1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0419P (6th C ir.) File Name: 03a04 19p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

D AWN A KERS ; K IM L ARANGER , U

NITED A UTO MOBILE , A EROSPACE , AND A GRIC ULTURAL I MPLE MENT W ORKER S OF A MERICA , L OCAL 6000; A KUA M ITCHELL -D AV IS , Plaintiffs- Appellant s,

v.

K ENNETH M C G INN IS ; R OBERT S TEINMAN ; M ARSHA F ORESMAN ; P AT RICIA C ARUSO ; J OHN M ARSHA LL ; E DWARD H AGGER TY ; G EORGE M ARRA ; W IL LI AM O VERTON ; R

UTH B ARE ; F RANK E ISENHAUER ; J OSEPH J ERECK OS ; J OHN M AKOWSKI ; T ERRY P ITCHER ; K IRK M C V ITT IE ; G WEN R ODGERS , in their Personal and Official Capacities, Jointly and Se ve ra ll y, Defenda nts-Appe llees. X - - - -

> , - - - - - - - - - - - - - - - - - - - - - - - N No. 01-1383 2 Akers, e t al. v. Mc Ginnis, 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 SUHRHEI NRICH and CLAY , Circuit Jud

ges.

_________________ COUNSEL

ARGUED: Miranda K.S. Massie, SCHEFF & WASHINGTON, Detroit, Michiga n, for Ap pellants. Jo hn L. Thurber, OFF ICE O F TH E AT TOR NEY GEN ER AL, CORRECTIONS DIV

ISI ON, L ansin g, Michigan, for Appellee s. ON BRI EF: Miranda K.S . Massie, S CHEFF & WASHINGTON, Detroit, Michigan, for Appellants. John L. Thurber, OFF ICE O F TH E AT TOR NEY GEN ER AL, CORRECTIONS DIVI SION, L ansing, Michi ga n, for Appellee s. Michael

J. Steinber

g, AMERI

CA N CIVIL LIBER TIES UNI ON FUND OF MI CHIG

AN, Detr

oit, Michigan, for Amicus Curiae.

BOGGS, C. J., delivered the opinion of the court, in which SU HRH EIN RICH, J., joined. CLAY, J. (pp. 23-43), delivered a separa te opinion concurr ing in part and dissenting in part.No. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 3

_________________ OPINION

_________________ BOGGS, Chief

Judge . Pl aintiffs , Dawn Ak ers and K im Lorange r, a current and a former em ploy ee of the Michigan De partment

of Corre ctions (“MDOC”), and their union, th e United Automobile, Aerospace, and Agricultura l Implement Worke rs of America, Loca l 6000 (“UAW”), appeal the districtcourt’s summary judg ment f or the de fendant s, Kenneth McGinnis, the director

of the MDOC, and numerous other listed MDOC administrators. The plaintiffs had sued on the ground s that an MDOC rule ( “Rule”)that bar red all MDOC employee s f

rom any non-wor k-rela ted conta ct with prisoners, parolee s, probationers (“ offende rs”), th eir relatives and vi si to rs , v io la te d t he ir “c le ar ly e stabli shed rig hts to pr iv ac y, associa

tion, and d

ue proce ss guar

anteed by th e First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendment to the United States Constitution.” Specifically, the plaintiffs sought reins tatem ent aft er dis charge f or violating the Rule, expungement

fromthe plaintiffs’ disciplinary re cords of any reference to a violation of the Rule, and compensatory and punitive damages. On cross-motions for summary judgmen t, the district court

held that the Rule was constitutional and that the defen dan ts enjoyed qualified immunity . Plaintiffs now app e al the holdings that the Rule was not contrary to the freedom of association guaranteed by the Firs t and Fou

rteenth Amendmen

ts and that the defendants enjoy ed qualified immunity . We affir

m.

I

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

a Rule barr ing empl oye es from “ Impr oper Rela tionships w

ith Prisoner s, Parolees or Probationers, Visitors or Famil ies.” This Rule, orig

inally known as R

ule 12, strictly prohibited “improper

or overly familiar conduct w

ith [offen ders] or their family members o

r vis itors. ” Violati ons of the Rule 4 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

“subject[ed] an emplo yee to disciplinary action up to and including dismissal[].” A non-exhau stive list of improper actions included “exchange of letters, mo ney or items, . . . cohabitation[except in case of a pre -exis ting

marr iag e], being at the home of

[an offender] for reasons other than an official visit w it hout reporting the visit, . . . giving [offender] [ employ ee’s] home tele

phone num

ber, [and ] sexual contact o f any nature.” (e

mphasis in origina

l). Furt hermore , the Rule required reporting of “[a]ny

contact made with [a

n off ende r],

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

anempl oye e’s job.” In June 1996, Rule 12 was repromulgated

as Rule 24. I n September 1999, during the

course of th is li ti ga ti on , R ul e 2 4 w as re pl ac ed by a substantia lly identical Rule 46. Finally , in April 2000, Rule 46 was revised to clar ify the definitions of family member and visitor and recognize the power of t h e MDOC to grant individual employees limited exe mptions to the Rule. To receive such an exemption all owing c ontact wi th offen ders’ visitors or family members, but not offende rs themse lves, an employee w o uld have to submit a misleadingly titled “Offender Contact E

xception Re quest” f

orm and a

wait approval fromt he Director of the MDOC or a designe e. From the creation o f t he exception procedure to July 23, 2001, 226 such exceptions had been sought and of these 223 had been granted.

Plaintiff Lora nger, then a Way

ne County

probationofficer,

was contacted by

a man she h ad dat ed before becoming an MDOC employ

ee and w ho was the

n serving a lif e sente nce withoutparole i

n a priso n o utside her jurisdiction. She exchanged

severa l 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 viola

tion. Plaintiff

Akers, while a bookkeeper a

t a correctional facility

in Chippewa County, had befriended

a prisoner clerk. Shortly after the prisoner’s release, Akers g ave him a rid e 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 po sit ivelyNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 5

evaluat ed by their sup ervisor s and in ne ither ca se is there an allegation that their specific conduc t had adversely affected the MDOC’s function. Plaintiff UAW represents about two thousand clerical and

profess ional emp loy ees of th e MDOC,

a mo ng them Lorange

r and Akers. UAW does not represent any prison g uards.

InMarch 1997, the plaintiffs filed a complaint in the United States District Court for the Western District of Michigan and the case wa s assi gned to a magis trate judge

. During the following months, labor arbitrators set aside the discharges of both Lorange r and Akers and instead

imposed r

elativel y brief suspensions on both women. As the plaintiffs had also sought the purging of

their disc iplinary

record of any refer ence to the Rule violation a s well as mon etary damage s, their reinstatement

did not moot the action. After her reinstatement and during t he pende ncy of the ca se, L orang er repe atedly sought permission to have contact with Rebecca Contreras, a long-standing

friend whose son had been placed on probation, and was repeatedly

denied. When Lorange

r became pregnant and wished Contreras to be her child’s godmother, shesought and was granted a preliminary injunction ordering the MDOC to allow L

orang er to invit

e Contrer as to her child’s b aptism. Lorange r also continued to request permission to have contact with St ac ey A rtley, a y

oung woman to whom Lorang er was
a “Big Sister” and who then was on probation. Akers

, during the pendency

of this action, transf

erred t o a position with the Michigan Department of Natural Resources, mooting her claims for prospective relief. On cross-motions for summary judg em ent, the magistrate judge issued a repor t and recommendation, whichproposed finding the original Rule

to be unconstit

utional un

der the F irst a

n d Fourte enth Amen dments, expungin

g Akers’s and Lorang er’s disc iplinar y record, and declaring moot the challenge to the current versionof the Rule. However, the district court rejected the report and r ecommendation and found that there was a live controve rsy regarding both the curr

ent and the old version

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

cons titutional

, and ther

efore g ranted s ummary judgeme nt t o 6 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

MDOC an d q ua li fi ed im mu ni ty t o the individual named defenda nts. Here the plaintiffs appeal this grant of summary ju dg me nt an d q ua li fi ed im mu ni ty.

II

The MDOC cont

e nds that any cha

llenges to the previous versions of the Rule

were mooted when it adopted its current version. However, a “defendant’s volunta ry cessa tion of allege dly unlawfu l conduct ordinar ily d oes not s uffice

to moota case.” Jone

s v. City of Lakeland , 224 F.3d 518, 529 (6th Cir. 2000) (en ban c) (quo ting Frie nds of th e Earth v. Laidlaw Envtl. Se

rvs. , 5 28 U. S. 167, 174 ( 2000)). “ A case might become moot if subsequent events made it absolute ly clear that the a

lleged ly w rongfu l behav ior could not

reasona bly be expected to recur.” Jones , 224 F.3d at 529 (quotin g Un ited State

s v. Conce

ntrated Ph osphate E

xport Ass’n

, 393 U.S. 199, 203 (1968)). “The ‘heavy burden o f persua[di ng]’ the court that the challenged conduct can not

re asonably

be expected to start up again lies with the part y assertingmootness.” Jones , 224 F.3d at 529 (quot i ng Laidlaw

, 528 U.S. at 170 ). In the present ca se, as the promulgation

of wo rk ru le s a pp ea rs to be so le ly wi thin the dis cretion of the MDOC, there is no guarantee that MDO C will not change back to its older, stricter Rule as soon as

this actionterminates. M oreover , as the plaintiffs could be entitled to money

dama ges and the pu

rging of their disciplinary

records if the old version of the Rule were found to be unconstitutional even if the current version was constituti onal, the issue

is not moot a

nd it is incum bent on this court to examine all versions of the Rule. We begin by analyzing the or iginal version of the Rule without the exception procedure.

The plaintiff’s claims of constitutional violation are based upontwo analy

tically di stinct forms of freedom of association: freedom of intima te association, protected

under the Substantiv e Due Pro cess com ponent of the Four teenth Amen dment, and freedom of expressive as sociation, protectedNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 7

under the Freedom

of Speec h Clause o f the FirstAmendmen t. 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 a nd main tain cer tain intimate human relationships must be secured against undue intrusion by the

State because of the role of such relationships i nsafeguarding the individual fre edom that is central to ou r constitutional scheme. In thi s respect, freedom of association receives prote ction as a fundamental element of personal liberty.” Ibid. With res pect to expressive association, “the Courth as re cognized a right to associate for the pur pose of engaging in those activities prot ected by t he First Amendment

–spee ch, assembly, petition for the re dress of grieva nces, and the exercise of religion. The Constitution guarantees freedom of assoc iati on of this kind as an indispens able means of preserving other individual liberties.” Id. at 618. As “the nature and d egr ee of constitutional protection

afforded freedom of association may vary dependingon the exte

nt to w hich one or the other aspect of the constitutionally protected liberty is at stake in a given case,” it is necessary to e xamine the Rule as a poten tial infringement

of both int

imate ass o ciat ion and expressive association. Ibid.

A

State employees’ f

reedom of expressiv e associ ation cla ims

are analy zed under

the same

standar d as state employ ees’ freedom of speech claims. See Boals v. Gray , 775 F.2d 686, 692 (6th Cir. 1985). “Because the analy tic tools fo r adjudicating First Amendment retaliation claims under the Free Sp eec h Clause have been so extensively developed, courts in this and other circuits have te nded to imp ort fully that reasoni ng when litigant s have characte

rized thei r claims

as arising under another Fi rst Amendment clause.” Thaddeus-X

v. Blatter , 175 F.3d 378, 390 (6th Cir. 1999) (en banc). The contours of state employee s’ freedom of speech inturnare defined by

two leading

Supreme C ourt pre cedents

. 8 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

1 A policeman “ may have a cons tit uti onal right t o talk politi cs, but he has no consti tut ional right to be a poli ceman.” McAuliffe v . Cit y of New Bed ford , 29 N.E. 517 , 517 (M ass. 1892) (Holmes, J.). In Pickering v. Board of Education , 3 91 U. S. 563 (1968), the Supreme Court denied that government employees “ma

y
co n stitutiona

lly be compe lled to re linquish the First Amendment

rights they

would othe

rwiseenjoy

as citizen s 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 reject ed Hol mes’s famous dictum on the free speech right of gover nment emp loy ees, 1 it also concluded “that the State has interests as an employ er in regulating

the speech

of its employ

ees that differ s ignific antly fromth o se it possesses in connection with regulation of the speech of the citizenry in g eneral. The problem in any case is to arrive at a balance betwee n the interests of the [empl oyee], as a citizen, in commenting upon matters of public concern

and the interest of the State, as an employ er, inpromoting the efficiency of the pub lic servi ces it pe rforms through its employee s.” Ibid.

In Connick

v. Myer s , 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 pol itical, social, or other

concern to the com

m u nity , gover

nment off icials sho uld enjoy wide latitude in managing their offices, w ithout intrusive oversi g ht by the judiciary in the name of the First Amendment. Per

ha ps the government employ er’s dismissal of the worker may not be fair, but ordinar

y dismissals

from government service which violate no fixedtenur e o r applicable statute or regulation are not

su bj ect to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasona ble.No. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 9

Id. at 146. In gene

ral, and outside the area

of issues of public
concern, the Firs tAmendment provides no greater protection agains tdiscipline or

discharge to government

employees than it does to private e

mploy ees:
[W]hen a public

em ployee spea

ks not as a citizen upon matters of public concern, but instead as an employ ee uponmatters only of pe

rsonal interest , absent t

he most unusual circumst

ances, a federa l court is n

ot t he appropr iate forum in which to review the wisdom of a personnel decision taken

by a public ag ency

allege dly in reactio n to the employee’s be havior. . . . Our responsi bility is to ensure that citizens are not deprived of fundam enta l rights by virtue of working for the gover nment; this does not require a grant of immunity for employee grieva nces n ot afford

ed by the Firs t Amendment to those who do not work for the state.

Id. at 147. M o reover , the Cour t cautioned aga

inst an ove

rly broad construction of the ambit of the public concern:

To presume that all matters wh ich tr anspire within a government

office are of public concern would mean that virtually e very

remark –and ce rtainly every criticis m directed at a publ ic official–would plant the seed of a constitutional case. While as a matter of good jud gment, p ubl ic officials should be receptive to constructive critici sm offere d by

their emp loy ees, the First Amendment

does not require a

public office to be run as

a roundtable for employee complaints over i nternal off ice affairs.

Id. at 149. 10 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

2 Plain tiffs also cite s ome older Suprem e Court precedents containing broad and aspir ationa l la nguage reg arding t he Free Speech rig hts of pub lic emp loyees

. See, e .g. , Shelton v. Tucker , 364 U.S. 479, 488 (196 0); United States v. Robel , 389 U.S. 258 , 265 -66 (1 967 ); Keyis hian v. Bd. of Reg ents , 385 U.S. 589 (1967). As t hese cas es cover the same ground as the more re cent

and spe cif

ic Su preme Cou rt precede nts rel ied u pon herein , we nee d no t here d ecide the old er cas es’ pre sent vitality. In Pickering and

Connick , the Supreme Court created a test containing two level s of

sc ru ti ny. 2 Restraints on government employee speech, or, as in the present case, g overnment employee association, touching on a matter of public concern must meet the Pickering

test balancingbetwee

n the inte rests of the employee a

nd the interests of t

he state. We have

c haracterized

th is te st as a “ fo rm of

in te rm ed ia te sc ru ti ny. ” Montgome

ry v. Carr , 101 F.3d 1 11 7, 1129 n.7 (6th Cir. 1996). Restraints ongo vernment employee speech, or government emplo yee a ssociation, not touching on a matter of public concern, are subj ec t merely to rationa

l basis

sc ru ti ny. In either case, it is the cour t’s task to apply the

test to the facts. See Waters v. Churchil l , 511 U.S. 661, 671 (1994). This bifurcated test remains the law. T he Supre me Court’s most recent extensive d isqu isition on th is subjec t, while providing further instruction on the proper balancing of governmentalinterests and the interes t of government employees

to speak on matt ers of pu blic conc ern, ado

pts withoutfurther elaboration the Pickering / Connick distinction bet ween matters that are of public concern and those whi c h

are not. United Sta tes v. Nat’ l Treasury

E mployees Union

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

The quest ion of what speech or association touches on a matter of public concer n is by necess ity a q

uestion for caseby-case adjudication. See Dambrot v. Cent. Mich. Univ. , 55 F.3d 1177, 1186

n.8 (6th Cir. 1995) (c ollecting

Sixth Circuit prece dent concerning what speech is a matter of pub li c concern).No. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 11

In ge neral, a matter of public concern is a matter o f political

, social, or other concern to thecommunity. It is important

, however , to disting uish matte

rs of publ ic

concern from internal office politics. Federal courts normally do not review personnel deci si ons reac ting to

anemployee’s

behavior when a public employ ee speaks notas a citizen upon matters of public c oncern, but instead as an employee

upon matters of

only personal inter est. The mere fact that public monies and government

efficie ncy are re lated to the su

bje ct of a public employee’s spe ech does not, by itself, qualify that speech as beingaddressed to a matter of public concern. If the spee ch is not r

elated to a matter of public concern, we do not evaluate the reasons for the dec ision.

Jackson v. Leighton , 168 F.3d 903, 909-10 (6th C ir. 1999) (internal citations

, alterat

ions, and quotation marks omitted). “To determine whether the speech involves a matter of public

con cern , we look to the content, form, and context of the statem ents in light of the record as a whole.” Id. at 91 0

. “Furthermore, the cour

t must dete

rmi ne the point of the speech in question . . . because controversial parts of speech advancing

only private intere sts do not necessarily invoke First Amendment pro t ection.” Hardy v. Jefferson Cmty. Coll.

, 260 F.3d 671, 678 (6th Cir. 20 01) (internal quotation marks, alterat

ions, and c itations o mitt ed). The Supreme Courthas indicated that the “question of whether expression is of a kind t

hat is of legi

timateconcer

n to the pub lic is also the standard in determining whether a common-law a ction for invasion of privacy

is present.” Connick , 461 U.S. at 143 n.5. Few indicia o f speech are dis positiv e. “[A]n employee’s speech, activity or association, mer ely beca use 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 sta tements made pr ivately

necessa rily outside th e reach of the pu blic

concern rule. Givhan v

. W. Li ne Consol. Sch. Dist. , 439 U.S. 410, 414 (1979). However, government employees’ spe eches and articles that

“ha[d] nothing to do with their jobs and [did] noteven arguably

have any adverse impact on the efficiency 12 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

of the offices in which they work ,” but w ere 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 discoura ged by the Rule do not touch onmatters of public concern. L oranger wishes to have contacts with an old friend and her “L ittle S is ter.” Akers wishes t o assist a probationer whom she befriended. While all of these impulses are entirely understandable, even laudable, they are

purely private

matters of

littl e or no
concern to the community as a w hole. Th e plaintif

fs also envision hypothetical situations in which they are prevented fromcontacting a u

nion off icial who is also related to an offender. But

even suc h hy pothetic al situati ons do not r ise to the level of public concern because mere in dividual labor grievances are not matt ers of public concern. See, e.g.

, Connick , 461 U.S. a

t 154; Boals , 775 F.2d at 693.

Plaintiffs come clo sest to all e gi ng interference with an associationtouchi ng onthe public concern when asserting their right to contact a politica l party official who was also the uncl e of an offender. I f such association is made for a purpos e such as campaigning for public off ice, it woul d argua bly touch on a matter of public concern. However, a separa te line of cases has upheld against constitutional chall enge gover

nmental r

estricti ons on publ ic employ ees’ partisan political activitie s:
Congre ss had, and has, the power to prevent [government employ ees] from holding a party office, worki ng at the polls, and

actin g as pa

rty pay master f or other party worker s. An Act o f Congr ess goin g no fa rther wo uld in

our view unquestionably be va lid. So would it be if, in plain and unde

rst andable language, the statute forba de activities such as organizing a political part y or c lub; actively partici patin g in fund-raising activities for a partisan candida te or political party; becoming a partisan candida te for, or campaigning for, a n e lect ive publicNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 13

3 The plaintiffs co mpla in that the M DO C ha s not he re laid o ut a carefu lly reasoned def ense of the i nterest u nderlying t he Rule and the relation ship betwe en these in terests and the Rul e. However, under rati onal basis revie w, a “pr offer red expl anat ion f

or th e st atut e need n ot be supported by an e xquisite evide ntia ry record; r ather we wil l be sat isf ied with the gover

nment ’s ‘ra ti onal specu lat ion’ li nki ng the re gul ati on to a legitimate purpose, ev en ‘uns upported by evi den ce or emp irical da ta.’” Craigmiles v. Gil es , 312 F. 3d 220, 224 ( 6th Ci r. 200 2) (qu oting FCC v. Beach Communicati ons , 508 U.S. 307, 313 ( 1993)). The burden is on those who challenge the s tatute t o “negat ive ever y concei vable basi s that might support i t.” Cra ig miles

, 312 F.3d at 22 4 (quoting Lehnhausen v. Lake Shore Auto Part

s Co. , 410 U.S. 356 , 364 (1973 )). office; a ctively manag

ing the campaign of a par tisan candidat e fo r publ ic off

ice; i niti ating o r circu lati ng a partisan nominating petition or soliciting votes fo r a partisan candidate f

o r public o ffice; or servin g as a delegate, alterna

te or pro xy to a

political

p ar ty convention. Our judg

ment is tha

t neither the Firs t Amendment

nor any other

provision of the Constitution invalidates a law b arring this kind of partisan political conduct b y f ederal employ ees.

United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers
, 413 U.S. 54 8, 556 (19 73); see also Ca rv er v

. Dennis
, 104 F.3d 8 47, 853 (6 th Ci r . 1997) (finding no violation of associational or free speech rig hts when county clerk terminated

subordina

te who de cided to r

un for the same office). Thus, the actual a ssociations denied to the pla intiffs,

as well as hy

pothet ical associations suggested in the p laintiff s’ briefs, either do not touch on a matter of p ubli c concern, or may

be otherwise restrained.

The MDOC easily

meets the rationa l basis test for the nonpublic association restrained by the Rule. 3 The MDOC has a leg itimateinterest in preventing fraternization between i t s employees

and offe nders an d their fa milies. Given the proven willingness of offenders to break the law, o ften viole

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

power over offenders entrusted to MDOC employ ees, on the other, 14 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

4 Th is conclus ion is also i n agreement with the onl y dec is ion o f a sis ter circu it e xamini ng si milar polices , even u

nder a hei ght ened s tandard. Ross v. Clay ton C oun ty , 173 F. 3d 1305, 1310- 11 (11th Cir. 1999) (upholding, under Picker ing balan cin g test stipulated to by the parties, Ge orgia Department of Corrections regulation prohibit ing con tact between its employees and offenders).

5 The p laintiffs obj ect to the app lication o f Mo ntgom ery , characterizing it as a mere anti -nepoti sm case. However, gi ven tha t Mo ntg om ery concerns a rest raint on the s ame freedom of inti mat e

assoc iat ion at issue he re, relies to a larg e extent on the s ame case l aw as used by the plaintiffs, and in its reaso ning d oes n ot de pen d on the spe cific feature s of the an ti-nepo tism rules , it is a highly relev ant pre ced ent. the potentia

l for ex ploitation of vulnerable offenders by MDOC em pl oye es , or vulnerable MDOC employ ees by offende rs, need s n o elabor

ation. The

MDOC’s int

erest in prevent ing such exploitation is only

somewhat attenuated

in

cases where the employ

ee has no direct su pervisor y a uthority

over th e off ender. Even clerical workers w ithout any penal authority can by the mere manipula tion of pa perwor k grea tly affect an offender’s status for better or worse, or at lea st be pressured into attempting to do so. The inclusion of offende rs’ vi sitors and families into the class with whom contact is forbidd

en may be nece ssary

to prev ent the use of third parties t o circum vent the b an on dir

ect co ntact and influence. The MDOC’ s interes t is clearly le gitimate, and the Rule i s a ra tional mea ns for ad

vancing the inter

est. Th erefore, the Rule withstands challenge on the bas is o f freedom of expressive association. 4

B

The plaintiff

s also cla imthat the Rule interfered with their personal friendships. Personal friendship is prot ected as an intimate assoc iation. Corrigan v. City of Newaygo , 55 F.3d 1211, 1214-15 ( 6th Cir. 199 5). This c ourt explic ate d the appropr iate level of scrutiny

for restraints on

the freedom of intimate association in Montgome ry

. 5 In that case, we

c onsidered

a challe nge, a s contra

ry the fre edom of in

timateNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 15

association, to a school district’s rul e that barred employ ees at the same school from marry

ing. 101 F.3d at 1117-21. We held that a “direct

and substantial interfe

rence” with intima

te associat ion wa s subject to strict scrutiny, while lesser interferences merely mer ited ratio nal-basis review. Id. at 11 24 (citi ng Zablocki v

. Redhail , 434 U.S. 374, 383-8 4 (1978)).

The contours

of a dire ct and sub stantial i nterfe rence w ith intimat e associ ation are illustrated by the case law. A total banon marriage outside one’s ethnic g roup is a direct and substantial interference. Loving v. Virg inia , 388 U.S. 1 (1967). S o is a requir

ement on n

on-custo dial par

ents to obtain court permission before any remarriage. Zablocki

, 434 U.S. at 387. Howe

ver, ter mination of

Social Sec

urity benefit s for a disabled depend en t child who marries someone ineligib le for benefits is not. Califano v. Jobst

, 434 U.S. 47, 58 (1977). Nor

is a Department of

Agriculture regulation that tre ats hu sband and wife as one person for purposes of calculating farm subsidies, Women Involved in Farm Ec ons.

v. United States Dep’t of Agric. , 87 6 F.2d994, 1004 ( D.C. Cir. 1989), the Inter

nal Re ve nu e C od e’ s m ar ri ag e p en al ty, Druker v. Comm’r , 697 F.2d 46, 50 (2d Cir. 1982), requiring

a citizen-aliencouple

to fill out a form and submit to an INS interview, Aguila-Cisneros v. I.N.S. , No. 99-3 963, 2 001 WL 223969, at *2 (6thCir. Feb. 27, 2001), or termination from emp loyment

of a munic ipal employe e who mar ries ano th e r municipal employee, Vaughn v. Lawrenceburg Po wer Sys.

, 269 F.3d 703 (6th Cir. 2001). F rom thi s line of cases, we have abstracted a genera l rule that we will find “direc t an d

s ubsta ntial burdens only

where a large portion of

those affected by the rule ar

e absolutely or lar

gely prevented from marrying, or wher

e those affecte d by

the rule are abs olute l y
or largel y prevente d from marrying a large p ortion of the otherwis e eligible population of spouses.” Vaughn , 269 F.3d at 710 (6th C ir. 20 01) (ci ting Montgome ry , 101 F.3d at 1124- 25). 16 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

Under these pr eceden ts, the Rule is

subject only

to rational basis review, which–as we explained already –i t p ass es. It does not preve

nt a larg e portion

of MDOC e

mp loyees from formin g intimate associa

ti ons; all MDOC employees continue to enjoy the abilit y to form intima

te assoc iations–ju st not with offende rs. Nor are those affected by the Rul e absolutely or large ly prevent ed from f orming i ntimate a ssociati ons with a large portion of the oth erwise eligible population. While the plaintiffs stress the large offender popula tion inMichiga

n, it is only a little over 1%of the state’s population. Even if the number of visitors and fam

i ly members should exceed the number of offenders ten-fold, surely a gen erous estimate, MDOC employ

ees woul d only

be barr ed from in

ti mat e associationwith about 10% of the state’s population (whereof 9% are subject to routinely-granted exemption un der the current Rule). This is far from the absolute b ar aga in st marrying a ma jo rity of the jur

isdiction’ s populati on said in Loving to be a direct and substantial interference. Mor eover, while the bar in Loving

was absolute, the simple expedient of transferring

to another part of the state government or taking employment

in the privatesector is available to MDOC employees

here. I n fact, one of the

named pla

inti ffs in this

caseundertook that

step. While

a transf er is undo ubtedly an inconvenience, it was not found to be a direct and substantial interferencein Montgome ry , nor was even a more serious employment

consequence, termination, found to b e such an interference in Vaughn

. Amicus curiae American

Civil Liberties Union

argues that t he Ru le violates the constitutionally protected f reedom of association, not merely of MDO C emp loyees, but also of those no t e mp lo yed by t he MDOC, such as family member s and visitors of offenders, who would associ ate with employees

bu t f or th e R ul e. Ini ti al ly, we recognize that First Amendment

“protection afforded

is to the communicati on, to its sour ce and to its recipients both.” Va. State Bd. of Pharmacy

v. Va. Citizens Consumer Council , 425 U.S. 748, 756 (1976). T o the exten t amicus su

gges ts that the

Rule should therefore be judged not by the relatively lenie

ntNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 17

standard for the governme

nt-as-e mploy er’s inte rfere nce with private association, but by the

more rigorous standard for the government-as-sovereign’s in terference wi t h privat e association, it flies in the fa ce of the Supreme C ourt’s a

nd this court’s precedent. Any association by definition involves two

or more parties and

restrai ning one party from asso ciating

will by necessity re sult in a concom itant ef fect on the other parties. In thi s rega

rd, the a sso ciation between MDOC employees

and offe nders, their

family members, and visitors is no different

than almost all other

restrictions on association by govern ment e mplo yees. Not hing i n our pre cedents indicates that the g overnme nt only has enha nced au thority to reg ulateassocia

tion betwe en gove

rnmenta l employ ees o r others ov er wh om it ha s e nh an ce d a ut ho ri ty. To th e c on tr ar y, to hold as amicus suggest would eviscerate the rule that “Congr ess may impose re straintsonthe job-related speech of public employ

ees that would be p lainly

unconstit

u tional if applied to the public at large.” Nat ’l Treasury Employees Union
, 513 U.S. at 465. V irginia Sta te Board

is not to the contrary because “[f]reedom of speech presupposes a willing speaker” and the c onstitutional prote ctions onl y be come effective “where

[such] a spe aker exis ts. ” 425 U.S. at 756. Here, th e g ov er nm en t m er el y c onditi ons employment on an employ ee’s ag reemen t not to become a willing speaker to or associa te with a limit

ed class of persons. The standard of review of such r es trictions on employees is the one of Pickering

, Connick , a nd th ei r p ro ge ny.

As there is n

o dispute t

hat the r evised Ru le is more lenient thanthe original Rule, which we upheld above, there is no need to decide whe ther t he Rule is saved by the e xemption procedure graft

ed onto it. If the older

Rule is con stitutiona

l,

a fortiori so is the r evised Rule. The plaintiffs object to the

exe mp tion procedure on the grounds that exemptions are gran ted purely at the sta ndardle ss discre

tion of the

MDOC. As we agree with the court below tha t the Rul e was constitutional even

inthe absence of an exemption procedure,

we need not addre ss this issue. However, we note that even

were we to conclude that the exemption procedure was 18 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

necessary to sustain t

he Rule, th

is argument would not

avail plaintiff s. A discreti onary

exemption procedur

e can do om a statute subject to enha nced re view unde

r the First Amendmen

t. See, e.g.

, Forsyth Co unty v. Na tionalist Movement
, 505 U.S. 123, 130-31 (1 992) (striking down count y ordinanc e giving

discreti on to admin

istrator in awarding of para de permi ts); City of Lakewood v . P lain Dealer Pub. Co.

, 48 6 U.S. 750, 757 (1988) (striking down city ordinanc e gran

ting may or unbrid led discr etion to pe

rmit

or prohibit distribution of private newspapers at public news racks); Sec’y o

f State of M

d. v. Joseph H. Munson Co. , 467 U.S. 947, 962 n.12 (1984) (striking down statute granting discretionto se cr et ar y o f state to waive l imits on cha ritable fund-raisingexpenses); Shuttleswo rth v. City of Birmingham

, 394 U.S. 147, 150-51 (1969) (striking down city ordinance granting broad discretion to commission to grant or deny par ade permits). Here, however, we subject a regulation

t o rationa l-basisreview. A discretionary exemption procedure unable to meet the

hig h er standard of review can still meet this highly-defe

rential one.

Becau se the Rule is

constit ution al, the individual de fenda nts enjoyed qualified immunity . “In civil suits for

mo ney damage s, gove

rnment of ficials a re entitl ed to qual if

ie d immunity for discretionary

act s that do ‘not violate clearly establishe d [ federal] statutory or constitutional rights of whic h a reasonable person would have known.’” Goad v. Mitch ell

, 2 97 F.3d 497, 501 (6th Cir. 2002) (quoting Anderson v. Creighton , 483 U.S. 635, 638-39 (1987), and Harlow v. Fitzg

e rald, 457 U.S. 800, 818 (1982)). “To determine if qualified immunity attaches, the Supre me Court has delinea

ted a two-

part, seq uential analysis.” Goad , 297 F.3d at 501 (citi ng Saucier v . Katz , 533 U. S. 194, 2 00-01 (2001)). “First, we inquire whether, ‘[t]aken in the lightmost favora ble to the party asser

ting the injury, do the f

acts alleged show the officer’s conduct violated a constitution al right?’” Goad

, 297 F.3d

at 501 (quoting Saucier , 53 3 U. S. at 2 01) . “If

no constitutional right would have been violated were the allegations established, there is no necessity for furt herNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 19

inquiries concerning qualified immunity .” Saucier , 533 U.S. at 201. Having found no constitutional vi ol ation, we must answer the qualified immunity que stion in the affirmative.

While this disposes of this question, we n o te that for a plaintiff to defea t a defe nse of qua

lified immu

nity , he must notonly prove the

violation o f a rig

ht, but of a clearly established

right. Harlow

, 457 U.S. at 818. Indeed, the right must be “so cl early

established when t

he actswere committed that any offic er in the defendant’s position, measured ob je ct iv el y, would have clearly unde rstood that he was under

anaffirmative duty to ha ve refrained

from such conduct.” Dominque v. Telb , 831 F.2d 673, 676 (6th Cir. 1987) (emphas is added). See also McClo ud v. Testa , 97 F.3d 1536, 1542 (6th Cir. 1 996) (hol ding tha t “ individua

l capac ity def endantsin § 1983 c ases re ceive some benef it from lega l do ubt a bout the clarity of e xisting law.”). However, in the present case the district judge found no violation of a constitutional right at all. Thus

, for the p laintiff s to preva il here on the question of qualified immunity, the situat ion would have to be

such that any MDOC

offic ial wh en promulgating

the Rule w o uld be aw are of t he fact that it violated the Const

itut ion, but a United States district judge, given the benefit of decades of leg al training an d prac tice, years of hearings and adversar ial b riefing s by

able cou nsel,

was unable to find

such a violation. While such a situation is notlogica

lly imp ossible, and doubtless has occurred from time to ti me , i t c er ta in ly mus t be a ver y r are one , implicitly casting some doubt

on the minim

um comp et en cy o f such a trial judge. Theref

ore, in c ases such as t

his, un less counsel

are prepared to contend that such an extreme and unusual situation occurr

ed, they will not be

able to su

cce ed in

re ve rs in g a gr an t o f q ua li fi ed im mu ni ty. 20 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

C

The separa

te opinion

concurr ing in pa rt and dis senting

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

mi ci briefs, analy

zes the Rule under the fr amework

of Turner v. Safley, 482 U.S. 78 (1987). Unde r Turner
, “a prison regulation imping[ing] on inmates’ constitutional rights” will be upheld “if it is rea sonab ly related to legitimate penological interests.” Id. at 89 (emphases added).

Under the First and

Fourtee nth Amend

ments, associational rightsof the general population enjoy the highest level of legal protection against state regulation. Howe ver, the state

en jo ys enhanc ed powers to reg ulate as so ci ation by

certain groups

. Two su ch regu lab le groups are involved here: prisoners, under Turner

and its prog eny , and stat

e employ ees, under Pickering

an d its progeny . Moreover, the exercise of associational rights by de finition in volves mor e than one party and to regulate one party to an a ssociation impinges uponthe inter

ests o f the other parties. Therefore, the enhanced regula tory power ov er some g

roups im pli es by necessi ty a power to impinge upon the interests of those who would ass ociate w

ith members of the r

egulab le grou

ps.

The present cas e concerns an employ ment regulation affecting association between MDOC employ ees 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 stat e en joy s no enhanc ed reg

ulatory power. T

herefore, in general ther e is no prisoner nexu s, b ut there alway s is an employment

nexus. As t he sta te’s r egulat ory power s prings fromthe employme

nt nexus, the proper

analytical fr

amework is Pickering , not Turner. Even as far as the Rule is applied agains tassociations between MDOC employ ees and prisoners, the regulat ion is va lid if it is within the state’sNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 21

6 To hold otherw ise wo uld cre ate the c ounte r-intuitive res ult that t he
state has the po wer to prev ent som e em ploye e asso ciation s only with t he general po pulation, but not with priso ners.

7 The fac t that

plain tif fs he re are empl oyees of the s tate agency charg ed wit

h th e over sig ht of

priso ners is o nly mar ginally relevant. Our analysis woul d be s ubs tan ti ally t he s ame wit h res pect to a r egul ati on affecti ng other v ulnera ble state emp loyees

. For example, stat e-employ ed armored car

gua rds by t

he s ame anal ysi s mig ht be barre d fr om associating with off enders , ei ther

dire ctl y or t

hroug h of

fe nders ’ f

amil y member s or visitors, solely f

or the purpose of protecting the state’s cash and without any alleg ed p eno logica l interest.

8 In one Seventh Circuit case, the court appli ed Turner to anact ion by

a priso ner to e nforc e the F irst Am end men t right of p rison g uard s to write
to the priso n revie w bo ard in s upp ort of c leme ncy pe titions. Shimer v. Washingt

on , 100 F.3 d 5 06, 509 (7th Cir . 1996). While we believ e that such petiti ons are more properly analyzed under t he f rame work of Picker ing
, rather than Turner , we no te that Shimer only found standing ba sed on t he asso ciation betwe en gua rds an d pr isone rs and base d its appli cati on of Turner on the f act t hat t his underly ing as sociat ion occurr ed “within prison wa lls .” Id. at 508- 09

. Th e asso ciation s at issue he re did not occur within t

hese confines, r endering Turne r inappli cable. power either as an e mploy er or a warden. 6 As we conclude that the state’s power as an employ er is sufficient

to auth orize the Rule, an analysis under Turner is superf luous, even in

that minority of ca ses where it is applicable. 7 The pre cedents cit ed by t he se pa ra te op in io n t ha t a pp ly Turner to acti on s brought by non-prisoners a

re not to the co ntrary, b ecause in each case the impinge d associa

tion or spe ech was with a prisoner. See Ove

rton v. Ba zzetta , ___

U.S. ____, 123 S. Ct. 2162 (200 3) ( applying Turner to family

member’ s right to vi sitprisoner

s); Thornburghv. Abbott, 490 U.S. 401 (1989) (applying Turner

to pub l isher’s r

ight to se nd maga zines to prisoner s) ; Keeney v. Heath, 57 F.3d 579, 581-82 (7th Cir. 1995) (appl ying Turner

and Thornburgh to regulation barring prison guards from marry ing prisoners). 8

At first gl ance, it

may seem stra

nge tha t the state wou

ld have powers t

o reg ulate the

conduct o f its employe es, 22 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

gener ally law-abiding citizens, in way s that were they exercised over prisoners, gen erally convicte d crimina

ls, would constitute a constitutional violation. Surely any regulation that would under Turner violate the Constitution, if applied to prisone

rs, must a fortiori

do so if ap

plied to sta

te employ ees? Yet, that is not alwa ys t rue, bec ause sta

te employee regulations have a lesser constitutional impact than prisoner regulations because they mer e ly place a

limited, voluntary burden on the exer

cise of a right , rather

than impos e
anoutright ban. State em plo yme nt, in cont

rast to incarceration, is voluntary and while state e mployeesdo not waive their constitutiona

l rights, accept

ing stat e employment involves a modicum of consent to regulation that is not present for prisoners. Moreov er, while punishment for the violation of an emp loy ee reg ulation extends o nly

up to discharge, punishment for the violation of a p risoner regulation

extends up to lengthened incarceration. For thes e
reasons , some conduct that could not be enjoined or prohibited

for prisoners can be for

stat e employee s. So for example, the state can extra ct pledges to support the Constitution fromemployees and lice nsees (such as members of the ba r), but c annot do so

from pris oners.

III

For the fore going

reasons , the distr

ict cour t’s judg ment is AFFIRMED

.No. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 23

_______________________________________________ CONCURRING IN PART, DISSENTING IN P ART

_______________________________________________ CLAY, Circuit Judge, concurring in part and dissenting

in part. The majority applies both the Pick ering /Connick b alancingtest and the Zablocki “direc t and subst antia l interference”

test to Plaintiff

s’ challenge to various iterations of the MDOC Work Rule. As to the P ickering/Connick balanci ng test, the majority opinion correc tly distinguishes betwee n government employ ee speech that is a matter of public concern and that which is a matter of private concern. Restr ictions on the for

mer are subject to

“interme diate

sc ru ti ny” – a balancing

between the interests of the employe e and the inter ests of the g overnme

nt. Private concern speech, by contras t, is subjec

t to rationa

l basis review. Althoug

h 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 C ir. 1985), such an application may not always do justice to the particular association al inte rests at stake. For example, the rig

ht to marr

y is r ecog nized as a fundamental associational interest

. Ma rr ia ge , h ow ev er , i s p ur el y a matter of pri v ate concern. Thus, it receives insufficient prote ction when applying the Pickering/Connick test. See Balto n v. City of Milwaukee, 133 F.3d 1036, 1039-40 (7th Cir. 1998 ) (“A Pickering/Connick

balancing test, so useful in resolving public employee fr

ee speech cases, is no t easily transfe rable to freedom of ass ociatio n cases. That’s be cause 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 v e rsus public concern balancing test.”) (citation omitted).

As to the Zablocki “di rect an d substantial interference” test, this Court has held that, inthe employment setting, strict scrutiny applies to

a gover nmental p olicy

or action that “is a direct or substantial interference” with the asserted associational interest. Mont gom ery v. Ca rr, 101 F.3d 1117, 24 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

1124 (6th C ir. 19 96) (ci ting Zablocki v . Redhail, 4 34 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

withou t a precedential basis for apply ing these two

tests to the

associa tional rig hts o f correctional employee s. Se e, e.g., Ross v. Clayton County, 173 F.3d 1305, 1310-12 (11 th Cir. 1999) (applying Pickering/Connick

test to correctional officer’s claim that his demotion for associating wi th his probationer-brother violat e d his First Amendment rights); Serrano v. Multnomah County, No. 01-36043, 2003 WL 1827230, at *1 (9th Cir. A pr. 7
, 2003) (appl ying Zablock

i “direct and substa

ntial” te st to claim by juvenile group de t ention worker that her termination for having a personal relationship with a juvenile detainee violated the First Amen dment ). But the Supreme Court has made it quite clear that prisons ar e unique to other gov ernmental settings and that, regardless of whe ther th e plaintiffs are pri soners or non-pris oners, there is a

single test for the propr

iety of gove rnmenta l action that ar guably restricts First Ame

ndment rig

hts – the four-f actor “ legitima

te penological interests” test, most recently applied in Overton

v. Bazzet ta,

_

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

ma jo ri ty, like the district

court be low, fail ed to appl y th is test to the fac ts of this c ase. As a consequence, I

disagree with the majority’sreasoning and concu r onl y in

part with

its judgmen t.

I. FACTUA

L OVERVIEW

Plaintiffs challenge various iterations of the MDOC Work Rule that prohibits, inter alia, non-work-related contact between MD OC empl oye es and inmates, pa rolees, probationers or their f

amily members a

nd inmate s’ visitor s. This prohibition originally was cont

ained in t h e MD OC’s Work Rule 12. That Rule p rohibited “[i]mprope

r or over ly f amiliar conduct with prisoners, parolees or probation ers o rNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 25

1 Like its pre dece ss or , Wor k Ru le 24 a ls o pr ohi

bi te d t he MDOC
emp loye e fr om living wit h or providing lodging for a prisoner, probationer

or a parol ee, e xcept

for the employ ee’s paren ts or chi ldre n or where th e e mployee’s marriage to the of fender existed prior t o the employment date or where the spouse became an o ffe nder after t he employment date. Work R ule 46, whi ch su pe rsede d Work Rule 24, relaxe d thi s proh ibi ti on by pe rmit ti ng l odgin g for

a sibling. Th e plain tiffs their family members and visitors.” (J.A. 34.) Violations of the Rule subjected the employe e to “discip linary action up to and including dismissal.” Id. Examples of improper actions included exc h anging “letters, money or items” with a p r isoner; living with a probationer or parolee, except where the probationer or

parolee was a spouse of the employee

and the marriag e existed prior to the employment date, or whe re the sp ouse became a probationer or parole e after the employment

date and th e marri age was pre-existing; being at the home of a prisoner, parolee or probationer other

than for official business; giving a prisoner the em ploy ee’s home telephon e n umber; and sexual contact with a prisoner. Id. Work Rule 12 also required that “[a]ny conta ct” with a prisoner, parolee or p rob ationer, or their family members outside o f the j ob be reported to the Warden. (J.A. 35.) Examples of unauthorized contact included co ntact with a p rison er 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 inJune of 1996 . Work Rule 24 prohibited

MDOC employees from“overly f

amiliar condu ct w ith prisone rs, paro lees, probationers

, family member(s) of a prisoner, parolee or probationer, or visitors.” (J.A. 2 93.) The Rule pro hibited romantic or sexual c ontact wi

thsuc h individuals as well as “any contact” with such individuals “outside the performance of the employ ee’s job.” Id. The Rule required the MDOC employee to repor t “any unavoida ble conta ct” to his or her immedi ate 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, e t al. v. Mc Ginnis, et al. No. 01-1383

do not chal lenge t

his port ion of t

he Work Rule. contact wi th of fe nd er s, th ei r f

am il y membe rs or visitors i n cluded exchanging “letters, money, telephone numbers or anything,”

being at the home of any of these individuals for

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

r elate d contact ” with any

of these individua

ls. Id. at 294. Any violations of the Work Rul e would be grounds for dismissal.
Effective September 17, 1999, MDO C Work Rule 24 was abolished and new Work Rule 46 was implemented. Work Rule 46 defined the term “offender” to mea n a “prisoner or parolee under

the jurisdiction of the Michigan Department of Correc tions or housed in a Department facility , or a proba tione r

who is supervised by an e mployee of the Depa r tment.” Id. It preserved Work Rule 24' s prohibitions agains t(1) overfamiliarity with an offender, t

he ir family members or their v

isit o rs; (2) c ontact wi

th such ind

ividuals outside the regular performanc e of the employe e’s job; and (3) the duty to report unavoida ble contact. The new W o rk Rule also provided

the same examples o f prohibi

ted conta ct, suchas receiving letters, money or telephone numbers; being at the home of any suc

h individual other than for official business; and any other non-work-related contact.

OnApril 24, 2000, the MDOC promulgated a revised Work Rule 46. The revised Rule defined “family member” to mean “paren ts, steppar

ents, spouse, child ren, s tepch ildre n, si blin gs
or step siblings.” (J.A. 297.) It also changed the prohibition agains t con tact with a prisoner’s visitors to a prohibition agains tcontact with “lead visitors,” defined to mean a person

onan offender’s approved visitors list. Id. The revised Rule preserved the prohibition agains tthe provision of lodging for

ce rtain offenders and similarly continued to require the reportingof

unavoidable contact

with offe nders, their fami ly members or their v

isitors. The revise d Rule also cont inued to prohibi t “any c ontact” with an offender outside the reg ularNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 27

performance of

an employee ’s job and

preserved the various examples of overfamiliarity fromthe prior

Rule (e.g., letterwriti ng, being a t the residence of an offender ). The revised Rule somewhat relaxed the prohibition aga inst any contact with anoffende

r’s fami ly members or visitors outside of the job by perm

itt ing such

contact with prior

written a pproval. The Rule omitted lang u age that any violation would be grounds for dismis sal, but sti ll appear ed to acknowledge that an employee

could be discharged for violating the Rule.

InMichigan, there are approximately 13,000 peopl e on parole, 65,000 people on prob atio n and 45,0 00 people incarcerated. Thus, Wor k Rul e 46 prohibits any non-workrelated contact between any

of the 17,000 MDOC employees and approximately 120,000 Michigan “ offender ” re sidents. There are no c lear fig

ures in th e recor

d 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 Pl aintiff Dawn Akers, a bookkeepingclerk at a c orr ectiona l facility , pursuan t to former Work Rule 24 because she had given a parole e several rides in her car during her off- duty hours (to the hospital and to Lansing for a

job search). Pursuan

t to former

Work Rule 1 2, the MDOC terminated Plaintiff Kim Loranger, a probation officer, who had written a few le tters to a n inmate whomshe had dated eight y ears earlier, before the inmate had been incarc erated . Both

Plaintiffs have since been reinstated to their employment, howeve r, both seek to hav e the discipline for violating the Work Rules expunge d from the ir employ me nt records. Plaintiff Lorang er and Plaintiff UAW Local 6000 seek to prospectively invalidate the current

Work Rule 46. 28 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

II. PLAINTI FFS’ C LAIMS AG AINST DEF ENDANTS IN THEIR OFFICIAL CAP ACITIES

A. Legal Standa rds

In Overton v. Bazzetta, ___ U.S. __ _, 123 S . Ct. 2162 (2003), the Supreme Court addressed the val idity of the MDOC’s pri s on visitation policies which, among other things, limited the visitors a prisoner was eligible to receive. The asserted goal of the reg ulations was to decrease the total number of visitors be cause

prison officials had found it more difficul tto maint ain or der during visitation and to prevent smuggling

or trafficking in drugs. B azzett a, 123 S. Ct. at 2166. The plain

tiffs inc luded pri soners, their friends and their family members. Id. The Court ack nowledg ed that “ outside the prison con text, there is some discussion in our cases of a right to maintain certain fa

m ilial relationships, including associationamong members of an imm ediate family a nd associationbetween grandchildren and grandparents.” Id. at 2167 (emphas is added; citations omitted) . The cha

llenge to the MDOC’s prison visitation policies, however, was “not an appropr iate case for

further elaboration of

those matters.” Id. The Courtreasone d that “f reedom o f associ ation is among the rightsleast compatible with i ncarc eration” and tha t “[s]ome curtailment

o f 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 challeng ed regulations bear

a rational relation to legitimate penological interests.” Id

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

Alth ough the Court in Bazzetta di d not se parate ly d iscuss the standard

of scrut iny applica ble to the intimate association rightsof prisoners’ fr

iends and family me mbers, the Court acknowledged

that the plaintiff

s include d friend s and fam ily members of prisoners. Moreover, the C ourt previously had held that the associational rights of non-prisoners are no greater than th e rights o f prisone rs with whom they

wish toNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 29

associate. See Thornburghv. Abbott, 490 U.S. 401, 410 fn.9 (1989) (holding that

the “legit

imate pen

ologica l interes ts” standard applies to alleged

ass ociational infringements on prisoners and

non-prisoners alike). Logically, theref ore, the

“ l egitima te penolog ical inte

rests” te st should a

pply in this
case, where c orrectional officers, although not prisoners themselve s, are integrall y related to the prison setting and wish to associate with former

inmates a nd/or inma

tes’ fam ily members. See Shimer

v. Washington, 100 F.3d 5 06, 509 (7 th Cir. 1996) (appl ying Thornburgh v. Abb ott to claimed F irst Amendment

right o f prison guard to write to a prisoner review board on behalf of p risoners who had filed petitions for clemenc y) ; Keeney v. Heath, 57 F.3d 579, 581-82 (7th Cir. 1995) (appl ying Thornburghv. Abbott to claim ed First Amendment

right of prison

guard to marry a

prisoner without being threatened with termination).

The majority arg

ues thatthe Work

Rule mostly implicates associations with non-prisoners, such as relatives and visitors of offende rs. I t theref ore conc ludes tha

t the “leg

itimate penological interest s” test is i napplica ble to the Wo rk Rule because “in general t

here is no prisoner nexus, but there al wa ys is an employment nexus.” Thi s arg ument defies

common se

nse and ignores the undisputed facts of this case. The MDOC has s ought to j ustify the Work Rul e as it

applies to both the of

fender class and t he class of relatives and visitors based solely

on the Rule’s relation

to the preservation of prison security. B ut for the assert ed secur ity concerns implicated

by MDOC employ

ees’ contacts wi

th both classes of individuals, there would be no Work Rule. I f, as the majority states, the r e is “in general no prisoner nexus,” then it is diffic ult to see how the Work Rule survives even rational basis scrutiny. The Work Rule is nothing like em ploy ment regulations that require pledges to supportthe Constitution or preclude moonligh

ting or p artisan p oli tica l activity, which typ ically would be ba sed on the employe r’s ge neral in terest inmaintaini

ng employe e mo rale or an efficient and loy al workforce. These types of employment reg

ulations are not necessitated

by or uni que to the pris on setting . In c ontrast, 30 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

prisone rs u ndeniably are

the reason for the MDOC’s Work Rule. The fact that the Rule can be classified more ge nerally

as an employ

ment reg ulation should not bli

nd this Cour

t to the sp ec if ic re al it y th at it is a p ri so n r eg ul at io n. Ac co rd in gl y, the “legitimate penol ogical int erests” test is no t “superf luous,” a s the major

ity c laims.

The “legitimate penological i nterests ” standa rd is hig hly deferential to prison administrators . A lthough “ [w]e must accord substantial deference to the professional judgment

of prisonadmin istrator

s, who bear a

significant responsibility for defining legitimate goals of a co rrections system and f or determining

the most appropriate means to accomplish t hem, ” Bazzetta, 123 S. Ct . at 2167-689 (citations omitted) , this deferenceis by

no me an s a bs ol ut e. Ac co rd in gl y, the Supre me Courthas provi ded the f oll ow ing guidance in assessing whether a prison r

egula tion serves legitimate penological interest s:

In Turner

we held that four factors are relevan t in decidingwheth er a pri son re gu latio n affec ting a

co nstitutional right that survives incar ceration withstand s constitutional chall enge: w hethe r the r egu lati on has a “valid, rationa

l connection” to a

legitimate governmental interest ; whether alterna

t ive means are open to inmates to exercise the asserted ri g ht; what impact an accommodation

of the ri ght would have on guards and inmates and prison r esou rces; and whether there are “ready alternatives” to the regulation.

Id. (citing

and quotin

g Turner

, 482 U.S. at 89-91; internal quotation marks and

citation omitted). The party se eking to inv al idatethe prison regulation bears the burden of pr oof regarding these four factors. Id. at 2168. As discussed below,

even under thi s highly def

erential test, parts of the challenged MDOC Work Ru

le are u nconstitu tional.No. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 31

B. Analysis

1. Valid, rational connec tio n to a legitimate governm ental inte rest
Regulations that promote internal security are “perhaps the most legitimate of

penological goals,” Bazzetta, 123 S. Ct. at 2168 (citation omitte d); however, there still needs to be a “logical connection between this interest and the regulat i ons.” Id. (MDOC ’s regu latio ns “prohibiting visitation by former inmates bears a

self-ev ident con nection t o the State ’s intere st inmaintaini

ng prison securi

ty and preventing future crimes”). The logical connection betwee n the regulation and the asserted goal c anno t 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 gove rnmen tal interest

is suchas to require a

lesser degree of ca se-by-c ase discretion,

a closer fit between the regulation and the pu rpos e it serves may safely be required.” Abbott, 490 U.S. at 412; see also id. at 416 (“we are comforted by the individualizednature of the determinations required by the regulation” which prohibited

a prisoner from

receiving a publication

only when the wa

rden d etermined

that i t was “ detri menta l to t he secu rity, go o d order, or discipline of the institution or ... might f acilitat e criminal activity”) ( inte rnal quotation marks and citations omitted).

In Turner, the Court found that a prison ru le barr ing inmate-t o-inmate corres pond ence was reasonably related to legitima te security intere sts. Tu rner, 4 82 U.S. at 91. The Cou rt o bserved, “Undoubtedly , communication with other felons is a potential spur to criminal beha vior: this sort of contact freque ntly is prohibit

ed even after a n inmate is released on parole.” Id. (citation omitted) . The Cour t upheld the regula tion beca use it bar red comm

unicat ion only with a

“ limited class of other

people with whom pr

iso n offic ials have particular cause to be concerned – inmates at other institutions within the M isso uri prison system.” Id. at 92 (emphases added). 32 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

2 See also (J.A. 3 19) (Affida vit of R ichard E. Johnson, Assistant De puty Direc torof the C orre ctiona l Facilities A dmin istration a t, ¶ 11) (“I

am aware of seve ral exa mple s of emp loye es who have s muggled contraband into a facili ty due t o the devel opment of a per sonal relation ship wit

h a pri soner

....”); ( J.A. 223) (Af

fi davit of Dan L. Bolden, De puty Director of t he Corr ecti onal Facil it ies Admini str ati on, a t ¶ 8) (“Employees who becom e inv o lved in [pers ona l] relation ships w ith prisoners are at risk to be com e invo lved, o ften aga inst their will, in bri ng ing contraband into the prison, including money, drugs, and
weapo ns, and as sis ti ng i n esc ape pl ans, plan s t o creat e dis tur bances , or plots to retalia te again st staff and o ther pr isone rs.”); J.A . 217 (Affida vit of Robert Steinman, De puty Director of the MDO C’s Field Operations Administrati on, at ¶ 5) (“Any appearance of impropriety on the part of the [par ole or prob ation] agent can c omp romise the employee’s authorit y and
contr ol over t he probationer and parolee and can result in seri ous ramifications, rang ing fr om lax and i nadequa te s upe r visi on to act ual falsi fying of reports and informati on regarding the indivi dual being supervised.”) a. Contactwith inmat es, parolees and probationers

The reasoningin Turner

easily can be a pplied to the portion of the chal lenged

MDOC Work Ru

le that prohibi ts nonwork-related

relationships with

prisoners or forme

r prisone rs. MDOC offici al s have asserted that anytype of nonprofessional relationship with an offender is cause for disch arge bec aus e of “se rious sec

urity concer ns in correctional facilities and concerns regar ding the integrity

of supervis i on of

offenders in communities.” (J.A. 215.) (Affida vit of Ma rsha Foresman, Special Assistant to the MDOC Director, at ¶ 6). 2 I agre e, based on Turner, that relati o nships between MDOC employees and inmates or former inmates could be a spur to crimina l behavior or faci litat e criminal

behavior . Persona

l relationships with inmates and

former i nmates, whether romantic or otherwise, could undermine s ecurit

y and order

in the prison or the integr ity of the probation

supervisionprocess. Cf. Keeney, 57 F.3d at 581 (ho lding tha

t a guar d’s roma ntic involv ement wit

h

aninmatecould make her “a potential facilitator of unlawful

c ommunication between [the inmate] and others and a potential provider of favored treatment for him”).No. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 33

The fact that

a particular MDOC employ ee has no explicit supervisory

authority over the of

fender and may have

little or

no ability to effe ct chang es to the o ffende r’s statu s d oes n ot change the anal

ysi s. In establishing prison reg ulations, “a line must be drawn.” Bazzetta, 123 S. Ct. at 2168 (re asonable to limit child visitors by prohibiting visits by nieces, nephews and children as to whom parental rights had been ter minated). It is reasonable for

the MDO C officials to conclude that (a) the risk to pri son secur ity i s too gre at, howe

ver remote that risk may be in the v ast m ajority of rela tionships w

ith offende rs; and (b) even innocent relationships with offenders tend to underm

ine offe nders’ r esp ect f or the prison authoriti es, thereby

comprisi n g the authority

and control of those MDO C employ

ees who a ctually supervis e them. Th

is Courtalso cannot ignore the potentia l administr ative co sts that the MDOC would inc

ur by having to conduct a

ca se -b ycase assessment of relationships with offenders.

For these re asons, I

agree with the majority as far

as Work Rule 46 legit

i mat ely prohibits any

non-work-related relationships between MDOC employees and offende rs, with

one caveat . As pres e ntly written, Work Rule 46 pr

ohibits “any contact” with an offend e r outside the regular performance of

an employ

ee’s job and furt her impos es a

duty to report a

ny “ unavoida ble conta ct” to a superior and potentia lly to the Warden. (J.A. 298.) As far as potential dis cipline is conce

rned, the Rule draw s no distincti o n between intentional contact with an offender outside of

work and incidental or even unknowing contact. In this reg ard, Plaintiffs have complained that MDOC employees could not att enda n Alcoholics Anonymous meeting , a political campa ign mee ting, a religious service, a PTA meeting or a bowling league event if any attendees at those meetings are

onparole or probation. Appellant s Br. a t 12. In addition, Michael Devine, a union

r epresentative with Plaintiff UAW Local 6000, testified that at one point in time the re were twelve homes on hi s block in which12 offenders lived. If he

were still employed

as a probation officer with the MDOC, he

c ould not have a

ny c ontact wi

th his neig

hbors. Pla

intif f s 34 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

pointout that su

ch conta cts would b e unavoid

able, y et would be cause for termination.

Isubmit that the Rule is not reasona bly related to legitima

te penol ogi c al interests to the extent it prohibits, without exception, certain

incident al c ontac ts with probationers and parolees at

church functions, political meetings and the like. Probationers and parolees are a sig nificant percentage of

the population, p articul arly in urban a reas. To require MDOC employees

to extrica

te th emse lves fro m community events and orga niz ations in w

hich off enders a lso happe

n to par ticipate

repres ents a sig

nifican t intrusion

on th e employ e es’ personal liberty. Pre venting such incidental contact s with offe

nders be ars only

the remotest relation to the preservation

of prison security a

nd the avoid ance of conflicts of interest. See Turner, 482 U.S. 89-90 (holdi ng tha t the logical connection between the r e gulation and the asserted goal cannot be “so remote as to render the policy arbitrary or i rrational”). Indeed, the evidenc e submitted by MDO C i n support its Work Rule

relates to proble

ms wit h pers onal relationships between employees and offe nders, not to mere contact between them. S ee note 2, supra. Thus, only when the contact is intentional and repetitive, evolving into a relationship, sho uld MDOC’s penolog ical inte

rests even com e into play. The lac

k of a case-by

-cas e exc eption for such incidental contact confirms the lack of a close fit betwee n the Work Rule’s prohibition and the asserted penological interest s. See Abbo tt, 490 U.S. at 4 12 (where “the nature of the asserted governmental interest is such as to re quire a lesser d egree of case -by-case

discretion, a closer fit between the regula

tion and th e purpose

it serves may sa

fely be required”). I would hold that the blanket

prohibition again st inc idental contact with

probationers and

parolee s fails the

first prong of the Turner

test.

F urth er, as currently

formulated, Work Rule 46 provides that a MDOC employee

can be terminated if he or she attends

a church event or

a polit ical event also attended by probationers or parolees, even if he or she does not know thatNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 35

any of the attendees are on parole or prob ation. This “strict li ab il it y” approac

h bears n o logica l rel ation to the asserted penological interest s of prev enting M DOC emp l oyees fr

om using th e ir positions to compromise prison security or

a voidi ng conflic ts of inter est. At a m

inimum, I would limit the prohibition against non-work-related contact s wi th probationers and paro lees to sit uations w

here the MDOC employee knew or shou ld have known that he or she had contact with such an offender.

b. Contactwith fam ily mem bers of offende rs and inmates’ visitors

The more trou

bling pr oposition is whethe r Turner can be interpreted

to prohibi

t contac ts or commu

nication s with individua ls who are not subject to the MDOC’s jurisdiction, butwho are family

members of such individuals. Such family members are a

“limited c lass” in the stricte st sense of the term – i.e., there are a f inite numbe

r of such individua

ls; however, the si ze of the cl ass is sig nifican t, in the hundreds of thousands

. Moreove

r, beca use famil y me mbers ar e a diff use class, they

likely are not i dentifia

ble to MDOC emp loy ees in

m any c ases. A MDOC employe e would not know that an individua l he or she me ets outside of work is

a family member of an offender; he or she may not b ecome apprised

o f this fac t if the individual never volunteers it. Yet the MDOC employ

ee’s job is in jeopa

rdy , rega rdless of what the employee actually knows or should know a bout the indivi dual’s relation ship to an “ offende r.” Thus , the fam

i l y member classification does not constitute a “limited c lass”in the sense that

the Turner

Courtapplied the term to a discrete, relative ly small and readily-ide

ntifiable group ( th ere, prison inmates who were confined in a single loca tion).

The next question is whether prison officials have “particular

cause” to be concerned about su ch family members. In this regar d, t he MDOC has submitted an affida vit from Robe

rt Steinma

n, the De puty Director o f the Field Op erati ons Administration, who is responsible for the 36 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

oversight and operation of adult felony probation and par

ole services. According to Steinman:

Anemployee who is involved in other than a professional relationship with a probationer or parolee, o r famil y m embers of the probationer or parolee, may be persuaded

or coerced to misuse his/her p os ition to benefit the parolee

or proba tioner, a nd/or fr ie nds and family of the parolee or probationer. Thi s concern is not limited only to parole

and prob ation ag ents. Admi nis trat ive support staff working in field offices and i n Central Office are vulnera

ble as we ll, having

access to may [sic] typesof records which can be tam pe red or altered. For example, administrative support staff ma y ha ve acce ss to reports of dru g t esting results regarding parolees and probation ers

. The employee could, either willingly or under threat, manipulate data and record s to chang e those reports

. Other re cords co uld be man

ipula ted to affec t a probationer

or parolee ’s record of com pliance with special conditions, work reports, pay ment of restitution, etc. An age

nt c ould be coerced into using his/her position to gain a

ccess to parolees and probationers who

are housed in co un ty jails for violations of parole or probation, and even could affec t [sic ] the release of an individual from county jail under false pr etenses

. These

are just some example s of improper use of position whichcan result from non-professional relationships between employ ees and p arolee s, probationers, and their families

. (J.A. 217-18) (Steinman Aff. at ¶ 6).

No doubt the M

DOC has id

entifi ed some c onceiva

ble harms that a

compromis ed MDOC e

mploy ee could inflict on the correctional sy stem. Arguably , the risk of at least some

of theseharms being facilitated by former inmates who strike up relationships with MDOC e mp loyees is “self-evident.” Cf. Bazzetta, 123 S. Ct. at 2168 (MDO C’s r egula tions “prohibiting visitation by former inmates bea rs a self-evidentNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 37

connection

to the State’s interest in mai ntaini ng prison security and preventing future crimes”) . But the risk of harm, altho ugh conceiv able, is not self-e vident in the case of

family members of o ffende rs and inmates’ visitors, who, as far as anyone knows, are and haveal wa ys been ups tanding citizens. By definition, family

members a

nd visitors

are not o ffende

rs. Unless they have be en found gui lt y of a crime outside of Michigan, family members and visitors have not been “convicted

of felonious beh avi or, which often involves di sh on es ty, fraud, and coercion.” (J.A. 219) (Steinman Aff. at ¶ 9). Indeed, the MDOC has not cited a single example of

a MDOC employee us ing his or her position to c arry

out, whether willingly or under

duress, any imprope

r fav ors for family members or

visitors. Thus, the MDOC has not based its prohibition against relationships with family membe rs or visitors on “particular caus e, ” but on “q uestiona ble speculation” that such

contact s concei

vably could th reaten prisonsecurity. Cf. California First Amendment Coalition v. Woodford, 299 F.3d

868, 880 (9th Cir. 2002) (regulation that b arred outsiders from witnessing administration of lethal inje ction w as not justified by alleg ed interest in protecting execution team memb ers fro m bein g publicly identified and subjected to retali a tion; evidence in the record showed that regulation

was an “overreaction, support ed o nly by questiona ble speculation”); see also S himer, 100 F.3d at 510 (“We ... are reduced to speculation when not pro vide d with evidence, and, having spec ulated, f ind it diff icult to es tablish

a connec tion 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 re asons, the

forme r Wor k Rule’s blanket prohibition oncontact

with family members of of

fenders and inmates’ visitors is

uncon stitutional. Although the revised Work Rule now permits such contacts with pr io r written ap prova l from the prison authorities, the Rule provides absolute ly

no standards to guide prison administr

ators in the exercise of their discretion. I wo uld direct the MDOC to a 38 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

FederalBureau of Prisons regulation on visitation by friends and associates which, by

analogy , strongly suggests that incorporatingspecific

standar ds into the

MD OC’s family member/visitor

exception is feasible. According to that regulation:

The visiting privilege o rd inarily will be exte

nded to friends and associates having an established relation ship with the inmate prior

to confine

ment, unle ss such vis its could reasonably

create a threat to thesecurity and good order of the institution. Exceptions to the prior relation ship rule may be ma de, particularl y for inmates withoutother visitors, when it is shown that the proposed vis itor is reliable and poses no threat to the secu ri ty o r good order of the institution.

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

are comforted by the individualized nature of the determinations required by the regulation” which prohibited

a priso ner fro m recei ving a publication only when the warden determined

that it w as “detrimental to the security , good order, or discipline of the i n stitution or ... might f

acilitat e criminal activity”) (inter nal quotation marks and c itat ions omitted)

. Applying a

standard like “re asonable threat to security and goo d order”

would ser

ve to focus the MDOC on

concre te criteri a that spe cifical ly r elate to i ts intere st in maintaining prison security, making it les s lik ely that the MDOC would render, or create the appe aran ce of, arbitrary determinations that have nothing to do with its penological interest s.

To summarize , the rev

ised Work Ru

le 46 is re asonably related to a legitimate penolog ical i nterest t o the exten

t it prohibits relation shi ps between MDOC employe es and inmates, probationers or parolees, but not to the extent it bars incidental or unknowing contact with such individuals. The Rule is not rela

ted to a le gitimate

penolog ical inte

rest to th e
ex t ent it (a) pr ohibits unk

nowing or incide

ntal cont act with fam ily members of offenders or inmates’ visitors andNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 39

(b) prohibits c ontact wi th family members or inmate s ’ visitors, subject only to a

case-by- caseexception

that fail s to take into account prison security , or any other factor.

2. Alt ernative means of exercising associational righ t s

When examining

prison re gulations, “[w]ere it shown that

no alternative means of communication existed, though i t would not be con

clusive, it would be some evidence that the regulations were unreasonable.” Bazzetta, 123 S. Ct. at 2169. Here, Plaintiff Lorang e r complains that Work Rule 46 prevent s her from vi siting wi th Rebec ca Contre

ras, her closest friend for the past 15 ye ars, because C ontreras’ son is on probation. Likewise, the Rule has prevente d Contreras from participatingin Lor

anger ’s childb irth, atte

ndin g th e baptism of Lorange r’s child and actively se

rving as the Godmother of Lorange r’s child. A lthough Lorang er requested permission to have contact with Contreras, the MDOC denied her reques t. Plaintiff

s also com

plain ge nerally that the Ru

l e prohibits MDOC em ployees from a ttending Alcoholics Anonymous meetings, political campaign meetings, re ligious services and PTA me etin gs, wh en any attende es at thos e meetings are on parole or probation.

Alternative means of participation in these associational activities exist only if Plaintiffs leave th eir employ ment with the MD OC (an al

ternativ e the majority

cavalie rly calls a “simple expedient”). But because the challeng ed prison regulations are unr

easonab le, Plainti ffs are

not requi

red to quit their jobs to enjoy these rig hts. Compare Keeney, 57 F.3d at 581-82 (holding that prison wor k rule that forbade social involveme

nt with inm ates did not impermi ssibly burden prison guard’s right to marry by forcing her

to quit in order to marry

an inmate; regulation served “plausible”

c oncerns of prison

in avoidin

g conf licts of in terest a nd th e appearanceof

favoritism). Rather, the question is whether, as MDOC employees, Plaintiffs have alter nati ve means of carry ing out their

otherwise-protected associational activities withoutfear of being terminated. Clearly, they do not. They 40 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

are absolutely prohibited from engaging in any associational activitie s that res

ult in incidental or

unknowing

contact with probationers and parol ees. Additionally, subject only to the unfettered

discretion of prison o fficials, MDOC employee s are prohibited from contact with offenders’ f amily members and in ma te s’ vi si to rs , w it h w ho m t he y ma y h ave had longstanding, pre-existing personal relationships.

3. Impact

of accom modatio n on prisone rs, guards an d

resources
Any alternative to the MDOC regulations mus t av oid a “significant

realloc atio n of the prison system’s financ ial

resources [that] would i mpair the

ability o f corrections officers to protect all who are inside a pr ison’s walls.” Bazzetta, 123 S. Ct. a t 2169. Only when the propose d alternative “will have a significant ‘ripp le effect’ on fellow inmates or on pris on s taff, [sho uld court s] be parti cularly defere nti al to the inform ed discretion of corrections officials.” Turner, 482 U.S. at 90 (citation omitted).

It app ears that there would little, if any , reallocation o f prisonresources if this Court were t o requi re the MD OC to create an exception for unknowingor incide ntal cont act with probationers and parolees. The MDOC already has adopted

a case-by- case exc eption pr ocedure for cont acts wit h family membe rs of offenders and inmates’ visitors, which by al l estimat e s, constitute a far greater population than the probationer/parolee population. There is no indication in the record that the a

doption of

this e xce ption would result in a crush of re qu es ts fr om MD OC em pl oye e s. As noted above, th ere i s no evidence that such incidental or unknowing

co nt ac ts wo ul d p os e a th re at to pr is on se cu ri ty.
Furthermore, there would be no effect on prison resourc es
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’ fa mily members and with inmate s’ visitor s. In fact, th e MDOC is li

k el y toNo. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 41

save resources by

fo llowi ng uniform standards that do not have t o be re-invented each time a reque st is submitted. I n addition, by incorpora

ting the concep t of prison security into the standard s, th e MDOC’s l egitima te penolo gical i

nterests would be advanced.

4. Ready alt ernative s to the r egulations

The “existence of obviou s, easy alter natives [to prison regula tions] may b e evidence that the regulation is not reasonable, but is an ‘exaggerated response ’ t o p rison concerns.” Turner, 482 U.S . at 90. Althoug h this factor is nota “leas t-restr

ictive-means”

test , id. , prison regulations are

unreasonableif there is “some obvious regulatory alternative that fully accommodate s the asserted right while no t imposing

more than a de minimi

s cost to the valid penological goal. ” Bazzetta, 123 S. Ct. 2 162 (c itin g Turner, 482 U.S. at 90-91).

As discusse d in the pr

eceding secti on, the re are obvious regulatory

alternatives that fully a

ccommodate the MDOC’s interest in preserving prison security and avoiding conflicts of interest in the context of

contact s with par

olees, pr obatione rs, family members of offenders and visitors. The crea tion of an exception for

incidental or unknowing contact with parolees and probationers, as

well as th e institutio

n of spec ific standards for contacts with family members of

offenders and visitors would i mpose a de minimi s , 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, ridiculou s – response to the MDOC’s legitimate concern over maintenance of prison

se cu ri ty.

Based on the foregoing, I

concur that

the grant of summary judgment to the MDOC on Plaintiff Akers’ and Plaintiff Lorange r’s claims was appropriate. I t is undisputedthat both Akers and L orang er had pu rposefu l contac ts with

a parole e in 42 Akers, e t al. v. Mc Ginnis, et al. No. 01-1383

3 I do take issue wit

h the majority’ s statement t hat Defendants are enti tledto qua li fi ed immun ity be cause “a United States Distr ict Court Judge, given the benef

it of dec ades of

leg al t rai nin g and pr acti ce, y ears of hearings and adver sari al br ief ing s by able couns el, was u nable to f ind ...

a violatio n.” W ith all due respe ct, my b rethren in the distric t courts have been known to commit legal error, i ncluding plain err or through the failur e to cit e and apply c learl y est ablis hed legalprec ede nt. If a di stri ct ju dge ’s opini on of the stat e of the law were somehow dispositi ve of the violation of former Work Rule 24 (Akers) or with an inmate inviolation of former Work Rul e 12 (L orang er). Thu s, disciplinary

action a gain st them did n ot violate

their constitutional right to freedom of associa tion. Nev erthele ss, Plaintiff Lorange r and Plaintiff UAW Local 6000 are e ntitled to a decla

ration tha

t th e revis ed Work Rule 46 is unconstitutional to the extent it impos es disc ipline for: (1) unknowing or incidental contact with off e nders, f amily members of offenders or inmates’ visitors or (2) contact

with family members of offenders or inmates’ visitors, subject only to a stand

ardless exception

process

.
III. QUALIFI ED IMMUNITY

Since neither

Akers nor Lorang er suffered a constitutional harm stemming from their discipl ine fo r violating the Work Rules, the indivi dua l Defendants are entitled to qualified im mu ni ty. See Sauc ier v. Katz

, 533 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the allegations established, there is n o necessity for further inquiri es concer

ning qua lified immu

nity .”). Reg ardless

, ther e appears to be no b asis to f ind that the right of prison employees

to engage in pa

rt icular a ssociational activ ities with probationers or parol ees was “clear ly established,” id., given the dearth of

case la w apply ing the f our-par t Turner test to the regulation

of emp loyment condi tion s in a p rison setti ng. Ac co rd in gl y, I concur with the majority ’s judgment that Defend ants were entitled

to qualifi ed immunity

to the extent they were sued in thei

r individual capa

cities. 3No. 01-1383 Akers, e t al. v. Mc Ginnis, et al. 43

qualif ied immuni ty iss ue, the Courts of Appeals rarely would have occasi on to reve rse a d istrict judg e’s ruling on qualified imm unity. Thus, whether a distri ct judge fai led t o fi nd a cons ti tut ional viol ati on shou ld not control thi s Court’ s anal ysi s of t he iss ue. IV. CONCLUSION

For th e fo reg oi ng r eas ons , I CONCUR t hat the district court properly g

ranted summary judg

ment on Plaintiff

Akers’ and L orang er’s cla

ims for unconstitutiona

l discipline. I

also CONCUR

in the majorit

y’ s j udgment that the individual Defend ants are entitled to qualified immuni ty. I DISSENT to the extent the district court should h ave gran ted Plaintiff Lorang er and UAW Local 6000's re quest for prospective relief regarding cer

tain aspects of Work Rule 46. Work Rule 46 legitimately ba

rs non-work-related relationships between MDOC employ

ees and o ffende

rs, but the prohibition again st all non-work-related contact with probationers and p arole es should be limited to situations where the MDOC em ployee knewor should have know n th at such individuals were offenders. The prohibition also should contain an exception for incidental contact

with such offende

rs. Work Rul e 46 also is unconstit

utional to t

he extent it

bars (a) any unknowing

or inci den tal contact with family member s of offenders or inmates’ visitors a

nd (b) pe rmits such

contact s, subject only to the MDOC’s unfettered discretion to make exceptions withoutreference t o an y fa ct or s r el at ed to pr is on se cu ri ty, order or discipline.