Akers v. McGinnis

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Akers, et al. v. McGinnis, et al. No. 01-1383

ELECTRONIC CITATION: 2003 FED App. 0419P (6th Cir.)

File Name: 03a0419p.06

Appeal from the United States District Court

UNITED STATES COURT OF APPEALS for the Western District of Michigan at Marquette.

No. 97-00325—Gordon J. Quist, District Judge.

FOR THE SIXTH CIRCUIT

_________________ Argued: October 15, 2002

DAWN AKERS; KIM X Decided and Filed: December 1, 2003

LARANGER , UNITED -

- Before: BOGGS, Chief Judge; and SUHRHEINRICH and

AUTOMOBILE , AEROSPACE , CLAY, Circuit Judges.

- No. 01-1383

AND AGRICULTURAL

-

IMPLEMENT WORKERS OF > _________________

,

AMERICA , LOCAL 6000; AKUA -

MITCHELL -DAVIS, COUNSEL

-

Plaintiffs-Appellants, - ARGUED: Miranda K.S. Massie, SCHEFF &

- WASHINGTON, Detroit, Michigan, for Appellants. John L.

v. - Thurber, OFFICE OF THE ATTORNEY GENERAL,

- CORRECTIONS DIVISION, Lansing, Michigan, for

- Appellees. ON BRIEF: Miranda K.S. Massie, SCHEFF &

KENNETH MCGINNIS; ROBERT -

WASHINGTON, Detroit, Michigan, for Appellants. John L.

STEINMAN; MARSHA - Thurber, OFFICE OF THE ATTORNEY GENERAL,

FORESMAN; PATRICIA - CORRECTIONS DIVISION, Lansing, Michigan, for

CARUSO ; JOHN MARSHALL; - Appellees. Michael J. Steinberg, AMERICAN CIVIL

EDWARD HAGGERTY ; - LIBERTIES UNION FUND OF MICHIGAN, Detroit,

- Michigan, for Amicus Curiae.

GEORGE MARRA ; WILLIAM -

OVERTON; RUTH BARE ; - BOGGS, C. J., delivered the opinion of the court, in which

FRANK EISENHAUER; JOSEPH - SUHRHEINRICH, J., joined. CLAY, J. (pp. 23-43),

JERECKOS; JOHN MAKOWSKI; - delivered a separate opinion concurring in part and dissenting

TERRY PITCHER; KIRK - in part.

MCVITTIE; GWEN RODGERS , -

-

in their Personal and Official -

Capacities, Jointly and -

Severally, -

Defendants-Appellees. N

1

No. 01-1383 Akers, et al. v. McGinnis, et al. 3 4 Akers, et al. v. McGinnis, et al. No. 01-1383

_________________ “subject[ed] an employee to disciplinary action up to and

including dismissal[].” A non-exhaustive list of improper

OPINION actions included “exchange of letters, money or items, . . .

_________________ cohabitation [except in case of a pre-existing marriage], being

at the home of [an offender] for reasons other than an official

BOGGS, Chief Judge. Plaintiffs, Dawn Akers and Kim visit without reporting the visit, . . . giving [offender]

Loranger, a current and a former employee of the Michigan [employee’s] home telephone number, [and] sexual contact of

Department of Corrections (“MDOC”), and their union, the any nature.” (emphasis in original). Furthermore, the Rule

United Automobile, Aerospace, and Agricultural Implement required reporting of “[a]ny contact made with [an offender],

Workers of America, Local 6000 (“UAW”), appeal the or their family member(s), outside the regular performance of

district court’s summary judgment for the defendants, an employee’s job.” In June 1996, Rule 12 was

Kenneth McGinnis, the director of the MDOC, and numerous repromulgated as Rule 24. In September 1999, during the

other listed MDOC administrators. The plaintiffs had sued on course of this litigation, Rule 24 was replaced by a

the grounds that an MDOC rule (“Rule”) that barred all substantially identical Rule 46. Finally, in April 2000, Rule

MDOC employees from any non-work-related contact with 46 was revised to clarify the definitions of family member

prisoners, parolees, probationers (“offenders”), their relatives and visitor and recognize the power of the MDOC to grant

and visitors, violated their “clearly established rights to individual employees limited exemptions to the Rule. To

privacy, association, and due process guaranteed by the First, receive such an exemption allowing contact with offenders’

Third, Fourth, Fifth, Ninth, and Fourteenth Amendment to the visitors or family members, but not offenders themselves, an

United States Constitution.” Specifically, the plaintiffs employee would have to submit a misleadingly titled

sought reinstatement after discharge for violating the Rule, “Offender Contact Exception Request” form and await

expungement from the plaintiffs’ disciplinary records of any approval from the Director of the MDOC or a designee.

reference to a violation of the Rule, and compensatory and From the creation of the exception procedure to July 23,

punitive damages. On cross-motions for summary judgment, 2001, 226 such exceptions had been sought and of these 223

the district court held that the Rule was constitutional and that had been granted.

the defendants enjoyed qualified immunity. Plaintiffs now

appeal the holdings that the Rule was not contrary to the Plaintiff Loranger, then a Wayne County probation officer,

freedom of association guaranteed by the First and Fourteenth was contacted by a man she had dated before becoming an

Amendments and that the defendants enjoyed qualified MDOC employee and who was then serving a life sentence

immunity. We affirm. without parole in a prison outside her jurisdiction. She

exchanged several letters with him. When Loranger realized

I that she was in violation of the Rule, she approached her

supervisor about the matter. Four months later, she was

At all times relevant to this litigation, the MDOC has had terminated for her Rule violation. Plaintiff Akers, while a

a Rule barring employees from “Improper Relationships with bookkeeper at a correctional facility in Chippewa County, had

Prisoners, Parolees or Probationers, Visitors or Families.” befriended a prisoner clerk. Shortly after the prisoner’s

This Rule, originally known as Rule 12, strictly prohibited release, Akers gave him a ride in her car to a job interview.

“improper or overly familiar conduct with [offenders] or their For this violation of the Rule, she also was terminated by the

family members or visitors.” Violations of the Rule MDOC. Both women had previously been positively

No. 01-1383 Akers, et al. v. McGinnis, et al. 5 6 Akers, et al. v. McGinnis, et al. No. 01-1383

evaluated by their supervisors and in neither case is there an MDOC and qualified immunity to the individual named

allegation that their specific conduct had adversely affected defendants. Here the plaintiffs appeal this grant of summary

the MDOC’s function. Plaintiff UAW represents about two judgment and qualified immunity.

thousand clerical and professional employees of the MDOC,

among them Loranger and Akers. UAW does not represent II

any prison guards.

The MDOC contends that any challenges to the previous

In March 1997, the plaintiffs filed a complaint in the United versions of the Rule were mooted when it adopted its current

States District Court for the Western District of Michigan and version. However, a “defendant’s voluntary cessation of

the case was assigned to a magistrate judge. During the allegedly unlawful conduct ordinarily does not suffice to

following months, labor arbitrators set aside the discharges of moot a case.” Jones v. City of Lakeland, 224 F.3d 518, 529

both Loranger and Akers and instead imposed relatively brief (6th Cir. 2000) (en banc) (quoting Friends of the Earth v.

suspensions on both women. As the plaintiffs had also sought Laidlaw Envtl. Servs., 528 U.S. 167, 174 (2000)). “A case

the purging of their disciplinary record of any reference to the might become moot if subsequent events made it absolutely

Rule violation as well as monetary damages, their clear that the allegedly wrongful behavior could not

reinstatement did not moot the action. After her reinstatement reasonably be expected to recur.” Jones, 224 F.3d at 529

and during the pendency of the case, Loranger repeatedly (quoting United States v. Concentrated Phosphate Export

sought permission to have contact with Rebecca Contreras, a Ass’n, 393 U.S. 199, 203 (1968)). “The ‘heavy burden of

long-standing friend whose son had been placed on probation, persua[ding]’ the court that the challenged conduct cannot

and was repeatedly denied. When Loranger became pregnant reasonably be expected to start up again lies with the party

and wished Contreras to be her child’s godmother, she sought asserting mootness.” Jones, 224 F.3d at 529 (quoting

and was granted a preliminary injunction ordering the MDOC Laidlaw, 528 U.S. at 170). In the present case, as the

to allow Loranger to invite Contreras to her child’s baptism. promulgation of work rules appears to be solely within the

Loranger also continued to request permission to have contact discretion of the MDOC, there is no guarantee that MDOC

with Stacey Artley, a young woman to whom Loranger was will not change back to its older, stricter Rule as soon as this

a “Big Sister” and who then was on probation. Akers, during action terminates. Moreover, as the plaintiffs could be

the pendency of this action, transferred to a position with the entitled to money damages and the purging of their

Michigan Department of Natural Resources, mooting her disciplinary records if the old version of the Rule were found

claims for prospective relief. On cross-motions for summary to be unconstitutional even if the current version was

judgement, the magistrate judge issued a report and constitutional, the issue is not moot and it is incumbent on

recommendation, which proposed finding the original Rule to this court to examine all versions of the Rule. We begin by

be unconstitutional under the First and Fourteenth analyzing the original version of the Rule without the

Amendments, expunging Akers’s and Loranger’s disciplinary exception procedure.

record, and declaring moot the challenge to the current

version of the Rule. However, the district court rejected the The plaintiff’s claims of constitutional violation are based

report and recommendation and found that there was a live upon two analytically distinct forms of freedom of

controversy regarding both the current and the old version of association: freedom of intimate association, protected under

the Rule, but also that all versions of the Rule were the Substantive Due Process component of the Fourteenth

constitutional, and therefore granted summary judgement to Amendment, and freedom of expressive association, protected

No. 01-1383 Akers, et al. v. McGinnis, et al. 7 8 Akers, et al. v. McGinnis, et al. No. 01-1383

under the Freedom of Speech Clause of the First Amendment. In Pickering v. Board of Education, 391 U.S. 563 (1968),

See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 the Supreme Court denied that government employees “may

(1984). With respect to intimate association, “the Court has constitutionally be compelled to relinquish the First

concluded that choices to enter into and maintain certain Amendment rights they would otherwise enjoy as citizens to

intimate human relationships must be secured against undue comment on matters of public interest in connection with the

intrusion by the State because of the role of such relationships operation of the [institution] in which they work.” Id. at 568.

in safeguarding the individual freedom that is central to our But while the Court has long rejected Holmes’s famous

constitutional scheme. In this respect, freedom of association dictum on the free speech right of government employees,1 it

receives protection as a fundamental element of personal also concluded “that the State has interests as an employer in

liberty.” Ibid. With respect to expressive association, “the regulating the speech of its employees that differ significantly

Court has recognized a right to associate for the purpose of from those it possesses in connection with regulation of the

engaging in those activities protected by the First speech of the citizenry in general. The problem in any case

Amendment–speech, assembly, petition for the redress of is to arrive at a balance between the interests of the

grievances, and the exercise of religion. The Constitution [employee], as a citizen, in commenting upon matters of

guarantees freedom of association of this kind as an public concern and the interest of the State, as an employer,

indispensable means of preserving other individual liberties.” in promoting the efficiency of the public services it performs

Id. at 618. As “the nature and degree of constitutional through its employees.” Ibid.

protection afforded freedom of association may vary

depending on the extent to which one or the other aspect of In Connick v. Myers, 461 U.S. 138 (1983), the Court further

the constitutionally protected liberty is at stake in a given amplified on this issue.

case,” it is necessary to examine the Rule as a potential

infringement of both intimate association and expressive When employee expression cannot be fairly considered

association. Ibid. as relating to any matter of political, social, or other

concern to the community, government officials should

A enjoy wide latitude in managing their offices, without

intrusive oversight by the judiciary in the name of the

State employees’ freedom of expressive association claims First Amendment. Perhaps the government employer’s

are analyzed under the same standard as state employees’ dismissal of the worker may not be fair, but ordinary

freedom of speech claims. See Boals v. Gray, 775 F.2d 686, dismissals from government service which violate no

692 (6th Cir. 1985). “Because the analytic tools for fixed tenure or applicable statute or regulation are not

adjudicating First Amendment retaliation claims under the subject to judicial review even if the reasons for the

Free Speech Clause have been so extensively developed, dismissal are alleged to be mistaken or unreasonable.

courts in this and other circuits have tended to import fully

that reasoning when litigants have characterized their claims

as arising under another First Amendment clause.”

Thaddeus-X v. Blatter, 175 F.3d 378, 390 (6th Cir. 1999) (en

banc). The contours of state employees’ freedom of speech 1

in turn are defined by two leading Supreme Court precedents. A policeman “may have a constitutional right to talk politics, but he

has no constitutional right to be a policeman.” McAuliffe v. City of New

Bedford, 29 N.E. 517 , 517 (M ass. 1892) (Holmes, J.).

No. 01-1383 Akers, et al. v. McGinnis, et al. 9 10 Akers, et al. v. McGinnis, et al. No. 01-1383

Id. at 146. In general, and outside the area of issues of public In Pickering and Connick, the Supreme Court created a test

concern, the First Amendment provides no greater protection containing two levels of scrutiny.2 Restraints on government

against discipline or discharge to government employees than employee speech, or, as in the present case, government

it does to private employees: employee association, touching on a matter of public concern

must meet the Pickering test balancing between the interests

[W]hen a public employee speaks not as a citizen upon of the employee and the interests of the state. We have

matters of public concern, but instead as an employee characterized this test as a “form of intermediate scrutiny.”

upon matters only of personal interest, absent the most Montgomery v. Carr, 101 F.3d 1117, 1129 n.7 (6th Cir.

unusual circumstances, a federal court is not the 1996). Restraints on government employee speech, or

appropriate forum in which to review the wisdom of a government employee association, not touching on a matter

personnel decision taken by a public agency allegedly in of public concern, are subject merely to rational basis

reaction to the employee’s behavior. . . . Our scrutiny. In either case, it is the court’s task to apply the test

responsibility is to ensure that citizens are not deprived to the facts. See Waters v. Churchill, 511 U.S. 661, 671

of fundamental rights by virtue of working for the (1994). This bifurcated test remains the law. The Supreme

government; this does not require a grant of immunity for Court’s most recent extensive disquisition on this subject,

employee grievances not afforded by the First while providing further instruction on the proper balancing of

Amendment to those who do not work for the state. governmental interests and the interest of government

employees to speak on matters of public concern, adopts

Id. at 147. Moreover, the Court cautioned against an overly without further elaboration the Pickering/Connick distinction

broad construction of the ambit of the public concern: between matters that are of public concern and those which

are not. United States v. Nat’l Treasury Employees Union,

To presume that all matters which transpire within a 513 U.S. 454, 465-66 (1995).

government office are of public concern would mean that

virtually every remark–and certainly every criticism The question of what speech or association touches on a

directed at a public official–would plant the seed of a matter of public concern is by necessity a question for case-

constitutional case. While as a matter of good judgment, by-case adjudication. See Dambrot v. Cent. Mich. Univ., 55

public officials should be receptive to constructive F.3d 1177, 1186 n.8 (6th Cir. 1995) (collecting Sixth Circuit

criticism offered by their employees, the First precedent concerning what speech is a matter of public

Amendment does not require a public office to be run as concern).

a roundtable for employee complaints over internal office

affairs.

Id. at 149.

2

Plaintiffs also cite some older Suprem e Court precedents containing

broad and aspirational language regarding the Free Speech rights of

public emp loyees. See, e.g., Shelton v. Tucker, 364 U.S. 479, 488 (196 0);

United States v. Robel, 389 U.S. 258 , 265 -66 (1 967 ); Keyishian v. Bd. of

Reg ents, 385 U.S. 589 (1967). As these cases cover the same ground as

the more recent and specific Supreme Court precedents relied upon

herein, we nee d not here d ecide the old er cases’ present vitality.

No. 01-1383 Akers, et al. v. McGinnis, et al. 11 12 Akers, et al. v. McGinnis, et al. No. 01-1383

In general, a matter of public concern is a matter of of the offices in which they work,” but were made to public

political, social, or other concern to the community. It is audiences are deemed to touch on matters of public concern.

important, however, to distinguish matters of public Nat’l Treasury Employees Union, 513 U.S. at 465-66.

concern from internal office politics. Federal courts

normally do not review personnel decisions reacting to Almost all conceivable association affected by the Rule and

an employee’s behavior when a public employee speaks all association alleged to have been discouraged by the Rule

not as a citizen upon matters of public concern, but do not touch on matters of public concern. Loranger wishes

instead as an employee upon matters of only personal to have contacts with an old friend and her “Little Sister.”

interest. The mere fact that public monies and Akers wishes to assist a probationer whom she befriended.

government efficiency are related to the subject of a While all of these impulses are entirely understandable, even

public employee’s speech does not, by itself, qualify that laudable, they are purely private matters of little or no

speech as being addressed to a matter of public concern. concern to the community as a whole. The plaintiffs also

If the speech is not related to a matter of public concern, envision hypothetical situations in which they are prevented

we do not evaluate the reasons for the decision. from contacting a union official who is also related to an

offender. But even such hypothetical situations do not rise to

Jackson v. Leighton, 168 F.3d 903, 909-10 (6th Cir. 1999) the level of public concern because mere individual labor

(internal citations, alterations, and quotation marks omitted). grievances are not matters of public concern. See, e.g.,

“To determine whether the speech involves a matter of public Connick, 461 U.S. at 154; Boals, 775 F.2d at 693.

concern, we look to the content, form, and context of the

statements in light of the record as a whole.” Id. at 910. Plaintiffs come closest to alleging interference with an

“Furthermore, the court must determine the point of the association touching on the public concern when asserting

speech in question . . . because controversial parts of speech their right to contact a political party official who was also the

advancing only private interests do not necessarily invoke uncle of an offender. If such association is made for a

First Amendment protection.” Hardy v. Jefferson Cmty. purpose such as campaigning for public office, it would

Coll., 260 F.3d 671, 678 (6th Cir. 2001) (internal quotation arguably touch on a matter of public concern. However, a

marks, alterations, and citations omitted). The Supreme separate line of cases has upheld against constitutional

Court has indicated that the “question of whether expression challenge governmental restrictions on public employees’

is of a kind that is of legitimate concern to the public is also partisan political activities:

the standard in determining whether a common-law action for

invasion of privacy is present.” Connick, 461 U.S. at 143 n.5. Congress had, and has, the power to prevent [government

Few indicia of speech are dispositive. “[A]n employee’s employees] from holding a party office, working at the

speech, activity or association, merely because it is polls, and acting as party paymaster for other party

union-related, does not touch on a matter of public concern as workers. An Act of Congress going no farther would in

a matter of law.” Boals, 775 F.2d at 693. Nor are statements our view unquestionably be valid. So would it be if, in

made privately necessarily outside the reach of the public plain and understandable language, the statute forbade

concern rule. Givhan v. W. Line Consol. Sch. Dist., 439 U.S. activities such as organizing a political party or club;

410, 414 (1979). However, government employees’ speeches actively participating in fund-raising activities for a

and articles that “ha[d] nothing to do with their jobs and [did] partisan candidate or political party; becoming a partisan

not even arguably have any adverse impact on the efficiency candidate for, or campaigning for, an elective public

No. 01-1383 Akers, et al. v. McGinnis, et al. 13 14 Akers, et al. v. McGinnis, et al. No. 01-1383

office; actively managing the campaign of a partisan the potential for exploitation of vulnerable offenders by

candidate for public office; initiating or circulating a MDOC employees, or vulnerable MDOC employees by

partisan nominating petition or soliciting votes for a offenders, needs no elaboration. The MDOC’s interest in

partisan candidate for public office; or serving as a preventing such exploitation is only somewhat attenuated in

delegate, alternate or proxy to a political party cases where the employee has no direct supervisory authority

convention. Our judgment is that neither the First over the offender. Even clerical workers without any penal

Amendment nor any other provision of the Constitution authority can by the mere manipulation of paperwork greatly

invalidates a law barring this kind of partisan political affect an offender’s status for better or worse, or at least be

conduct by federal employees. pressured into attempting to do so. The inclusion of

offenders’ visitors and families into the class with whom

United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter contact is forbidden may be necessary to prevent the use of

Carriers, 413 U.S. 548, 556 (1973); see also Carver v. third parties to circumvent the ban on direct contact and

Dennis, 104 F.3d 847, 853 (6th Cir. 1997) (finding no influence. The MDOC’s interest is clearly legitimate, and the

violation of associational or free speech rights when county Rule is a rational means for advancing the interest.

clerk terminated subordinate who decided to run for the same Therefore, the Rule withstands challenge on the basis of

office). Thus, the actual associations denied to the plaintiffs, freedom of expressive association.4

as well as hypothetical associations suggested in the

plaintiffs’ briefs, either do not touch on a matter of public B

concern, or may be otherwise restrained.

The plaintiffs also claim that the Rule interfered with their

The MDOC easily meets the rational basis test for the non- personal friendships. Personal friendship is protected as an

public association restrained by the Rule.3 The MDOC has a intimate association. Corrigan v. City of Newaygo, 55 F.3d

legitimate interest in preventing fraternization between its 1211, 1214-15 (6th Cir. 1995). This court explicated the

employees and offenders and their families. Given the proven appropriate level of scrutiny for restraints on the freedom of

willingness of offenders to break the law, often violently, to intimate association in Montgomery.5 In that case, we

reach their ends, on the one hand, and the near-plenary power considered a challenge, as contrary the freedom of intimate

over offenders entrusted to MDOC employees, on the other,

4

This conclusion is also in agreement with the only decision of a

3 sister circuit examining similar polices, even under a heightened standard.

The plaintiffs compla in that the M DO C has not here laid o ut a

carefully reasoned defense of the interest u nderlying the Rule and the Ross v. Clayton C oun ty, 173 F.3d 1305, 1310-11 (11th Cir. 1999)

relationship betwe en these interests and the Rule. However, under (upholding, under Pickering balan cing test stipulated to by the parties,

rational basis review, a “profferred explanation for the statute need not be Georgia Department of Corrections regulation prohibiting contact

supported by an exquisite evidentiary record; rather we will be satisfied between its employees and offenders).

with the government’s ‘rational speculation’ linking the regulation to a 5

legitimate purpose, even ‘unsupported by evidence or emp irical data.’” The plaintiffs object to the application o f Mo ntgom ery,

Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (quoting FCC v. characterizing it as a mere anti-nepotism case. However, given that

Beach Communications, 508 U.S. 307, 313 (1993)). The burden is on Mo ntgomery concerns a restraint on the same freedom of intimate

those who challenge the statute to “negative every conceivable basis that association at issue here, relies to a large extent on the same case law as

might support it.” Craigmiles, 312 F.3d at 22 4 (quoting Lehnhausen v. used by the plaintiffs, and in its reasoning does not depend on the specific

Lake Shore Auto Parts Co., 410 U.S. 356 , 364 (1973 )). features of the an ti-nepo tism rules, it is a highly relevant pre cedent.

No. 01-1383 Akers, et al. v. McGinnis, et al. 15 16 Akers, et al. v. McGinnis, et al. No. 01-1383

association, to a school district’s rule that barred employees Under these precedents, the Rule is subject only to rational

at the same school from marrying. 101 F.3d at 1117-21. We basis review, which–as we explained already–it passes. It

held that a “direct and substantial interference” with intimate does not prevent a large portion of MDOC employees from

association was subject to strict scrutiny, while lesser forming intimate associations; all MDOC employees continue

interferences merely merited rational-basis review. Id. at to enjoy the ability to form intimate associations–just not with

1124 (citing Zablocki v. Redhail, 434 U.S. 374, 383-84 offenders. Nor are those affected by the Rule absolutely or

(1978)). largely prevented from forming intimate associations with a

large portion of the otherwise eligible population. While the

The contours of a direct and substantial interference with plaintiffs stress the large offender population in Michigan, it

intimate association are illustrated by the case law. A total is only a little over 1% of the state’s population. Even if the

ban on marriage outside one’s ethnic group is a direct and number of visitors and family members should exceed the

substantial interference. Loving v. Virginia, 388 U.S. 1 number of offenders ten-fold, surely a generous estimate,

(1967). So is a requirement on non-custodial parents to MDOC employees would only be barred from intimate

obtain court permission before any remarriage. Zablocki, 434 association with about 10% of the state’s population (whereof

U.S. at 387. However, termination of Social Security benefits 9% are subject to routinely-granted exemption under the

for a disabled dependent child who marries someone current Rule). This is far from the absolute bar against

ineligible for benefits is not. Califano v. Jobst, 434 U.S. 47, marrying a majority of the jurisdiction’s population said in

58 (1977). Nor is a Department of Agriculture regulation that Loving to be a direct and substantial interference. Moreover,

treats husband and wife as one person for purposes of while the bar in Loving was absolute, the simple expedient of

calculating farm subsidies, Women Involved in Farm Econs. transferring to another part of the state government or taking

v. United States Dep’t of Agric., 876 F.2d 994, 1004 (D.C. employment in the private sector is available to MDOC

Cir. 1989), the Internal Revenue Code’s marriage penalty, employees here. In fact, one of the named plaintiffs in this

Druker v. Comm’r, 697 F.2d 46, 50 (2d Cir. 1982), requiring case undertook that step. While a transfer is undoubtedly an

a citizen-alien couple to fill out a form and submit to an INS inconvenience, it was not found to be a direct and substantial

interview, Aguila-Cisneros v. I.N.S., No. 99-3963, 2001 WL interference in Montgomery, nor was even a more serious

223969, at *2 (6th Cir. Feb. 27, 2001), or termination from employment consequence, termination, found to be such an

employment of a municipal employee who marries another interference in Vaughn.

municipal employee, Vaughn v. Lawrenceburg Power Sys.,

269 F.3d 703 (6th Cir. 2001). From this line of cases, we Amicus curiae American Civil Liberties Union argues that

have abstracted a general rule that we will find “direct and the Rule violates the constitutionally protected freedom of

substantial burdens only where a large portion of those association, not merely of MDOC employees, but also of

affected by the rule are absolutely or largely prevented from those not employed by the MDOC, such as family members

marrying, or where those affected by the rule are absolutely and visitors of offenders, who would associate with

or largely prevented from marrying a large portion of the employees but for the Rule. Initially, we recognize that First

otherwise eligible population of spouses.” Vaughn, 269 F.3d Amendment “protection afforded is to the communication, to

at 710 (6th Cir. 2001) (citing Montgomery, 101 F.3d at 1124- its source and to its recipients both.” Va. State Bd. of

25). Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748,

756 (1976). To the extent amicus suggests that the Rule

should therefore be judged not by the relatively lenient

No. 01-1383 Akers, et al. v. McGinnis, et al. 17 18 Akers, et al. v. McGinnis, et al. No. 01-1383

standard for the government-as-employer’s interference with necessary to sustain the Rule, this argument would not avail

private association, but by the more rigorous standard for the plaintiffs. A discretionary exemption procedure can doom a

government-as-sovereign’s interference with private statute subject to enhanced review under the First

association, it flies in the face of the Supreme Court’s and this Amendment. See, e.g., Forsyth County v. Nationalist

court’s precedent. Any association by definition involves two Movement, 505 U.S. 123, 130-31 (1992) (striking down

or more parties and restraining one party from associating will county ordinance giving discretion to administrator in

by necessity result in a concomitant effect on the other awarding of parade permits); City of Lakewood v. Plain

parties. In this regard, the association between MDOC Dealer Pub. Co., 486 U.S. 750, 757 (1988) (striking down

employees and offenders, their family members, and visitors city ordinance granting mayor unbridled discretion to permit

is no different than almost all other restrictions on association or prohibit distribution of private newspapers at public news

by government employees. Nothing in our precedents racks); Sec’y of State of Md. v. Joseph H. Munson Co., 467

indicates that the government only has enhanced authority to U.S. 947, 962 n.12 (1984) (striking down statute granting

regulate association between governmental employees or discretion to secretary of state to waive limits on charitable

others over whom it has enhanced authority. To the contrary, fund-raising expenses); Shuttlesworth v. City of Birmingham,

to hold as amicus suggest would eviscerate the rule that 394 U.S. 147, 150-51 (1969) (striking down city ordinance

“Congress may impose restraints on the job-related speech of granting broad discretion to commission to grant or deny

public employees that would be plainly unconstitutional if parade permits). Here, however, we subject a regulation to

applied to the public at large.” Nat’l Treasury Employees rational-basis review. A discretionary exemption procedure

Union, 513 U.S. at 465. Virginia State Board is not to the unable to meet the higher standard of review can still meet

contrary because “[f]reedom of speech presupposes a willing this highly-deferential one.

speaker” and the constitutional protections only become

effective “where [such] a speaker exists.” 425 U.S. at 756. Because the Rule is constitutional, the individual

Here, the government merely conditions employment on an defendants enjoyed qualified immunity. “In civil suits for

employee’s agreement not to become a willing speaker to or money damages, government officials are entitled to qualified

associate with a limited class of persons. The standard of immunity for discretionary acts that do ‘not violate clearly

review of such restrictions on employees is the one of established [federal] statutory or constitutional rights of

Pickering, Connick, and their progeny. which a reasonable person would have known.’” Goad v.

Mitchell, 297 F.3d 497, 501 (6th Cir. 2002) (quoting

As there is no dispute that the revised Rule is more lenient Anderson v. Creighton, 483 U.S. 635, 638-39 (1987), and

than the original Rule, which we upheld above, there is no Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To

need to decide whether the Rule is saved by the exemption determine if qualified immunity attaches, the Supreme Court

procedure grafted onto it. If the older Rule is constitutional, has delineated a two-part, sequential analysis.” Goad, 297

a fortiori so is the revised Rule. The plaintiffs object to the F.3d at 501 (citing Saucier v. Katz, 533 U.S. 194, 200-01

exemption procedure on the grounds that exemptions are (2001)). “First, we inquire whether, ‘[t]aken in the light most

granted purely at the standardless discretion of the MDOC. favorable to the party asserting the injury, do the facts alleged

As we agree with the court below that the Rule was show the officer’s conduct violated a constitutional right?’”

constitutional even in the absence of an exemption procedure, Goad, 297 F.3d at 501 (quoting Saucier, 533 U.S. at 201). “If

we need not address this issue. However, we note that even no constitutional right would have been violated were the

were we to conclude that the exemption procedure was allegations established, there is no necessity for further

No. 01-1383 Akers, et al. v. McGinnis, et al. 19 20 Akers, et al. v. McGinnis, et al. No. 01-1383

inquiries concerning qualified immunity.” Saucier, 533 U.S. C

at 201. Having found no constitutional violation, we must

answer the qualified immunity question in the affirmative. The separate opinion concurring in part and dissenting in

part, in contrast to this opinion, the trial court opinions, and

While this disposes of this question, we note that for a all party and amici briefs, analyzes the Rule under the

plaintiff to defeat a defense of qualified immunity, he must framework of Turner v. Safley, 482 U.S. 78 (1987). Under

not only prove the violation of a right, but of a clearly Turner, “a prison regulation imping[ing] on inmates’

established right. Harlow, 457 U.S. at 818. Indeed, the right constitutional rights” will be upheld “if it is reasonably

must be “so clearly established when the acts were committed related to legitimate penological interests.” Id. at 89

that any officer in the defendant’s position, measured (emphases added).

objectively, would have clearly understood that he was under

an affirmative duty to have refrained from such conduct.” Under the First and Fourteenth Amendments, associational

Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987) rights of the general population enjoy the highest level of

(emphasis added). See also McCloud v. Testa, 97 F.3d 1536, legal protection against state regulation. However, the state

1542 (6th Cir. 1996) (holding that “individual capacity enjoys enhanced powers to regulate association by certain

defendants in § 1983 cases receive some benefit from legal groups. Two such regulable groups are involved here:

doubt about the clarity of existing law.”). However, in the prisoners, under Turner and its progeny, and state employees,

present case the district judge found no violation of a under Pickering and its progeny. Moreover, the exercise of

constitutional right at all. Thus, for the plaintiffs to prevail associational rights by definition involves more than one

here on the question of qualified immunity, the situation party and to regulate one party to an association impinges

would have to be such that any MDOC official when upon the interests of the other parties. Therefore, the

promulgating the Rule would be aware of the fact that it enhanced regulatory power over some groups implies by

violated the Constitution, but a United States district judge, necessity a power to impinge upon the interests of those who

given the benefit of decades of legal training and practice, would associate with members of the regulable groups.

years of hearings and adversarial briefings by able counsel,

was unable to find such a violation. While such a situation is The present case concerns an employment regulation

not logically impossible, and doubtless has occurred from affecting association between MDOC employees and a large

time to time, it certainly must be a very rare one, implicitly class of persons, most of whom are not prisoners and over the

casting some doubt on the minimum competency of such a majority of whom, the relatives and visitors of offenders, the

trial judge. Therefore, in cases such as this, unless counsel state enjoys no enhanced regulatory power. Therefore, in

are prepared to contend that such an extreme and unusual general there is no prisoner nexus, but there always is an

situation occurred, they will not be able to succeed in employment nexus. As the state’s regulatory power springs

reversing a grant of qualified immunity. from the employment nexus, the proper analytical framework

is Pickering, not Turner. Even as far as the Rule is applied

against associations between MDOC employees and

prisoners, the regulation is valid if it is within the state’s

No. 01-1383 Akers, et al. v. McGinnis, et al. 21 22 Akers, et al. v. McGinnis, et al. No. 01-1383

power either as an employer or a warden.6 As we conclude generally law-abiding citizens, in ways that were they

that the state’s power as an employer is sufficient to authorize exercised over prisoners, generally convicted criminals,

the Rule, an analysis under Turner is superfluous, even in that would constitute a constitutional violation. Surely any

minority of cases where it is applicable.7 The precedents regulation that would under Turner violate the Constitution,

cited by the separate opinion that apply Turner to actions if applied to prisoners, must a fortiori do so if applied to state

brought by non-prisoners are not to the contrary, because in employees? Yet, that is not always true, because state

each case the impinged association or speech was with a employee regulations have a lesser constitutional impact than

prisoner. See Overton v. Bazzetta, ___ U.S. ____, 123 S. Ct. prisoner regulations because they merely place a limited,

2162 (2003) (applying Turner to family member’s right to voluntary burden on the exercise of a right, rather than impose

visit prisoners); Thornburgh v. Abbott, 490 U.S. 401 (1989) an outright ban. State employment, in contrast to

(applying Turner to publisher’s right to send magazines to incarceration, is voluntary and while state employees do not

prisoners); Keeney v. Heath, 57 F.3d 579, 581-82 (7th Cir. waive their constitutional rights, accepting state employment

1995) (applying Turner and Thornburgh to regulation barring involves a modicum of consent to regulation that is not

prison guards from marrying prisoners).8 present for prisoners. Moreover, while punishment for the

violation of an employee regulation extends only up to

At first glance, it may seem strange that the state would discharge, punishment for the violation of a prisoner

have powers to regulate the conduct of its employees, regulation extends up to lengthened incarceration. For these

reasons, some conduct that could not be enjoined or

prohibited for prisoners can be for state employees. So for

6 example, the state can extract pledges to support the

To hold otherw ise would cre ate the counter-intuitive result that the

state has the po wer to prevent som e employee associations only with the Constitution from employees and licensees (such as members

general po pulation, but not with prisoners. of the bar), but cannot do so from prisoners.

7

The fact that plaintiffs here are employees of the state agency III

charged with the oversight of prisoners is only marginally relevant. Our

analysis would be substantially the same with respect to a regulation For the foregoing reasons, the district court’s judgment is

affecting other vulnerable state emp loyees. For example, state-employed

armored car guards by the same analysis might be barred from associating

AFFIRMED.

with offenders, either directly or through offenders’ family members or

visitors, solely for the purpose of protecting the state’s cash and without

any alleged penological interest.

8

In one Seventh Circuit case, the court applied Turner to an action by

a prisoner to e nforce the First Amendment right of prison guards to write

to the priso n review bo ard in support of clemency pe titions. Shimer v.

Washington, 100 F.3d 506, 509 (7th Cir. 1996). While we believe that

such petitions are more properly analyzed under the framework of

Pickering, rather than Turner, we note that Shimer only found standing

based on the asso ciation betwe en gua rds and prisoners and based its

application of Turner on the fact that this underlying association occurred

“within prison walls.” Id. at 508-09. The associations at issue he re did

not occur within these confines, rendering Turne r inapplicable.

No. 01-1383 Akers, et al. v. McGinnis, et al. 23 24 Akers, et al. v. McGinnis, et al. No. 01-1383

_______________________________________________ 1124 (6th Cir. 1996) (citing Zablocki v. Redhail, 434 U.S.

374, 383-84 (1978)). If the policy or action does not directly

CONCURRING IN PART, DISSENTING IN PART or substantially interfere with that interest, then rational basis

_______________________________________________ review applies. Id.

CLAY, Circuit Judge, concurring in part and dissenting in The majority is not without a precedential basis for

part. The majority applies both the Pickering/Connick applying these two tests to the associational rights of

balancing test and the Zablocki “direct and substantial correctional employees. See, e.g., Ross v. Clayton County,

interference” test to Plaintiffs’ challenge to various iterations 173 F.3d 1305, 1310-12 (11th Cir. 1999) (applying

of the MDOC Work Rule. As to the Pickering/Connick Pickering/Connick test to correctional officer’s claim that his

balancing test, the majority opinion correctly distinguishes demotion for associating with his probationer-brother violated

between government employee speech that is a matter of his First Amendment rights); Serrano v. Multnomah County,

public concern and that which is a matter of private concern. No. 01-36043, 2003 WL 1827230, at *1 (9th Cir. Apr. 7,

Restrictions on the former are subject to “intermediate 2003) (applying Zablocki “direct and substantial” test to claim

scrutiny” – a balancing between the interests of the employee by juvenile group detention worker that her termination for

and the interests of the government. Private concern speech, having a personal relationship with a juvenile detainee

by contrast, is subject to rational basis review. Although it is violated the First Amendment). But the Supreme Court has

true that this Court has applied the Pickering/Connick test to made it quite clear that prisons are unique to other

restrictions on associations, see Boals v. Gray, 775 F.2d 686, governmental settings and that, regardless of whether the

692 (6th Cir. 1985), such an application may not always do plaintiffs are prisoners or non-prisoners, there is a single test

justice to the particular associational interests at stake. For for the propriety of governmental action that arguably

example, the right to marry is recognized as a fundamental restricts First Amendment rights – the four-factor “legitimate

associational interest. Marriage, however, is purely a matter penological interests” test, most recently applied in Overton

of private concern. Thus, it receives insufficient protection v. Bazzetta, ___ U.S. ___, 123 S. Ct. 2162 (2003). The

when applying the Pickering/Connick test. See Balton v. City majority, like the district court below, failed to apply this test

of Milwaukee, 133 F.3d 1036, 1039-40 (7th Cir. 1998) (“A to the facts of this case. As a consequence, I disagree with the

Pickering/Connick balancing test, so useful in resolving majority’s reasoning and concur only in part with its

public employee free speech cases, is not easily transferable judgment.

to freedom of association cases. That’s because some

associational choices – for instance, whom to marry – are I.

purely private matters. As such, one would think they would FACTUAL OVERVIEW

usually come up short in a private versus public concern

balancing test.”) (citation omitted). Plaintiffs challenge various iterations of the MDOC Work

Rule that prohibits, inter alia, non-work-related contact

As to the Zablocki “direct and substantial interference” between MDOC employees and inmates, parolees,

test, this Court has held that, in the employment setting, strict probationers or their family members and inmates’ visitors.

scrutiny applies to a governmental policy or action that “is a This prohibition originally was contained in the MDOC’s

direct or substantial interference” with the asserted Work Rule 12. That Rule prohibited “[i]mproper or overly

associational interest. Montgomery v. Carr, 101 F.3d 1117, familiar conduct with prisoners, parolees or probationers or

No. 01-1383 Akers, et al. v. McGinnis, et al. 25 26 Akers, et al. v. McGinnis, et al. No. 01-1383

their family members and visitors.” (J.A. 34.) Violations of contact with offenders, their family members or visitors

the Rule subjected the employee to “disciplinary action up to included exchanging “letters, money, telephone numbers or

and including dismissal.” Id. Examples of improper actions anything,” being at the home of any of these individuals for

included exchanging “letters, money or items” with a reasons other than official MDOC business and “[n]on-work

prisoner; living with a probationer or parolee, except where related contact” with any of these individuals. Id. at 294.

the probationer or parolee was a spouse of the employee and Any violations of the Work Rule would be grounds for

the marriage existed prior to the employment date, or where dismissal.

the spouse became a probationer or parolee after the

employment date and the marriage was pre-existing; being at Effective September 17, 1999, MDOC Work Rule 24 was

the home of a prisoner, parolee or probationer other than for abolished and new Work Rule 46 was implemented. Work

official business; giving a prisoner the employee’s home Rule 46 defined the term “offender” to mean a “prisoner or

telephone number; and sexual contact with a prisoner. Id. parolee under the jurisdiction of the Michigan Department of

Work Rule 12 also required that “[a]ny contact” with a Corrections or housed in a Department facility, or a

prisoner, parolee or probationer, or their family members probationer who is supervised by an employee of the

outside of the job be reported to the Warden. (J.A. 35.) Department.” Id. It preserved Work Rule 24's prohibitions

Examples of unauthorized contact included contact with a against (1) overfamiliarity with an offender, their family

prisoner by writing or by telephone outside of the official members or their visitors; (2) contact with such individuals

work setting and visiting prisoners without authorization. outside the regular performance of the employee’s job; and

(3) the duty to report unavoidable contact. The new Work

The MDOC repromulgated Work Rule 12 as Work Rule 24 Rule also provided the same examples of prohibited contact,

in June of 1996. Work Rule 24 prohibited MDOC employees such as receiving letters, money or telephone numbers; being

from “overly familiar conduct with prisoners, parolees, at the home of any such individual other than for official

probationers, family member(s) of a prisoner, parolee or business; and any other non-work-related contact.

probationer, or visitors.” (J.A. 293.) The Rule prohibited

romantic or sexual contact with such individuals as well as On April 24, 2000, the MDOC promulgated a revised Work

“any contact” with such individuals “outside the performance Rule 46. The revised Rule defined “family member” to mean

of the employee’s job.” Id. The Rule required the MDOC “parents, stepparents, spouse, children, stepchildren, siblings

employee to report “any unavoidable contact” to his or her or step siblings.” (J.A. 297.) It also changed the prohibition

immediate supervisor. Id. The supervisor would then against contact with a prisoner’s visitors to a prohibition

determine whether a written report of the contact should be against contact with “lead visitors,” defined to mean a person

sent to the employee’s warden.1 Examples of prohibited on an offender’s approved visitors list. Id. The revised Rule

preserved the prohibition against the provision of lodging for

certain offenders and similarly continued to require the

1

Like its predecessor, Work Rule 24 also prohibited the MDOC

reporting of unavoidable contact with offenders, their family

emp loyee from living with or providing lodging for a prisoner, members or their visitors. The revised Rule also continued to

probationer or a parolee, except for the employee’s parents or children or prohibit “any contact” with an offender outside the regular

where the employee’s marriage to the offender existed prior to the

employment date or where the spouse became an offender after the

employment date. Work R ule 46, which superseded Work Rule 24,

relaxed this prohibition by permitting lodging for a sibling. The plaintiffs do not challenge this portion of the Work Rule.

No. 01-1383 Akers, et al. v. McGinnis, et al. 27 28 Akers, et al. v. McGinnis, et al. No. 01-1383

performance of an employee’s job and preserved the various II.

examples of overfamiliarity from the prior Rule (e.g., letter- PLAINTIFFS’ CLAIMS AGAINST DEFENDANTS IN

writing, being at the residence of an offender). The revised THEIR OFFICIAL CAPACITIES

Rule somewhat relaxed the prohibition against any contact

with an offender’s family members or visitors outside of the A. Legal Standards

job by permitting such contact with prior written approval.

The Rule omitted language that any violation would be In Overton v. Bazzetta, ___ U.S. ___, 123 S. Ct. 2162

grounds for dismissal, but still appeared to acknowledge that (2003), the Supreme Court addressed the validity of the

an employee could be discharged for violating the Rule. MDOC’s prison visitation policies which, among other

things, limited the visitors a prisoner was eligible to receive.

In Michigan, there are approximately 13,000 people on The asserted goal of the regulations was to decrease the total

parole, 65,000 people on probation and 45,000 people number of visitors because prison officials had found it more

incarcerated. Thus, Work Rule 46 prohibits any non-work- difficult to maintain order during visitation and to prevent

related contact between any of the 17,000 MDOC employees smuggling or trafficking in drugs. Bazzetta, 123 S. Ct. at

and approximately 120,000 Michigan “offender” residents. 2166. The plaintiffs included prisoners, their friends and their

There are no clear figures in the record as to how many family family members. Id. The Court acknowledged that “outside

members the 120,000 offenders have, but it is estimated to be the prison context, there is some discussion in our cases of a

in the hundreds of thousands. right to maintain certain familial relationships, including

association among members of an immediate family and

The MDOC terminated Plaintiff Dawn Akers, a association between grandchildren and grandparents.” Id. at

bookkeeping clerk at a correctional facility, pursuant to 2167 (emphasis added; citations omitted). The challenge to

former Work Rule 24 because she had given a parolee several the MDOC’s prison visitation policies, however, was “not an

rides in her car during her off-duty hours (to the hospital and appropriate case for further elaboration of those matters.” Id.

to Lansing for a job search). Pursuant to former Work Rule The Court reasoned that “freedom of association is among the

12, the MDOC terminated Plaintiff Kim Loranger, a rights least compatible with incarceration” and that “[s]ome

probation officer, who had written a few letters to an inmate curtailment of that freedom must be expected in the prison

whom she had dated eight years earlier, before the inmate had context.” Id. The Court therefore held that the MDOC’s

been incarcerated. Both Plaintiffs have since been reinstated policies did not unduly infringe on the prisoners’ rights of

to their employment, however, both seek to have the intimate association because “the challenged regulations bear

discipline for violating the Work Rules expunged from their a rational relation to legitimate penological interests.” Id.

employment records. Plaintiff Loranger and Plaintiff UAW (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

Local 6000 seek to prospectively invalidate the current Work

Rule 46. Although the Court in Bazzetta did not separately discuss

the standard of scrutiny applicable to the intimate association

rights of prisoners’ friends and family members, the Court

acknowledged that the plaintiffs included friends and family

members of prisoners. Moreover, the Court previously had

held that the associational rights of non-prisoners are no

greater than the rights of prisoners with whom they wish to

No. 01-1383 Akers, et al. v. McGinnis, et al. 29 30 Akers, et al. v. McGinnis, et al. No. 01-1383

associate. See Thornburgh v. Abbott, 490 U.S. 401, 410 fn.9 prisoners undeniably are the reason for the MDOC’s Work

(1989) (holding that the “legitimate penological interests” Rule. The fact that the Rule can be classified more generally

standard applies to alleged associational infringements on as an employment regulation should not blind this Court to

prisoners and non-prisoners alike). Logically, therefore, the the specific reality that it is a prison regulation. Accordingly,

“legitimate penological interests” test should apply in this the “legitimate penological interests” test is not

case, where correctional officers, although not prisoners “superfluous,” as the majority claims.

themselves, are integrally related to the prison setting and

wish to associate with former inmates and/or inmates’ family The “legitimate penological interests” standard is highly

members. See Shimer v. Washington, 100 F.3d 506, 509 (7th deferential to prison administrators. Although “[w]e must

Cir. 1996) (applying Thornburgh v. Abbott to claimed First accord substantial deference to the professional judgment of

Amendment right of prison guard to write to a prisoner prison administrators, who bear a significant responsibility for

review board on behalf of prisoners who had filed petitions defining legitimate goals of a corrections system and for

for clemency); Keeney v. Heath, 57 F.3d 579, 581-82 (7th Cir. determining the most appropriate means to accomplish them,”

1995) (applying Thornburgh v. Abbott to claimed First Bazzetta, 123 S. Ct. at 2167-689 (citations omitted), this

Amendment right of prison guard to marry a prisoner without deference is by no means absolute. Accordingly, the Supreme

being threatened with termination). Court has provided the following guidance in assessing

whether a prison regulation serves legitimate penological

The majority argues that the Work Rule mostly implicates interests:

associations with non-prisoners, such as relatives and visitors

of offenders. It therefore concludes that the “legitimate In Turner we held that four factors are relevant in

penological interests” test is inapplicable to the Work Rule deciding whether a prison regulation affecting a

because “in general there is no prisoner nexus, but there constitutional right that survives incarceration withstands

always is an employment nexus.” This argument defies constitutional challenge: whether the regulation has a

common sense and ignores the undisputed facts of this case. “valid, rational connection” to a legitimate governmental

The MDOC has sought to justify the Work Rule as it applies interest; whether alternative means are open to inmates

to both the offender class and the class of relatives and to exercise the asserted right; what impact an

visitors based solely on the Rule’s relation to the preservation accommodation of the right would have on guards and

of prison security. But for the asserted security concerns inmates and prison resources; and whether there are

implicated by MDOC employees’ contacts with both classes “ready alternatives” to the regulation.

of individuals, there would be no Work Rule. If, as the

majority states, there is “in general no prisoner nexus,” then Id. (citing and quoting Turner, 482 U.S. at 89-91; internal

it is difficult to see how the Work Rule survives even rational quotation marks and citation omitted). The party seeking to

basis scrutiny. The Work Rule is nothing like employment invalidate the prison regulation bears the burden of proof

regulations that require pledges to support the Constitution or regarding these four factors. Id. at 2168. As discussed below,

preclude moonlighting or partisan political activity, which even under this highly deferential test, parts of the challenged

typically would be based on the employer’s general interest MDOC Work Rule are unconstitutional.

in maintaining employee morale or an efficient and loyal

workforce. These types of employment regulations are not

necessitated by or unique to the prison setting. In contrast,

No. 01-1383 Akers, et al. v. McGinnis, et al. 31 32 Akers, et al. v. McGinnis, et al. No. 01-1383

B. Analysis a. Contact with inmates, parolees and probationers

1. Valid, rational connection to a legitimate The reasoning in Turner easily can be applied to the portion

governmental interest of the challenged MDOC Work Rule that prohibits non-

work-related relationships with prisoners or former prisoners.

Regulations that promote internal security are “perhaps the MDOC officials have asserted that any type of non-

most legitimate of penological goals,” Bazzetta, 123 S. Ct. at professional relationship with an offender is cause for

2168 (citation omitted); however, there still needs to be a discharge because of “serious security concerns in

“logical connection between this interest and the regulations.” correctional facilities and concerns regarding the integrity of

Id. (MDOC’s regulations “prohibiting visitation by former supervision of offenders in communities.” (J.A. 215.)

inmates bears a self-evident connection to the State’s interest (Affidavit of Marsha Foresman, Special Assistant to the

in maintaining prison security and preventing future crimes”). MDOC Director, at ¶ 6).2 I agree, based on Turner, that

The logical connection between the regulation and the relationships between MDOC employees and inmates or

asserted goal cannot be “so remote as to render the policy former inmates could be a spur to criminal behavior or

arbitrary or irrational.” Turner, 482 U.S. at 89-90. Moreover, facilitate criminal behavior. Personal relationships with

where “the nature of the asserted governmental interest is inmates and former inmates, whether romantic or otherwise,

such as to require a lesser degree of case-by-case discretion, could undermine security and order in the prison or the

a closer fit between the regulation and the purpose it serves integrity of the probation supervision process. Cf. Keeney, 57

may safely be required.” Abbott, 490 U.S. at 412; see also id. F.3d at 581 (holding that a guard’s romantic involvement with

at 416 (“we are comforted by the individualized nature of the an inmate could make her “a potential facilitator of unlawful

determinations required by the regulation” which prohibited communication between [the inmate] and others and a

a prisoner from receiving a publication only when the warden potential provider of favored treatment for him”).

determined that it was “detrimental to the security, good

order, or discipline of the institution or … might facilitate

criminal activity”) (internal quotation marks and citations 2

See also (J.A. 3 19) (Affidavit of Richard E. Johnson, Assistant

omitted). Deputy Director of the C orrectional Facilities A dministration at, ¶ 11) (“I

am aware of several examples of emp loyees who have smuggled

In Turner, the Court found that a prison rule barring contraband into a facility due to the development of a personal

inmate-to-inmate correspondence was reasonably related to relationship with a prisoner ….”); (J.A. 223) (Affidavit of Dan L. Bolden,

Deputy Director of the Correctional Facilities Administration, at ¶ 8)

legitimate security interests. Turner, 482 U.S. at 91. The (“Employees who becom e involved in [personal] relationships with

Court observed, “Undoubtedly, communication with other prisoners are at risk to becom e involved, o ften against their will, in

felons is a potential spur to criminal behavior: this sort of bringing contraband into the prison, including money, drugs, and

contact frequently is prohibited even after an inmate is weapo ns, and assisting in escape plans, plans to create disturbances, or

released on parole.” Id. (citation omitted). The Court upheld plots to retaliate against staff and o ther prisoners.”); J.A . 217 (Affidavit

of Robert Steinman, Deputy Director of the MDO C’s Field Operations

the regulation because it barred communication only with a Administration, at ¶ 5) (“Any appearance of impropriety on the part of the

“limited class of other people with whom prison officials [parole or prob ation] agent can comp romise the employee’s authority and

have particular cause to be concerned – inmates at other control over the probationer and parolee and can result in serious

institutions within the Missouri prison system.” Id. at 92 ramifications, ranging from lax and inadequate supervision to actual

(emphases added). falsifying of reports and information regarding the individual being

supervised.”)

No. 01-1383 Akers, et al. v. McGinnis, et al. 33 34 Akers, et al. v. McGinnis, et al. No. 01-1383

The fact that a particular MDOC employee has no explicit point out that such contacts would be unavoidable, yet would

supervisory authority over the offender and may have little or be cause for termination.

no ability to effect changes to the offender’s status does not

change the analysis. In establishing prison regulations, “a I submit that the Rule is not reasonably related to legitimate

line must be drawn.” Bazzetta, 123 S. Ct. at 2168 (reasonable penological interests to the extent it prohibits, without

to limit child visitors by prohibiting visits by nieces, nephews exception, certain incidental contacts with probationers and

and children as to whom parental rights had been terminated). parolees at church functions, political meetings and the like.

It is reasonable for the MDOC officials to conclude that Probationers and parolees are a significant percentage of the

(a) the risk to prison security is too great, however remote that population, particularly in urban areas. To require MDOC

risk may be in the vast majority of relationships with employees to extricate themselves from community events

offenders; and (b) even innocent relationships with offenders and organizations in which offenders also happen to

tend to undermine offenders’ respect for the prison participate represents a significant intrusion on the

authorities, thereby comprising the authority and control of employees’ personal liberty. Preventing such incidental

those MDOC employees who actually supervise them. This contacts with offenders bears only the remotest relation to the

Court also cannot ignore the potential administrative costs preservation of prison security and the avoidance of conflicts

that the MDOC would incur by having to conduct a case-by- of interest. See Turner, 482 U.S. 89-90 (holding that the

case assessment of relationships with offenders. logical connection between the regulation and the asserted

goal cannot be “so remote as to render the policy arbitrary or

For these reasons, I agree with the majority as far as Work irrational”). Indeed, the evidence submitted by MDOC in

Rule 46 legitimately prohibits any non-work-related support its Work Rule relates to problems with personal

relationships between MDOC employees and offenders, with relationships between employees and offenders, not to mere

one caveat. As presently written, Work Rule 46 prohibits contact between them. See note 2, supra. Thus, only when

“any contact” with an offender outside the regular the contact is intentional and repetitive, evolving into a

performance of an employee’s job and further imposes a duty relationship, should MDOC’s penological interests even come

to report any “unavoidable contact” to a superior and into play. The lack of a case-by-case exception for such

potentially to the Warden. (J.A. 298.) As far as potential incidental contact confirms the lack of a close fit between the

discipline is concerned, the Rule draws no distinction Work Rule’s prohibition and the asserted penological

between intentional contact with an offender outside of work interests. See Abbott, 490 U.S. at 412 (where “the nature of

and incidental or even unknowing contact. In this regard, the asserted governmental interest is such as to require a

Plaintiffs have complained that MDOC employees could not lesser degree of case-by-case discretion, a closer fit between

attend an Alcoholics Anonymous meeting, a political the regulation and the purpose it serves may safely be

campaign meeting, a religious service, a PTA meeting or a required”). I would hold that the blanket prohibition against

bowling league event if any attendees at those meetings are incidental contact with probationers and parolees fails the first

on parole or probation. Appellants Br. at 12. In addition, prong of the Turner test.

Michael Devine, a union representative with Plaintiff UAW

Local 6000, testified that at one point in time there were Further, as currently formulated, Work Rule 46 provides

twelve homes on his block in which 12 offenders lived. If he that a MDOC employee can be terminated if he or she attends

were still employed as a probation officer with the MDOC, he a church event or a political event also attended by

could not have any contact with his neighbors. Plaintiffs probationers or parolees, even if he or she does not know that

No. 01-1383 Akers, et al. v. McGinnis, et al. 35 36 Akers, et al. v. McGinnis, et al. No. 01-1383

any of the attendees are on parole or probation. This “strict oversight and operation of adult felony probation and parole

liability” approach bears no logical relation to the asserted services. According to Steinman:

penological interests of preventing MDOC employees from

using their positions to compromise prison security or An employee who is involved in other than a

avoiding conflicts of interest. At a minimum, I would limit professional relationship with a probationer or parolee, or

the prohibition against non-work-related contacts with family members of the probationer or parolee, may be

probationers and parolees to situations where the MDOC persuaded or coerced to misuse his/her position to benefit

employee knew or should have known that he or she had the parolee or probationer, and/or friends and family of

contact with such an offender. the parolee or probationer. This concern is not limited

only to parole and probation agents. Administrative

b. Contact with family members of offenders and support staff working in field offices and in Central

inmates’ visitors Office are vulnerable as well, having access to may [sic]

types of records which can be tampered or altered. For

The more troubling proposition is whether Turner can be example, administrative support staff may have access to

interpreted to prohibit contacts or communications with reports of drug testing results regarding parolees and

individuals who are not subject to the MDOC’s jurisdiction, probationers. The employee could, either willingly or

but who are family members of such individuals. Such under threat, manipulate data and records to change those

family members are a “limited class” in the strictest sense of reports. Other records could be manipulated to affect a

the term – i.e., there are a finite number of such individuals; probationer or parolee’s record of compliance with

however, the size of the class is significant, in the hundreds of special conditions, work reports, payment of restitution,

thousands. Moreover, because family members are a diffuse etc. An agent could be coerced into using his/her

class, they likely are not identifiable to MDOC employees in position to gain access to parolees and probationers who

many cases. A MDOC employee would not know that an are housed in county jails for violations of parole or

individual he or she meets outside of work is a family probation, and even could affect [sic] the release of an

member of an offender; he or she may not become apprised individual from county jail under false pretenses. These

of this fact if the individual never volunteers it. Yet the are just some examples of improper use of position

MDOC employee’s job is in jeopardy, regardless of what the which can result from non-professional relationships

employee actually knows or should know about the between employees and parolees, probationers, and their

individual’s relationship to an “offender.” Thus, the family families.

member classification does not constitute a “limited class” in

the sense that the Turner Court applied the term to a discrete, (J.A. 217-18) (Steinman Aff. at ¶ 6).

relatively small and readily-identifiable group (there, prison

inmates who were confined in a single location). No doubt the MDOC has identified some conceivable

harms that a compromised MDOC employee could inflict on

The next question is whether prison officials have the correctional system. Arguably, the risk of at least some of

“particular cause” to be concerned about such family these harms being facilitated by former inmates who strike up

members. In this regard, the MDOC has submitted an relationships with MDOC employees is “self-evident.” Cf.

affidavit from Robert Steinman, the Deputy Director of the Bazzetta, 123 S. Ct. at 2168 (MDOC’s regulations

Field Operations Administration, who is responsible for the “prohibiting visitation by former inmates bears a self-evident

No. 01-1383 Akers, et al. v. McGinnis, et al. 37 38 Akers, et al. v. McGinnis, et al. No. 01-1383

connection to the State’s interest in maintaining prison Federal Bureau of Prisons regulation on visitation by friends

security and preventing future crimes”). But the risk of harm, and associates which, by analogy, strongly suggests that

although conceivable, is not self-evident in the case of family incorporating specific standards into the MDOC’s family

members of offenders and inmates’ visitors, who, as far as member/visitor exception is feasible. According to that

anyone knows, are and have always been upstanding citizens. regulation:

By definition, family members and visitors are not offenders.

Unless they have been found guilty of a crime outside of The visiting privilege ordinarily will be extended to

Michigan, family members and visitors have not been friends and associates having an established relationship

“convicted of felonious behavior, which often involves with the inmate prior to confinement, unless such visits

dishonesty, fraud, and coercion.” (J.A. 219) (Steinman Aff. could reasonably create a threat to the security and good

at ¶ 9). Indeed, the MDOC has not cited a single example of order of the institution. Exceptions to the prior

a MDOC employee using his or her position to carry out, relationship rule may be made, particularly for inmates

whether willingly or under duress, any improper favors for without other visitors, when it is shown that the proposed

family members or visitors. Thus, the MDOC has not based visitor is reliable and poses no threat to the security or

its prohibition against relationships with family members or good order of the institution.

visitors on “particular cause,” but on “questionable

speculation” that such contacts conceivably could threaten 28 C.F.R. § 540.44(c). See also Abbott, 490 U.S. at 416 (“we

prison security. Cf. California First Amendment Coalition v. are comforted by the individualized nature of the

Woodford, 299 F.3d 868, 880 (9th Cir. 2002) (regulation that determinations required by the regulation” which prohibited

barred outsiders from witnessing administration of lethal a prisoner from receiving a publication only when the warden

injection was not justified by alleged interest in protecting determined that it was “detrimental to the security, good

execution team members from being publicly identified and order, or discipline of the institution or … might facilitate

subjected to retaliation; evidence in the record showed that criminal activity”) (internal quotation marks and citations

regulation was an “overreaction, supported only by omitted). Applying a standard like “reasonable threat to

questionable speculation”); see also Shimer, 100 F.3d at 510 security and good order” would serve to focus the MDOC on

(“We … are reduced to speculation when not provided with concrete criteria that specifically relate to its interest in

evidence, and, having speculated, find it difficult to establish maintaining prison security, making it less likely that the

a connection between the prison administration’s MDOC would render, or create the appearance of, arbitrary

unsubstantiated justifications and its policy” of prohibiting determinations that have nothing to do with its penological

correctional employees from contacting the Prisoner Review interests.

Board on behalf of prisoners.”).

To summarize, the revised Work Rule 46 is reasonably

For these reasons, the former Work Rule’s blanket related to a legitimate penological interest to the extent it

prohibition on contact with family members of offenders and prohibits relationships between MDOC employees and

inmates’ visitors is unconstitutional. Although the revised inmates, probationers or parolees, but not to the extent it bars

Work Rule now permits such contacts with prior written incidental or unknowing contact with such individuals. The

approval from the prison authorities, the Rule provides Rule is not related to a legitimate penological interest to the

absolutely no standards to guide prison administrators in the extent it (a) prohibits unknowing or incidental contact with

exercise of their discretion. I would direct the MDOC to a family members of offenders or inmates’ visitors and

No. 01-1383 Akers, et al. v. McGinnis, et al. 39 40 Akers, et al. v. McGinnis, et al. No. 01-1383

(b) prohibits contact with family members or inmates’ are absolutely prohibited from engaging in any associational

visitors, subject only to a case-by-case exception that fails to activities that result in incidental or unknowing contact with

take into account prison security, or any other factor. probationers and parolees. Additionally, subject only to the

unfettered discretion of prison officials, MDOC employees

2. Alternative means of exercising associational rights are prohibited from contact with offenders’ family members

and inmates’ visitors, with whom they may have had long-

When examining prison regulations, “[w]ere it shown that standing, pre-existing personal relationships.

no alternative means of communication existed, though it

would not be conclusive, it would be some evidence that the 3. Impact of accommodation on prisoners, guards and

regulations were unreasonable.” Bazzetta, 123 S. Ct. at 2169. resources

Here, Plaintiff Loranger complains that Work Rule 46

prevents her from visiting with Rebecca Contreras, her closest Any alternative to the MDOC regulations must avoid a

friend for the past 15 years, because Contreras’ son is on “significant reallocation of the prison system’s financial

probation. Likewise, the Rule has prevented Contreras from resources [that] would impair the ability of corrections

participating in Loranger’s childbirth, attending the baptism officers to protect all who are inside a prison’s walls.”

of Loranger’s child and actively serving as the Godmother of Bazzetta, 123 S. Ct. at 2169. Only when the proposed

Loranger’s child. Although Loranger requested permission alternative “will have a significant ‘ripple effect’ on fellow

to have contact with Contreras, the MDOC denied her inmates or on prison staff, [should courts] be particularly

request. Plaintiffs also complain generally that the Rule deferential to the informed discretion of corrections officials.”

prohibits MDOC employees from attending Alcoholics Turner, 482 U.S. at 90 (citation omitted).

Anonymous meetings, political campaign meetings, religious

services and PTA meetings, when any attendees at those It appears that there would little, if any, reallocation of

meetings are on parole or probation. prison resources if this Court were to require the MDOC to

create an exception for unknowing or incidental contact with

Alternative means of participation in these associational probationers and parolees. The MDOC already has adopted

activities exist only if Plaintiffs leave their employment with a case-by-case exception procedure for contacts with family

the MDOC (an alternative the majority cavalierly calls a members of offenders and inmates’ visitors, which by all

“simple expedient”). But because the challenged prison estimates, constitute a far greater population than the

regulations are unreasonable, Plaintiffs are not required to probationer/parolee population. There is no indication in the

quit their jobs to enjoy these rights. Compare Keeney, 57 record that the adoption of this exception would result in a

F.3d at 581-82 (holding that prison work rule that forbade crush of requests from MDOC employees. As noted above,

social involvement with inmates did not impermissibly there is no evidence that such incidental or unknowing

burden prison guard’s right to marry by forcing her to quit in contacts would pose a threat to prison security.

order to marry an inmate; regulation served “plausible”

concerns of prison in avoiding conflicts of interest and the Furthermore, there would be no effect on prison resources

appearance of favoritism). Rather, the question is whether, as as a result of requiring the MDOC to apply specific standards

MDOC employees, Plaintiffs have alternative means of to its current policy of granting case-by-case exceptions to the

carrying out their otherwise-protected associational activities prohibition against contact with offenders’ family members

without fear of being terminated. Clearly, they do not. They and with inmates’ visitors. In fact, the MDOC is likely to

No. 01-1383 Akers, et al. v. McGinnis, et al. 41 42 Akers, et al. v. McGinnis, et al. No. 01-1383

save resources by following uniform standards that do not violation of former Work Rule 24 (Akers) or with an inmate

have to be re-invented each time a request is submitted. In in violation of former Work Rule 12 (Loranger). Thus,

addition, by incorporating the concept of prison security into disciplinary action against them did not violate their

the standards, the MDOC’s legitimate penological interests constitutional right to freedom of association. Nevertheless,

would be advanced. Plaintiff Loranger and Plaintiff UAW Local 6000 are entitled

to a declaration that the revised Work Rule 46 is

4. Ready alternatives to the regulations unconstitutional to the extent it imposes discipline for: (1)

unknowing or incidental contact with offenders, family

The “existence of obvious, easy alternatives [to prison members of offenders or inmates’ visitors or (2) contact with

regulations] may be evidence that the regulation is not family members of offenders or inmates’ visitors, subject

reasonable, but is an ‘exaggerated response’ to prison only to a standardless exception process.

concerns.” Turner, 482 U.S. at 90. Although this factor is

not a “least-restrictive-means” test, id., prison regulations are III.

unreasonable if there is “some obvious regulatory alternative QUALIFIED IMMUNITY

that fully accommodates the asserted right while not imposing

more than a de minimis cost to the valid penological goal.” Since neither Akers nor Loranger suffered a constitutional

Bazzetta, 123 S. Ct. 2162 (citing Turner, 482 U.S. at 90-91). harm stemming from their discipline for violating the Work

Rules, the individual Defendants are entitled to qualified

As discussed in the preceding section, there are obvious immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001)

regulatory alternatives that fully accommodate the MDOC’s (“If no constitutional right would have been violated were the

interest in preserving prison security and avoiding conflicts of allegations established, there is no necessity for further

interest in the context of contacts with parolees, probationers, inquiries concerning qualified immunity.”). Regardless, there

family members of offenders and visitors. The creation of an appears to be no basis to find that the right of prison

exception for incidental or unknowing contact with parolees employees to engage in particular associational activities with

and probationers, as well as the institution of specific probationers or parolees was “clearly established,” id., given

standards for contacts with family members of offenders and the dearth of case law applying the four-part Turner test to the

visitors would impose a de minimis, if any, cost on the regulation of employment conditions in a prison setting.

MDOC; even under the present version of Work Rule 46, the Accordingly, I concur with the majority’s judgment that

MDOC is incurring the cost of case-by-case determinations Defendants were entitled to qualified immunity to the extent

about the permissibility of contacts with family members and they were sued in their individual capacities.3

visitors. Without these common-sense modifications, Work

Rule 46 is an exaggerated – indeed, ridiculous – response to

the MDOC’s legitimate concern over maintenance of prison 3

security. I do take issue with the majority’s statement that Defendants are

entitled to qualified immunity because “a United States District Court

Judge, given the benefit of decades of legal training and practice, years of

Based on the foregoing, I concur that the grant of summary hearings and adversarial briefings by able counsel, was unable to find …

judgment to the MDOC on Plaintiff Akers’ and Plaintiff a violation.” W ith all due respect, my brethren in the district courts have

Loranger’s claims was appropriate. It is undisputed that both been known to commit legal error, including plain error through the

Akers and Loranger had purposeful contacts with a parolee in failure to cite and apply clearly established legal precede nt. If a district

judge ’s opinion of the state of the law were somehow dispositive of the

No. 01-1383 Akers, et al. v. McGinnis, et al. 43

IV.

CONCLUSION

For the foregoing reasons, I CONCUR that the district

court properly granted summary judgment on Plaintiff Akers’

and Loranger’s claims for unconstitutional discipline. I also

CONCUR in the majority’s judgment that the individual

Defendants are entitled to qualified immunity. I DISSENT

to the extent the district court should have granted Plaintiff

Loranger and UAW Local 6000's request for prospective

relief regarding certain aspects of Work Rule 46. Work Rule

46 legitimately bars non-work-related relationships between

MDOC employees and offenders, but the prohibition against

all non-work-related contact with probationers and parolees

should be limited to situations where the MDOC employee

knew or should have known that such individuals were

offenders. The prohibition also should contain an exception

for incidental contact with such offenders. Work Rule 46 also

is unconstitutional to the extent it bars (a) any unknowing or

incidental contact with family members of offenders or

inmates’ visitors and (b) permits such contacts, subject only

to the MDOC’s unfettered discretion to make exceptions

without reference to any factors related to prison security,

order or discipline.

qualified immunity issue, the Courts of Appeals rarely would have

occasion to reve rse a district judg e’s ruling on qualified imm unity. Thus,

whether a district judge failed to find a constitutional violation should not

control this Court’s analysis of the issue.