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Michigan Legislature Kills Class Action Suit by Female Prisoners

In March, 1996, seven women pris- oners filed suit in the Washtenaw County Circuit Court against the Michigan Department of Corrections, Director Kenneth McGinnis, and ten individual wardens and officers. (96-6986 CZ) The complaint alleged that the plaintiffs had all "been subjected to various degrees of sexual assault, sexual harassment, violation of their privacy rights, physical threats and assaults on their persons and retaliation by male employees of the MDOC during their incarceration." The plaintiffs brought suit under both the state Constitution and the Michigan Civil Rights Act (1976 PA 45), and were granted certification as a class on behalf of all women prisoners.

The factual claims include the following:

"In 1985 Defendant MDOC began staffing the housing units at all women's facilities with male officers and staff. . . [and] required male officers to supervise women prisoners while the women are performing basic bodily functions in toilets and showers and cells. Male officers and staff routinely enter the women's cubicle areas, showers and restrooms without announcing their arrival.

"Defendants required male officers working in plaintiffs' housing units to perform random and specific clothed body searches on women prisoners which include pat-downs of their breasts and genital areas.

"Defendants allow male officers to accompany women on transport to medical care and require said officers to remain and observe during gynecological and other intimate medical procedures.

"Women prisoners are routinely subjected to offensive sex-based language, sexual harassment, offensive touching and requests for sexual acts by male officers.

"There is a pattern and practice of male officers and staff sexually assaulting women prisoners in contravention of law and policy.

"There is a pattern and practice of male officers requesting sexual acts from women prisoners as a condition of retaining good time credits, work details, educational and rehabilitative program opportunities, among other rights and privileges.

"Allegation of sexual assaults have and continue to be reported on a monthly basis.

"Defendants' employees have threatened and retaliated against women prisoners who have refused to participate in sexual activity with the employees, or who have reported staff sexual misconduct."

The trial court denied the defendants' motion for summary disposition; defendants were granted a limited leave to appeal. The major issue was whether the Michigan Civil Rights Act applied to prisoners. In Neal v. Department of Corrections, 230 Mich App 202 (1998), the Court of Appeals held that the Act did not apply to prisoners, although it did apply to visitors and employees. The Court held that prisons are not "places of public accommodation," nor do they provide a "service to the public."

Within months of this finding, the United States Supreme Court decided Pennsylvania Dept. of Corrections v. Yeskey. 118 S. Ct. 1952 (1998). At issue in Yeskey was the definition of "public entity" in the Americans with Disabilities Act (ADA). 42 USC Section 12132. A unanimous Court held that "the statute's language unmistakably includes State prisons and prisoners within its coverage." In Neal v. Department of Corrections (On Rehearing), 232 Mich App 730 (1998), the Court of Appeals held, following Yeskey, that "the MDOC clearly falls within the broad statutory definition of a 'public service'." The women's class action suit was back on track, at least for the moment.

However, Governor Engler and the Michigan legislature were both smarting from extensive media coverage of the allegations of sexual assault against women prisoners. In addition to Neal, the Department of Justice also brought suit against Michigan, but reached a settlement last May after finding patterns of sexual abuse, assault, cover-up, and retaliation by the MDOC. [See PLN, February 2000]. In response, Engler and the legislature pushed through two bills in December, 1999, with very little time for public input. One removes prisoners from the protection of the civil rights statute; the other removes them from the protection of the state disabilities statute. In a move many prisoners' rights advocates believe is unconstitutional, the bills were made retroactive in order to eliminate Neal, as well as Doe v. Department of Corrections, 236 Mich App 801 (1999). (Doe is a class action suit filed by the same attorney, Deborah LaBelle, on behalf of prisoners disabled by HIV/AIDS).

Act No. 202, Public Acts of 1999, signed by Engler on December 20, 1999, is explicit in its purpose: "This amendatory act is curative and intended to correct any misinterpretation of legislative intent in the court of appeals decision Neal v. Department of Corrections. [citation omitted] This legislation further expresses the original intent of the legislature that an individual serving a sentence of imprisonment in a state or county correctional facility is not within the purview of this act."

In its December 21, 1999, editorial decrying Michigan's move, The New York Times wrote: "The existence of potential federal remedies does not justify erasing state law protections. State officials usually chafe at federal intrusion into state institutions. The new Michigan legislation would invite that intrusion by forcing inmates to go to federal judges for relief. This egregious legislation attacks the basic rights of prisoners as persons under the law, and removes a powerful legal deterrent against prison abuse."

For the women plaintiffs in Neal, the statute of limitations has run, so they will have no legal recourse, in state or federal court. However, in what one attorney working on behalf of women prisoners calls "a wonderful victory," the current Director Bill Martin has recently decided to remove male guards from women's housing units to protect the men, he claims, from false accusations of sexual misconduct.

[Maia Justine Storm is a prisoner rights attorney in Michigan.]

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