1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

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

File Name: 03a0419p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

DAWN AKERS; KIM

LARANGER, UNITED

AUTOMOBILE, AEROSPACE,

AND AGRICULTURAL

IMPLEMENT WORKERS OF

AMERICA, LOCAL 6000; AKUA

MITCHELL-DAVIS,

Plaintiffs-Appellants,

v.

KENNETH MCGINNIS; ROBERT

STEINMAN; MARSHA

FORESMAN; PATRICIA

CARUSO; JOHN MARSHALL;

EDWARD HAGGERTY;

GEORGE MARRA; WILLIAM

OVERTON; RUTH BARE;

FRANK EISENHAUER; JOSEPH

JERECKOS; JOHN MAKOWSKI;

TERRY PITCHER; KIRK

MCVITTIE; GWEN RODGERS,

in their Personal and Official

Capacities, Jointly and

Severally,

Defendants-Appellees.

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No. 01-1383

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

Appeal from the United States District Court

for the Western District of Michigan at Marquette.

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

Argued: October 15, 2002

Decided and Filed: December 1, 2003 

Before: BOGGS, Chief Judge; and SUHRHEINRICH and

CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Miranda K.S. Massie, SCHEFF &

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

Thurber, OFFICE OF THE ATTORNEY GENERAL,

CORRECTIONS DIVISION, Lansing, Michigan, for

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

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

Thurber, OFFICE OF THE ATTORNEY GENERAL,

CORRECTIONS DIVISION, Lansing, Michigan, for

Appellees. Michael J. Steinberg, AMERICAN CIVIL

LIBERTIES UNION FUND OF MICHIGAN, Detroit,

Michigan, for Amicus Curiae.

BOGGS, C. J., delivered the opinion of the court, in which

SUHRHEINRICH, J., joined. CLAY, J. (pp. 23-43),

delivered a separate opinion concurring in part and dissenting

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

_________________

OPINION

_________________

BOGGS, Chief Judge. Plaintiffs, Dawn Akers and Kim

Loranger, a current and a former employee of the Michigan

Department of Corrections (“MDOC”), and their union, the

United Automobile, Aerospace, and Agricultural Implement

Workers of America, Local 6000 (“UAW”), appeal the

district court’s summary judgment for the defendants,

Kenneth McGinnis, the director of the MDOC, and numerous

other listed MDOC administrators. The plaintiffs had sued on

the grounds that an MDOC rule (“Rule”) that barred all

MDOC employees from any non-work-related contact with

prisoners, parolees, probationers (“offenders”), their relatives

and visitors, violated their “clearly established rights to

privacy, association, and due process guaranteed by the First,

Third, Fourth, Fifth, Ninth, and Fourteenth Amendment to the

United States Constitution.” Specifically, the plaintiffs

sought reinstatement after discharge for violating the Rule,

expungement from the plaintiffs’ disciplinary records of any

reference to a violation of the Rule, and compensatory and

punitive damages. On cross-motions for summary judgment,

the district court held that the Rule was constitutional and that

the defendants enjoyed qualified immunity. Plaintiffs now

appeal the holdings that the Rule was not contrary to the

freedom of association guaranteed by the First and Fourteenth

Amendments and that the defendants enjoyed qualified

immunity. We affirm.

I

At all times relevant to this litigation, the MDOC has had

a Rule barring employees from “Improper Relationships with

Prisoners, Parolees or Probationers, Visitors or Families.”

This Rule, originally known as Rule 12, strictly prohibited

“improper or overly familiar conduct with [offenders] or their

family members or visitors.” Violations of the Rule

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

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

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

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

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

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

visit without reporting the visit, . . . giving [offender]

[employee’s] home telephone number, [and] sexual contact of

any nature.” (emphasis in original). Furthermore, the Rule

required reporting of “[a]ny contact made with [an offender],

or their family member(s), outside the regular performance of

an employee’s job.” In June 1996, Rule 12 was

repromulgated as Rule 24. In September 1999, during the

course of this litigation, Rule 24 was replaced by a

substantially identical Rule 46. Finally, in April 2000, Rule

46 was revised to clarify the definitions of family member

and visitor and recognize the power of the MDOC to grant

individual employees limited exemptions to the Rule. To

receive such an exemption allowing contact with offenders’

visitors or family members, but not offenders themselves, an

employee would have to submit a misleadingly titled

“Offender Contact Exception Request” form and await

approval from the Director of the MDOC or a designee.

From the creation of the exception procedure to July 23,

2001, 226 such exceptions had been sought and of these 223

had been granted.

Plaintiff Loranger, then a Wayne County probation officer,

was contacted by a man she had dated before becoming an

MDOC employee and who was then serving a life sentence

without parole in a prison outside her jurisdiction. She

exchanged several letters with him. When Loranger realized

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

supervisor about the matter. Four months later, she was

terminated for her Rule violation. Plaintiff Akers, while a

bookkeeper at a correctional facility in Chippewa County, had

befriended a prisoner clerk. Shortly after the prisoner’s

release, Akers gave him a ride in her car to a job interview.

For this violation of the Rule, she also was terminated by the

MDOC. Both women had previously been positively
No. 01-1383 Akers, et al. v. McGinnis, et al. 5

evaluated by their supervisors and in neither case is there an

allegation that their specific conduct had adversely affected

the MDOC’s function. Plaintiff UAW represents about two

thousand clerical and professional employees of the MDOC,

among them Loranger and Akers. UAW does not represent

any prison guards.

In March 1997, the plaintiffs filed a complaint in the United

States District Court for the Western District of Michigan and

the case was assigned to a magistrate judge. During the

following months, labor arbitrators set aside the discharges of

both Loranger and Akers and instead imposed relatively brief

suspensions on both women. As the plaintiffs had also sought

the purging of their disciplinary record of any reference to the

Rule violation as well as monetary damages, their

reinstatement did not moot the action. After her reinstatement

and during the pendency of the case, Loranger repeatedly

sought permission to have contact with Rebecca Contreras, a

long-standing friend whose son had been placed on probation,

and was repeatedly denied. When Loranger became pregnant

and wished Contreras to be her child’s godmother, she sought

and was granted a preliminary injunction ordering the MDOC

to allow Loranger to invite Contreras to her child’s baptism.

Loranger also continued to request permission to have contact

with Stacey Artley, a young woman to whom Loranger was

a “Big Sister” and who then was on probation. Akers, during

the pendency of this action, transferred to a position with the

Michigan Department of Natural Resources, mooting her

claims for prospective relief. On cross-motions for summary

judgement, the magistrate judge issued a report and

recommendation, which proposed finding the original Rule to

be unconstitutional under the First and Fourteenth

Amendments, expunging Akers’s and Loranger’s disciplinary

record, and declaring moot the challenge to the current

version of the Rule. However, the district court rejected the

report and recommendation and found that there was a live

controversy regarding both the current and the old version of

the Rule, but also that all versions of the Rule were

constitutional, and therefore granted summary judgement to

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

MDOC and qualified immunity to the individual named

defendants. Here the plaintiffs appeal this grant of summary

judgment and qualified immunity.

II

The MDOC contends that any challenges to the previous

versions of the Rule were mooted when it adopted its current

version. However, a “defendant’s voluntary cessation of

allegedly unlawful conduct ordinarily does not suffice to

moot a case.” Jones v. City of Lakeland, 224 F.3d 518, 529

(6th Cir. 2000) (en banc) (quoting Friends of the Earth v.

Laidlaw Envtl. Servs., 528 U.S. 167, 174 (2000)). “A case

might become moot if subsequent events made it absolutely

clear that the allegedly wrongful behavior could not

reasonably be expected to recur.” Jones, 224 F.3d at 529

(quoting United States v. Concentrated Phosphate Export

Ass’n, 393 U.S. 199, 203 (1968)). “The ‘heavy burden of

persua[ding]’ the court that the challenged conduct cannot

reasonably be expected to start up again lies with the party

asserting mootness.” Jones, 224 F.3d at 529 (quoting

Laidlaw, 528 U.S. at 170). In the present case, as the

promulgation of work rules appears to be solely within the

discretion of the MDOC, there is no guarantee that MDOC

will not change back to its older, stricter Rule as soon as this

action terminates. Moreover, as the plaintiffs could be

entitled to money damages and the purging of their

disciplinary records if the old version of the Rule were found

to be unconstitutional even if the current version was

constitutional, the issue is not moot and it is incumbent on

this court to examine all versions of the Rule. We begin by

analyzing the original version of the Rule without the

exception procedure.

The plaintiff’s claims of constitutional violation are based

upon two analytically distinct forms of freedom of

association: freedom of intimate association, protected under

the Substantive Due Process component of the Fourteenth

Amendment, and freedomof expressive association, protected
No. 01-1383 Akers, et al. v. McGinnis, et al. 7

under the Freedom of Speech Clause of the First Amendment.

See Roberts v. United States Jaycees, 468 U.S. 609, 617-18

(1984). With respect to intimate association, “the Court has

concluded that choices to enter into and maintain certain

intimate human relationships must be secured against undue

intrusion by the State because of the role of such relationships

in safeguarding the individual freedom that is central to our

constitutional scheme. In this respect, freedom of association

receives protection as a fundamental element of personal

liberty.” Ibid. With respect to expressive association, “the

Court has recognized a right to associate for the purpose of

engaging in those activities protected by the First

Amendment–speech, assembly, petition for the redress of

grievances, and the exercise of religion. The Constitution

guarantees freedom of association of this kind as an

indispensable means of preserving other individual liberties.”

Id. at 618. As “the nature and degree of constitutional

protection afforded freedom of association may vary

depending on the extent to which one or the other aspect of

the constitutionally protected liberty is at stake in a given

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

infringement of both intimate association and expressive

association. Ibid.

A

State employees’ freedom of expressive association claims

are analyzed under the same standard as state employees’

freedom of speech claims. See Boals v. Gray, 775 F.2d 686,

692 (6th Cir. 1985). “Because the analytic tools for

adjudicating First Amendment retaliation claims under the

Free Speech Clause have been so extensively developed,

courts in this and other circuits have tended to import fully

that reasoning when litigants have characterized their claims

as arising under another First Amendment clause.”

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

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

in turn are defined by two leading Supreme Court precedents.

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

1

A policeman “may have a constitutional right to talk politics, but he

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

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

In Pickering v. Board of Education, 391 U.S. 563 (1968),

the Supreme Court denied that government employees “may

constitutionally be compelled to relinquish the First

Amendment rights they would otherwise enjoy as citizens to

comment on matters of public interest in connection with the

operation of the [institution] in which they work.” Id. at 568.

But while the Court has long rejected Holmes’s famous

dictum on the free speech right of government employees,

1

 it

also concluded “that the State has interests as an employer in

regulating the speech of its employees that differ significantly

from those it possesses in connection with regulation of the

speech of the citizenry in general. The problem in any case

is to arrive at a balance between the interests of the

[employee], as a citizen, in commenting upon matters of

public concern and the interest of the State, as an employer,

in promoting the efficiency of the public services it performs

through its employees.” Ibid.

InConnick v. Myers, 461 U.S. 138 (1983), the Court further

amplified on this issue.

When employee expression cannot be fairly considered

as relating to any matter of political, social, or other

concern to the community, government officials should

enjoy wide latitude in managing their offices, without

intrusive oversight by the judiciary in the name of the

First Amendment. Perhaps the government employer’s

dismissal of the worker may not be fair, but ordinary

dismissals from government service which violate no

fixed tenure or applicable statute or regulation are not

subject to judicial review even if the reasons for the

dismissal are alleged to be mistaken or unreasonable.
No. 01-1383 Akers, et al. v. McGinnis, et al. 9

Id. at 146. In general, and outside the area of issues of public

concern, the First Amendment provides no greater protection

against discipline or discharge to government employees than

it does to private employees:

[W]hen a public employee speaks not as a citizen upon

matters of public concern, but instead as an employee

upon matters only of personal interest, absent the most

unusual circumstances, a federal court is not the

appropriate forum in which to review the wisdom of a

personnel decision taken by a public agency allegedly in

reaction to the employee’s behavior. . . . Our

responsibility is to ensure that citizens are not deprived

of fundamental rights by virtue of working for the

government; this does not require a grant of immunity for

employee grievances not afforded by the First

Amendment to those who do not work for the state.

Id. at 147. Moreover, the Court cautioned against an overly

broad construction of the ambit of the public concern:

To presume that all matters which transpire within a

government office are of public concern would mean that

virtually every remark–and certainly every criticism

directed at a public official–would plant the seed of a

constitutional case. While as a matter of good judgment,

public officials should be receptive to constructive

criticism offered by their employees, the First

Amendment does not require a public office to be run as

a roundtable for employee complaints over internal office

affairs.

Id. at 149.

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

2

Plaintiffs also cite some older Supreme Court precedents containing

broad and aspirational language regarding the Free Speech rights of

public employees. See, e.g., Shelton v. Tucker, 364 U.S. 479, 488 (1960);

United States v. Robel, 389 U.S. 258, 265-66 (1967); Keyishian v. Bd. of

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

the more recent and specific Supreme Court precedents relied upon

herein, we need not here decide the older cases’ present vitality.

In Pickering and Connick, the Supreme Court created a test

containing two levels of scrutiny.

2

 Restraints on government

employee speech, or, as in the present case, government

employee association, touching on a matter of public concern

must meet the Pickering test balancing between the interests

of the employee and the interests of the state. We have

characterized this test as a “form of intermediate scrutiny.”

Montgomery v. Carr, 101 F.3d 1117, 1129 n.7 (6th Cir.

1996). Restraints on government employee speech, or

government employee association, not touching on a matter

of public concern, are subject merely to rational basis

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

to the facts. See Waters v. Churchill, 511 U.S. 661, 671

(1994). This bifurcated test remains the law. The Supreme

Court’s most recent extensive disquisition on this subject,

while providing further instruction on the proper balancing of

governmental interests and the interest of government

employees to speak on matters of public concern, adopts

without further elaboration the Pickering/Connick distinction

between matters that are of public concern and those which

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

513 U.S. 454, 465-66 (1995).

The question of what speech or association touches on a

matter of public concern is by necessity a question for caseby-case adjudication. See Dambrot v. Cent. Mich. Univ., 55

F.3d 1177, 1186 n.8 (6th Cir. 1995) (collecting Sixth Circuit

precedent concerning what speech is a matter of public

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

In general, a matter of public concern is a matter of

political, social, or other concern to the community. It is

important, however, to distinguish matters of public

concern from internal office politics. Federal courts

normally do not review personnel decisions reacting to

an employee’s behavior when a public employee speaks

not as a citizen upon matters of public concern, but

instead as an employee upon matters of only personal

interest. The mere fact that public monies and

government efficiency are related to the subject of a

public employee’s speech does not, by itself, qualify that

speech as being addressed to a matter of public concern.

If the speech is not related to a matter of public concern,

we do not evaluate the reasons for the decision.

Jackson v. Leighton, 168 F.3d 903, 909-10 (6th Cir. 1999)

(internal citations, alterations, and quotation marks omitted).

“To determine whether the speech involves a matter of public

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

statements in light of the record as a whole.” Id. at 910.

“Furthermore, the court must determine the point of the

speech in question . . . because controversial parts of speech

advancing only private interests do not necessarily invoke

First Amendment protection.” Hardy v. Jefferson Cmty.

Coll., 260 F.3d 671, 678 (6th Cir. 2001) (internal quotation

marks, alterations, and citations omitted). The Supreme

Court has indicated that the “question of whether expression

is of a kind that is of legitimate concern to the public is also

the standard in determining whether a common-law action for

invasion of privacy is present.” Connick, 461 U.S. at 143 n.5.

Few indicia of speech are dispositive. “[A]n employee’s

speech, activity or association, merely because it is

union-related, does not touch on a matter of public concern as

a matter of law.” Boals, 775 F.2d at 693. Nor are statements

made privately necessarily outside the reach of the public

concern rule. Givhan v. W. Line Consol. Sch. Dist., 439 U.S.

410, 414 (1979). However, government employees’ speeches

and articles that “ha[d] nothing to do with their jobs and [did]

not even arguably have any adverse impact on the efficiency

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

of the offices in which they work,” but were made to public

audiences are deemed to touch on matters of public concern.

Nat’l Treasury Employees Union, 513 U.S. at 465-66.

Almost all conceivable association affected by the Rule and

all association alleged to have been discouraged by the Rule

do not touch on matters of public concern. Loranger wishes

to have contacts with an old friend and her “Little Sister.”

Akers wishes to assist a probationer whom she befriended.

While all of these impulses are entirely understandable, even

laudable, they are purely private matters of little or no

concern to the community as a whole. The plaintiffs also

envision hypothetical situations in which they are prevented

from contacting a union official who is also related to an

offender. But even such hypothetical situations do not rise to

the level of public concern because mere individual labor

grievances are not matters of public concern. See, e.g.,

Connick, 461 U.S. at 154; Boals, 775 F.2d at 693.

Plaintiffs come closest to alleging interference with an

association touching on the public concern when asserting

their right to contact a political party official who was also the

uncle of an offender. If such association is made for a

purpose such as campaigning for public office, it would

arguably touch on a matter of public concern. However, a

separate line of cases has upheld against constitutional

challenge governmental restrictions on public employees’

partisan political activities:

Congress had, and has, the power to prevent [government

employees] from holding a party office, working at the

polls, and acting as party paymaster for other party

workers. An Act of Congress going no farther would in

our view unquestionably be valid. So would it be if, in

plain and understandable language, the statute forbade

activities such as organizing a political party or club;

actively participating in fund-raising activities for a

partisan candidate or political party; becoming a partisan

candidate for, or campaigning for, an elective public
No. 01-1383 Akers, et al. v. McGinnis, et al. 13

3

The plaintiffs complain that the MDOC has not here laid out a

carefully reasoned defense of the interest underlying the Rule and the

relationship between these interests and the Rule. However, under

rational basis review, a “profferred explanation for the statute need not be

supported by an exquisite evidentiary record; rather we will be satisfied

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

legitimate purpose, even ‘unsupported by evidence or empirical data.’”

Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (quoting FCC v.

Beach Communications, 508 U.S. 307, 313 (1993)). The burden is on

those who challenge the statute to “negative every conceivable basis that

might support it.” Craigmiles, 312 F.3d at 224 (quoting Lehnhausen v.

Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

office; actively managing the campaign of a partisan

candidate for public office; initiating or circulating a

partisan nominating petition or soliciting votes for a

partisan candidate for public office; or serving as a

delegate, alternate or proxy to a political party

convention. Our judgment is that neither the First

Amendment nor any other provision of the Constitution

invalidates a law barring this kind of partisan political

conduct by federal employees.

United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter

Carriers, 413 U.S. 548, 556 (1973); see also Carver v.

Dennis, 104 F.3d 847, 853 (6th Cir. 1997) (finding no

violation of associational or free speech rights when county

clerk terminated subordinate who decided to run for the same

office). Thus, the actual associations denied to the plaintiffs,

as well as hypothetical associations suggested in the

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

concern, or may be otherwise restrained.

The MDOC easily meets the rational basis test for the nonpublic association restrained by the Rule.3

 The MDOC has a

legitimate interest in preventing fraternization between its

employees and offenders and their families. Given the proven

willingness of offenders to break the law, often violently, to

reach their ends, on the one hand, and the near-plenary power

over offenders entrusted to MDOC employees, on the other,

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

4

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

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

Ross v. Clayton County, 173 F.3d 1305, 1310-11 (11th Cir. 1999)

(upholding, under Pickering balancing test stipulated to by the parties,

Georgia Department of Corrections regulation prohibiting contact

between its employees and offenders).

5

The plaintiffs object to the application of Montgomery,

characterizing it as a mere anti-nepotism case. However, given that

Mo ntgomery concerns a restraint on the same freedom of intimate

association at issue here, relies to a large extent on the same case law as

used by the plaintiffs, and in its reasoning does not depend on the specific

features of the anti-nepotism rules, it is a highly relevant precedent.

the potential for exploitation of vulnerable offenders by

MDOC employees, or vulnerable MDOC employees by

offenders, needs no elaboration. The MDOC’s interest in

preventing such exploitation is only somewhat attenuated in

cases where the employee has no direct supervisory authority

over the offender. Even clerical workers without any penal

authority can by the mere manipulation of paperwork greatly

affect an offender’s status for better or worse, or at least be

pressured into attempting to do so. The inclusion of

offenders’ visitors and families into the class with whom

contact is forbidden may be necessary to prevent the use of

third parties to circumvent the ban on direct contact and

influence. The MDOC’s interest is clearly legitimate, and the

Rule is a rational means for advancing the interest.

Therefore, the Rule withstands challenge on the basis of

freedom of expressive association.4

B

The plaintiffs also claim that the Rule interfered with their

personal friendships. Personal friendship is protected as an

intimate association. Corrigan v. City of Newaygo, 55 F.3d

1211, 1214-15 (6th Cir. 1995). This court explicated the

appropriate level of scrutiny for restraints on the freedom of

intimate association in Montgomery.

5

 In that case, we

considered a challenge, as contrary the freedom of intimate
No. 01-1383 Akers, et al. v. McGinnis, et al. 15

association, to a school district’s rule that barred employees

at the same school from marrying. 101 F.3d at 1117-21. We

held that a “direct and substantial interference” with intimate

association was subject to strict scrutiny, while lesser

interferences merely merited rational-basis review. Id. at

1124 (citing Zablocki v. Redhail, 434 U.S. 374, 383-84

(1978)).

The contours of a direct and substantial interference with

intimate association are illustrated by the case law. A total

ban on marriage outside one’s ethnic group is a direct and

substantial interference. Loving v. Virginia, 388 U.S. 1

(1967). So is a requirement on non-custodial parents to

obtain court permission before any remarriage. Zablocki, 434

U.S. at 387. However, termination of Social Security benefits

for a disabled dependent child who marries someone

ineligible for benefits is not. Califano v. Jobst, 434 U.S. 47,

58 (1977). Nor is a Department of Agriculture regulation that

treats husband and wife as one person for purposes of

calculating farm subsidies, Women Involved in Farm Econs.

v. United States Dep’t of Agric., 876 F.2d 994, 1004 (D.C.

Cir. 1989), the Internal Revenue Code’s marriage penalty,

Druker v. Comm’r, 697 F.2d 46, 50 (2d Cir. 1982), requiring

a citizen-alien couple to fill out a form and submit to an INS

interview, Aguila-Cisneros v. I.N.S., No. 99-3963, 2001 WL

223969, at *2 (6th Cir. Feb. 27, 2001), or termination from

employment of a municipal employee who marries another

municipal employee, Vaughn v. Lawrenceburg Power Sys.,

269 F.3d 703 (6th Cir. 2001). From this line of cases, we

have abstracted a general rule that we will find “direct and

substantial burdens only where a large portion of those

affected by the rule are absolutely or largely prevented from

marrying, or where those affected by the rule are absolutely

or largely prevented from marrying a large portion of the

otherwise eligible population of spouses.” Vaughn, 269 F.3d

at 710 (6th Cir. 2001) (citing Montgomery, 101 F.3d at 1124-

25).

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

Under these precedents, the Rule is subject only to rational

basis review, which–as we explained already–it passes. It

does not prevent a large portion of MDOC employees from

forming intimateassociations; all MDOC employees continue

to enjoy the ability to form intimate associations–just not with

offenders. Nor are those affected by the Rule absolutely or

largely prevented from forming intimate associations with a

large portion of the otherwise eligible population. While the

plaintiffs stress the large offender population in Michigan, it

is only a little over 1% of the state’s population. Even if the

number of visitors and family members should exceed the

number of offenders ten-fold, surely a generous estimate,

MDOC employees would only be barred from intimate

association with about 10% of the state’s population (whereof

9% are subject to routinely-granted exemption under the

current Rule). This is far from the absolute bar against

marrying a majority of the jurisdiction’s population said in

Loving to be a direct and substantial interference. Moreover,

while the bar in Loving was absolute, the simple expedient of

transferring to another part of the state government or taking

employment in the private sector is available to MDOC

employees here. In fact, one of the named plaintiffs in this

case undertook that step. While a transfer is undoubtedly an

inconvenience, it was not found to be a direct and substantial

interference in Montgomery, nor was even a more serious

employment consequence, termination, found to be such an

interference in Vaughn.

Amicus curiae American Civil Liberties Union argues that

the Rule violates the constitutionally protected freedom of

association, not merely of MDOC employees, but also of

those not employed by the MDOC, such as family members

and visitors of offenders, who would associate with

employees but for the Rule. Initially, we recognize that First

Amendment “protection afforded is to the communication, to

its source and to its recipients both.” Va. State Bd. of

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

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

should therefore be judged not by the relatively lenient
No. 01-1383 Akers, et al. v. McGinnis, et al. 17

standard for the government-as-employer’s interference with

private association, but by the more rigorous standard for the

government-as-sovereign’s interference with private

association, it flies in the face of the Supreme Court’s and this

court’s precedent. Any association by definition involves two

or more parties and restraining one party from associating will

by necessity result in a concomitant effect on the other

parties. In this regard, the association between MDOC

employees and offenders, their family members, and visitors

is no different than almost all other restrictions on association

by government employees. Nothing in our precedents

indicates that the government only has enhanced authority to

regulate association between governmental employees or

others over whom it has enhanced authority. To the contrary,

to hold as amicus suggest would eviscerate the rule that

“Congress may impose restraints on the job-related speech of

public employees that would be plainly unconstitutional if

applied to the public at large.” Nat’l Treasury Employees

Union, 513 U.S. at 465. Virginia State Board is not to the

contrary because “[f]reedom of speech presupposes a willing

speaker” and the constitutional protections only become

effective “where [such] a speaker exists.” 425 U.S. at 756.

Here, the government merely conditions employment on an

employee’s agreement not to become a willing speaker to or

associate with a limited class of persons. The standard of

review of such restrictions on employees is the one of

Pickering, Connick, and their progeny.

As there is no dispute that the revised Rule is more lenient

than the original Rule, which we upheld above, there is no

need to decide whether the Rule is saved by the exemption

procedure grafted onto it. If the older Rule is constitutional,

a fortiori so is the revised Rule. The plaintiffs object to the

exemption procedure on the grounds that exemptions are

granted purely at the standardless discretion of the MDOC.

As we agree with the court below that the Rule was

constitutional even in the absence of an exemption procedure,

we need not address this issue. However, we note that even

were we to conclude that the exemption procedure was

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

necessary to sustain the Rule, this argument would not avail

plaintiffs. A discretionary exemption procedure can doom a

statute subject to enhanced review under the First

Amendment. See, e.g., Forsyth County v. Nationalist

Movement, 505 U.S. 123, 130-31 (1992) (striking down

county ordinance giving discretion to administrator in

awarding of parade permits); City of Lakewood v. Plain

Dealer Pub. Co., 486 U.S. 750, 757 (1988) (striking down

city ordinance granting mayor unbridled discretion to permit

or prohibit distribution of private newspapers at public news

racks); Sec’y of State of Md. v. Joseph H. Munson Co., 467

U.S. 947, 962 n.12 (1984) (striking down statute granting

discretion to secretary of state to waive limits on charitable

fund-raising expenses); Shuttlesworth v. City of Birmingham,

394 U.S. 147, 150-51 (1969) (striking down city ordinance

granting broad discretion to commission to grant or deny

parade permits). Here, however, we subject a regulation to

rational-basis review. A discretionary exemption procedure

unable to meet the higher standard of review can still meet

this highly-deferential one.

Because the Rule is constitutional, the individual

defendants enjoyed qualified immunity. “In civil suits for

money damages, government officials are entitled to qualified

immunity for discretionary acts that do ‘not violate clearly

established [federal] statutory or constitutional rights of

which a reasonable person would have known.’” Goad v.

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

Anderson v. Creighton, 483 U.S. 635, 638-39 (1987), and

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To

determine if qualified immunity attaches, the Supreme Court

has delineated a two-part, sequential analysis.” Goad, 297

F.3d at 501 (citing Saucier v. Katz, 533 U.S. 194, 200-01

(2001)). “First, we inquire whether, ‘[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged

show the officer’s conduct violated a constitutional right?’”

Goad, 297 F.3d at 501 (quoting Saucier, 533 U.S. at 201). “If

no constitutional right would have been violated were the

allegations established, there is no necessity for further
No. 01-1383 Akers, et al. v. McGinnis, et al. 19

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

at 201. Having found no constitutional violation, we must

answer the qualified immunity question in the affirmative.

While this disposes of this question, we note that for a

plaintiff to defeat a defense of qualified immunity, he must

not only prove the violation of a right, but of a clearly

established right. Harlow, 457 U.S. at 818. Indeed, the right

must be “so clearly established when the acts were committed

that any officer in the defendant’s position, measured

objectively, would have clearly understood that he was under

an affirmative duty to have refrained from such conduct.”

Dominque v. Telb, 831 F.2d 673, 676 (6th Cir. 1987)

(emphasis added). See also McCloud v. Testa, 97 F.3d 1536,

1542 (6th Cir. 1996) (holding that “individual capacity

defendants in § 1983 cases receive some benefit from legal

doubt about the clarity of existing law.”). However, in the

present case the district judge found no violation of a

constitutional right at all. Thus, for the plaintiffs to prevail

here on the question of qualified immunity, the situation

would have to be such that any MDOC official when

promulgating the Rule would be aware of the fact that it

violated the Constitution, but a United States district judge,

given the benefit of decades of legal training and practice,

years of hearings and adversarial briefings by able counsel,

was unable to find such a violation. While such a situation is

not logically impossible, and doubtless has occurred from

time to time, it certainly must be a very rare one, implicitly

casting some doubt on the minimum competency of such a

trial judge. Therefore, in cases such as this, unless counsel

are prepared to contend that such an extreme and unusual

situation occurred, they will not be able to succeed in

reversing a grant of qualified immunity.

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

C

The separate opinion concurring in part and dissenting in

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

all party and amici briefs, analyzes the Rule under the

framework of Turner v. Safley, 482 U.S. 78 (1987). Under

Turner, “a prison regulation imping[ing] on inmates’

constitutional rights” will be upheld “if it is reasonably

related to legitimate penological interests.” Id. at 89

(emphases added).

Under the First and Fourteenth Amendments, associational

rights of the general population enjoy the highest level of

legal protection against state regulation. However, the state

enjoys enhanced powers to regulate association by certain

groups. Two such regulable groups are involved here:

prisoners, under Turner and its progeny, and state employees,

under Pickering and its progeny. Moreover, the exercise of

associational rights by definition involves more than one

party and to regulate one party to an association impinges

upon the interests of the other parties. Therefore, the

enhanced regulatory power over some groups implies by

necessity a power to impinge upon the interests of those who

would associate with members of the regulable groups.

The present case concerns an employment regulation

affecting association between MDOC employees and a large

class of persons, most of whom are not prisoners and over the

majority of whom, the relatives and visitors of offenders, the

state enjoys no enhanced regulatory power. Therefore, in

general there is no prisoner nexus, but there always is an

employment nexus. As the state’s regulatory power springs

from the employment nexus, the proper analytical framework

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

against associations between MDOC employees and

prisoners, the regulation is valid if it is within the state’s
No. 01-1383 Akers, et al. v. McGinnis, et al. 21

6

To hold otherwise would create the counter-intuitive result that the

state has the power to prevent some employee associations only with the

general population, but not with prisoners.

7

The fact that plaintiffs here are employees of the state agency

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

analysis would be substantially the same with respect to a regulation

affecting other vulnerable state employees. For example, state-employed

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

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

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

any alleged penological interest.

8

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

a prisoner to enforce the First Amendment right of prison guards to write

to the prison review board in support of clemency petitions. Shimer v.

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

such petitions are more properly analyzed under the framework of

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

based on the association between guards and prisoners and based its

application of Turner on the fact that this underlying association occurred

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

not occur within these confines, rendering Turner inapplicable.

power either as an employer or a warden.6 As we conclude

that the state’s power as an employer is sufficient to authorize

the Rule, an analysis underTurner is superfluous, even in that

minority of cases where it is applicable.7 The precedents

cited by the separate opinion that apply Turner to actions

brought by non-prisoners are not to the contrary, because in

each case the impinged association or speech was with a

prisoner. See Overton v. Bazzetta, ___ U.S. ____, 123 S. Ct.

2162 (2003) (applying Turner to family member’s right to

visit prisoners); Thornburgh v. Abbott, 490 U.S. 401 (1989)

(applying Turner to publisher’s right to send magazines to

prisoners); Keeney v. Heath, 57 F.3d 579, 581-82 (7th Cir.

1995) (applying Turner and Thornburgh to regulation barring

prison guards from marrying prisoners).8

At first glance, it may seem strange that the state would

have powers to regulate the conduct of its employees,

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

generally law-abiding citizens, in ways that were they

exercised over prisoners, generally convicted criminals,

would constitute a constitutional violation. Surely any

regulation that would under Turner violate the Constitution,

if applied to prisoners, must a fortiori do so if applied to state

employees? Yet, that is not always true, because state

employee regulations have a lesser constitutional impact than

prisoner regulations because they merely place a limited,

voluntary burden on the exercise of a right, rather than impose

an outright ban. State employment, in contrast to

incarceration, is voluntary and while state employees do not

waive their constitutional rights, accepting state employment

involves a modicum of consent to regulation that is not

present for prisoners. Moreover, while punishment for the

violation of an employee regulation extends only up to

discharge, punishment for the violation of a prisoner

regulation extends up to lengthened incarceration. For these

reasons, some conduct that could not be enjoined or

prohibited for prisoners can be for state employees. So for

example, the state can extract pledges to support the

Constitution from employees and licensees (such as members

of the bar), but cannot do so from prisoners.

III

For the foregoing reasons, the district court’s judgment is

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

_______________________________________________

CONCURRING IN PART, DISSENTING IN PART

_______________________________________________

CLAY, Circuit Judge, concurring in part and dissenting in

part. The majority applies both the Pickering/Connick

balancing test and the Zablocki “direct and substantial

interference” test to Plaintiffs’ challenge to various iterations

of the MDOC Work Rule. As to the Pickering/Connick

balancing test, the majority opinion correctly distinguishes

between government employee speech that is a matter of

public concern and that which is a matter of private concern.

Restrictions on the former are subject to “intermediate

scrutiny” – a balancing between the interests of the employee

and the interests of the government. Private concern speech,

by contrast, is subject to rational basis review. Although it is

true that this Court has applied the Pickering/Connick test to

restrictions on associations, see Boals v. Gray, 775 F.2d 686,

692 (6th Cir. 1985), such an application may not always do

justice to the particular associational interests at stake. For

example, the right to marry is recognized as a fundamental

associational interest. Marriage, however, is purely a matter

of private concern. Thus, it receives insufficient protection

when applying thePickering/Connick test. See Balton v. City

of Milwaukee, 133 F.3d 1036, 1039-40 (7th Cir. 1998) (“A

Pickering/Connick balancing test, so useful in resolving

public employee free speech cases, is not easily transferable

to freedom of association cases. That’s because some

associational choices – for instance, whom to marry – are

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

usually come up short in a private versus public concern

balancing test.”) (citation omitted).

 As to the Zablocki “direct and substantial interference”

test, this Court has held that, in the employment setting, strict

scrutiny applies to a governmental policy or action that “is a

direct or substantial interference” with the asserted

associational interest. Montgomery v. Carr, 101 F.3d 1117,

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

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

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

or substantially interfere with that interest, then rational basis

review applies. Id.

The majority is not without a precedential basis for

applying these two tests to the associational rights of

correctional employees. See, e.g., Ross v. Clayton County,

173 F.3d 1305, 1310-12 (11th Cir. 1999) (applying

Pickering/Connick test to correctional officer’s claim that his

demotion for associatingwith his probationer-brother violated

his First Amendment rights); Serrano v. Multnomah County,

No. 01-36043, 2003 WL 1827230, at *1 (9th Cir. Apr. 7,

2003) (applying Zablocki “direct and substantial” test to claim

by juvenile group detention worker that her termination for

having a personal relationship with a juvenile detainee

violated the First Amendment). But the Supreme Court has

made it quite clear that prisons are unique to other

governmental settings and that, regardless of whether the

plaintiffs are prisoners or non-prisoners, there is a single test

for the propriety of governmental action that arguably

restricts First Amendment rights – the four-factor “legitimate

penological interests” test, most recently applied in Overton

v. Bazzetta, ___ U.S. ___, 123 S. Ct. 2162 (2003). The

majority, like the district court below, failed to apply this test

to the facts of this case. As a consequence, I disagree with the

majority’s reasoning and concur only in part with its

judgment.

I.

FACTUAL OVERVIEW

Plaintiffs challenge various iterations of the MDOC Work

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

between MDOC employees and inmates, parolees,

probationers or their family members and inmates’ visitors.

This prohibition originally was contained in the MDOC’s

Work Rule 12. That Rule prohibited “[i]mproper or overly

familiar conduct with prisoners, parolees or probationers or
No. 01-1383 Akers, et al. v. McGinnis, et al. 25

1

Like its predecessor, Work Rule 24 also prohibited the MDOC

employee from living with or providing lodging for a prisoner,

probationer or a parolee, except for the employee’s parents or children or

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

employment date or where the spouse became an offender after the

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

relaxed this prohibition by permitting lodging for a sibling. The plaintiffs

their family members and visitors.” (J.A. 34.) Violations of

the Rule subjected the employee to “disciplinary action up to

and including dismissal.” Id. Examples of improper actions

included exchanging “letters, money or items” with a

prisoner; living with a probationer or parolee, except where

the probationer or parolee was a spouse of the employee and

the marriage existed prior to the employment date, or where

the spouse became a probationer or parolee after the

employment date and the marriage was pre-existing; being at

the home of a prisoner, parolee or probationer other than for

official business; giving a prisoner the employee’s home

telephone number; and sexual contact with a prisoner. Id.

Work Rule 12 also required that “[a]ny contact” with a

prisoner, parolee or probationer, or their family members

outside of the job be reported to the Warden. (J.A. 35.)

Examples of unauthorized contact included contact with a

prisoner by writing or by telephone outside of the official

work setting and visiting prisoners without authorization. 

The MDOC repromulgated Work Rule 12 as Work Rule 24

in June of 1996. Work Rule 24 prohibited MDOC employees

from “overly familiar conduct with prisoners, parolees,

probationers, family member(s) of a prisoner, parolee or

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

romantic or sexual contact with such individuals as well as

“any contact” with such individuals “outside the performance

of the employee’s job.” Id. The Rule required the MDOC

employee to report “any unavoidable contact” to his or her

immediate supervisor. Id. The supervisor would then

determine whether a written report of the contact should be

sent to the employee’s warden.1 Examples of prohibited

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

do not challenge this portion of the Work Rule.

contact with offenders, their family members or visitors

included exchanging “letters, money, telephone numbers or

anything,” being at the home of any of these individuals for

reasons other than official MDOC business and “[n]on-work

related contact” with any of these individuals. Id. at 294.

Any violations of the Work Rule would be grounds for

dismissal. 

Effective September 17, 1999, MDOC Work Rule 24 was

abolished and new Work Rule 46 was implemented. Work

Rule 46 defined the term “offender” to mean a “prisoner or

parolee under the jurisdiction of the Michigan Department of

Corrections or housed in a Department facility, or a

probationer who is supervised by an employee of the

Department.” Id. It preserved Work Rule 24's prohibitions

against (1) overfamiliarity with an offender, their family

members or their visitors; (2) contact with such individuals

outside the regular performance of the employee’s job; and

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

Rule also provided the same examples of prohibited contact,

such as receiving letters, money or telephone numbers; being

at the home of any such individual other than for official

business; and any other non-work-related contact. 

On April 24, 2000, the MDOC promulgated a revised Work

Rule 46. The revised Rule defined “family member” to mean

“parents, stepparents, spouse, children, stepchildren, siblings

or step siblings.” (J.A. 297.) It also changed the prohibition

against contact with a prisoner’s visitors to a prohibition

against contact with “lead visitors,” defined to mean a person

on an offender’s approved visitors list. Id. The revised Rule

preserved the prohibition against the provision of lodging for

certain offenders and similarly continued to require the

reporting of unavoidable contact with offenders, their family

members or their visitors. The revised Rule also continued to

prohibit “any contact” with an offender outside the regular
No. 01-1383 Akers, et al. v. McGinnis, et al. 27

performance of an employee’s job and preserved the various

examples of overfamiliarity from the prior Rule (e.g., letterwriting, being at the residence of an offender). The revised

Rule somewhat relaxed the prohibition against any contact

with an offender’s family members or visitors outside of the

job by permitting such contact with prior written approval.

The Rule omitted language that any violation would be

grounds for dismissal, but still appeared to acknowledge that

an employee could be discharged for violating the Rule. 

In Michigan, there are approximately 13,000 people on

parole, 65,000 people on probation and 45,000 people

incarcerated. Thus, Work Rule 46 prohibits any non-workrelated contact between any of the 17,000 MDOC employees

and approximately 120,000 Michigan “offender” residents.

There are no clear figures in the record as to how many family

members the 120,000 offenders have, but it is estimated to be

in the hundreds of thousands. 

The MDOC terminated Plaintiff Dawn Akers, a

bookkeeping clerk at a correctional facility, pursuant to

former Work Rule 24 because she had given a parolee several

rides in her car during her off-duty hours (to the hospital and

to Lansing for a job search). Pursuant to former Work Rule

12, the MDOC terminated Plaintiff Kim Loranger, a

probation officer, who had written a few letters to an inmate

whom she had dated eight years earlier, before the inmate had

been incarcerated. Both Plaintiffs have since been reinstated

to their employment, however, both seek to have the

discipline for violating the Work Rules expunged from their

employment records. Plaintiff Loranger and Plaintiff UAW

Local 6000 seek to prospectively invalidate the current Work

Rule 46.

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

II.

PLAINTIFFS’ CLAIMS AGAINST DEFENDANTS IN

THEIR OFFICIAL CAPACITIES

A. Legal Standards

In Overton v. Bazzetta, ___ U.S. ___, 123 S. Ct. 2162

(2003), the Supreme Court addressed the validity of the

MDOC’s prison visitation policies which, among other

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

The asserted goal of the regulations was to decrease the total

number of visitors because prison officials had found it more

difficult to maintain order during visitation and to prevent

smuggling or trafficking in drugs. Bazzetta, 123 S. Ct. at

2166. The plaintiffs included prisoners, their friends and their

family members. Id. The Court acknowledged that “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.” Id. at

2167 (emphasis added; citations omitted). The challenge to

the MDOC’s prison visitation policies, however, was “not an

appropriate case for further elaboration of those matters.” Id.

The Court reasoned that “freedom of association is among the

rights least compatible with incarceration” and that “[s]ome

curtailment of that freedom must be expected in the prison

context.” Id. The Court therefore held that the MDOC’s

policies did not unduly infringe on the prisoners’ rights of

intimate association because “the challenged regulations bear

a rational relation to legitimate penological interests.” Id.

(citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

 Although the Court in Bazzetta did not separately discuss

the standard of scrutiny applicable to the intimate association

rights of prisoners’ friends and family members, the Court

acknowledged that the plaintiffs included friends and family

members of prisoners. Moreover, the Court previously had

held that the associational rights of non-prisoners are no

greater than the rights of prisoners with whom they wish to
No. 01-1383 Akers, et al. v. McGinnis, et al. 29

associate. See Thornburgh v. Abbott, 490 U.S. 401, 410 fn.9

(1989) (holding that the “legitimate penological interests”

standard applies to alleged associational infringements on

prisoners and non-prisoners alike). Logically, therefore, the

“legitimate penological interests” test should apply in this

case, where correctional officers, although not prisoners

themselves, are integrally related to the prison setting and

wish to associate with former inmates and/or inmates’ family

members. See Shimer v. Washington, 100 F.3d 506, 509 (7th

Cir. 1996) (applying Thornburgh v. Abbott to claimed First

Amendment right of prison guard to write to a prisoner

review board on behalf of prisoners who had filed petitions

for clemency); Keeney v. Heath, 57 F.3d 579, 581-82 (7th Cir.

1995) (applying Thornburgh v. Abbott to claimed First

Amendment right of prison guard to marry a prisoner without

being threatened with termination). 

The majority argues that the Work Rule mostly implicates

associations with non-prisoners, such as relatives and visitors

of offenders. It therefore concludes that the “legitimate

penological interests” test is inapplicable to the Work Rule

because “in general there is no prisoner nexus, but there

always is an employment nexus.” This argument defies

common sense and ignores the undisputed facts of this case.

The MDOC has sought to justify the Work Rule as it applies

to both the offender class and the class of relatives and

visitors based solely on the Rule’s relation to the preservation

of prison security. But for the asserted security concerns

implicated by MDOC employees’ contacts with both classes

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

majority states, there is “in general no prisoner nexus,” then

it is difficult to see how the Work Rule survives even rational

basis scrutiny. The Work Rule is nothing like employment

regulations that require pledges to support the Constitution or

preclude moonlighting or partisan political activity, which

typically would be based on the employer’s general interest

in maintaining employee morale or an efficient and loyal

workforce. These types of employment regulations are not

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

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

prisoners undeniably are the reason for the MDOC’s Work

Rule. The fact that the Rule can be classified more generally

as an employment regulation should not blind this Court to

the specific reality that it is a prison regulation. Accordingly,

the “legitimate penological interests” test is not

“superfluous,” as the majority claims.

The “legitimate penological interests” standard is highly

deferential to prison administrators. Although “[w]e must

accord substantial deference to the professional judgment of

prison administrators,who bear a significant responsibility for

defining legitimate goals of a corrections system and for

determining the most appropriate means to accomplish them,”

Bazzetta, 123 S. Ct. at 2167-689 (citations omitted), this

deference is by no means absolute. Accordingly, the Supreme

Court has provided the following guidance in assessing

whether a prison regulation serves legitimate penological

interests:

In Turner we held that four factors are relevant in

deciding whether a prison regulation affecting a

constitutional right that survives incarcerationwithstands

constitutional challenge: whether the regulation has a

“valid, rational connection” to a legitimate governmental

interest; whether alternative means are open to inmates

to exercise the asserted right; what impact an

accommodation of the right would have on guards and

inmates and prison resources; and whether there are

“ready alternatives” to the regulation.

Id. (citing and quoting Turner, 482 U.S. at 89-91; internal

quotation marks and citation omitted). The party seeking to

invalidate the prison regulation bears the burden of proof

regarding these four factors. Id. at 2168. As discussed below,

even under this highly deferential test, parts of the challenged

MDOC Work Rule are unconstitutional.
No. 01-1383 Akers, et al. v. McGinnis, et al. 31

B. Analysis

1. Valid, rational connection to a legitimate

governmental interest

Regulations that promote internal security are “perhaps the

most legitimate of penological goals,” Bazzetta, 123 S. Ct. at

2168 (citation omitted); however, there still needs to be a

“logical connection between this interest and the regulations.”

Id. (MDOC’s regulations “prohibiting visitation by former

inmates bears a self-evident connection to the State’s interest

in maintaining prison security and preventing future crimes”).

The logical connection between the regulation and the

asserted goal cannot be “so remote as to render the policy

arbitrary or irrational.” Turner, 482 U.S. at 89-90. Moreover,

where “the nature of the asserted governmental interest is

such as to require a lesser degree of case-by-case discretion,

a closer fit between the regulation and the purpose it serves

may safely be required.” Abbott, 490 U.S. at 412; see also id.

at 416 (“we are comforted by the individualized nature of the

determinations required by the regulation” which prohibited

a prisoner from receiving a publication only when the warden

determined that it was “detrimental to the security, good

order, or discipline of the institution or ... might facilitate

criminal activity”) (internal quotation marks and citations

omitted). 

In Turner, the Court found that a prison rule barring

inmate-to-inmate correspondence was reasonably related to

legitimate security interests. Turner, 482 U.S. at 91. The

Court observed, “Undoubtedly, communication with other

felons is a potential spur to criminal behavior: this sort of

contact frequently is prohibited even after an inmate is

released on parole.” Id. (citation omitted). The Court upheld

the regulation because it barred communication only with a

“limited class of other people with whom prison officials

have particular cause to be concerned – inmates at other

institutions within the Missouri prison system.” Id. at 92

(emphases added). 

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

2

See also (J.A. 319) (Affidavit of Richard E. Johnson, Assistant

Deputy Director of the Correctional Facilities Administration at, ¶ 11) (“I

am aware of several examples of employees who have smuggled

contraband into a facility due to the development of a personal

relationship with a prisoner ....”); (J.A. 223) (Affidavit of Dan L. Bolden,

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

(“Employees who become involved in [personal] relationships with

prisoners are at risk to become involved, often against their will, in

bringing contraband into the prison, including money, drugs, and

weapons, and assisting in escape plans, plans to create disturbances, or

plots to retaliate against staff and other prisoners.”); J.A. 217 (Affidavit

of Robert Steinman, Deputy Director of the MDOC’s Field Operations

Administration, at ¶ 5) (“Any appearance of impropriety on the part of the

[parole or probation] agent can compromise the employee’s authority and

control over the probationer and parolee and can result in serious

ramifications, ranging from lax and inadequate supervision to actual

falsifying of reports and information regarding the individual being

supervised.”) 

a. Contact with inmates, parolees and probationers

The reasoning in Turner easily can be applied to the portion

of the challenged MDOC Work Rule that prohibits nonwork-related relationships with prisoners or former prisoners.

MDOC officials have asserted that any type of nonprofessional relationship with an offender is cause for

discharge because of “serious security concerns in

correctional facilities and concerns regarding the integrity of

supervision of offenders in communities.” (J.A. 215.)

(Affidavit of Marsha Foresman, Special Assistant to the

MDOC Director, at ¶ 6).2 I agree, based on Turner, that

relationships between MDOC employees and inmates or

former inmates could be a spur to criminal behavior or

facilitate criminal behavior. Personal relationships with

inmates and former inmates, whether romantic or otherwise,

could undermine security and order in the prison or the

integrity of the probation supervision process. Cf. Keeney, 57

F.3d at 581 (holding that a guard’s romantic involvement with

an inmate could make her “a potential facilitator of unlawful

communication between [the inmate] and others and a

potential provider of favored treatment for him”). 
No. 01-1383 Akers, et al. v. McGinnis, et al. 33

The fact that a particular MDOC employee has no explicit

supervisory authority over the offender and may have little or

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

change the analysis. In establishing prison regulations, “a

line must be drawn.” Bazzetta, 123 S. Ct. at 2168 (reasonable

to limit child visitors by prohibiting visits by nieces, nephews

and children as to whom parental rights had been terminated).

It is reasonable for the MDOC officials to conclude that

(a) the risk to prison security is too great, however remote that

risk may be in the vast majority of relationships with

offenders; and (b) even innocent relationships with offenders

tend to undermine offenders’ respect for the prison

authorities, thereby comprising the authority and control of

those MDOC employees who actually supervise them. This

Court also cannot ignore the potential administrative costs

that the MDOC would incur by having to conduct a case-bycase assessment of relationships with offenders. 

For these reasons, I agree with the majority as far as Work

Rule 46 legitimately prohibits any non-work-related

relationships between MDOC employees and offenders, with

one caveat. As presently written, Work Rule 46 prohibits

“any contact” with an offender outside the regular

performance of an employee’s job and further imposes a duty

to report any “unavoidable contact” to a superior and

potentially to the Warden. (J.A. 298.) As far as potential

discipline is concerned, the Rule draws no distinction

between intentional contact with an offender outside of work

and incidental or even unknowing contact. In this regard,

Plaintiffs have complained that MDOC employees could not

attend an Alcoholics Anonymous meeting, a political

campaign meeting, a religious service, a PTA meeting or a

bowling league event if any attendees at those meetings are

on parole or probation. Appellants Br. at 12. In addition,

Michael Devine, a union representative with Plaintiff UAW

Local 6000, testified that at one point in time there were

twelve homes on his block in which 12 offenders lived. If he

were still employed as a probation officer with the MDOC, he

could not have any contact with his neighbors. Plaintiffs

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

point out that such contacts would be unavoidable, yet would

be cause for termination. 

I submit that the Rule is not reasonably related to legitimate

penological interests to the extent it prohibits, without

exception, certain incidental contacts with probationers and

parolees at church functions, political meetings and the like.

Probationers and parolees are a significant percentage of the

population, particularly in urban areas. To require MDOC

employees to extricate themselves from community events

and organizations in which offenders also happen to

participate represents a significant intrusion on the

employees’ personal liberty. Preventing such incidental

contacts with offenders bears only the remotest relation to the

preservation of prison security and the avoidance of conflicts

of interest. See Turner, 482 U.S. 89-90 (holding that the

logical connection between the regulation and the asserted

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

irrational”). Indeed, the evidence submitted by MDOC in

support its Work Rule relates to problems with personal

relationships between employees and offenders, not to mere

contact between them. See note 2, supra. Thus, only when

the contact is intentional and repetitive, evolving into a

relationship,should MDOC’s penological interests even come

into play. The lack of a case-by-case exception for such

incidental contact confirms the lack of a close fit between the

Work Rule’s prohibition and the asserted penological

interests. See Abbott, 490 U.S. at 412 (where “the nature of

the asserted governmental interest is such as to require a

lesser degree of case-by-case discretion, a closer fit between

the regulation and the purpose it serves may safely be

required”). I would hold that the blanket prohibition against

incidental contact with probationers and parolees fails the first

prong of the Turner test. 

Further, as currently formulated, Work Rule 46 provides

that a MDOC employee can be terminated if he or she attends

a church event or a political event also attended by

probationers or parolees, even if he or she does not know that
No. 01-1383 Akers, et al. v. McGinnis, et al. 35

any of the attendees are on parole or probation. This “strict

liability” approach bears no logical relation to the asserted

penological interests of preventing MDOC employees from

using their positions to compromise prison security or

avoiding conflicts of interest. At a minimum, I would limit

the prohibition against non-work-related contacts with

probationers and parolees to situations where the MDOC

employee knew or should have known that he or she had

contact with such an offender.

b. Contact with family members of offenders and

inmates’ visitors

The more troubling proposition is whether Turner can be

interpreted to prohibit contacts or communications with

individuals who are not subject to the MDOC’s jurisdiction,

but who are family members of such individuals. Such

family members are a “limited class” in the strictest sense of

the term – i.e., there are a finite number of such individuals;

however, the size of the class is significant, in the hundreds of

thousands. Moreover, because family members are a diffuse

class, they likely are not identifiable to MDOC employees in

many cases. A MDOC employee would not know that an

individual he or she meets outside of work is a family

member of an offender; he or she may not become apprised

of this fact if the individual never volunteers it. Yet the

MDOC employee’s job is in jeopardy, regardless of what the

employee actually knows or should know about the

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

member classification does not constitute a “limited class” in

the sense that the Turner Court applied the term to a discrete,

relatively small and readily-identifiable group (there, prison

inmates who were confined in a single location).

The next question is whether prison officials have

“particular cause” to be concerned about such family

members. In this regard, the MDOC has submitted an

affidavit from Robert Steinman, the Deputy Director of the

Field Operations Administration, who is responsible for the

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

oversight and operation of adult felony probation and parole

services. According to Steinman:

An employee who is involved in other than a

professional relationship with a probationer or parolee, or

family members of the probationer or parolee, may be

persuaded or coerced to misuse his/her position to benefit

the parolee or probationer, and/or friends and family of

the parolee or probationer. This concern is not limited

only to parole and probation agents. Administrative

support staff working in field offices and in Central

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

types of records which can be tampered or altered. For

example, administrative support staff may have access to

reports of drug testing results regarding parolees and

probationers. The employee could, either willingly or

under threat, manipulate data and records to change those

reports. Other records could be manipulated to affect a

probationer or parolee’s record of compliance with

special conditions, work reports, payment of restitution,

etc. An agent could be coerced into using his/her

position to gain access to parolees and probationers who

are housed in county jails for violations of parole or

probation, and even could affect [sic] the release of an

individual from county jail under false pretenses. These

are just some examples of improper use of position

which can result from non-professional relationships

between employees and parolees, probationers, and their

families.

(J.A. 217-18) (Steinman Aff. at ¶ 6).

No doubt the MDOC has identified some conceivable

harms that a compromised MDOC employee could inflict on

the correctional system. Arguably, the risk of at least some of

these harms being facilitated by former inmates who strike up

relationships with MDOC employees is “self-evident.” Cf.

Bazzetta, 123 S. Ct. at 2168 (MDOC’s regulations

“prohibiting visitation by former inmates bears a self-evident
No. 01-1383 Akers, et al. v. McGinnis, et al. 37

connection to the State’s interest in maintaining prison

security and preventing future crimes”). But the risk of harm,

although conceivable, is not self-evident in the case of family

members of offenders and inmates’ visitors, who, as far as

anyone knows, are and have always been upstanding citizens.

By definition, family members and visitors are not offenders.

Unless they have been found guilty of a crime outside of

Michigan, family members and visitors have not been

“convicted of felonious behavior, which often involves

dishonesty, fraud, and coercion.” (J.A. 219) (Steinman Aff.

at ¶ 9). Indeed, the MDOC has not cited a single example of

a MDOC employee using his or her position to carry out,

whether willingly or under duress, any improper favors for

family members or visitors. Thus, the MDOC has not based

its prohibition against relationships with family members or

visitors on “particular cause,” but on “questionable

speculation” that such contacts conceivably could threaten

prison security. Cf. California First Amendment Coalition v.

Woodford, 299 F.3d 868, 880 (9th Cir. 2002) (regulation that

barred outsiders from witnessing administration of lethal

injection was not justified by alleged interest in protecting

execution team members from being publicly identified and

subjected to retaliation; evidence in the record showed that

regulation was an “overreaction, supported only by

questionable speculation”); see also Shimer, 100 F.3d at 510

(“We ... are reduced to speculation when not provided with

evidence, and, having speculated, find it difficult to establish

a connection between the prison administration’s

unsubstantiated justifications and its policy” of prohibiting

correctional employees from contacting the Prisoner Review

Board on behalf of prisoners.”).

For these reasons, the former Work Rule’s blanket

prohibition on contact with family members of offenders and

inmates’ visitors is unconstitutional. Although the revised

Work Rule now permits such contacts with prior written

approval from the prison authorities, the Rule provides

absolutely no standards to guide prison administrators in the

exercise of their discretion. I would direct the MDOC to a

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

Federal Bureau of Prisons regulation on visitation by friends

and associates which, by analogy, strongly suggests that

incorporating specific standards into the MDOC’s family

member/visitor exception is feasible. According to that

regulation:

The visiting privilege ordinarily will be extended to

friends and associates having an established relationship

with the inmate prior to confinement, unless such visits

could reasonably create a threat to the security and good

order of the institution. Exceptions to the prior

relationship rule may be made, particularly for inmates

without other visitors, when it is shown that the proposed

visitor is reliable and poses no threat to the security or

good order of the institution.

28 C.F.R. § 540.44(c). See also Abbott, 490 U.S. at 416 (“we

are comforted by the individualized nature of the

determinations required by the regulation” which prohibited

a prisoner from receiving a publication only when the warden

determined that it was “detrimental to the security, good

order, or discipline of the institution or ... might facilitate

criminal activity”) (internal quotation marks and citations

omitted). Applying a standard like “reasonable threat to

security and good order” would serve to focus the MDOC on

concrete criteria that specifically relate to its interest in

maintaining prison security, making it less likely that the

MDOC would render, or create the appearance of, arbitrary

determinations that have nothing to do with its penological

interests.

To summarize, the revised Work Rule 46 is reasonably

related to a legitimate penological interest to the extent it

prohibits relationships between MDOC employees and

inmates, probationers or parolees, but not to the extent it bars

incidental or unknowing contact with such individuals. The

Rule is not related to a legitimate penological interest to the

extent it (a) prohibits unknowing or incidental contact with

family members of offenders or inmates’ visitors and
No. 01-1383 Akers, et al. v. McGinnis, et al. 39

(b) prohibits contact with family members or inmates’

visitors, subject only to a case-by-case exception that fails to

take into account prison security, or any other factor. 

2. Alternative means of exercising associational rights

When examining prison regulations, “[w]ere it shown that

no alternative means of communication existed, though it

would not be conclusive, it would be some evidence that the

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

Here, Plaintiff Loranger complains that Work Rule 46

prevents her fromvisiting with Rebecca Contreras, her closest

friend for the past 15 years, because Contreras’ son is on

probation. Likewise, the Rule has prevented Contreras from

participating in Loranger’s childbirth, attending the baptism

of Loranger’s child and actively serving as the Godmother of

Loranger’s child. Although Loranger requested permission

to have contact with Contreras, the MDOC denied her

request. Plaintiffs also complain generally that the Rule

prohibits MDOC employees from attending Alcoholics

Anonymous meetings, political campaign meetings, religious

services and PTA meetings, when any attendees at those

meetings are on parole or probation. 

Alternative means of participation in these associational

activities exist only if Plaintiffs leave their employment with

the MDOC (an alternative the majority cavalierly calls a

“simple expedient”). But because the challenged prison

regulations are unreasonable, Plaintiffs are not required to

quit their jobs to enjoy these rights. Compare Keeney, 57

F.3d at 581-82 (holding that prison work rule that forbade

social involvement with inmates did not impermissibly

burden prison guard’s right to marry by forcing her to quit in

order to marry an inmate; regulation served “plausible”

concerns of prison in avoiding conflicts of interest and the

appearance of favoritism). Rather, the question is whether, as

MDOC employees, Plaintiffs have alternative means of

carrying out their otherwise-protected associational activities

without fear of being terminated. Clearly, they do not. They

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

are absolutely prohibited from engaging in any associational

activities that result in incidental or unknowing contact with

probationers and parolees. Additionally, subject only to the

unfettered discretion of prison officials, MDOC employees

are prohibited from contact with offenders’ family members

and inmates’ visitors, with whom they may have had longstanding, pre-existing personal relationships. 

3. Impact of accommodation on prisoners, guardsand

resources

Any alternative to the MDOC regulations must avoid a

“significant reallocation of the prison system’s financial

resources [that] would impair the ability of corrections

officers to protect all who are inside a prison’s walls.”

Bazzetta, 123 S. Ct. at 2169. Only when the proposed

alternative “will have a significant ‘ripple effect’ on fellow

inmates or on prison staff, [should courts] be particularly

deferentialto the informed discretion of corrections officials.”

Turner, 482 U.S. at 90 (citation omitted). 

It appears that there would little, if any, reallocation of

prison resources if this Court were to require the MDOC to

create an exception for unknowing or incidental contact with

probationers and parolees. The MDOC already has adopted

a case-by-case exception procedure for contacts with family

members of offenders and inmates’ visitors, which by all

estimates, constitute a far greater population than the

probationer/parolee population. There is no indication in the

record that the adoption of this exception would result in a

crush of requests from MDOC employees. As noted above,

there is no evidence that such incidental or unknowing

contacts would pose a threat to prison security.

Furthermore, there would be no effect on prison resources

as a result of requiring the MDOC to apply specific standards

to its current policy of granting case-by-case exceptions to the

prohibition against contact with offenders’ family members

and with inmates’ visitors. In fact, the MDOC is likely to
No. 01-1383 Akers, et al. v. McGinnis, et al. 41

save resources by following uniform standards that do not

have to be re-invented each time a request is submitted. In

addition, by incorporating the concept of prison security into

the standards, the MDOC’s legitimate penological interests

would be advanced.

4. Ready alternatives to the regulations

The “existence of obvious, easy alternatives [to prison

regulations] may be evidence that the regulation is not

reasonable, but is an ‘exaggerated response’ to prison

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

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

unreasonable if there is “some obvious regulatory alternative

that fully accommodates the asserted right while not imposing

more than a de minimis cost to the valid penological goal.”

Bazzetta, 123 S. Ct. 2162 (citing Turner, 482 U.S. at 90-91).

As discussed in the preceding section, there are obvious

regulatory alternatives that fully accommodate the MDOC’s

interest in preserving prison security and avoiding conflicts of

interest in the context of contacts with parolees, probationers,

family members of offenders and visitors. The creation of an

exception for incidental or unknowing contact with parolees

and probationers, as well as the institution of specific

standards for contacts with family members of offenders and

visitors would impose a de minimis, if any, cost on the

MDOC; even under the present version of Work Rule 46, the

MDOC is incurring the cost of case-by-case determinations

about the permissibility of contacts with family members and

visitors. Without these common-sense modifications, Work

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

the MDOC’s legitimate concern over maintenance of prison

security.

Based on the foregoing, I concur that the grant of summary

judgment to the MDOC on Plaintiff Akers’ and Plaintiff

Loranger’s claims was appropriate. It is undisputed that both

Akers and Loranger had purposeful contacts with a parolee in

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

3

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

entitled to qualified immunity because “a United States District Court

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

hearings and adversarial briefings by able counsel, was unable to find ...

a violation.” With all due respect, my brethren in the district courts have

been known to commit legal error, including plain error through the

failure to cite and apply clearly established legal precedent. If a district

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

violation of former Work Rule 24 (Akers) or with an inmate

in violation of former Work Rule 12 (Loranger). Thus,

disciplinary action against them did not violate their

constitutional right to freedom of association. Nevertheless,

Plaintiff Loranger and Plaintiff UAW Local 6000 are entitled

to a declaration that the revised Work Rule 46 is

unconstitutional to the extent it imposes discipline for: (1)

unknowing or incidental contact with offenders, family

members of offenders or inmates’ visitors or (2) contact with

family members of offenders or inmates’ visitors, subject

only to a standardless exception process.

III.

QUALIFIED IMMUNITY

Since neither Akers nor Loranger suffered a constitutional

harm stemming from their discipline for violating the Work

Rules, the individual Defendants are entitled to qualified

immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001)

(“If no constitutional right would have been violated were the

allegations established, there is no necessity for further

inquiries concerning qualified immunity.”). Regardless, there

appears to be no basis to find that the right of prison

employees to engage in particular associational activities with

probationers or parolees was “clearly established,” id., given

the dearth of case law applying the four-part Turner test to the

regulation of employment conditions in a prison setting.

Accordingly, I concur with the majority’s judgment that

Defendants were entitled to qualified immunity to the extent

they were sued in their individual capacities.3
No. 01-1383 Akers, et al. v. McGinnis, et al. 43

qualified immunity issue, the Courts of Appeals rarely would have

occasion to reverse a district judge’s ruling on qualified immunity. Thus,

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

control this Court’s analysis of the issue.

IV.

CONCLUSION

For the foregoing reasons, I CONCUR that the district

court properly granted summary judgment on Plaintiff Akers’

and Loranger’s claims for unconstitutional discipline. I also

CONCUR in the majority’s judgment that the individual

Defendants are entitled to qualified immunity. I DISSENT

to the extent the district court should have granted Plaintiff

Loranger and UAW Local 6000's request for prospective

relief regarding certain aspects of Work Rule 46. Work Rule

46 legitimately bars non-work-related relationships between

MDOC employees and offenders, but the prohibition against

all non-work-related contact with probationers and parolees

should be limited to situations where the MDOC employee

knew or should have known that such individuals were

offenders. The prohibition also should contain an exception

for incidental contact with such offenders. Work Rule 46 also

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

incidental contact with family members of offenders or

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

to the MDOC’s unfettered discretion to make exceptions

without reference to any factors related to prison security,

order or discipline.