Opposition Brief — Bazzetta v. Caruso (No. 08-1345)

Suprome Gout US

FILED

(a) No. 08-1345 A. 4 ~ 2003

ae el oe | ed ee oe ein ad ee

Jn the Supreme Court

of the Gnited States

MICHELLE BAZZETTA, et al,

Petitioners,

V

PATRICIA L. CARUSO, Dircctor of Michigan

Department of Corrections; MICHIGAN

DEPARTMENT OF CORRECTIONS,

Respondents.

On Cross-Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

RESPONDENTS' BRIEF IN OPPOSITION

Michael A. Cox

Attorney General

B. Eric Restuccia

Michigan Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

James E. Long

Assistant Attorney General

Corrections Division

Lisa C. Ward

Special Assistant Attorney General

Attorneys for Petitioners

QUESTION PRESENTED

Whether a plaintiff in a 42 U.S.C. § 1983 action

who has lost on all claims as a result of a unanimous

merits decision in this Court can be deemed a

"prevailing party" under 42 U.S.C. § 1988(b) in order to

retain disputed interim attorney fees awarded during

the pendency of the litigation. !

! Respondents object to the questions presented in

Petitioners’ Conditional Cross-Petition because

Petitioners ultimately lost on every claim in their case,

when this Court unanimously reversed the lower court

decisions in their entirety, Overton v. Bazzetta, 539 U.S.

126 (2003), and thus Petitioners’ two questions are based

on a faulty premise. Sup. Ct. R. 15.2

PARTIES TO THE PROCEEDING

Petitioners include eleven class representatives on

behalf of themselves and all others similarly situated,

including all inmates incarcerated by Michigan

Department of Corrections (MDOC) and_non-

incarcerated potential visitors of MDOC inmates. The

eleven representative plaintiffs are Michelle Bazzetta,

Stacey Barker, Toni Bunton, Debra King, Shante Allen,

Adrienne Branaugh, Alesia Butler, Tamara Prude,

Susan Fair, Valerie Bunton, and Arturo Bunton, through

his next friend, Valerie Bunton.

Respondents are the Michigan Department of

Corrections (MDOC) and the Director of the MDOC.

Respondent Patricia L. Caruso is the current Director:

under Sup. Ct. R. 35.3 she is automatically substituted

as a party in place of the former Director, Kenncth

McGinnis.

-iii-

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR DENYING PETITIONER

BAZZETTAS' CONDITIONAL CROSS-PETITION

I. The litigation did not achieve success and the

complaint was dismissed with prejudice. ............. 4

A. Petitioners did not prevail on visitation

Eee, MII oa scarepaicans cs Jaxcacivasinentieondtsers ivenks 5

B. The visitation ban for substance abuse

misconducts continues to be enforced by

I I ii 2h 2, sat i tlhnedacateoniabatonomervasiaxerasiass 7

Petitioners did not establish a

fundamental constitutional right of

association in this case

Petitioners' statement concerning MDOC's

policy ab»ut minor children visiting

incarcerated felons is inaccurate. ............0........ 12

Il. The Petitioners are not prevailing parties as a

II I WI 6 esas ccd hats cuncnuccnapsonoed Sec ulwanbuaceeoiewan dias 14

CONCLUSION

~1V-

TABLE OF AUTHORITIES

Page

Cases

Bazzetta v. McGinnis,

(unpublished opinion 6th Cir. Nos.

06-2643/2644, August 28, 2008).........cccccssesccccsessscess 3

Bazzetta v. McGinnis,

(unpublished order, E.D. Mich. No. 95-73540,

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Bazzetta v. McGinnis,

148 F. Supp. 2d 813 (E.D. Mich. 2001).................... 1

Bazzetta v. McGinnis,

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Buckhannon Board & Care Home, Inc. v. West

Virginia Dept. of Health and Human

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532 U.S. 598 (2001) ................ deal 5, hele a eg

Garcia v. Yonkers School District,

561 F.3d 97 (9th Cir. 2009) (i

Overton v. Bazzetta,

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STATEMENT OF THE CASE

This is a fourteen-year-old controversy brought by

incarcerated felons and their visitors (Petitioners)

against Michigan prison officials (Respondents)

challenging prison visitation § restrictions. The

Petitioners initially achieved some injunctive relief from

the District Court and the Court of Appeals,? but

ultimately lost on every claim. In Overton v. Bazzetta,

this Court unanimously reversed the Court of Appeals

and held that the challenged prison visitation

restrictions did not violate the First, Eighth, or

Fourteenth Amendments to the United States

Constitution. *

After further proceedings in the District Court

and the Court of Appeals, a judgment dismissing the

case with prejudice was entered on November 20, 2006.

In response to this Court's unanimous decision on

August 28, 2003, the Court of Appeals vacated its

decision affirming the District Court's April 19, 2001

findings of fact and conclusions of law, Mazzetta v.

McGinnis, 148 F. Supp. 2d 813 (E.D. Mich. 2001), and

remanded the case to the District Court for further

consideration in light of this Court's opinion. Pet. App.

59a-60a. Despite this Court's unanimous decision in

Overton, the District Court issued an opinion and order

on December 23, 2003 agreeing with the Petitioners'

claim that MDOC's visitation restriction for inmates

found guilty of substance abuse misconduct violated the

procedural Due Process Clause of the Fourteenth

Amendment, and held that Petitioners’ claim was still

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

3 Overton v. Bazzetta, 539 U.S. 126 (2003). Rather than

repeat the lengthy and complex procedural history in

this case, Respondents rely on the factual and procedural

background set forth in Overton, supra.

cB

valid. Pet. App. 102a-118a. The Respondents appealed

and the Court of Appeals reversed Bazzetta v. McGinnis,

423 F.3d 557 (6th Cir. 2005). On November 28, 2005, the

Court of Appeals issued an amended opinion, Bazzetta v.

McGinnis, 430 F.3d 795 (6th Cir. 2005), clarifying that

Overton foreclosed the Petitioners’ procedural due

process claim. The Petitioners' petition for writ of

certiorari was denied by this Court on October 10, 2006.

Pet. App. 137a.

After this Court denied certiorari, on October 31,

2006, the Respondents filed in the District Court a

motion for entry of judgment on the basis that all of the

claims at issue in the Petitioners' third amended

complaint had been decided in favor of the Respondents.

On November 20, 2006, the District Court granted the

Respondents’ motion for entry of judgment, and on that

same day the District Court issued a judgment

dismissing the case with prejudice. Pet. App. 15la. The

Petitioners did not appeal the dismissal of their case

with prejudice. Thus, the end result is that the

Petitioners lost on the merits of every claim.

During the pendency of the litigation—after the

Court of Appeals opinion in 2002 but before this Court

ultimately granted certiorari and unanimously reversed

in 2003—the District Court, over the Respondents’

objection, granted interim attorney fees to the

Petitioners’ counsel and ordered immediate payment.

Subsequently, after the merits of all claims had been

finally resolved against the Petitioners, the District

Court denied the Respondents’ request to vacate the

award of interim fees that had already been paid.4 On

appeal, the Court of Appeals declined to determine

4 Bazzetta v. McGinnis, (unpublished order, E.D. Mich.

No. 95-73540, November 20, 2006; Pet. App. 10a-14a).

“y

-j-

whether the Petitioners were a prevailing party under

42 U.S.C. § 1988(b), but nevertheless affirmed the

District Court decision declining to order a return of the

attorney fees. ®

In No. 08-1213, the Respondents filed a petition

seeking review of the question whether the Petitioners

are entitled to retain attorneys fees when they are not

prevailing parties under 42 U.S.C. § 1988(b). The

Petitioners did not file a brief in opposition to that

petition. Instead they filed the present cross-petition,

No. 08-1345, asserting, in essence, that despite the

ultimate dismissal of their complaint in its entirety, they

nevertheless achieved some success during the lengthy

litigation so they are entitled to retain the interim

attorney fees awarded during the course of the litigation.

° Bazzetta v. McGinnis, (unpublished opinion 6th Cir.

Nos. 06-2643/2644, August 28, 2008; Pet. App. la-Qa.).

il

REASONS FOR DENYING PETITIONER

BAZZETTAS' CONDITIONAL CROSS-PETITION

In their Conditional Cross-Petition, Petitioners

claim that they prevailed on four issues that were before

this Court in Overton, supra. As set forth below, based

on this Court's unanimous reversal of the lower court

decisions in their entirety, Petitioners are not prevailing

parties and, thus, they are not entitled to any attorney

fees. 42 U.S.C. § 1988(b).

The litigation did not achieve success and the

complaint was dismissed with prejudice.

Despite the fact that in the ultimate disposition of

the case their complaint was dismissed in its entirety,

the Petitioners point to four "rulings" that they assert

were not overturned on appeal, which allow them to be

considered prevailing parties in this case, and thus,

entitled to retain disputed attorney fees pursuant to

42 U.S.C. § 1988(b). The Petitioners’ assertions, however,

ignore important facts and are based on inaccurate

statements of the record and court rulings.® Nothing in

the record of this case supports their contention that

they are prevailing parties. They are not entitled to

retain the disputed interim attorney fees.

6 After this Court's unanimous reversal on the merits,

Overton, supra, on July 9, 2003, Petitioners filed a

Petition for Rehearing wherein they asked this Court to

revisit these same issucs, with the exception of the

permanent ban for substance abuse misconducts. Opp.

App. pp 1b-10b. This Court denied the Petition for

Rehearing on August 23, 2003. Opp. App. p 11b.

a

A. Petitioners did not prevail on visitation

with minor siblings.

The Petitioners’ principal contention is that

because of their actions, MDOC must "allow visitation

between people in prison and their minor siblings."

Conditional Cross-Petition, p 11. In 1995, when this

litigation began, minor siblings (under 18 years of age)

were not included in the list of permissible visitors. That

changed in 2001, not as a result of the litigation, but by

the action of the Michigan Legislature in passing Mich.

Comp. Law 791.268a, which permits the MDOC to add

minor siblings to a prisoner's approved visitor list. That

was the situation in 2003 as this Court recognized in

Overton v. Bazzetta, 539 U.S. at 129: "Minors under the

age of 18 may not be placed on the list unless they are

the children, stepchildren, grandchildren, or siblings of

the inmate. Mich. Admin. Code 791.6609(2)(b); Mich.

Comp. Laws Ann. 791.268a (West Supp. 2003)." This

change in the law was a voluntary act by the Michigan

Legislature and does not make the Petitioners prevailing

parties. /

Petitioners argue that they should be given

prevailing party status because this change in legislation

occurred after the ruling of the District Court. Thus,

Petitioners are attempting to revive the "catalyst theory"

as a method of recovery of attorney fees with regard to

minor siblings visitation. Cross-Petition, p 11. But this

Court held in Buckhannon Board & Care Home, Inc. v.

West Virginia Dept. of Health and Human Resources,

that regardless of when the voluntary change occurs,

Petitioners cannot recover attorney fees based on "a

‘See Buckhannon Board & Care Home, Inc. v. West

Virginia Dept. of Health and Human Resources, 532 U.S.

598, 610 (2001).

-6-

defendant's voluntary change in conduct."® In

Buckhannon, this Court held that a voluntary change in

conduct is insufficient to establish prevailing party

status:

A defendant's voluntary change in conduct,

although perhaps accomplishing what the

plaintiff sought to achieve by the lawsuit,

lacks the necessary judicial imprimatur on

the change. Our precedents thus counsel

against holding that the term ‘prevailing

party’ authorizes an award of attorney's fees

without a corresponding alteration in the

legal relationship of the parties.®

Thus, in Buckhannon, this Court ruled that there must

be an alteration of the legal relationship of the parties—

i.e. that unless a party obtains a judgment on the merits

or a court-ordered consent decree, they are not a

prevailing party. !°

Here, the Petitioners claim credit for having

prevailed with regard to the issue of whether minor

siblings have a constitutionally protected right to prison

visitation. However, the Michigan Legislature

voluntarily amended the prison visitation rules to allow

minor siblings of an inmate to participate in prison

visitation. Public Act 8 of 2001, Mich. Comp. Laws

791.268a. There is no dispute in this case that the

Michigan Legislature voluntarily chose to amend the

prison visitation rules to allow minor siblings to visit.

Regardless of when this change occurred, Petitioners

8 Buckhannon Board, 532 U.S. at 605.

9 Buckhannon Board, 532 U.S. at 605.

10 Buckhannon Board, 532 U.S. at 600.

x

cannot establish that the amendment was the result of

an alteration in the legal relationship of the parties."

Petitioners cannot point to any "court-ordered consent

decree" and it was Respondents who obtained a

judgment on the merits on November 20, 2006. Pet.

App. 15la. Thus, because there was no corresponding

alteration in the legal relationship of the parties with

respect to minor sibling prison visitation, the Petitioners

were not the prevailing parties on this issue. !2

B. The visitation ban for substance abuse

misconducts continues to be enforced by

MDOC today.

The Petitioners next claim that they prevailed

with respect to the permanent ban for substance abuse

misconducts. Petitioners attempt to support this claim

by pointing out that during certain points in this

fourteen-year-long litigation, Respondents were under

the District Court's temporary injunctive order, that

prohibited them from enforcing the ban. Conditional

Cross-Petition, p 16. However, the significant point here

is that this Court affirmed the Respondents’ right to

impose a ban on visitation for substance abuse

misconducts in Overton, 539 U.S. at 130, 135:

The Department's revised policy also

sought to control the widespread use of

drugs and alcohol among prisoners.

Prisoners who commit multiple substance-

' Buckhannon Board, 532 U.S. at 610.

\2 See, Garcia v. Yonkers School District, 561 F.3d 97,

108 (9th Cir. 2009). "Accordingly, the School District's

voluntary change in behavior cannot serve as the basis

for conferring prevailing party status to the Students for

purposes of granting attorney fees."

2.

abuse violations are not permitted to

receive any visitors except attorneys and

members of the clergy. Rule

791.6609(1 1)(d).

Drug smuggling and drug use in prison are

intractable problems. See, e.g., Bell, supra,

at 559; Block, supra, at 586—587; Hudson

v. Palmer, 468 U.S. 517, 527 (1984).

Withdrawing visitation privileges is a

proper and even necessary management

technique to induce compliance with the

rules of inmate behavior, especially for

high-security prisoners who have few other

privileges to lose.

In spite of this Court's decision, Respondents were

required to litigate the procedural due process issue

again on remand. The Petitioners’ claim that this Court

did not address the due process issue when it granted

certiorari 1s wrong. Conditional Cross-Petition, p 15.1%

The due process issue was also the subject of an appeal

to the Sixth Circuit Court of Appeals. After briefing and

argument, the Court of Appeals determined that this

Court previously ruled that the substance abuse

visitation restriction did not implicate a liberty interest

under the Due Process Clause. Consequently,

Petitioners lost on their claim that this Court did not

address "any of the due process rulings" of the lower

courts.!4 Conditional Cross-Petition, p 15. In addition,

in spite of Petitioners’ attempt to hmit Overton, supra,

by asserting that the District Court's injunction against

13 Overton, 539 U.S. at 131-132.

l4 Bazzetta v. McGinnis, 430 F.3d 795, 805 (6th Cir.

2005), cert. den. 549 U.S. 952 (2006); Pet. App. 137a.

-9-

a permanent ban was not before this Court, Conditional

Cross-Petition, p 17, this Court specifically upheld

MDOC's right to enforce the visitation ban for substance

abuse misconducts regardless of the fact that it maybe a

permanent ban:

An inmate subject to this restriction may

apply for reinstatement of visitation

privileges after two _ years. Rule

791.6609(12). Reinstatement is within the

warden’s discretion.

Finally, the restriction on visitation for

inmates with two substance-abuse

violations, a bar which may be removed

after two years, serves the legitimate goal

of deterring the use of drugs and alcohol

within the prisons. !®

Petitioners attempt to support their claim that

they prevailed as to visitation ban for substance abuse

misconducts by using a limited quote from this Court

and misstating this Court's holding in Overton.

Conditional Cross-Petition, p 17. However, a review of

the full paragraph from this Court's Overton decision

estabhshed Respondents' night to enforce the visitation

restriction as written:

The restriction undoubtedly makes the

prisoner's confinement more difficult to

bear. But it does not, in the circumstances

IS Overton, 539 U.S. at 1381-132

-10-

of this case, fall below the standards

mandated by the Eighth Amendment."!6

Thus, a fair reading of this Court's decision in Overton

establishes that Petitioners did not prevail on their claim

that "all permanent bans" were lifted and that the

visitation restriction "is dead." Conditional Cross-

Petition, p 17.

Finally, whether MDOC modifies the visitation

ban for substance abuse misconducts in the future is

irrelevant. The relevant issue before this Court was

whether MDOC had the right to impose this ban under

the First, Eighth and/or Fourteenth Amendments. As

set forth above, this Court upheld MDOC's right to

impose their visitation restriction for substance abuse

misconducts as it was written. Overton, 539 U.S. at 131-

132. Thus, the Petitioners did not prevail on their claim

that Respondents’ substance abuse visitation restrictions

violated the Due Process Clause.

2 Petitioners did not establish a

fundamental constitutional right of

association in this case.

The Petitioners’ third claim, Conditional Cross-

Petition, p 18, that they are prevailing parties because

they “established a fundamental constitutional right of

association which survives incarceration,” is not

supported by the decision in Overton, because

Respondents did not argue that MDOC’'s "discretion tc

eliminate visits is boundless and unreviewable."

Conditional Cross-Petition, p 20. ‘This case did not

establish such a right; to the contrary, this Court

16 Overton, 539 U.S. at 136-137

+i.

expressly disavowed reaching that issue, Overton, 539

U.S. at 131-132 (citations omitted, emphasis added):

We have said that the Constitution protects

‘certain kinds’ of highly personal

relationships.’ And outside the prison

context, there is some discussion in our

cases of a right to maintain certain familial

relationships, including association among

members of an immediate family and

association between grandchildren and

grandparents.

This is not an appropriate case for further

elaboration of those matters. The very

object of imprisonment is confinement.

Many of the liberties and privileges enjoyed

by other citizens must be surrendered by

the prisoner. An inmate does not retain

rights inconsistent with proper

incarceration. And, as our cases have

established, freedom of association is

among the rights least compatible with

incarceration. Some curtailment of that

freedom must be expected in the prison

context.

We do not hold, and we do not imply, that

any right to intimate association is

altogether terminated by incarceration or is

always irrelevant to claims made _ by

prisoners. We need not attempt to explore

or define the asserted right of association at

any length or determine the extent to which

it survives incarceration because the

challenged regulations bear a rational

relation to legitimate penologica!/ interests.

2%

This suffices to sustain the regulation in

question.

The Petitioners’ claim that they somehow prevailed on

this issue is plainly wrong.

D. Petitioners' statement concerning

MDOC's policy about minor children

visiting incarcerated felons is inaccurate.

In their final claim of success, the Petitioners take

the position that they prevailed on the issue of who can

accompany a minor child to visit his or her incarcerated

parent. The Petitioners' Conditional Cross-Petition

asserts, at p 22, that prior to this lawsuit “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.” That assertion misstates the visitation

guidelines ana how they were implemented by

Respondents, and it fails to acknowledge that

Respondents continue to require that a minor child

visiting an incarcerated parent must be accompanied by

a family member or legal guardian of the child. Whether

a biological father can accompany a child for prison

visitation turns on whether that father’ has

acknowledged paternity of that child, not whether the

father is married to the mother of the child. That was

the rule when this case was argued to this Court on

March 26, 2003, and it is still a requirement that must

aE

be met today.'? The Petitioners' assertion also fails to

recognize that this Court upheld Respondents'

requirement, Overton, 539 U.S. at 133:

17 At p 21 n 7 of the Conditional Cross-Petition, the

Petitioners cite to the oral argument transcript of

Overton v. Bazzetta, No. 02-94, but they mischaracterize

the argument there. The rule at the time, Mich. Admin.

Code 791.6609(5), provided: "a child who is under the

age of 18 may visit a prisoner only if the child is on the

prisoner's approved visitors list and is accompanied by

an adult immediate family member or a legal guardian .

" During the oral argument a question was asked

about an unwed father bringing a prisoner’s child for a

visit. Counsel for the Respondents emphasized that it is

the legal relationship that matters, not the marital

status, Docket No. 02-94, Transcript of Oral Argument,

March 26, 2003, pp 16, 56:

[T]he Department is permitted to insist on

enough evidence to demonstrate the legal

relationship.

we =

QUESTION: But from respondents'

argument, I had the impression that you

could not have a visit from euch a child,

period, unless you went through some

formal adoption procedure. Which is it?

MR. CASEY: The--a child of a prisoner is

entitled to visit if they're brought by a

member of the immediate family or a legal

guardian.

QUESTION: Whether they're married or

not married."

MR. CASEY: That's correct.

sta.

As for regulations requiring children to be

accompanied by a family member or legal

guardian, it is reasonable to ensure that the

visiting child is accompanied'= and

supervised by those adults charged with

protecting the child’s best interests.

Consequently, there is no factual or legal basis to

support Petitioners’ claim that they prevailed as to who

can accompany a minor child visiting an incarcerated

parent.

il. The Petitioners are not prevailing parties as a

matter of law.

In their petition No.08-1213, the Respondents

have presented legal arguments explaining why

Petitioners, whose complaint was ultimately dismissed

in its entirety with prejudice, are not prevailing parties

within the meaning of 42 U.S.C. § 1988(b). In the

present Conditional Cross-Petition, the Petitioners make

no attempt to rebut those arguments. In addition to the

numerous misstatements involving the factual findings

and procedural history of this case as set forth above, the

Petitioners also fail to acknowledge the relevant law

concerning prevailing party status under 42 U.S.C.

§ 1988(b). They do not even attempt to distinguish Sole

v. Wyner,'® or offer any reason why its holding should

not control here:

We decide only that a plaintiff who gains a

preliminary injunction does not qualify for

an award of counsel fees under §1988(b) if

the merits of the case are ultimatcly

decided against her.

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

“A Se

As set forth more fully in the Respondents'

Petition for Writ of Certiorari, No. 08-1213, the

Petitioners secured a preliminary injunction, but lost on

the merits when the November 20, 2006 Judgment was

entered against them. No. 08-1213, Pet. App. 15la. The

Petitioners lost unanimously in this Court and lost on all

claims at issue in this case on the merits. They are not

prevailing parties under 42 U.S.C. § 1988(b), and thus

they are not entitled to any attorney fees and costs.

The Petitioners also fail to discuss this Court's

decision in Buckhannon,’? which abolished the "catalyst

theory" as a method of recovery of attorney fees. In their

Conditional Cross-Petition, the Petitioners claim credit

for having prevailed with regard to the issue of whether

minor siblings have a constitutionally protected right to

prison visitation. However, as explained above, the

Michigan Legislature voluntarily amended the prison

visitation rules to allow minor siblings of an inmate to

participate in prison visitation. Public Act 8 of 2001,

MCL 791.268a. Based on Buckhannon, the Petitioners

are not prevailing parties with regard to sibling

visitation.

The record is clear. This Court unanimously

reversed the Court of Appeals and held that the

challenged 1995 visitation restrictions did not violate the

First, Eighth, or Fourteenth Amendments to the United

States Constitution.2° When the Petitioners attempted

to argue that a procedural due process claim was still

viable after Overton, the Court of Appeals determined

that Overton foreclosed their procedural due process

19 Buckhannon Board, 532 U.S. at 600.

20 Overton, supra.

ie.

claim.”! Finally, eleven years after it began, on

November 20, 2006, the District Court issued a judgment

dismissing the case with prejudice.

Thus, in spite of the fact that Michigan's 1995

prison visitation restrictions have been determined to be

constitutional by the highest Court in our country,

counsel for the Petitioners continues to hold money that

rightfully belongs to the taxpayers of the State of

Michigan. Therefore, the Respondents request that this

Court deny the Conditional Cross-Petition in No. 08-

1345 and grant the Petition for Writ of Certiorari in

No. 08-1213.

21 Bazzetta v. McGinnis, 430 F. 3d 795 (6th Cir. 2005).

a, S

CONCLUSION

The Respondents respectfully request that this

Court enter an order denying the Conditional Cross-

Petition for Writ

of Certiorari in No. 08-1345 and

granting the Petition for Writ of Certiorari in No. 08-

12138.

Dated: July, 2009

Respectfully submitted

Michael A. Cox

Attorney General

B. Eric Restuccia

Michigan Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

Telephone: (517) 373-1124

James E. Long

Assistant Attorney General

Corrections Division

Lisa C. Ward

Special Assistant Attorney General

Attorneys for Petitioners

APPENDIX

TABLE OF CONTENTS

Page

I. Petition for Rehearing

Dated July 9, 2003

Overton, et al v. Bazzetta, et al

CS ns I ae ria cores cccik ndalaic nc vaveusteuekeesbesveual lb

[1. Order of U.S. Supreme Court

Decided August 25, 2003

Overton, et al v. Bazzetta, ct al

Case No. 02-94

Ib

No 02-94

In the

Supreme Court of the United States

October Term, 2002

WILLIAM OVERTON, Director of

Michigan Department of Corrections:

MICHIGAN DEPARTMENT OF CORRECTIONS,

Petitioners,

Vv.

MICHELLE BAZZETTA, et al.,

Respondents.

PETITION FOR REHEARING

Deborah LaBelle

(Counsel of Record)

Barbara R. Levine

Patricia A. Streeter

221 North Main Street, Suite 300

Ann Arbor, Michigan 48104

Telephone: (734) 996-5620

o2 tha

NOW COME Plaintiffs and, pursuant to the

Supreme Court Rule 44, petition this Honorable Court

for rehearing of its decision issued on June 16, 2008 or,

in the alternative, for an order clarifying the

judgment.

This Court’s decision concludes, without

qualification or exception, that the Court of Appeals

decision is reversed. However, the reasoning of the

majority opinion rests on several assumptions with

regard to the implementation of the challenged rules

that differ from the findings made by the District

Court and relied upon by the Court of Appeals in its

affirmation. This Court language, reversing the Court

of Appeals judgment in its entirety, might be used to

argue that the challenged rules can now be applied as

originally written or interpreted by Defendants, even

though that would conflict with this Court’s

assumptions underlying its opinion. ‘Therefore,

Respondents ask this Court to grant rehearing or, in

the alternative, clarify its judgment, by stating that

the Court of Appeals judgment is reversed to the’

extent it is inconsistent with this Court decision and

remanded for actions consistent with this Court's

decision.

i. Visitation by Minor Siblings.

The first area of potential conflict concerns

visitation by prisoners’ siblings under the age of 18.

The challenged rule prohibited visits by any minor

under age 18 who was not the prisoner's child, step:

child or grandchild. Thus siblings were excluded.

After the District Court ruled, the Michigan

legislature enacted MCL 791 .268a which states that

prisoners “may be permitted” to receive visits from

minor siblings. Although petitioners thereafter chose

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to amend their rule to allow sibling visits, the

statutory change does not require this result. In fact,

Petitioners position throughout has been that

corrections officials retain absolute authority to decide

who can visit prisoners “as a matter of administrative

grace.” (Supreme Court oral argument transcript, at

7-8) See also Court of Appeals decision, 286 F.3d. 311,

318 note I (6th Cir., 2002) (‘As Michigan did not make

this change until after the district court handed down

its opinion, however, and because it still defends its

right to impose this or any other restriction on visits,

we address the regulation here.”)

In its decision, this Court relied on the revised

regulation and assumed that sibling visits are

permitted. (Slip op. at 2) It repeated this assumption

when it upheld the exclusion of minor nieces and

nephews, expressly finding the categories of permitted

visitors to be reasonable because: “Visits are allowed

between an inmate and those children closest to him

or her—children, grandchildren, and siblings.” (/d. at

6, emph. added)

The District Court was faced with a rule that

prohibited visits by minor siblings. It found that rule

violated the First and Fourteenth Amendments. 148

F. Supp. 2d 813, 849 (E.D. Mich., 2001). The Court of

Appeals affirmed this ruling. 286 F. 3d 311, 319 (6th

Cir., 2002). Reversal of the Court of Appeals

judgment, without exception, may be used to argue

that prohibition of minor siblings’ visits would now be

constitutionally permissible, despite the fact that the

District Court opinion is not vacated by Defendants’

subsequent change of the rules, U.S. Bank Corp. v.

Bonnet, 513 U.S. 18, 25-26 (1994): City of Mesquite v.

Aladdin Castle, Inc., 455 U.S. 283, 289 (1982).

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a. Right of Intimate Association

Petitioners argued throughout that prisoners do

not retain any right of association protected by the

First or Fourteenth Amendments. 286 F.3d at 316-

317. The District Court found that prisoners retain a

constitutional right to intimate association that may

be exercised through non-contact visitation. Because

it found the existence of a fundamental right, the

District Court proceeded to aptly the four- prong test

of Turner v Safley, 482 U.S. 78 (1987) to determine

whether Petitioners’ visiting regulations

impermissibly impinged upon the exercise of those

constitutional rights. The District Court found that

the regulations did not meet the 7urner test and the

Court of Appeals agreed.

The first of the three questions upon which this

Court granted certiorari was: “Whether prisoners

have a right to non-contact prison visitation protected

by the First and “Fourteenth Amendments.”

Ultimately, this Court chose not to define the extent of

the asserted right, proceeding instead to apply the

Turner test to the challenged regulations and to reach

a different conclusion on whether restrictions violated

Plaintiffs’ constitutional rights than the lower court

had. Specifically, this Court stated:

We do not hold, and we do not

imply, that any mght to intimate

association is altogether terminated by

incarceration or is always irrelevant to

claims made by prisoners. We need not

attempt to explore or define the asserted

right of association at any length or

determine the extent to which it survives

incarceration because the challenged

regulations bear a rational relation to

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legitimate penological interests. This

suffices to sustain the regulation in

question.

(Shp op at pg 4)

The reversal of the Court of Appeals’ judgment,

without express limitation, could be used to argue that

prisoners do not retain any right of intimate

association. Although such an interpretation would

contradict the text of this Court’s own decision,

modifying this Court’s judgment to state that “the

Court of Appeals judgment is reversed to “the Court of

Appeals judgment is reversed to the extent it is not

inconsistent with this ruling” would provide greater

clarity on this important issue.

3. Visits of Minor Children With Their Parents

A third potential area of conflict that may arise

in implementing this judgment involves the identity of

the adults who can bring a minor child to visit a

prisoner. The challenged rule states:

[A] child who is under the age of 18 may

visit a prisoner only if the child is on the

prisoner's approved visitors list and is

accompanied by an adult immediate

family member or a legal guardian...

Pet. 175a, R 791.6609(5). Immediate family is

elsewhere defined in the rules as the prisoner's parent,

grandparent, sibling, spouse or child. R. 791.6609(9),

Pet. 176a. The rule on who must accompany children

is ambiguous since it does not specify whether the

reference to “immediate family” is to the prisoner’s

immediate family, the child’s immediate family, or

both.

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The question is one of great _ practical

significance. A prisoner’s sister, the child’s aunt,

would be immediate family to the prisoner but not to

the child. Conversely, the child’s biological father, if

not married to the incarcerated mother, would be the

child’s immediate family but not the prisoner’s.! The

District Court struck down the rule based on the

undisputed testimony of the drafter, who said the rule

was intended to apply only to the prisoner’s immediate

family. 148 F. Supp. at 833, n. 30 (referencing

testimony of Van Ochten at 6 Cir. JA 4135-4138).

The Court of Appeals affirmed that holding,

recognizing that the limited number of adults who

could bring a child to visit its incarcerated parent

under this scenario would constitute for many

prisoners, “a ban on visits from their children”. 286

F.3d at 320-321.

This Court upheld the rule on the assumption

that a child authorized to visit may be accompanied by

a broader universe of adults which included a legal

guardian or “an adult who is an immediate family

member of the child or of the inmate”. (Slip op. at 2,

emphasis added) While this Court referenced one

facility’s visitation operating procedure a supporting

this assumption, operating procedures differ from

facility to facility and do not definitively interpret the

policy. Indeed, the operating procedures here

uUlustrate the confusion created by the ambiguous rule.

Some facilities limited the immediate family member

' During oral argument before this Court, Petitioners’

counsel confirmed that unless he was the child legal

guardian, the child’s biological father could not bring

the child to visit its incarcerated mother. (Oral

argument transcript, at 14-16.)

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to that of a prisoner. See e.g., OP-MRF-06.03.140 p. 2

eff. 3-1-99 (“A person under eighteen (18) may visit if”

they are the child, stepchild or grandchild of the

prisoner being visited and are in the company of a

member of the prisoner’s immediate family (parents,

child, granciparent, stepparent ...). Others limited the

immediate famiiy member who could accompany the

child to the child’s immediate family member. See

e.g, OP-NCF-05.03.140 p. 3 eff 11-3-99 (“[mlust be

accompanied by an adult immediate family member (of

the child of the prisoner, but must be on the prisoner’s

approved list...”))2 See also OP-ICF-05.03.140A eff, p.

2, 6-14-97. (“The mandatory escort of the prisoner’s

minor child, stepchild, grandchild or step-grandchild

must be a parent/legal guardian or immediate family

member of the minor child(ren)”. See a/so 6th Cir. JA

4745, 4994, 5003.

The factual assumptions as to how the policy

was interpreted and applied, on which this Court

rested its decision, differ from the findings of the

District Court, affirmed by the Court of Appeals. The

Court of Appeals found that this rule, by requiring

children to be accompanied by a legal guardian or

immediate family member of _ the _ prisoner,

unreasonably restricts visitation with the prisoner’s

own children. While this Court interpreted the rule

more broadly, to include immediate family members of

both the prisoner and the child, and thus found the

restrictions not to be unreasonabie, by reversing the

Court of Appeals’ decision in toto, it appears to nullify

the lower court’s determinations that a narrower

restriction would be unreasonable. Should Petitioners

? Still another operating procedure allowed minor child

to visit only when accompanied by “a parent or legal

guardian’. OP-ECF-CPP-05.03.140 p. 3 eff 7-1-99.

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choose to apply the rule as originally envisioned by the

drafter and understood by the lower courts, numerous

children would be unable to visit their incarcerated

parents.

Plaintiffs-Respondents petition this Court for

rehearing on these issues to avoid confusion on

remand in the implementation of this Court’s

judgment and proceedings related to the application of

the Defendants’ rules.

Plaintiffs-Respondents request that rehearing

be granted or, alternatively, the judgment of this

Court be modified to reflect that the lower court’s

rulings are reversed tc the extent they are inconsistent

with this Court’s decision and this matter is remanded

for proceedings consistent with this Court’s opinion.

Respectfully submitted,

Deborah LaBelle

(Counsel of Record)

Barbara R. Levine

Patricia A. Streeter

221 North Main Street, Suite 300

Ann Arbor, Michigan 48104

Telephone: (734) 996-5620

DATED: July 9, 2003

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No 02-94

In the

Supreme Court of the United States

October Term, 2002

WILLIAM OVERTON, Director of

Michigan Department of Corrections:

MICHIGAN DEPARTMENT OF CORRECTIONS,

Petitioners,

Vv.

MICHELLE BAZZETTA, et al.,

Respondents.

CERTIFICATE OF COUNSEL

Deborah LaBelle

(Counsel of Record)

Barbara R. Levine

Patricia A. Streeter

221 North Main Street, Suite 300

Ann Arbor, Michigan 48104

Telephone: (734) 996-5620

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As counsel of record for Plaintiff-Appellants, I

hereby certify that the Petition for Rehearing is

presented in good faith and not for purposes of delay.

Respectfully submitted,

Deborah LaBelle

(Counsel of Record)

Barbara Levine

Patricia A. Streeter

221 North Main Street, Suite 300

Ann Arbor, Michigan 48104

Telephone: (734) 996-5620

DATED: July 9, 2003

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SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

August 25, 2003

Mr. Thomas L. Casey

Solicitor General

PO Box 30212

Lansing, M 48909

Re: William Overton, Director, Michigan

Department of Corrections, ct al

v. Michelle Bazzetta, et al.

No. 02-94

Dear Mr. Casey:

The Court today entered the following order in

the above entitled case:

The petition for rehearing is denied.

Sincerely,

Wilham K. Suter, Clerk