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Michigan Visiting Restrictions Upheld
In the June, 1996, issue of PLN we reported Bazetta v. McGinnis , 902 F. Supp. 765 (ED MI 1996) which denied a preliminary injunction to Michigan prisoners, and their visitors, challenging prison visiting restrictions. In 1995 the Michigan DOC amended the Michigan Administrative Code (MAC) related to visiting so that the only visitors under the age of 18 would be a prisoner's child, step child or grandchild and had to be accompanied by an immediate family member; prisoners cannot visit with their natural children if their parental rights have been terminated; only ten non family members could be on their visiting lists; members of the public could only be on one prisoner's visiting list at a time and former prisoners can visit only if they are an immediate family member or have special qualifications, i.e., they are a lawyer, clergyman or government representative.
The court of appeals for the sixth circuit affirmed dismissal of the suit in a ruling that has potentially far reaching implications for all prison litigation in that circuit. The court began by noting that prisoners have no constitutional right to contact visits, Block v. Rutherford , 468 U.S. 576, 104 S.Ct. 3227 (1984); or any visits at all. Kentucky DOC v. Thompson , 109 S.Ct. 1904 (1989).
The court quoted from Block that contact visits allow the introduction of contraband into prisons. In enacting the visiting restrictions the defendants claimed that 800,000 visitors were processed into Michigan prisons in one year and that the purpose of the new rules was to cut down on the number of visitors, especially children, to prisons. The court consistently, and repeatedly, emphasized the deference courts should show to prison officials.
In a bizarre change to long standing rules of civil procedure that require the courts to view the evidence in the light most favorable to the non moving party, the court rejected the plaintiffs' argument that all allegations in their complaint should be accepted as true because the defendants filed for summary judgment before answering the complaint. "Utilization of these summary judgment concepts would not be an act of deference. It would, instead, be an usurpation of the decision-making process which the supreme court has placed in the hands of the prison officials." Without further explanation this essentially usurps the rules of civil procedure.
The court held that the issue in this case was basically one of law: "Were the amendments of the prison regulations reasonably related to and supportive of legitimate penological interests. If they were, the district court's inquiry could be terminated." The court held the visiting rules were related to legitimate penological interests and did not violate the first or eighth amendments. No mention was made of the studies which show prisoners who maintain ties to the community and receive visits have lower recidivism rates than those who do not. When it is convenient prison officials will claim that rehabilitation is a "legitimate penologica goal." In others, such as this one, it is ignored. So much for safeguarding the public interest.
Discussing the impact the new rules would have on visitors, the court was dismissive. "Viewed from a constitutional standpoint, if, as we now hold, the prison officials properly limited the visitation rights of the prisoners because the limitations were reasonably related to legitimate penological interests, the effect of these regulations upon persons outside the prison was largely irrelevant." See: Bazzetta v. McGinnis , 124 F.3d 774 (6th Cir. 1997).
The appeals court later issued a supplementary opinion to clarify its earlier ruling. The court noted that the MI DOC had repeatedly told both the district court and the appeals court that the visiting regulations at issue applied only to contact visitation. After the appeals court issued its ruling, counsel for the MI DOC told the court that the rule changes also applied to non contact visits and that the court's ruling would be extended to cover both contact and non contact visits. "The Department did not make this argument in either the district court or this court. It cannot be made here and now. This opinion is intended simply to make that point clear." See: Bazzetta v. McGinnis , 133 F.3d 382 (6th Cir. 1998).
The court of appeals for the sixth circuit affirmed dismissal of the suit in a ruling that has potentially far reaching implications for all prison litigation in that circuit. The court began by noting that prisoners have no constitutional right to contact visits, Block v. Rutherford , 468 U.S. 576, 104 S.Ct. 3227 (1984); or any visits at all. Kentucky DOC v. Thompson , 109 S.Ct. 1904 (1989).
The court quoted from Block that contact visits allow the introduction of contraband into prisons. In enacting the visiting restrictions the defendants claimed that 800,000 visitors were processed into Michigan prisons in one year and that the purpose of the new rules was to cut down on the number of visitors, especially children, to prisons. The court consistently, and repeatedly, emphasized the deference courts should show to prison officials.
In a bizarre change to long standing rules of civil procedure that require the courts to view the evidence in the light most favorable to the non moving party, the court rejected the plaintiffs' argument that all allegations in their complaint should be accepted as true because the defendants filed for summary judgment before answering the complaint. "Utilization of these summary judgment concepts would not be an act of deference. It would, instead, be an usurpation of the decision-making process which the supreme court has placed in the hands of the prison officials." Without further explanation this essentially usurps the rules of civil procedure.
The court held that the issue in this case was basically one of law: "Were the amendments of the prison regulations reasonably related to and supportive of legitimate penological interests. If they were, the district court's inquiry could be terminated." The court held the visiting rules were related to legitimate penological interests and did not violate the first or eighth amendments. No mention was made of the studies which show prisoners who maintain ties to the community and receive visits have lower recidivism rates than those who do not. When it is convenient prison officials will claim that rehabilitation is a "legitimate penologica goal." In others, such as this one, it is ignored. So much for safeguarding the public interest.
Discussing the impact the new rules would have on visitors, the court was dismissive. "Viewed from a constitutional standpoint, if, as we now hold, the prison officials properly limited the visitation rights of the prisoners because the limitations were reasonably related to legitimate penological interests, the effect of these regulations upon persons outside the prison was largely irrelevant." See: Bazzetta v. McGinnis , 124 F.3d 774 (6th Cir. 1997).
The appeals court later issued a supplementary opinion to clarify its earlier ruling. The court noted that the MI DOC had repeatedly told both the district court and the appeals court that the visiting regulations at issue applied only to contact visitation. After the appeals court issued its ruling, counsel for the MI DOC told the court that the rule changes also applied to non contact visits and that the court's ruling would be extended to cover both contact and non contact visits. "The Department did not make this argument in either the district court or this court. It cannot be made here and now. This opinion is intended simply to make that point clear." See: Bazzetta v. McGinnis , 133 F.3d 382 (6th Cir. 1998).
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Related legal cases
Bazzetta v. McGinnis
| Year | 1998 |
|---|---|
| Cite | 133 F.3d 382 (6th Cir. 1998) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir. 01/05/1998)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[2] Michelle Bazzetta; Stacy Barker; Toni Bunton; Debra King; Shante Allen; Adrienne Bronaugh; Alesia Butler; Tamara Prude; Susan Fair; Valerie Bunton; Arturo Zavala, through his next friend Valerie Bunton, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
[3] Kenneth McGinnis, Director of Michigan Department Of Corrections; Michigan Department of Corrections, Defendants-Appellees.
[4] Nos. 95-2181; 96-1559
[5] Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
[6] No. 95-73540
[7] Nancy G. Edmunds, District Judge.
[8] Argued: February 4, 1997
[9] Decided and Filed: January 5, 1998
[10] Before: SILER, COLE, and VAN GRAAFEILAND *fn1, Circuit Judges.
[11] COUNSEL
[12] ARGUED:
[13] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, for Appellant.
[14] Kevin M. Thom, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[15] ON BRIEF:
[16] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, Michael Barnhart, Detroit, Michigan, for Appellant.
[17] Lisa C. Ward, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[18] SUPPLEMENTARY OPINION
[19] VAN GRAAFEILAND, Circuit Judge.
[20] On September 4, 1997, this Court affirmed certain limitations on prisoner visitation imposed by the district court. See 124 F.3d 774. Because the Michigan Department of Corrections construes our opinion in a manner that was not intended, this Supplementary Opinion is written solely for the purpose of clarification.
[21] The Department's brief on appeal contains the following clearly expressed and significantly emphasized statement:
[22] It is important to note that the visitation restrictions at issue involve limitations on contact visitation between members of the public, including minor children, and convicted felons.
[23] There was nothing new or novel in this definition of the issue. The Department took the same position in the district court. In its response to the plaintiffs' motion for a preliminary injunction, it said:
[24] It is important to emphasize that the challenged visitation policies at issue in this case concern limitations on contact visitation. Since contact visitation involves personal, face-to-face contact by convicted/incarcerated felons with members of the public, the sheer volume of visitations alone (2300 contact visits each day, averaging 69,000 visits each month, for about 820,000 visits annually) must be restricted for reasons of security and administrative concerns related to maintaining internal order and discipline throughout all MDOC prison facilities. There can be no dispute that 820,000 visits annually presents a very difficult penological problem for MDOC with regard to the scheduling, screening, supervision and monitoring of contact visitation.
[25] The Department continued:
[26] Although MDOC is mindful of the close familial relationships that exist between a father and/or mother with their children, significant security and related administrative concerns caused by the high volume of contact visitation mandate a more narrow definition of the minor children (children, stepchildren and grandchildren) that are allowed contact visitation at MDOC facilities. Given MDOC's legitimate penological interest in maintaining order and security at its prison facilities and the real dangers involved whenever children participate in contact visits, these visitor restrictions are a reasonable response to important competing interests.
[27] The evidence submitted by the Department was addressed to the issue of contact visitation, and this too was referred to in the above-mentioned response:
[28] As the attached affidavits of Deputy Director Bolden, Warden Burke and Warden Langley reveal, contact visitation between minor children and incarcerated felons presents a continuing problem for MDOC with regard to the security of its prison facilities and the safety of the minor children at these facilities.
[29] The Department's motion for summary judgment also addressed the issue as that of contact visitation:
[30] Limiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation.
. . . .
[31] . . . Plaintiffs also argue that the visitor restrictions are unconstitutional because the restrictions limit the right of members of the public to visit incarcerated felons. However, because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional.
[32] When the litigation moved to this Court, contact visitation was the obvious concern expounded in the Department's brief. At page 9 of its brief, the Department said "[c]ontact visits invite a host of security problems," and then proceeded to describe them. At page 13, the Department said that "because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional." On page 14, it said that "[l]imiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation."
[33] It is not surprising, therefore, that we held that "[t]he visits at issue are `contact visits,' i.e., visits that customarily take place in a `visitation room' or other area set aside for this purpose and permit innocent-only physical contact between prisoner and visitor." 124 F.3d at 775. However, counsel for the Department now inform the Court that the Court erred in accepting counsel's definition of the issue and "apologize for any misstatement in earlier briefs that may have led the Court to believe the rule changes apply only to contact visits."
[34] Overlooking the fact that Rule 791.6614 bears the caption "Noncontact visitation," Department counsel contend that Rules 791.6607 to 791.6614 apply to both contact and non-contact visits, and they assert that "this Court's September 4, 1997 Opinion can easily be extended to both." The Department did not make this argument in either the district court or this Court. It cannot be made here and now. This opinion is intended simply to make that point clear.
***** BEGIN FOOTNOTE(S) HERE *****
[35] *fn1 The Honorable Ellsworth A. Van Graafeiland, Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19980105
Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir. 01/05/1998)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[2] Michelle Bazzetta; Stacy Barker; Toni Bunton; Debra King; Shante Allen; Adrienne Bronaugh; Alesia Butler; Tamara Prude; Susan Fair; Valerie Bunton; Arturo Zavala, through his next friend Valerie Bunton, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
[3] Kenneth McGinnis, Director of Michigan Department Of Corrections; Michigan Department of Corrections, Defendants-Appellees.
[4] Nos. 95-2181; 96-1559
[5] Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
[6] No. 95-73540
[7] Nancy G. Edmunds, District Judge.
[8] Argued: February 4, 1997
[9] Decided and Filed: January 5, 1998
[10] Before: SILER, COLE, and VAN GRAAFEILAND *fn1, Circuit Judges.
[11] COUNSEL
[12] ARGUED:
[13] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, for Appellant.
[14] Kevin M. Thom, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[15] ON BRIEF:
[16] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, Michael Barnhart, Detroit, Michigan, for Appellant.
[17] Lisa C. Ward, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[18] SUPPLEMENTARY OPINION
[19] VAN GRAAFEILAND, Circuit Judge.
[20] On September 4, 1997, this Court affirmed certain limitations on prisoner visitation imposed by the district court. See 124 F.3d 774. Because the Michigan Department of Corrections construes our opinion in a manner that was not intended, this Supplementary Opinion is written solely for the purpose of clarification.
[21] The Department's brief on appeal contains the following clearly expressed and significantly emphasized statement:
[22] It is important to note that the visitation restrictions at issue involve limitations on contact visitation between members of the public, including minor children, and convicted felons.
[23] There was nothing new or novel in this definition of the issue. The Department took the same position in the district court. In its response to the plaintiffs' motion for a preliminary injunction, it said:
[24] It is important to emphasize that the challenged visitation policies at issue in this case concern limitations on contact visitation. Since contact visitation involves personal, face-to-face contact by convicted/incarcerated felons with members of the public, the sheer volume of visitations alone (2300 contact visits each day, averaging 69,000 visits each month, for about 820,000 visits annually) must be restricted for reasons of security and administrative concerns related to maintaining internal order and discipline throughout all MDOC prison facilities. There can be no dispute that 820,000 visits annually presents a very difficult penological problem for MDOC with regard to the scheduling, screening, supervision and monitoring of contact visitation.
[25] The Department continued:
[26] Although MDOC is mindful of the close familial relationships that exist between a father and/or mother with their children, significant security and related administrative concerns caused by the high volume of contact visitation mandate a more narrow definition of the minor children (children, stepchildren and grandchildren) that are allowed contact visitation at MDOC facilities. Given MDOC's legitimate penological interest in maintaining order and security at its prison facilities and the real dangers involved whenever children participate in contact visits, these visitor restrictions are a reasonable response to important competing interests.
[27] The evidence submitted by the Department was addressed to the issue of contact visitation, and this too was referred to in the above-mentioned response:
[28] As the attached affidavits of Deputy Director Bolden, Warden Burke and Warden Langley reveal, contact visitation between minor children and incarcerated felons presents a continuing problem for MDOC with regard to the security of its prison facilities and the safety of the minor children at these facilities.
[29] The Department's motion for summary judgment also addressed the issue as that of contact visitation:
[30] Limiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation.
. . . .
[31] . . . Plaintiffs also argue that the visitor restrictions are unconstitutional because the restrictions limit the right of members of the public to visit incarcerated felons. However, because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional.
[32] When the litigation moved to this Court, contact visitation was the obvious concern expounded in the Department's brief. At page 9 of its brief, the Department said "[c]ontact visits invite a host of security problems," and then proceeded to describe them. At page 13, the Department said that "because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional." On page 14, it said that "[l]imiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation."
[33] It is not surprising, therefore, that we held that "[t]he visits at issue are `contact visits,' i.e., visits that customarily take place in a `visitation room' or other area set aside for this purpose and permit innocent-only physical contact between prisoner and visitor." 124 F.3d at 775. However, counsel for the Department now inform the Court that the Court erred in accepting counsel's definition of the issue and "apologize for any misstatement in earlier briefs that may have led the Court to believe the rule changes apply only to contact visits."
[34] Overlooking the fact that Rule 791.6614 bears the caption "Noncontact visitation," Department counsel contend that Rules 791.6607 to 791.6614 apply to both contact and non-contact visits, and they assert that "this Court's September 4, 1997 Opinion can easily be extended to both." The Department did not make this argument in either the district court or this Court. It cannot be made here and now. This opinion is intended simply to make that point clear.
***** BEGIN FOOTNOTE(S) HERE *****
[35] *fn1 The Honorable Ellsworth A. Van Graafeiland, Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19980105
Bazzetta v. McGinnis
| Year | 1998 |
|---|---|
| Cite | 124 F.3d 774 (6th cir. 1998) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir. 01/05/1998)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[2] Michelle Bazzetta; Stacy Barker; Toni Bunton; Debra King; Shante Allen; Adrienne Bronaugh; Alesia Butler; Tamara Prude; Susan Fair; Valerie Bunton; Arturo Zavala, through his next friend Valerie Bunton, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
[3] Kenneth McGinnis, Director of Michigan Department Of Corrections; Michigan Department of Corrections, Defendants-Appellees.
[4] Nos. 95-2181; 96-1559
[5] Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
[6] No. 95-73540
[7] Nancy G. Edmunds, District Judge.
[8] Argued: February 4, 1997
[9] Decided and Filed: January 5, 1998
[10] Before: SILER, COLE, and VAN GRAAFEILAND *fn1, Circuit Judges.
[11] COUNSEL
[12] ARGUED:
[13] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, for Appellant.
[14] Kevin M. Thom, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[15] ON BRIEF:
[16] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, Michael Barnhart, Detroit, Michigan, for Appellant.
[17] Lisa C. Ward, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[18] SUPPLEMENTARY OPINION
[19] VAN GRAAFEILAND, Circuit Judge.
[20] On September 4, 1997, this Court affirmed certain limitations on prisoner visitation imposed by the district court. See 124 F.3d 774. Because the Michigan Department of Corrections construes our opinion in a manner that was not intended, this Supplementary Opinion is written solely for the purpose of clarification.
[21] The Department's brief on appeal contains the following clearly expressed and significantly emphasized statement:
[22] It is important to note that the visitation restrictions at issue involve limitations on contact visitation between members of the public, including minor children, and convicted felons.
[23] There was nothing new or novel in this definition of the issue. The Department took the same position in the district court. In its response to the plaintiffs' motion for a preliminary injunction, it said:
[24] It is important to emphasize that the challenged visitation policies at issue in this case concern limitations on contact visitation. Since contact visitation involves personal, face-to-face contact by convicted/incarcerated felons with members of the public, the sheer volume of visitations alone (2300 contact visits each day, averaging 69,000 visits each month, for about 820,000 visits annually) must be restricted for reasons of security and administrative concerns related to maintaining internal order and discipline throughout all MDOC prison facilities. There can be no dispute that 820,000 visits annually presents a very difficult penological problem for MDOC with regard to the scheduling, screening, supervision and monitoring of contact visitation.
[25] The Department continued:
[26] Although MDOC is mindful of the close familial relationships that exist between a father and/or mother with their children, significant security and related administrative concerns caused by the high volume of contact visitation mandate a more narrow definition of the minor children (children, stepchildren and grandchildren) that are allowed contact visitation at MDOC facilities. Given MDOC's legitimate penological interest in maintaining order and security at its prison facilities and the real dangers involved whenever children participate in contact visits, these visitor restrictions are a reasonable response to important competing interests.
[27] The evidence submitted by the Department was addressed to the issue of contact visitation, and this too was referred to in the above-mentioned response:
[28] As the attached affidavits of Deputy Director Bolden, Warden Burke and Warden Langley reveal, contact visitation between minor children and incarcerated felons presents a continuing problem for MDOC with regard to the security of its prison facilities and the safety of the minor children at these facilities.
[29] The Department's motion for summary judgment also addressed the issue as that of contact visitation:
[30] Limiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation.
. . . .
[31] . . . Plaintiffs also argue that the visitor restrictions are unconstitutional because the restrictions limit the right of members of the public to visit incarcerated felons. However, because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional.
[32] When the litigation moved to this Court, contact visitation was the obvious concern expounded in the Department's brief. At page 9 of its brief, the Department said "[c]ontact visits invite a host of security problems," and then proceeded to describe them. At page 13, the Department said that "because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional." On page 14, it said that "[l]imiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation."
[33] It is not surprising, therefore, that we held that "[t]he visits at issue are `contact visits,' i.e., visits that customarily take place in a `visitation room' or other area set aside for this purpose and permit innocent-only physical contact between prisoner and visitor." 124 F.3d at 775. However, counsel for the Department now inform the Court that the Court erred in accepting counsel's definition of the issue and "apologize for any misstatement in earlier briefs that may have led the Court to believe the rule changes apply only to contact visits."
[34] Overlooking the fact that Rule 791.6614 bears the caption "Noncontact visitation," Department counsel contend that Rules 791.6607 to 791.6614 apply to both contact and non-contact visits, and they assert that "this Court's September 4, 1997 Opinion can easily be extended to both." The Department did not make this argument in either the district court or this Court. It cannot be made here and now. This opinion is intended simply to make that point clear.
***** BEGIN FOOTNOTE(S) HERE *****
[35] *fn1 The Honorable Ellsworth A. Van Graafeiland, Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19980105
Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir. 01/05/1998)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[2] Michelle Bazzetta; Stacy Barker; Toni Bunton; Debra King; Shante Allen; Adrienne Bronaugh; Alesia Butler; Tamara Prude; Susan Fair; Valerie Bunton; Arturo Zavala, through his next friend Valerie Bunton, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
[3] Kenneth McGinnis, Director of Michigan Department Of Corrections; Michigan Department of Corrections, Defendants-Appellees.
[4] Nos. 95-2181; 96-1559
[5] Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
[6] No. 95-73540
[7] Nancy G. Edmunds, District Judge.
[8] Argued: February 4, 1997
[9] Decided and Filed: January 5, 1998
[10] Before: SILER, COLE, and VAN GRAAFEILAND *fn1, Circuit Judges.
[11] COUNSEL
[12] ARGUED:
[13] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, for Appellant.
[14] Kevin M. Thom, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[15] ON BRIEF:
[16] Deborah A. LaBelle, LAW OFFICES OF DEBORAH LABELLE, Ann Arbor, Michigan, Michael Barnhart, Detroit, Michigan, for Appellant.
[17] Lisa C. Ward, OFFICE OF THE ATTORNEY GENERAL CORRECTIONS DIVISION, Lansing, Michigan, for Appellee.
[18] SUPPLEMENTARY OPINION
[19] VAN GRAAFEILAND, Circuit Judge.
[20] On September 4, 1997, this Court affirmed certain limitations on prisoner visitation imposed by the district court. See 124 F.3d 774. Because the Michigan Department of Corrections construes our opinion in a manner that was not intended, this Supplementary Opinion is written solely for the purpose of clarification.
[21] The Department's brief on appeal contains the following clearly expressed and significantly emphasized statement:
[22] It is important to note that the visitation restrictions at issue involve limitations on contact visitation between members of the public, including minor children, and convicted felons.
[23] There was nothing new or novel in this definition of the issue. The Department took the same position in the district court. In its response to the plaintiffs' motion for a preliminary injunction, it said:
[24] It is important to emphasize that the challenged visitation policies at issue in this case concern limitations on contact visitation. Since contact visitation involves personal, face-to-face contact by convicted/incarcerated felons with members of the public, the sheer volume of visitations alone (2300 contact visits each day, averaging 69,000 visits each month, for about 820,000 visits annually) must be restricted for reasons of security and administrative concerns related to maintaining internal order and discipline throughout all MDOC prison facilities. There can be no dispute that 820,000 visits annually presents a very difficult penological problem for MDOC with regard to the scheduling, screening, supervision and monitoring of contact visitation.
[25] The Department continued:
[26] Although MDOC is mindful of the close familial relationships that exist between a father and/or mother with their children, significant security and related administrative concerns caused by the high volume of contact visitation mandate a more narrow definition of the minor children (children, stepchildren and grandchildren) that are allowed contact visitation at MDOC facilities. Given MDOC's legitimate penological interest in maintaining order and security at its prison facilities and the real dangers involved whenever children participate in contact visits, these visitor restrictions are a reasonable response to important competing interests.
[27] The evidence submitted by the Department was addressed to the issue of contact visitation, and this too was referred to in the above-mentioned response:
[28] As the attached affidavits of Deputy Director Bolden, Warden Burke and Warden Langley reveal, contact visitation between minor children and incarcerated felons presents a continuing problem for MDOC with regard to the security of its prison facilities and the safety of the minor children at these facilities.
[29] The Department's motion for summary judgment also addressed the issue as that of contact visitation:
[30] Limiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation.
. . . .
[31] . . . Plaintiffs also argue that the visitor restrictions are unconstitutional because the restrictions limit the right of members of the public to visit incarcerated felons. However, because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional.
[32] When the litigation moved to this Court, contact visitation was the obvious concern expounded in the Department's brief. At page 9 of its brief, the Department said "[c]ontact visits invite a host of security problems," and then proceeded to describe them. At page 13, the Department said that "because members of the public have alternate methods to communicate with incarcerated felons, restrictions on contact visits between members of the public and inmates are not unconstitutional." On page 14, it said that "[l]imiting the number of minor children who are involved in contact visitation with incarcerated felons will enable MDOC to more closely monitor these visits to insure that no abuse or smuggling occurs as a result of contact visitation."
[33] It is not surprising, therefore, that we held that "[t]he visits at issue are `contact visits,' i.e., visits that customarily take place in a `visitation room' or other area set aside for this purpose and permit innocent-only physical contact between prisoner and visitor." 124 F.3d at 775. However, counsel for the Department now inform the Court that the Court erred in accepting counsel's definition of the issue and "apologize for any misstatement in earlier briefs that may have led the Court to believe the rule changes apply only to contact visits."
[34] Overlooking the fact that Rule 791.6614 bears the caption "Noncontact visitation," Department counsel contend that Rules 791.6607 to 791.6614 apply to both contact and non-contact visits, and they assert that "this Court's September 4, 1997 Opinion can easily be extended to both." The Department did not make this argument in either the district court or this Court. It cannot be made here and now. This opinion is intended simply to make that point clear.
***** BEGIN FOOTNOTE(S) HERE *****
[35] *fn1 The Honorable Ellsworth A. Van Graafeiland, Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.
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[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
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