Petition for Writ of Certiorari — Bazzetta v. Caruso (No. 08-1345)

LD Supreme Court, U.S.

FILED

No.

081345 APR 2 9 2009

Jn he OFFICE OF THE CLERK

Supreme Court of the Anited States

«

MICHELLE BAZZETTA, et al.,

Cross-Petitioners,

V.

PATRICIA L. CARUSO, Director of Michigan

Department of Corrections; _

MICHIGAN DEPARTMENT OF CORRECTIONS,

Cross-Respondents.

¢

On Cross-Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

CONDITIONAL CROSS-PETITION

FOR WRIT OF CERTIORARI

*

DEBORAH LABELLE BARBARA LEVINE

(Counsel of Record) 9685 Looking Glass Brook

PATRICIA A. STREETER Grand Ledge, Michigan 48837

MICHAEL BARNHART Telephone: (517) 626-6984

221 North Main Street,

Suite 300

Ann Arbor, Michigan 48104

Telephone: (734) 996-5620

COCKLE LAW BRIEF PRINTLNG CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

8

Whether Cross-Petitioners are prevailing parties

where they obtained a ruling that was not overturned

on appeal that required Cross-Respondents to allow

visitation between people in prison and their minor

siblings, resulted in the elimination of the permanent

ban on all visits for substance abuse misconducts,

successfully established a fundamental Constitution-

al Right of Association which survives incarceration,

and expanded the ability of children to visit their

incarcerated parents by striking down a restriction.

IT.

Whether the lower court erred in affirming the dis-

missal of the case and vacating Cross-Petitioners’ fee

award without any determination of reasonableness

based upon the success achieved.

il

PARTIES TO THE PROCEEDING

Cross-Petitioners are Michelle Bazzetta, Stacy

Barker, Toni Bunton, Debra King, Shante Allen,

Adrienne Branaugh, Alesia Butler, Tamara Prude,

Susan Fair, Valerie Bunton, and Artur Bunton

through his next friend, Valerie Bunton on behalf of

themselves and others who are similarly situated, in

a class comprised of incarcerated individuals, *ogeth-

er with their family members and community advo-

cates who challenged certain visitation restrictions by

the Michigan Department of Corrections as violative

of their constitutional rights.

Cross-Respondents are the Michigan Department

of Corrections and its current Director, Patricia L.

Caruso.

111

TABLE OF CONTENTS

Page

UTE A TING FREAD EGE vc niccssnvnvscosscesseversessoeses i

PARTIES TO THE PROCEEDING ....................... ll

CPI MUERTE ic cnsesccicesscrdvnsnsiecenveshuatsneusitaeene 1

II isis sinciennsei stockade utnnieebasinimbametnces |

CONSTITUTIONAL AND STATUTORY PRO-

Vee Be FE TER wiasnecescctenscnsonsssncsncponsersensass 1

STAT EAMEIN © OF TEI CABE.......cccsccsssseccesosescessess 2

REASONS FOR GRANTING

Ce Fe EIEN oacavisctccesctenensschsdscsivaeaserteneces 8

3

The Circuit Court Erred in Holding that

Cross-Petitioners Were Not Prevailing

PRUNE civkitessensdccesioiiiekisanceiaees

A.

Cross-Petitioners Obtained a Judicial

Ruling That Was Not Overturned on

Appeal, Requiring Cross-Respondents

to Allow Visitation Between People in

Prison and Their Minor Siblings ..........

Cross-Petitioners’ Litigation Resulted

in the Elimination of the Permanent

Ban on All Visits for Substance Abuse

PI io vo vn ices cceencieckc ee i

Cross-Petitioners’ Litigation Success-

fully Established a Fundamental Con-

stitutional Right of Association Which

Survives Incarceration .......................68.

ll

14

1V

TABLE OF CONTENTS — Continued

Page

D. Cross-Petitioners’ Litigation Expand-

ed the Ability of Children to Visit

Their Incarcerated Parents by Striking

EWE TE TEBRETIOIIONN oc osdivisccccccscccnveassascces 21

II. The Circuit Court Erred in Affirming the

Dismissal of the Case and the Vacating of

Cross-Petitioners’ Fee Award Without Any

Determination of Reasonableness of Cross-

Petitioners’ Fees Based on the Success

I eon i ea y dennseakukd abecaneueroeeen 23

CONCLUSION

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Bazzetta v. McGinnis, 133 F. 2d 382 (6th Cir.

SE Cs. sc soca coud oviessncherkis tie eee ere ens 3

Bazzetta v. McGinnis, 148 F.Supp. 2d 813

Car I TF asncseiccscks cecusenssousuevetseiecctanen 3, 12. 22

Bazzetta v. McGinnis, 286 F. 3d 311) (6th Cir.

ET Aa MM AI OB Ree OETA EA SN 3, 13, 22

Bazzetta v. McGinnis, 73 Fed. Appx. 842 (6th

Dy I acasiiécecicsuiccsaniendssicbicnasiaxeieeudema 5, 26

Bazzetta v. McGinnis, 423 F. 3d 557 (6th Cir.

UIE oc oscacede caasdseuuiasle Seuidkiy Calanse ma adeatente acne 28

Bazzetta v. McGinnis, 430 F. 3d 795 (6th Cir.

MED csvinnbcthatnbibiasunninenawhedids imac bis enticedediabinenn passim

Beard v. Banks, 548 U.S. 521 (2006) ......................... 20

Berger v. City of Mayfield Heights, 265 F. 3d

eS CO a oe diet ogdubnsackanaceren oeilauel 24

Blum v. Stenson, 465 U.S. 886 (1984)...................... 25

Farrer v. Hobby, 506 U.S. 103 (1992)...................cece0s 28

Grier v. Goetz, 421 F.Supp. 2d 1061 (M.D.

NIA MUIR cs scni vovaniccdvapunieivateasscdisedd aaeaeeh on 12

Habich v. City of Dearborn, 331 F. 3d 524 (6th

Ce IE cx 55, ds nc cvpbcledchanetcacopkeeiousee cca enna alien aaauaiaal 25

Heiar v. Crawford County, 746 F. 2d 1190 (7th

Cir. 1984)

TABLE OF AUTHORITIES — Continued

Page

Hensley v. Eckerhart, 461 U.S. 424 (1983) passim

Jackson v. Illinois Prison Review Bd., 856 F. 2d

890 (7th Cir. 1988)

Johnson v. California, 336 F. 3d 1117 (9th Cir.

Kelly v. Metropolitan Co. Bd. of Education, 772

F. 2d 677 (6th Cir. 1985)

Maydak v. United States, 363 F. 3d 512 (D.C.

Cir. 2004)

Murray v. City of Onawa, Iowa, 323 F. 3d 616

(8th Cir. 2003)

Nadeau v. Helgemoe, 581 F. 2d 275 (1st Cir.

Northcross v. Board of Ed. of Memphis Schools,

611 F. 2d 624 (6th Cir. 1979)

Overton v. Bazzetta, 537 U.S. 1043 (2002)

Overton v. Bazzetta, 539 U.S. 126

I sada ake bcs cl iw inaguedeonsareninases 4,19, 20, 21, 22

Parton v. GTE North, Inc., 971 F. 2d 150 (8th

Cir. 1992)

Richard S. v. Dept. of Developmental Services,

317 F. 3d 1080 (9th Cir. 2003)

S.D. Edmonds v. FBI, 417 F.3d 1319 (D.C.

TABLE OF AUTHORITIES — Continued

Sole v. Wyner, 551 U.S. 74 (2007)

Texas State Teachers Ass’n v. Garland Indep.

Sch. Dist., 489 U.S. 782 (1989) 9, 10, 26

Turner v. Safley, 482 U.S. 78 (1987) passim

Ustrak v. Fairman, 851 F. 2d 983 (7th Cir.

Wayne v. Village of Sebring, 36 F. 3d 517 (6th

Cir. 1994)

Yoder v. Wisconsin Dept. of Corrections, 2004

WL 602647 (W.D. Wis. 2004)

Young v. City of Chicago, 202 F. 3d 1000 (7th

SIUe SEED crn cncictividevsrsioessascraesncipasecenurticstencasesiexeudase 13

FEDERAL STATUTES

28 U.S.C. § 1254(1)

42 U.S.C. § 1981

42 U.S.C. § 1982

er a a easaer i oraseenianmeneaial 1

42 U.S.C. §

42 U.S.C. § 1986

42 U.S.C. § 1988

42 U.S.C. § 1988(b)

42 U.S.C. § 2000d

V1ll

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

a CE, gs cicscicsidacueaincdennsael 15, 18, 19, 20

Cres RE MIs STHRIEN vnvcccuvesccdcncsvasevessecacanel 14, 16, 19

EF CS TIES occ cccnsevcccsknicddecsdccoosecssaeeeae 15

1

OPINIONS BELOW

On August 28, 2008, the United States Court of

Appeals for the Sixth Circuit issued an unpublished

opinion affirming an order vacating an award of

attorney fees and judgment of dismissal of the case,

addressing Cross-Petitioners’ cross-appeal. Cross-

Respondents filed a petition for writ of certiorari

which was docketed on March 9, 2009, to which

Cross-Petitioners submit this conditional cross-

petition for review.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1988(b) provides:

In any action or proceeding to enforce a provision

of sections 1977, 1977A, 1978, 1979, 1980, and 1981

of the Revised Statutes [42 U.S.C. §§ 1981-1983,

1985, 1986], title IX of Public Law 92-318 [20 U.S.C.

§§ 1681, et seq.], the Religious Freedom Restoration

Act of 1993, the Religious Land Use and Institu-

tionalized Persons Act of 2000, title VI of the Civil

Rights Act of 1964 [42 U.S.C. §§ 2000d, et seq.], or

section 40302 of the Violence Against Women Act of

2

1994, the court, in its discretion, may allow the pre-

vailing party, other than the United States, a reason-

able attorney’s fee as part of the costs, except that in

any action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity

such officer shall not be held liable for any costs,

including attorney’s fees, unless such action was

clearly in excess of such officer’s jurisdiction.

os

STATEMENT OF THE CASE

1. Statement of Facts

These Petitions involve a dispute over attorney

fees and costs at the conclusion of Cross-Petitioners’

challenge to the Michigan Department of Corrections’

restrictions and prohibitions on visitation between

incarcerated individuals and their family and friends.

In 1995 the Michigan Department of Corrections

announced a series of severe restrictions on visitation

with people in prison. The rules were greeted with

widespread public opposition, based on the punitive

nature of the restrictions and the negative impact on

rehabilitation and recidivism. A class of incarcerated

individuals, together with their family members and

community advocates, were certified as a class to

challenge the restrictions as violative of their

constitutional rights.

Following lengthy pretrial litigation, including

two opinions by the Court of Appeals for the Sixth

Circuit, the Plaintiff class prevailed on all issues after

3

several weeks of a bench trial.’ The District Court

held that the visitation regulations and policies

violated Cross-Petitioners’ constitutional rights and

found the process by which Cross-Respondents had

implemented the permanent ban also violated Cross-

Petitioners’ procedural due process rights. Bazzetta v.

McGinnis, 148 F.Supp. 2d 813, 858 (E.D. Mich.

2001). The District Court’s decision was affirmed on

appeal in its entirety and Cross-Respondents’ request

to stay the remand, requiring the reinstatement of all

visitation, while they sought review by this Court was

denied by both the Circuit Court and this Court.

Bazzetta v. McGinnis, 286 F. 3d 311 (6th Cir. 2002).

Upon remand, the District Court reinstated

visitation between Cross-Petitioners in prison and

their siblings, children, nieces and nephews. The

District Court also lifted the permanent visitation

bans that had been imposed on Cross-Petitioners

without adequate due process, allowing those in

prison and their family members to visit for the first

time in seven years. The District Court also barred

Respondents initially obtained a Temporary Restraining

Order preventing the visitation restrictions from taking effect.

Respondents thereafter lost a preliminary injunction hearing

as to the restrictions on contact visits. The Court of Appeals

affirmed in part but remanded for a ruling on whether Peti-

tioners’ restrictions, as applied to non-contact visits, were

violative of Respondents’ rights and for determination of the

constitutionality of Petitioners’ permanent ban on all visits for

people in prison with substance abuse problems. Bazzetta v.

McGinnis, 133 F. 2d 382 (6th Cir. 1998). The parties went to

trial on these issues in 2001.

future implementation of the challenged visitation

restrictions. Cross-Respondents’ attempt to stay this

order was denied by both the Circuit Court and this

Court, on May 16, 2002. All Cross-Petitioners (both

those who were incarcerated and their hopeful

visitors) who had been permanently banned from

visiting each other because of the Michigan Depart-

ment of Corrections’ policy of permanently banning

all visits if a person in prison was found guilty of two

substance abuse tickets — which included possession

or use of alcohol, over the counter drugs or illegal

substances — had their visits reinstated. This relief

was permanent as the Court of Appeals’ ruling that a

permanent ban was unconstitutional under the

procedure that existed prior to 2002, was never

reversed. The result was the permanent lifting of over

one thousand permanent visitation bans that had

been placed on class members since 1995. Order For

Payment of Interim Attorneys Fees, June 27, 2002,

Pet. App. 35a-36a.

Thereafter, this Court granted Cross-Respondents’

petition for certiorari limited to certain issues,

Overton v. Bazzetta, 537 U.S. 1043 (2002). This Court

did not grant certiorari on either the facial or as

applied procedural due process ruling, reversed on

the issues that were considered by this Court, and

remanded for further proceedings in conformity with

the opinion. Overton v. Bazzetta, 539 U.S. 126 (2003),

reh’g denied, 539 U.S. 982 (2003).

After this Court issued its opinion, Cross-Respon-

dents moved for reversal of the District Court’s fee

5

award pending before the Circuit Court and per-

emptory dismissal of the case below.’ The Circuit

Court denied Cross-Respondents’ motion and on

August 28, 2003, remanded the case to the District

Court for further consideration in light of Overton.

Bazzetta v. McGinnis, 73 Fed. Appx. 842 (6th Cir.

2003).

On remand, the District Court reaffirmed Cross-

Petitioners’ status as prevailing parties in accordance

with the standards established by Hensley v. Ecker-

hart, 461 U.S. 424 (1983), holding:

Based on this standard, it is apparent that

Plaintiffs remain a prevailing party. They

have prevailed on a number of significant

issues including the procedural due process

violation, their request for injunctive relief,

expanded visits for minor children, and

recognition of constitutional limits on

prisoner visitation restrictions. Given the

decision by the Supreme Court, however, it

seems that there should be some further

consideration of the reasonableness of the

attorney fees previously ordered.

Opinion and Order, December 23, 2003, Pet. App.

116a-117a.”

* The fee appeal had been stayed pending a ruling in

Overton.

* On remand, Petitioners also requested that the District

Court order that Respondents place the interim attorney fees in

escrow. The District Court ruled that: -

(Continued on following page)

6

Subsequent to, and in compliance with, the Over-

ton decision, the Michigan Department of Corrections

revised the visitation restrictions for substance abuse

misconducts, deleting the permanent ban provisions

and revising the procedures for future restrictions of

visits. Cross-Petitioners challenged these revised

rules as facially violative of Cross-Petitioners’ due

process rights and the District Court enjoined their

implementation. Cross-Respondents appealed and the

Circuit Court reversed the finding of unconstitu-

tionality as to the facial challenge. The Circuit Court,

however, did not disturb the earlier ruling or relief

that lifted the permanent ban for over 1,000 prisoners

based upon Cross-Petitioners’ “as applied” challenge

to the old rules, affirming that:

Qur reversal is without prejudice to any

claim by an individual prisoner that the

regulation, as applied to that prisoner, im-

poses an “atypical and significant hardship”

thus implicating a protected liberty interest.

Bazzetta v. McGinnis, 430 F. 3d 795, 805 (6th Cir.

2005).

[With respect to the issue of escrow, the Court finds

such a request to be untimely and unnecessary. De-

fense counsel missed their opportunity to request that

the funds be put in escrow at the outset, and have

cited no legal authority to support their argument

that nearly eighteen months after the moncy has been

paid, the Court can order it into escrow.

Opinion and Order, December 23, 2003, Pet. App. 117a. Peti-

tioners did not appeal this ruling.

7

Upon remand from this ruling it remained for the

District Court to determine a reasonable award of

attorney fees and costs for Cross-Petitioners in light

of its prior determination of prevailing party status.

Cross-Respondents opposed any fees and further

asked the District Court to order repayment of

undisputed attorney fees paid to Cross-Petitioners in

2002. The District Court denied the request for

repayment of the interim fees, and Cross-Respon-

dents appealed.

The District Court, in the same order denying

Cross-Respondents’ request for repayment of interim

fees, vacated in total its award of attorney fees and

costs entered on August 19, 2002, subsequent to this

Court’s decision in Overton. The District Court had

reaffirmed Cross-Petitioners’ prevailing party status

after the Supreme Court’s opinion, and ordered the

parties to submit briefs on the reasonableness of the

Court’s prior award in light of the Cross-Petitioners’

reduced success. The District Court, rather than

consider the reasonableness of its prior award of

disputed fees in light of the partial success obtained

by Cross-Petitioners in this complex litigation, simply

vacated the entire fee award and dismissed the case.

Cross-Petitioners cross-appealed on these issues and

the Circuit Court, without any analysis and without

identifying any clear error in the District Court’s

finding that Cross-Petitioners were _ prevailing

parties, affirmed the dismissal and vacated the entire

award, stating only that Cross-Petitioners “achieved

only a transient victory in Bazzetta IT [430 F. 3d 795]

8

and eventually left the courthouse empty”, in reliance

upon the wholly distinguishable case of Sole v. Wyner,

551 U.S. 74 (2007).

REASONS FOR GRANTING CROSS-PETITION

The failure to award attorney fees in this lengthy

legal battle to establish recognition of fundamental

rights for an ever increasing number of our citizens,

undermines the purpose and value of 42 U.S.C.

§ 1988, warranting review and clarification by this

Court that the type of benefits the Plaintiff class

obtained in this case render them prevailing parties

entitled to attorney fees. In the event the Court

grants Certiorari to the Cross-Respondents, Cross-

Petitioners ask the Court to also grant review on the

issues Cross-Petitioners include herein, because these

issues are intertwined.

The Circuit Court Erred in Holding that

Cross-Petitioners Were Not Prevailing Par-

ties

The proper standard for determining whether

Cross-Petitioners are a prevailing party was ad-

dressed by the District Court in its August 19, 2002

opinion, finding Cross-Petitioners to have met the

threshold:

(T]he Hensley Court indicated that “{a]

typical formulation is that Plaintiffs may be

9

considered ‘prevailing parties’ for attorney’s

fees purposes if they succeed on any sig-

nificant issue in the litigation which achieves

some of the benefit the parties sought in

bringing suit.” Jd. 461 U.S. at 433 (quoting

Nadeau v. Helgemoe, 581 F. 2d 275, 278-79

(1st Cir. 1978).

Order Granting Plaintiffs’ Motion For Attorney Fees,

August 19, 2002, Pet. App. 48a.

The District Court also relied upon Texas State

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.

782 (1989), which rejected the argument that a

plaintiff needed to prevail on a “central issue” in their

lawsuit, holding that:

If the plaintiff has succeeded on any signif-

icant issue in the litigation which achieved

some of the benefit the parties sought in

brining the suit, the plaintiff has crossed the

threshold to a fee award.

Id. at 792.

This concept of “prevailing party” is to be inter-

preted in a practical manner by inquiring whether a

plaintiff obtained any benefit as a result of their

litigation either in terms of monetary damages or in-

junctive relief. While the degree of Cross-Petitioners’

success in this case was reduced by both Overton and

the Circuit Court’s ruling on the facial challenge to

Cross-Respondents’ revised rules, it did not under-

mine Cross-Petitioners’ prevailing party status. After

10

Overton, the District Court ruled that Cross-

Petitioners’ remained prevailing parties, because:

They have prevailed on a number of signif-

icant issues including the procedural due

process violation, their request for injunctive

relief, expanded visits for minor children,

and recognition of constitutional limits on

prisoner visiting restrictions.

Opinion and Order (1) Denying Defendants’ Motion

for Summary Judgment; (2) Granting Plaintiffs’

Motion To Enforce Compliance; and (3) Denying

Defendants’ Motion To Place Attorney Fees in Escrow,

December 23, 2009, Pet. App. 116a. As the District

Court held in its post-Overton ruling reaffirming

Cross-Petitioners’ prevailing party status, “[t]he

degree of the Plaintiffs’ overall success goes to the

reasonableness of the award under Hensley, not to

the availability of a fee award”. Id. (quoting Texas

State Teachers Ass’n, supra). Cross-Petitioners

obtained concrete benefits as a result of judicial

rulings on major issues that were not reversed on

appeal by any appellate ruling making them

prevailing parties within the meaning of § 1988, to

wit:

11

A. Cross-Petitioners Obtained a Judicial

Ruling That Was Not Overturned on

Appeal, Requiring Cross-Respondents

to Allow Visitation Between People in

Prison and Their Minor Siblings

A significant issue in this case was the decision

of the state Cross-Respondents to prohibit all visita-

tion between minor siblings and their incarcerated

brothers and sisters. Over half of the named Plaintiff

class representatives in this case were brothers and

sisters under the age of 18 who were banned from any

visits with their siblings. Cross-Petitioners argued

that a fundamental right of prisoners and their

family was implicated and under the balancing test of

Turner v. Safley* the prohibition on these visits was

unconstitutional. The District Court, after performing

a Turner analysis, found on behalf of the Cross-

Petitioners, the Circuit Court affirmed on this issue

and in 2002 this Court refused to stay the mandate.

The result was that on May 16, 2002, and

continuing to the present the Cross-Petitioners, who

had been prohibited from seeking each other — for

seven years — began visiting. Thousands of prisoners

and their family members have been able to visit as a

result of the Cross-Petitioners’ case and the Court’s

ruling in this matter. Cross-Respondents did not

challenge this ruling before this Court and this

Court’s ruling in Overton did not disturb the District

* Turner v. Safley, 482 U.S. 78 (1987).

12

Court’s decision on this point. Cross-Petitioners

obtained both a judgment on the merits and judicial

relief and a concrete benefit.

As the District Court found in its December 23,

2003 decision reaffirming Cross-Petitioners’ pre-

vailing party status after this Court’s ruling, “Plain-

tiffs obtained a judicial sanctioned change in the legal

relationship between the parties that resulted in an

actual benefit to the Plaintiffs”. Bazzetta v. McGinnis,

148 F. Supp. 2d 813, 849 (E.D. Mich. 2001) (“Plaintiffs

prevailed on the merit of their claims for expanded

visits for minor children” includes Cross-Petitioners’

success on their challenge to Cross-Respondents’

prohibition to visitation by minor siblings.); and

(“Therefore the Court finds that Cross-Petitioners

have prevailed in establishing the unconstitutionality

of the MDOC regulations excluding minor siblings

...”). This ruling was not reversed on appeal and

minor siblings continue to visit.

Cross-Respondents have previously cited legisla-

tion enacted after the ruling of the District Court on

this issue to argue that the issue was either mooted

by the legislation or that Cross-Petitioners’ success

was based on a catalyst theory, therefore stmpping

Cross-Petitioners of prevailing party status as to this

issue. Neither argument is correct. It is undisputed

that the legislation, referenced by Cross-Respondents,

was enacted over a month after the District Court’s

ruling in Cross-Petitioners’ favor on this issue. Grier

v. Goetz, 421 F.Supp. 2d 1061, 1071 (M.D. Tenn.

2006) (catalyst cases apply only where there has heen

13

a “voluntary change and behavior before a court has

considered and ruled on the merits of the lawsuit”);

Jackson v. Illinois Prisoner Review Bd., 856 F. 2d 890,

895 (7th Cir. 1988) (“{If Plaintiff] could not recover

fees then any public defendant could always defeat a

§ 1988 fee award in a declaratory judgment case by

acknowledging the violation and changing its rule to

moot the case”.).”

The Supreme Court’s review in this case did not

address whether prohibition of all minor siblings

would meet the Turner v. Safley test, because Cross-

Respondents did not pursue the challenge. However,

Cross-Respondents’ decision not to pursue it does not

deprive Cross-Petitioners of prevailing party status.

Young v. City of Chicago, 202 F. 3d 1000, 1001 (7th

Cir. 2000) (“a defendant cannot defeat a plaintiffs’

right to attorneys’ fees by taking steps to moot the

case after the plaintiff has obtained the relief

he sought for in such a case mootness does not alter

the plaintiffs’ status as a prevailing party”); Richard

S. v. Dept. of Developmental Services, 317 F. 3d 1080,

1088 (9th Cir. 2003) (compliance after a judicial

ruling which moots the issue does not deprive

Plaintiffs of prevailing party status). On this issue

* See also the Sixth Circuit’s ruling in Bazzetta, 286 F.2d

311, 318 n. 1 (2002) “Michigan did not make the change until

after the District Court ruled and still defended their right to

put on restrictions” as to the sibling issue; therefore, the Sixth

Circuit went ahead and ruled in affirming the District Court on

this matter.

14

alone, Cross-Petitioners are prevailing party and

entitled to a determination of reasonable fees.

B. Cross-Petitioners’ Litigation Resulted

in the Elimination of the Permanent

Ban on All Visits for Substance Abuse

Misconducts

Cross-Petitioners challenged the state’s imposi-

tion of permanent bans on all visitation for any pris-

oner who was found guilty of two substance abuse

misconducts as violative of Cross-Petitioners’ Eighth

Amendment rights and substantive and procedural

due process rights. Cross-Respondents began impos-

ing these permanent bans in 1995. At the time that

Cross-Petitioners received a judgment after trial,

there were over one thousand prisoners and thousands

ef their Plaintiff family members who had not been

able to see each other for over seven years because

they had been placed on a permanent visitation ban.

Cross-Respondents insisted on their right to put

a permanent ban on prisoners because they argued

that neither people who were in prison nor their

visitors had any rights of visitation or associa-

tional rights and, therefore, no rights were impli-

cated by a permanent ban on all visits.

The District Court found the permanent ban to

constitute an Eighth Amendment violation. Finding

that it had been imposed with “a callousness that

could serve as the definition of deliberate indiffer-

ence”, the court also struck down the ban as violating

the Cross-Petitioners’ substantive due process rights

and infringing on First and Fourteenth Amendments

associational rights. Finally, the court found specific-

ally as to the bans that they had been arbitrarily

applied without any process for imposing them or

procedure for reinstating them which violated those

Cross-Petitioners’, who were on a permanent ban, due

process rights.

When the Circuit Court affirmed, the District

Court ordered over 1,000 individuals, who were on

the permanent ban, to have immediate visitation.

Thousands of people, husbands and wives, children,

siblings, grandparents, aunts and uncles, visited for

the first time in years. The Cross-Respondents’ at-

tempts to stop this order were rejected on May 16,

2002, and the visits began and the relief obtained was

permanent. Cross-Petitioners have, therefore, pre-

vailed on this issue for several reasons:

First, this Court did not grant certiorari on any

of the due process rulings that formed a basis for the

District Court’s rulings lifting the permanent visita-

tion bans. The status quo was that over a thousand

prisoners had been permanently banned from any

visits, many for seven years. After Overton was

decided, Cross-Respondents conceded that the lifting

of the permanent visitation restriction was a signifi-

cant result sought and obtained by Cross-Petitioners

16

by a favorable judicial ruling.” The Overton Court

neither reviewed nor reversed this ruling and Cross-

Petitioners kept the benefits as a result of the District

Court’s order.

Second, Cross-Respondents never challenged

the District Court’s order with regard to the per-

manent ban to this Court. Cross-Respondents argued

for a limited ban that would be subject to review after

two years and argued that this did not constitute a

violation of the Eighth Amendment. This Court, in

Overton, addressed Cross-Respondents’ argument and,

’ Petitioners conceded this at a hearing after remand,

following Overton, asserting that they had limited the perma-

nent visitation bans. Petitioners asserted,

In addition, all of the inmates that were at issue in

the third amended complaint, as facts were

established by the trial before this Court, every single

one of those inmates, we can — I believe the total was

1,124 but I won’t take issue with the number,

somewhere between 1,100 and 1,200 inmates were

given the injunctive relief and the declaratory relief

that they sought when this Court [] ordered us to

remove them from the visitation restriction May 17,

2002.

Dec. 4, 2003 Motion Hearing. (The transcript of this motion

hearing is referenced in Petitioners’ Appendix, but is not

complete; it does not include pages containing these quotations.

Petitioners’ Appendix also includes a document stricken from the

record: 140a was stricken by the October 20, 2006 Order of the

District Court.) Petitioners also recognized that this occurred as

a result of a judicial ruling, stating: “[Bjecause here there was a

declaration by the Court that what we were doing was

procedurally unconstitutional, and there was an order entered

requiring us to take certain conduct.” /d

17

specifically, twice, cautioned Cross-Respondents that

“if the withdrawal of all visitation privileges

were permanent, or for a much longer period

[than the two years Defendants proposed], or if

it were applied in an arbitrary manner to a

particular inmate, the case would present

different considerations”. Overton, 537 U.S. at

137. This Court also cautioned that if the bans were

to become de facto permanent in the future, “we

might reach a different conclusion” as to the

constitutionality of the bans. Overton, 537 U.S. at

134. Cross-Petitioners obtained two very important,

practical benefits as a result of the Court’s ruling in

this matter, that were not overturned on appeal: 1) all

the permanent bans were lifted and Cross-Petitioners

began visitation which continues to this day; and 2)

the permanent ban is dead and this Court “admon-

ished” Cross-Respondents (the Circuit Court’s lan-

guage in Bazzetta, 430 F. 3d at 799) that they could

not re-impose a permanent ban and that the ban

could not be applied in an arbitrary manner.

Third, Cross-Petitioners established a right to

due process protections in visitation restrictions.

After Overton, Cross-Respondents revised their re-

strictions on visits for substance abuse and proposed

a two year ban with review. Cross-Petitioners again

challenged, arguing Cross-Respondents had not cured

the procedural due process problems found by the

District Court. After the District Court enjoined the

new rules, the Circuit Court held that the new rules

18

were not facially violative of due process but, specif-

ically refused to accept Cross-Respondents’ argument

that visitation restrictions could never implicate a

prisoner’s due process rights, stating its ruling was

without prejudice to any prisoner’s right to claim that

the rules as applied constituted an “atypical and

significant” hardship. 430 F. 3d at 805. For all Cross-

Petitioners it was clear that a fundamental right was

recognized that required some procedural protections

prior to lengthy visit restrictions.

C. Cross-Petitioners’ Litigation Success-

fully Established a Fundamental Con-

stitutional Right of Association Which

Survives Incarceration

All of the above areas in which Cross-Petitioners

prevailed were as a result of formal decisions by the

Court and resulted in very concrete, practical relief to

many Cross-Petitioners. But perhaps just as impor-

tant was the basic change in the legal relationship of

the parties in this case. In this case the state argued

from 1995 until this case reached this Court in 2003

that there are no constitutionally protected rights

associated with prisoners’ visitation with their family

members, including their children; that there are no

associational rights; that there are no substantive or

procedural due process rights; that there are no First

Amendment rights; and that a permanent ban

implicated no rights of people in prison. As a result of

this argument, Cross-Respondents must have filed

the only civil rights brief to this Court involving

19

prisoners in the last 20 years that does not

reference or even cite Turner v. Safley.

The status quo and the relationship of the parties

was significantly changed by the recognition that

there are constitutional limits on the power of correc-

tions officials to place restrictions on visits with

prisoners. Cross-Respondents defended this case from

the beginnirg by asserting that visitation was a

privilege, and there was no basis for a court to

inquire into, or restrict the Michigan Department of

Corrections’ regulations on visitation. Cross-Respondents

argued that prisoners retained no due process rights

with regard to visitation restrictions and the MDOC

could restrict any or all visits, for any length of time,

for any reason or no reason at all. In Overton, this

Court accepted the existence of a constitutional right

at issue and performed a detailed analysis under Tur-

ner, supra, to determine whether Cross-Respondents’

infringement on Cross-Petitioners’ rights was uncon-

stitutional under the First Amendment. Overton v.

Bazzetta, 539 U.S. at 132-36. Further, in analyzing

Cross-Petitioners’ Eighth Amendment claim, this

Court cautioned:

If the withdrawal of all visitation privileges

were permanent or for a much longer period,

or if it were applied in an arbitrary manner

to a particular inmate, the case would pre-

sent different considerations. An individual

claim based on indefinite withdrawal of

visitation or denial of procedural safeguards,

however, would not support the ruling of the

20

Court of Appeals that the entire regulation is

invalid.

Id. at 137. This Court rejected Cross-Respondents’

assertion that their discretion to eliminate visits is

boundless and unreviewable.

As the District Court found, Cross-Petitioners

retained prevailing party status based on this Court’s

recognition of constitutional limits on _ prisoner

visiting restrictions. Overton has been interpreted as

affirming prisoners’ fundamental right to intimate

association. Maydak v. United States, 363 F. 3d 512,

516 (D.C. Cir. 2004) (recognizing that Overton con-

firms the proposition that prisoners retain a right

of intimate association that may be curtailed under

appropriate circumstances); Johnson v. California,

336 F.3d 1117, 1122 (9th Cir. 2003) (““Cf. Overton

applying Turner to freedom of association claims

relating to family visitation”.); Kelly v. Lewis, 88 Fed.

Appx. 282 (9th Cir. 2004) (“recognizing that right to

association survives incarceration”, citing Overton);

Yoder v. Wisconsin Dept. of Corrections, 2004 WL

602647 (W.D. Wis. 2004) (“Fhe Supreme Court has

assumed that prisoners retain some right of familiar

association”, citing Overton). This Court has extended

its analysis of prisoners’ associational rights to

another First Amendment protected right, in Beard v.

Banks, 548 U.S. 521 (2006) (a challenge to a ban on

high security prisoner’s access to newspapers,

magazines, and photographs).

21

D. Cross-Petitioners’ Litigation Expanded

the Ability of Children to Visit Their In-

carcerated Parents by Striking Down a

Restriction

Cross-Petitioners also challenged the state policy

that limited who could bring minor children to visit

their incarcerated parent. The question was one of

great practical significance. The District Court found

that the limitation placed by the Cross-Respondents

was arbitrary, implicated a fundamental right of

association between a parent and her or his child, and

did not meet the Turner standard. The Circuit Court

affirmed, stating that the “justification of this policy

is weak, but the harm done is readily apparent”.

Cross-Respondents did not pursue this ruling on

appeal to this Court, and this Court specifically

adopted Cross-Petitioners’ urged, expanded interpre-

tation that a child may visit when accompanied by

the broader universe of adults which included, “an

adult who is an immediate family member of the

child or of the inmate”. Overton, 539 U.S. at 130.’

These visits also began on May 16, 2002, and

continue to this date.

‘ Petitioners acknowledged in argument before this Court

that absent this ruling, a child’s biological father could not bring

the child to visit the child’s incarcerated mother and Defendants

argued below that only parents or spouse of the prisoner could

bring the child. Transcript of Oral Argument, March 26, 2003

(U.S. Docket No. 02-94) at 14-16.

22

Cross-Petitioners were thus successful in expand-

ing the opportunity for visits between prisoners and

their children by broadening application of the term

“Immediate family”, an issue the District Court found

to be of “great practical significance” to class repre-

sentatives, such as Tamara Prude, an incarcerated

single mother, and all others similarly situated.

Under Cross-Respondents’ policy prior to Cross-

Petitioners’ lawsuit and the judicial ruling on this

issue, a child’s biological father, if not married to the

incarcerated mother, was not able to bring the child

to visit his or her mother. The District Court struck

down this rule, Bazzetta, 148 F. Supp. at 833, n. 30,

and this Court affirmed, recognizing that the limited

number of adults who could bring a child to visit her

or his incarcerated parent under Cross-Respondents’

scenario would constitute for many prisoners a

complete, “ban on visits from their children”.

Bazzetta, 286 F. 3d at 320-21.

This Court adopted an expanded rule that a child

may visit when accompanied by a broader universe of

adults which included “an adult who is an immediate

family member of the child or of the inmate”, thus

allowing Cross-Petitioners’ children to be brought by

their biological father. Overton v. Bazzetta, 539 U.S.

at 130 (emphasis added). This Court’s decision to

interpret the rule more broadly to include immediate

family members of both the prisoner and the child

has allowed Cross-Petitioners such as Tamara Prude

and her minor child to visit again. The Overton

decision has provided significant relief that would not

23

have occurred but for Cross-Petitioners’ litigation and

the rulings of the Courts.

Il. The Circuit Court Erred in Affirming the

Dismissal of the Case and the Vacating of

Cross-Petitioners’ Fee Award Without Any

Determination of Reasonableness of Cross-

Petitioners’ Fees Based on the Success

Achieved

The Circuit Court’s decision, asserting that

Cross-Petitioners “essentially left the courthouse

empty” is completely at odds with the factual reality

in this case. If left to stand, the decision seriously

undermines the value of § 1988, the purpose of which

is precisely to encourage the bringing of cases just

like this one. This is a case which addressed arbitrary

and unnecessarily harsh and severe restrictions on

incarcerated people that had an actual negative

impact on the penological goals of rehabilitation and

the society at large. The entire sub-class of Cross-

Petitioners’ siblings continue to visit today, not

because of Cross-Respondents’ largesse, but because

of a ruling that was never overturned, and, indeed,

never really challenged on appeal. Thousands of

Respondent prisoners and Respondent family mem-

bers were reunited after denial of visits based on a

permanent ban that was voided by the District Court

and never reinstated. Children can now visit their

incarcerated mothers by being brought by their

father. This only occurred by this litigation and its

related judgments. Although overturned in part, it

24

sufficed to significantly change the legal relationship

between the parties.

Cross-Petitioners, as the District Court found,

meet the threshold for being considered a “prevailing

party” within the meaning of 42 U.S.C. § 1988. The

question remains as to what fees are reasonable in

light of the degree of Cross-Petitioners’ success in this

lengthy, multi-issued and procedurally complex class

litigation. Northcross v. Board of Ed. of Memphis

Schools, 611 F. 2d 624, 636 (6th Cir. 1979) (once a

plaintiff is determined to be a prevailing party they

are entitled to recover attorney fees for all time

reasonably spent on the matter, including hours

expended on unsuccessful research or phases of the

litigation unless the positions asserted are frivolous

or in bad faith); Murray v. City of Onawa, Iowa, 323

F. 3d 616, 619 (8th Cir. 2003) (plaintiff who sought

$500,000 in damages and received an award of $1 was

prevailing party entitled to attorney fees where he

obtained some relief, significant legal issues were

involved and the litigation had a public goal); S.D.

Edmonds v. FBI, 417 F. 3d 1319 (D.C. 2005) (reversing

a district court’s denial of fees to plaintiffs by noting

that plaintiffs’ success in obtaining an order to expedite

a response to an FOIA request amounted to a “judicially

sanctioned change in the legal relationship of the

parties”, entitling plaintiffs to prevailing party status).

Once Cross-Petitioners were determined to be

prevailing parties, the District Court was required to

award attorney fees, in the absence of finding special

circumstances. Berger v. City of Mayfield Heights, 265

25

F. 3d 399, 406 (6th Cir. 2001). Based upon the Court’s

rulings, Cross-Petitioners obtained a judicially sarsc-

tioned change in the legal relationship between the

parties that resulted in an actual benefit to Cross-

Petitioners and are therefore prevailing parties.

Habich v. City of Dearborn, 331 F. 3d 524, 525, 534-35

(6th Cir. 2003). Once determined a “prevailing party”,

the district court must then apply certain principles

to determine what fee is “reasonable”. Hensley v.

Eckerhart, 461 U.S. at 433; Blum v. Stenson, 465 U.S.

886, 888, 893 (1984) (in awarding or denying attorney

fees the court should provide a clear and concise

explanation of its reasons).

After the initial trial and decision on appeal from

this Court, the District Court considered Cross-

Petitioners’ motion for attorney fees for work per-

formed from 1995 through May of 2002. The District

Court first considered whether Cross-Petitioners were

prevailing parties pursuant to 42 U.S.C. § 1988. The

District Court, relying upon Hensley v. Eckerhart,

noted that:

In this regard, the Hensley Court indicated

that “[a] typical formulation is that ‘plaintiffs

may be considered “prevailing parties” for

attorney’s fees purpose if they succeed on any

significant issue in the litigation which

achieves some of the benefit the parties

sought in bringing suit.’” Jd. 461 U.S. at 433

(quoting Nadeau v. Helgemoe, 581 F. 2d 275,

278-79 (1st Cir. 1978)). Once plaintiffs have

crossed this threshold, they are considered a

“prevailing party” within the meaning in

26

Section 1988 and are entitled to a fee award

of some kind. Texas State Teachers Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 791-

92 (1989). As the Supreme Court explained,

“(t]he degree of the plaintiff’s overall success

goes to the reasonableness of the award

under Hensley, not to the availability of a fee

awarded vel non.” Id. at 798.

Order Granting Plajntiffs’ Motion For Attorney Fees,

August 19, 2002, Pet. App. 48a.

In its 2002 order, the District Court found that

Cross-Petitioners were prevailing parties within the

meaning of 42 U.S.C. § 1988 and applied the appro-

priate factors to determine what would constitute a

reasonable fee. Order Granting Plaintiffs’ Motion For

Attorney Fees, August 19, 2002, Pet. App. 51a-54a.

After considering the twelve “Johnson factors” and

performing a detailed analysis ot Cross-Respondents’

objections, the District Court awarded Cross-Peti-

tioners’ counsel fees and costs totaling $570,167.35.

Id. 54a-58a. Cross-Respondents appealed and, after

the Supreme Court issued Overton, this Court re-

manded the prevailing party question back to the

District Court for its consideration in the first

instance. Bazzetta v. McGinnis, 73 Fed. Appx. 842

(6th Cir. 2003). The parties again briefed the

prevailing party issue in light of Overton. On

December 23, 2003, the District Court reaffirmed

Cross-Petitioners’ prevailing party, holding:

Based on this standard [Hensley], it is

apparent that Plaintiffs remain a prevailing

27

party. They have prevailed on a number of

significant issues including the procedural

due process violation, their request for

injunctive relief, expanded visits for minor

children, and recognition of constitutional

limits on prisoner visiting restrictions. Given

the decision by the Supreme Court, however,

it seems there should be some further

consideration of the reasonableness of the

attorney fees previously awarded. This issue

must be briefed before the Court can rule.

Opinion and Order, December 23, 2003, Pet. App.

116a-117a.

Pursuant to the District Court’s order, Cross-

Petitioners submitted a memorandum on the reason-

ableness of the prior fee award with proposed reduc-

tions of hours for distinct time spent on issues on

which Cross-Petitioners did not ultimately prevail.

Cross-Petitioners addressed the fact that the case

involved a “common core of facts” or were based on

“related legal theories” and spoke to the significant

relief obtained. Kelly v. Metropolitan Co. Bd. of

Education, 772 F. 2d 677 (6th Cir. 1985), cert. denied,

474 U.S. 1083 (1986) (where the relief obtained arose

out of a common core of facts or a challenge to a

centralized policy or action, the overall result is the

primary factor in determining counsel fees); see also

Wayne v. Village of Sebring, 36 F. 3d 517, 532 (6th Cir.

1994). |

Cross-Petitioners addressed the fact that thou-

sands of prisoners and their families were reunited in

28

visits as a result of this litigation, providing a

rehabilitative benefit that neither Cross-Respondents

nor the Courts disputed. Parton v. GTE North, Inc.,

971 F. 2d 150, 155-56 (8th Cir. 1992) (a legal issue of

some significance that advances the public purpose

will support the reasonableness of fees); Farrar uv.

Hobby, 506 U.S. 108, 121-22 (1992) (O’Connor, J.,

concurring) (a victory that vindicates important

rights or deters future violations is an issue that can

be considered by the Court in evaluating the reason-

ableness of fees). Cross-Petitioners also addressed the

issue of the time and costs spent on the case neces-

sary to achieve these results. Ustrak v. Fairman, 851

F. 2d 983, 988-89 (7th Cir. 1988) (the question is how

much time would have been expended by plaintiffs’

counsel if they had only sued on their successful

claims).

However, neither the District Court nor the

Circuit Court undertook any analysis of the continued

reasonableness of the prior fees and costs award

for work performed from 1995 through May, 2002.

Nor did the lower courts address Cross-Petitioners’

supplemental fees and costs submitted for subsequent

work through 2006. Rather, the District Court,

despite its holding that Cross-Petitioners remained

prevailing parties, vacated its prior order and,

without allowing oral argument, stated:

Given the decision by the Supreme Court in

Overton and the Sixth Circuit’s decision

holding the [sic] there was no facial pro-

cedural due process violation, Bazzetta v.

29

McGinnis, 423 F. 3d 557 (6th Cir. 2005), this

Court vacates its August 19, 2002 Order

awarding Plaintiffs additional attorney fees

in the amount of $570,167.35.

Order Denying Defendants’ Request to Vacate June

27, 2002 Order For Payment of Interim Attorney

Fees; Granting Defendants’ Request to Vacate August

19, 2002 Order Granting Plaintiffs’ Motion for

Attorney Fees; and Vacating August 19, 2002 Order

Granting Plaintiffs Attorney Fees, November 20,

2006, Pet. App. 13a-14a. However, the District Court

had already ruled, after Overton, that Cross-

Petitioners retained their prevailing party status.

Opinion and Order, December 23, 2003, Pet. App.

116a-117a.

The only event that occurred after this was the

Circuit Court’s ruling on Cross-Petitioners’ facial

challenge to Cross-Respondents’ revised rules. Bazzetta,

430 F. 3d 795. This ruling did not deprive Cross-

Petitioners of prevailing party status because the

District Court recognized, following Overton, that

Cross-Petitioners met the threshold for prevailing

party status by prevailing on “injunctive relief,

expanded visits for minor children and recognition of

constitutional limits on prisoner visitation restric-

tions”. Opinion and Order, December 23, 2003, Pet.

App. 116a-117a. The Circuit Court’s 2005 decision

also did not impact Cross-Petitioners’ legal and actual

success when it considered the as applied due process

challenge to the former “permanent ban” rules that

resulted in the lifting of Cross-Petitioners’ visitation

30

bans. Bazzetta, 430 F. 3d at 805. While the District

Court has a great deal of discretion in determining

the reasonableness of fee awards, it is required to

articulate a clear explanation setting forth its

reasons. The Circuit Court clearly erred in affirming

the District Court’s ruling, again, without any

analysis. Hensley, 461 U.S. at 437.

Courts have interpreted Hensley’s requirement to

require “some indication of how it arrived at the

amount of compensable hours to allow for meaningful

review”, rejecting “meat-ax approaches” and re-

manding where a court fails to adequately articulate

its reasons. Heiar v. Crawford County, 746 F. 2d 1190,

1204 (7th Cir. 1984), cert. denied, 472 U.S. 1027

(1985). In vacating the district court’s decision to

simply cut a fee request in half without articulating

which parts were excessive, Judge Posner noted,

“[w]Jhere as in this case the request is for a large

amount of money the judge ... has to make a

judgment — considering the nature of the case and the

details of the request, taking evidence if need be, and

defending [her] judgment in a reasoned (though brief)

opinion on what the case should have cost the party

who submitted the request”. Jd.; see also Northcross v.

Bd. of Education, 611 F.2d at 637. The District

Court’s one-time explanation does not suffice to

explain its wholesale reduction of Cross-Petitioners’

fee award after it had reaffirmed Cross-Petitioners’

prevailing party status in light of Overton. Hensley v.

Eckerhart, 461 U.S. 424, 235 (1993) (once a party

prevails, a district court should not reduce hours

31

because a prevailing party did not receive the type or

all of the relief originally requested).

Once the District Court determined Cross-

Petitioners to have crossed the threshold of prevailing

party status, under Hensley it “must apply certain

principles to determine what fee is reasonable”. This,

the District Court wholly failed to do. Instead, it

simply vacated its fee opinion of August 2002,

without explanation, and did not address any fees

past 2002. This, Cross-Petitioners believe, is in error.

This case has been pending for fourteen years.

There are over 430 docket entries at the District

Court, there was a preliminary TRO and injunctive

hearing before the Court; there were nine days of

bench trial; there have been eleven appeals filed by

the state before the Circuit Court; there have been

four certiorari petitions filed to date, with one

granted. There should at least be an explanation from

the District Court limiting Cross-Petitioners’ total

fees to only those nondisputed interim fees that

Cross-Respondents agreed to pay in June of 2002 and

vacating all costs awarded. This matter should be

remanded to the District Court to follow law and

determine what fees are reasonable in light of the

success Cross-Petitioners obtained in this case.

e

32

CONCLUSION

The courts below erred by finding that Cross-

Petitioners were not prevailing parties where they

obtained a ruling that was not overturned on appeal

that required Cross-Respondents to allow visitation

between people in prison and their minor siblings,

resulted in the elimination of the permanent ban on

all visits for substance abuse misconducts, success-

fully established a fundamental Constitutional Right

of Association which survives incarceration, and

expanded the ability of children to visit their

incarcerated parents by striking down a restriction as

to whom may bring the child to visit. Thus it was

error for the Court of Appeals to affirm dismissal of

the case and vacating Respondent’s Attorneys Fee

award without any determination of reasonableness

based upon the success achieved.

Cross-Petitioners request that, in the event that

Cross-Respondents’ petition for a writ of certiorari is

granted, that the Court include the issues raised in

this conditional cross-appeal because they are

interrelated.

Respectfully submitted,

DEBORAH LABELLE

(Counsel of Record)

221 North Main Street, Suite 300

Ann Arbor, MI 48104

Telephone: (313) 996-5620

DATED: April 29, 2009