Marching to a different drumbeat for 48 years -Kurt Berggren retires; recalls prison guard case that is tied to Neal

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By Frank Weir

Legal News

Most know of last year's groundbreaking litigation involving female prisoners who were sexually abused by male guards in Michigan that unfolded in Washtenaw County Circuit Court in Neal v. Michigan Department of Corrections.

But what you may not know is that a protracted lawsuit in the 1980s involving long-time local civil rights attorney Kurt Berggren played a role in the later litigation.

It was the sort of case that was a hallmark in the career of Berggren, an attorney who marched to his own drumbeat and was loath to follow the crowd down the typical legal path.

Berggren retired recently after 48 years in the law. He earned his law degree from the University of Virginia in 1962.

Berggren's prison case began when a number of female prison guards from different state men's prisons approached him in the early 1980s.

They complained that they were limited in promotions since the state required guard experience inside the cellblocks for medium and maximum advancement, yet female guards were never permitted to serve in men's cellblocks, thus completely thwarting all advancement.

"So these women came to me and said that they didn't want to work in men's cellblocks, but without doing so they were denied promotions," Berggren said. "It hurt their pocketbooks.

"I thought it was unreasonable of the prison system so I met with state prison officials, but they said no, they wouldn't make any policy changes."

So Berggren told the women their only option was a class action lawsuit. The class included close to 130 women. He filed it in 1982 and tried it in 1986.

"The issue was whether or not this ban on cellblock service for female guards was legitimate given that it prevented promotions and wage increases. It goes without saying the male guards did not have the same problem since they did not serve in female prisons at that time."

Federal District Judge Julian Abele Cook Jr. heard the case and ruled in favor of the women in 1988. Compensation and promotion issues were later decided by a special master for the individual 130 class members between 1988 and 1992.

You can review the trial court decision by "googling": Griffin v. Michigan Dept. of Corrections, 654 F. Supp. 690 - Dist. Court, ED Michigan 1982.

"Judge Cook ordered back pay and promotions for the women, finding that the requirement that women not serve in men's cellblocks was discriminatory. He appointed a special master who had to determine for each person what level they would otherwise have been promoted to and what their back pay should be if an individual did not agree with the state's back pay and promotion offer."

At the conclusion of the case, Berggren noted, there was a multi-million dollar pay out of back pay and promotion to the women.

"Now, the net effect of the case was that women guards had to work in men's cellblocks in order to be eligible for promotions. The Department of Corrections could have said that female guards were not required to work in the male cellblocks so as not to force women to work there but the state chose to make it a requirement. In other words, work in the male blocks or no promotions.

"The women said, 'Fine, we'll do that.' My guess is that the state turned the decision around and used it against the female guards and decided that if women must serve in the men's cellblocks then male guards must serve in the female cellblocks. They used the decision to sanction men guards in the women's cellblocks."

Anyone who knows Berggren knows that he does not mince words, particularly for institutions that he views as overreaching their authority to control and regulate others.

"The culture of Michigan's system of incarceration is so screwed up. What they tried to do to these female guards was to make it so bad that they would quit their jobs and leave the system. Horrible things were done to them, all kinds of harassment and intimidation.

"The Neal attorneys understand the mentality and total lack of sensitivity for people who work in or are incarcerated in a prison environment. Prison staffers are socialized in such a way that they can't have normal human relationships with each other, with the administration, or with the prisoners.

"When I did our case, we had some expert testimony about having male prisoners interact with women guards. It was considered better for them in terms of socializing them to be less brutal and more humane. This was part of our case to justify that women could and should serve as guards in male cellblocks. The opposite of that, as the Neal case shows, is not true.

"Look at my case and that of Neal and what these cases show about how people interact with each other in the prison system. It is brutal. There are rapes that take place against both sexes; my case shows how female guards were treated while Neal shows how female prisoners have been treated, all under the aegis of the Michigan Department of Corrections."

Berggren stated that after Griffin he was finished with prison cases . . . for good.

"They were worse than divorces and I quit doing divorce work 35 years ago. I felt the same way about prison cases. No matter what you did, it was just so disgusting how people dealt with each other. I was worn out. My admiration for Deb LaBelle is great because she has endured in that world for many years and accomplished great things."

Although Berggren spent most of his career tilting against the windmills of convention and seeking out unpopular causes, he began in a most unlikely setting: Hunton and Williams, a white-shoe, or collar, Richmond, Virginia and Washington, D.C., law firm.

Hunton and Williams was former Supreme Court Justice Lewis Powell's firm.

"I attended VMI and served three years in the Air Force JAG Corps before joining Hunton and Williams," he said.

"Believe it or not, I wrote speeches for Lewis Powell when he served as president of the ABA. They were mostly about the Legal Services programs and his support for the federal effort to assist the poor."

There was good and bad about Hunton and Williams for Berggren. The future progressive found himself on the conservative side of a one- man-one-vote case from Virginia Beach, shortly after the reapportionment case, Baker v. Carr, 369 U.S. 186 (1962).

"I wrote a brief for the city of Virginia Beach which had seven wards. Council representatives had to be a resident of their ward. However there were four at-large positions which was a clever scheme to dilute representation of those wards consisting primarily of minority voters."

But while toiling late one Sunday evening for Hunton and Williams, Berggren had to break a blind date with a young female reporter for the Richmond News Leader named Anne Goodloe.

"I felt so bad about breaking the blind date at the last minute that I called her up and arranged for another date. Eventually we were married, the best decision in my life."

After Hunton and Williams, Berggren knew that large firm life was not for him. He followed that with a year doing personal injury work for the law firm of the father of a former classmate in Norfolk and Virginia Beach.

That didn't suit Berggren either, thank you very much.

"I just did another primal scream after a year of PI work and thought perhaps the law just wasn't for me. So I enrolled in the Woodrow Wilson School of Foreign Affairs at the University of Virginia in 1968.

"I earned a master's and did the class work for a PhD but didn't finish. In 1970, the Roanoke Valley Legal Aid Society offered me the director position for the program.

"I knew I wasn't interested in just making money and I was simpatico with helping poor people so I took the job.

"It finally turned out that that was what I wanted to do. I thoroughly enjoyed the work and, after two years, was recruited to run a bigger Legal Aid program in Louisville, Kentucky that was in terrible shape. I stayed four years there and helped to rebuild the program."

At the time he left, the National Legal Services Director rated that program one of the top several programs in the country, Berggren said.

But he felt exhausted after four years of rebuilding the program, recruiting and training attorneys and carrying a heavy client caseload. He had recently taken up long distance running and found the smoggy, humidified atmosphere of Louisville oppressive.

"Someone on the board of directors of Legal Aid in Louisville had graduated from the University of Michigan Law School and he said the legal aid office here was looking for a director.

"I flew up here to interview and it was my first visit to the state of Michigan. After two years running the Legal Aid office here, I took a sabbatical to study at Yale Law School and felt I shouldn't keep the job tied up until my return so I resigned as Legal Aid director."

After the sabbatical, and after running Wayne State's civil law clinic for a year, Berggren opened a solo practice in Ann Arbor in 1979 where he has remained, specializing in civil rights, employment discrimination, and complex litigation.

"I've tried lots of cases over the years. I have loved litigation and I always felt much more comfortable with my own values as a solo practitioner, since I was able to do all the cases I wanted to do and to say no anytime I wanted to. That was very good for me. I didn't have to make compromises with partners whose values I may not have shared.

"But it is hard at the same time. Other than friends, you have no one to help bounce ideas off of. It's harder to practice by yourself but it can be very rewarding. You get to judge what is right for you and how to handle a case, what strategy to pursue."

Berggren always has been very active in progressive causes and is one of a handful of national legal experts on defending individuals who travel to Cuba in violation of state department rules and are fined as a result.

He has himself traveled to Cuba many times.

In addition, he was, over the years, very active in marathons and senior athletic running events, having placed third in the World Games in 1983, at the age of 45, in the 1,500-meter event in San Juan, Puerto Rico with a time of 4:19.

He has run 35 marathons, including the Free Press Marathon six times and the Boston Marathon eight times.

He plans to remain busy in the area with reading, travel and time with a grandchild who lives in Ypsilanti.

Anne has retired from the University of Michigan after earning a joint PhD in English and Education from the U of M in 1998 and teaching there for eight years.

The couple has two sons, Chris and Jamie.

Published: Thu, Sep 30, 2010

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