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MI DOC Visitor Ban Overturned
Keller filed suit in Ingham County Circuit Court challenging the permanent visitor ban as being unlawful and contrary to Michigan Department of Corrections (MDOC) policy. The court agreed and overturned the ban. Keller did not challenge the results of the disciplinary hearing.
The MDOC at first argued that Kelley lacked standing to challenge the visitation restriction because it was imposed on his wife. The court rejected this argument finding that MCL 791.251 and MSA 28.2320(51) intend that visitation be a prisoners right "which the prisoner himself must be permitted to vindicate at an administrative hearing where the Department proposes to restrict that right."
Proceeding to the merits of the claim the court held that the visitation ban was unlawful for several reasons. First, Kelley was not allowed to be present and participate in the hearing which denied him his visiting rights. The issue of visitor restriction were not posed or addressed at the disciplinary hearing. The MDOC denied the administrative appeal by claiming that Kelley could have contested it at the disciplinary hearing and his wife could have, but chose not to, attend. The court held this reasoning was erroneous as a matter of law. "... this permanent visitor restriction was made upon unlawful procedure resulting in material prejudice to Petitioner. On that ground alone Respondents decision must be reversed."
The court also reversed the ban finding that the sanction was not adequately supported by evidence in the record. The court held that MDOC Policy Directive PD-BCF-63.02, on prisoner visiting, and which mandated the sanction of a permanent ban on visiting if a prisoner was found guilty of sexual misconduct with a visitor was unlawful because it clashed with Rule 609, 1979 AC, R 791. 6609 and Rule 611, 1979 AC, R 791.6611 which not only did not authorize that sanction, but " ...neither provided any sanction for the sexual misconduct that is the subject of Kelleys petition." The above rules only authorize a sanction if the visit constitutes a "clear and present danger to the order and security of the institution" and its purpose is to commit an illegal act. The court held: "Consensual fondling of a spouses breasts is not an illegal act, and the hearing officer made no finding that such conduct presented a clear and present danger to institutional order and security. The policy directive mandating a permanent visitor restriction for that misconduct sanctioned behavior without regard to the foregoing standards and thus was not authorized by law."
The court also held that the MDOCs sanction was arbitrary and capricious because PD-BCF-63.02 mandated a permanent visitation ban for all cases of sexual misconduct including the prisoner or the visitor touching or attempting to touch or expose breasts, buttocks or genitals as well as "ultimate sex acts." The court found that this contradicts the policys statement which states that visitation between prisoners and their family members, to include their spouse, friends and potential employers are important for rehabilitation and post-release adjustment. "... under PD-BCF-63.02, undifferentiated sexual misconducts of whatever kind, degree or frequency compelled nearly automatic deprivation of the prisoners right of visitation on a 'permanent basis. That contradicts the Departments interest in fostering rehabilitation and post-release adjustment to reintegration into society." The policy also ignores prevailing concepts of progressive discipline ,where the gradation and frequency of offenses warrants increasing the punishment for the offense. "Thus, PD-BCF-63 02 mandated imposition of the most severe visitation sanction for 'ultimate sexual acts, for petting and partial nudity as well as the single and comparatively innocuous act of fondling, as in this matter. Infliction of such an inflexible penalty on spouses is--there is no better word for it--ludicrous."
The court held that the MDOC had abused its discretion and behaved unlawfully by imposing the same sanction for assault, smuggling and assisted escape as for fondling. "The requirement of a permanent visitor restriction for a single incidence of sexual misconduct reflects gross insensitivity to the severity of sanction relative to the significance of the offense. Chaste conduct between prisoner and visitor may be important to institutional integrity, but brief episodes of consensual fondling, especially spouses, are not tantamount to grievous offenses against that value, such as are assault, smuggling and assisted escape... This kind of sexual misconduct hardly belongs in the same category as those offenses. To lump them all together as the DOC has done in the policy directive is patently unreasonable."
"Finally, the agencys decision here and the policy directive that required it are arbitrary and capricious because neither takes into account the particular circumstances of the offending conduct." The court reversed the permanent visitor ban in the case in its order signed November 23, 1994, by circuit judge James Giddings. The case is unpublished and cannot be cited as controlling precedent but is helpful for Michigan state prisoners litigating this issue. See: Kelley v. Michigan Department of Corrections, Case No. 93-74817-AA.
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Related legal case
Kelley v. Michigan Department of Corrections
|Cite||Case No. 93-74817-AA, Ingham County Cir. Ct., MI|
|Level||State Trial Court|