Dawn Akers v. Kenneth McGinnis

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.

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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

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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 freedom of expressive association, protected

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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
1A policeman “may have a constitutional right to talk politics, but he
has no constitutional right to be a policeman.” McAuliffe v. City of New
Bedford, 29 N.E. 517 , 517 (M ass. 1892) (Holmes, J.).
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.
In Connick 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.

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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
2Plaintiffs also cite some older Suprem e 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 (196 0);
United States v. Robel, 389 U.S. 258 , 265-66 (1 967 ); Keyishian v. Bd. of
Reg ents, 385 U.S. 589 (1967). As these cases cover the same ground as
the more recent and specific Supreme Court precedents relied upon
herein, we nee d not here 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 case-
by-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).

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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

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No. 01-1383 Akers, et al. v. McGinnis, et al. 13
3The plaintiffs complain that the M DO C has not here laid o ut a
carefully reasoned defense of the interest u nderlying the Rule and the
relationship betwe en 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 22 4 (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 non-
public 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
4This conclusion is also in agreement with the only decision of a
sister circuit examining similar polices, even under a heightened standard.
Ross v. Clayton C oun ty, 173 F.3d 1305, 1310-11 (11th Cir. 1999)
(upholding, under Pickering balan cing test stipulated to by the parties,
Georgia Department of Corrections regulation prohibiting contact
between its employees and offenders).
5The plaintiffs object to the application o f Mo ntgom ery,
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 pre cedent.
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

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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 intimate associations; 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

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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

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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

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No. 01-1383 Akers, et al. v. McGinnis, et al. 21
6To hold otherw ise would cre ate the counter-intuitive result that the
state has the po wer to prevent som e employee associations only with the
general po pulation, but not with prisoners.
7The 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.
8In 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 priso n review board in support of clemency pe titions. Shimer v.
Washington, 100 F.3d 506, 509 (7th Cir. 1996). While we believe that
such petitions are more properly analyzed under the framework of
Pickering, rather than Turner, we note that Shimer only found standing
based on the asso ciation 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 Turne r 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 under Turner 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.

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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 the Pickering/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 associating with 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

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No. 01-1383 Akers, et al. v. McGinnis, et al. 25
1Like its predecessor, Work Rule 24 also prohibited the MDOC
emp loyee 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 R ule 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

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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., letter-
writing, 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-work-
related 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

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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 incarceration withstands
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.

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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
2See also (J.A. 3 19) (Affidavit of Richard E. Johnson, Assistant
Deputy Director of the Correctional Facilities A dministration at, ¶ 11) (“I
am aware of several examples of emp loyees 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 becom e involved in [personal] relationships with
prisoners are at risk to becom e involved, o ften against their will, in
bringing contraband into the prison, including money, drugs, and
weapo ns, and assisting in escape plans, plans to create disturbances, or
plots to retaliate against staff and o ther prisoners.”); J.A . 217 (Affidavit
of Robert Steinman, Deputy Director of the MDO C’s Field Operations
Administration, at ¶ 5) (“Any appearance of impropriety on the part of the
[parole or prob ation] agent can comp romise 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 non-
work-related relationships with prisoners or former prisoners.
MDOC officials have asserted that any type of non-
professional 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”).

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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-by-
case 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

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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

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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

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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 from visiting 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 long-
standing, pre-existing personal relationships.
3. Impact of accommodation on prisoners, guards and
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
deferential to 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

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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
3I 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.” W ith 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 precede nt. 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

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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.

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