the patronage practice that matter 16 in the application of the case law; rather, it is whether the practice would interfere with 17 18 an employee’s political beliefs or otherwise inhibit the political activities of public 19 employees. That effect is beyond debate here. As noted above, the nature of the 20 demand was political. As a condition to retained employment, employees had to offer 21 22 a resignation that represented a commitment to serve under a new governor and to 23 support his political agenda. Those that did not want to signal support of the governor’s 24 political agenda would be fired. For those who gave the ostensible pledge of support, 25 the demand admittedly served as a warning that they were replaceable and that they 26 27 28 133 Id. at 1112–13; Gilbrook v. City of Westminster, 177 F.3d 839, 867 (9th Cir. 1999). 1 worked for the new governor, which reasonably could be interpreted as a warning 2 against political dissention in the state workforce. This warning would be expected to 3 chill employees’ political affiliations and activities that officials would consider 4 5 subversive to the administration’s agenda. The Supreme Court has repeatedly stated 6 that employment practices with this effect inhibit the right to free association. 7 It also is clearly established that a government employer may not 8 9 terminate a non-policymaking employee based upon his expressive conduct absent an 10 appropriate government interest. It is without question that Plaintiffs’ terminations for 11 refusing to resign runs afoul of this law. The Ninth Circuit has specifically held that 12 when an employee intends to convey an implicit message of disapproval of an official’s 13 14 activity by refusing to facilitate or participate in that activity, and the message relates 15 to a political matter, it is speech that implicates the First Amendment.134 In Nunez, the 16 plaintiff was a court administrator who was instructed by a judge to limit attendees at 17 18 training seminars to those employees who had worked on the judge’s campaign. In 19 protest of the directive, the plaintiff arranged for two employees who did not work on 20 the reelection campaign to attend a training seminar and consequently was fired. The 21 22 Ninth Circuit found that the plaintiff’s refusal to comply was an implicit repudiation 23 of the judge’s discrimination against other employees and therefore was expressive 24 25

26 134 Nunez, 169 F.3d at 1227–28 (holding that an employee’s refusal to limit attendees at training seminars to those court employees who had worked on her supervisor’s reelection campaign 27 was expressive conduct on a matter of public concern); Thomas, 379 F.3d at 809 (recognizing that a plaintiff’s refusal to acquiesce to a supervisor’s treatment of another employee—by promoting that 28 employee against the supervisor’s wishes—with an intention to convey her disapproval of the supervisor’s unlawful retaliation against that employee would be protected expressive conduct). 1 conduct that touched upon a matter of public concern. The evidence in that case 2 demonstrated that the plaintiff intended to convey a message of disapproval and that 3 her intention was understood by others. The same situation is presented on the record 4 5 here. Plaintiffs’ refusal to resign was intended to convey disapproval of the political 6 nature of the demand and was communicated as, and understood to be, an act of protest. 7 The political nature of Plaintiffs’ message was obvious, and the law clearly established 8 9 that the resignation request could not be considered part of their duties at API. 10 Furthermore, while the issue of the government’s interest in these free speech cases 11 can hinge on disputed facts about the nature and extent of any workplace disruption, 12 no such government interest has been asserted here. Therefore, the Court cannot 13 14 conclude that the situation presented some fact-sensitive, content-specific analysis that 15 would make the application of existing case law uncertain. 16 Defendants assert they are entitled to qualified immunity, at least as to 17 18 Dr. Blanford’s § 1983 claim, because there is no existing case law which would have 19 put them on notice that an employee operating as the head of one of the departments 20 in a state-run hospital could not occupy the role of a policymaker for purposes of the 21 22 First Amendment. They assert the issue is too fact dependent to clearly be established. 23 This Court disagrees. It is well understood that a non-policymaking public employee 24 cannot be fired for reasons encompassing political speech or affiliation. The 25 established case law makes it clear that determining whether an employee occupies a 26 27 policymaking position is a matter of that position’s particular job duties and requires a 28 showing that political affiliation is a part of those job duties. Here, Defendants asked 1 for resignations in a manner that the Court has concluded clearly was violative of First 2 Amendment political association rights from almost all at-will employees, without any 3 regard to the particular positions they held. It reasonably would be understood that the 4 5 requests went to people not occupying policymaking positions, and that their demand 6 would violate at least some employees’ First Amendment rights. More specifically, 7 there is no dispute about the nature of Dr. Blanford’s job duties, and those duties would 8 9 have been well known to officials making employment decisions of this nature. As the 10 preceding analysis shows, none of his job duties suggest under the relevant factors that 11 the position of chief of psychiatry at API is one where political consideration would 12 come into play. In other words, Defendants could not have reasonably believed 13 14 Dr. Blanford occupied a political position in light of his clearly defined and medically 15 related job duties; indeed, there was no actual individual consideration of his position 16 prior to his termination. 17 18 B. Plaintiffs’ Free Speech Claim under Article 1, § 5 of the Alaska Constitution 19

20 The Alaska Constitution in Article 1, § 5 protects citizens’ right to free 21 speech. Generally speaking, Alaska’s public employee free speech cases rely heavily 22 on federal law,135 but the Alaska Constitution is applied more broadly in protecting 23 speech. 136 Consequently, given the First Amendment violation present in the 24 25 circumstances here, Defendants’ conduct also violated Alaska’s free speech 26 27 135 See Wickwire v. State, 725 P.2d 695, 703 (Alaska 1986); State v. Haley, 687 P.2d 305, 312 28 (Alaska 1984). 136 Club SinRock, LLC v. Anchorage, 445 P.3d 1031, 1037–38 (Alaska 2019). 1 protections. The Court notes, however, there is no implied private cause of action for 2 damages under the Alaska Constitution unless the case involves flagrant violations 3 where no alternative remedies are otherwise available.137 Given the Court’s ruling in 4 5 favor of Plaintiffs on their federal § 1983 claim, Plaintiffs cannot seek damages for the 6 state constitutional violation, only declaratory and injunctive relief.138 7 C. Good Faith and Fair Dealing 8 9 Under Alaska law, all at-will employment is governed by an implied 10 covenant of good faith and fair dealing.139 The covenant prohibits an employer from 11 terminating an employee for the purpose of depriving the employee of the contract’s 12 benefits and from dealing with the employee in a manner that a reasonable person 13 14 would regard as unfair.140 “Unfair actions include disparate employee treatment, 15 terminations on grounds that are unconstitutional, and firing that violates public 16 policy.”141 Defendants ask for summary judgment on this claim. They argue that the 17 18 basis of Plaintiffs’ good faith claim is the First Amendment violation, and they contest 19 that any such violation occurred. However, the Court has found in Plaintiffs’ favor as 20 to their constitutional claims, voiding Defendants’ basis for summary judgment. 21 22 Plaintiffs have not moved for summary judgment on this claim. It is 23 unclear from their complaint what additional remedies Plaintiffs seek under this claim 24 25

26 137 Larson v. State, 284 P.3d 1, 9–10. 138 Id. 27 139 Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 (Alaska 2008). 140 Id. at 761. 28 141 Montella v. Chugachmiut, 283 F. Supp. 3d 774, 780 (D. Alaska 2017) (citing Crowley v. State, 253 P.3d 1226, 1232 (Alaska 2011)). 1 that are not provided for pursuant to their § 1983 claim, and unclear whether Plaintiffs 2 have reason to pursue further litigation on this issue apart from the federal claim. 3 V. CONCLUSION 4 5 Based on the preceding discussion, Plaintiffs’ motion at docket 54 is 6 GRANTED, and Defendants’ motion at docket 55 is DENIED. The Court hereby 7 orders as follows: 8 9 (1) Plaintiffs are entitled to judgment on their § 1983 claim for 10 damages against Defendant Governor Dunleavy and Defendant Babcock in 11 their personal capacities based upon the First Amendment violation articulated 12 in the Court’s order. 13 14 (2) Plaintiffs are entitled to judgment on their § 1983 claim for 15 declaratory relief and injunctive relief, to the extent the requested relief is 16 prospective in nature, against Defendant Governor Dunleavy in his official 17 18 capacity. 19 (3) Plaintiffs are entitled to judgment on their free speech 20 claim brought under Article I, § 5 of the Alaska Constitution. 21 22 Counsel are instructed to promptly confer and then, within 14 days from 23 this order’s date, to file a notice that identifies the remaining issues for litigation, 24 including whether Plaintiffs are pursuing their state claim for good faith and fair 25 dealing and what specific injunctive and monetary relief they seek for each claim. The 26 27 notice also should suggest a schedule for resolving the outstanding issues. 28 1 IT IS SO ORDERED this 8th day of October, 2021, at Anchorage, 2 Alaska. 3

4 /s/ John W. Sedwick 5 JOHN W. SEDWICK Senior United States District Judge 6

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