United States District Court, D. Alaska
ORDER AND OPINION
W. Sedwick, Senior United States District Judge.
docket 8, plaintiff Elizabeth Bakalar moves to consolidate
this case with Case Number 3:19-cv-00036, Anthony L.
Blanford and John K. Bellville v. Michael J. Dunleavy, et
al., pursuant to Fed.R.Civ.P. 42(a). Blanford and
Bellville join in the motion.
Bakalar was an assistant attorney general employed in the
Department of Law for more than 12 years. She was regularly
promoted, and her job performance was consistently good. Her
position at the department was not a policy making position.
She occasionally spoke publicly on national issues. She wrote
a blog on her own time. After the election of President
Trump, her blog included negative comments about him. Anthony
L. Branford, M.D., was employed as the director of Psychiatry
at the Alaska Psychiatric Institute ("API"). John
K. Belleville, M.D. worked as a psychiatrist at API in a
locum tenens position.
J. Dunleavy, a conservative Republican, was elected to be
Alaska's new governor in November of 2018. Dunleavy
selected Tuckerman Babcock, who was serving as the chair of
the Alaska Republican Party, to be his chief of staff. During
the transition period before Dunleavy took office, Babcock
sent letters to over 1, 200 at-will State employees asking
for their resignations. According to Babcock the resignations
were requested so that the at-will employees could respond by
pledging allegiance to Dunleavy's policy goals. An
employee not offering the pledge by November 30, 2018, put
her employment at risk of termination.
after Dunleavy took office, all three plaintiffs were fired.
Bakalar submitted the requested resignation, which was
accepted. She alleges that she was fired because of her
political expressions which were inimical to the views held
by Dunleavy and Babcock. Blanford wrote an op-ed which
appeared in the Anchorage Daily News explaining why he
believed demanding the doctors' resignations was not
appropriate. The doctors took the position that their first
duty was to their patients and providing the pledge was
inconsistent with that duty. Blanford and Bellville were
fired for refusing to pledge allegiance to Dunleavy's
contend that the cases present identical questions of law in
that the defendants retaliated against each of them because
they exercised their First Amendment right to free speech.
Plaintiffs also argue that the cases present common questions
of fact. According to plaintiffs, the only differences are
that Bakalar "alleges that she was fired in retaliation
for exercising her free speech rights by blogging about
national politics, while [Blanford and Bellville] allege that
they were fired in retaliation for exercising their free
speech rights when they refused to offer resignations under
the conditions announced by Defendants Babcock and
Dunleavy." Plaintiffs urge that consolidation will
promote judicial economy, avoid inconsistent results, and
will not prejudice defendants.
of the Federal Rules of Civil Procedure gives courts
discretion to consolidate cases that involve a common
question of law or fact. Rule 42 does not mandate
consolidation. Indeed, courts have broad discretion when
deciding whether consolidation is appropriate. The party asking
for consolidation bears the burden to show that the benefits
of consolidation outweigh any negative consequence of
cases involve First Amendment claims and both arise in a
context in which Dunleavy and Babcock were seeking to extract
a pledge of allegiance to Dunleavy's conservative policy
agenda. However, resolving the two cases will require
consideration of distinct First Amendment claims.
claim turns on the proposition that she was fired for
expressing views that defendants did not like. In contrast,
the doctors were not fired for speaking. They were fired for
refusing to speak by pledging allegiance. Were the case tried
to a single jury there would be a significant risk of
confusing the jury as the evidence was presented. There would
need to be separate sets of jury instructions which might
also confuse the jury. A single trial of both cases would
impose case management burdens on the court in an effort to
avoid such confusion.
from the defendants themselves, there would be little or no
overlap of liability witnesses. Moreover, there would be
different damages witnesses for Bakalar's claim than for
the doctors' claims. Consolidation would not achieve any
economy with respect to hearing testimony and evaluating
not clear that one complicated trial would take significantly
less time than two simpler trials. The only extra time
required for two trials would be the need for two jury
selections. Even there, each jury selection would be simpler