Dupuy v. Samuels

• Decision Date: 03 October 2006
• Docket Number: No. 06-1027.,06-1027.
• Citation: 465 F.3d 757
• Parties: Belinda DUPUY, et al., Plaintiffs-Appellants, v. Bryan SAMUELS, Director, Illinois Department of Children and Family Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

465 F.3d 757

Belinda DUPUY, et al., Plaintiffs-Appellants, v. Bryan SAMUELS, Director, Illinois Department of Children and Family Services, Defendant-Appellee.

No. 06-1027.

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2006.

Decided October 3, 2006^*.

Jack L. Block, Sachnoff & Weaver, Chicago, IL, Robert E. Lehrer (argued), Lehrer & Redleaf, Chicago, IL, for Plaintiffs-Appellants.

Barbara L. Greenspan (argued), Erik G. Light, Office of the Attorney General, Chicago, IL, for Defendant-Appellee.

Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

This class action suit by parents, now in its tenth year, challenges a range of practices by Illinois' child-welfare agency claimed to infringe parental rights that are protected by the due process clause of the Fourteenth Amendment; for background, see Dupuy v. Samuels, 397 F.3d 493 (7th Cir.2005). The present appeal is from a preliminary injunction that the plaintiffs, who are the appellants, contend does not go far enough; the defendants have not cross-appealed. The plaintiffs are also attempting to appeal from the judge's class certification order, which they contend defined the plaintiff class too narrowly. But their time to appeal from that order has long expired. Fed.R.Civ.P. 23(f).

The injunction of which the plaintiffs complain violates Rule 65(d) of the civil rules (though that is not the plaintiffs' complaint about it), which requires that an injunction be a self-contained document rather than incorporate by reference materials in other documents. The purpose is to minimize disputes over what has been enjoined. Schmidt v. Lessard, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974) (per curiam); International Longshoremen's Ass'n v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 74-76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967); D. Patrick, Inc. v. Ford Motor Co., 8 F.3d 455, 461 (7th Cir. 1993); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2955 (2d ed.1995); 13 Moore's Federal Practice § 65.60, pp. 475-77 (13th ed.2006). The Ninth Circuit allows incorporation by reference if the material thus incorporated is physically attached, as by stapling, to the injunction order. Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1132-33 (9th Cir.2006); California v. Campbell, 138 F.3d 772, 783 (9th Cir.1998). There is no reason to complicate the administration of the rule by such an interpretation. There are times when literal interpretation is best; this is one of them. The Ninth Circuit's approach would encourage just the kind of mistake that the rule aims to prevent—the thoughtless attachment of separately composed documents when if the judge had integrated their contents into the injunction order he might have realized that they would not cohere with the rest of the order without changes.

Rule 65(d) is simple, clear, sensible, easily complied with, and not even new; we are distressed by the failure of the parties and the district judge to have complied with it in this case—a case that underscores the good sense of the rule. What the parties and the district judge understand to be the injunction begins with an opinion by the judge in which she says that "the court approves the DCFS proposal, with certain modifications, outlined below," and the "outline" follows. If the "certain modifications" were literally an "outline," there would be no injunction but merely the sketch of one. But it is apparent that the word "outlined" was used imprecisely; and likewise that when the court, as one of its modifications, said vaguely that "the court would add a statement to this effect..." (emphasis added), it meant that the language that followed was part of the injunction. Yet one of the "modifications" modifies nothing; it says merely that "the court recommends that the plan provide" etc.—and a recommendation cannot be an injunction.

Both sides are complicit in the violation of Rule 65(d), having expressed no concern with the form of the injunction. But the appellants in addition violated 7th Cir. R. 30(d), which requires certification that the appendix contain all materials required by Rule 30(a) to be included in the appendix. For among the retired materials are the judgment, and the judgment in this case includes not only the judge's order modifying the defendant's proposed injunction, Chicago & North Western Transportation Co. v. Railway Labor Executives' Ass'n, 908 F.2d 144, 149-50 (7th Cir.1990), but also those portions of that proposed injunction that the judge (improperly) incorporated by reference. They do not appear in the appellants' appendix but instead are deeply buried in the record; the lawyers could not find them when asked for them at argument.

So Rule 65(d) was flouted. But a violation of the rule does not deprive the appellate court of jurisdiction to review the injunction (e.g., Combs v. Ryan's Coal Co., 785 F.2d 970, 978 (11th Cir.1986)) unless as a result of the violation it is so unclear what the defendant is enjoined from doing that he could not be punished for violating the injunction. For in that event he would lack standing to challenge the injunction because, being unenforceable, it would place no burden on him. He could thumb his nose at it with impunity. Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 646-47 (7th Cir. 2002); Chicago & North Western Transportation Co. v. Railway Labor Executives' Ass'n, supra, 908 F.2d at 149-50; see also Bates v. Johnson, 901 F.2d 1424, 1428 (7th Cir.1990). "[A]n unenforceable order is no order at all." Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., supra, 299 F.3d at 647.

The power to review an injunction that violates Rule 65(d) extends to any adequately clear materials clearly incorporated into the injunction by reference, as we held in Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 275-76 (7th Cir.1992); cf. Abbott Laboratories v. Unlimited Beverages, Inc., 218 F.3d 1238, 1241-42 (11th Cir.2000). And that is this case. The core of the injunction is clear enough to be enforceable; it requires the defendant to provide informal administrative review of "safety plans."

There is tension between the holding in Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., supra, and D. Patrick, Inc. v. Ford Motor Co., supra, which states that an injunction that incorporates materials by reference cannot be enforced, though the court went on to find that in any event the incorporated material—a settlement agreement— was ambiguous. 8 F.3d at 461-62. D. Patrick did not cite Great American, and its flat statement of unenforceability, which is not limited to incorporation by reference but embraces any injunction that violates Rule 65(d), is inconsistent with the decisions holding that a violation of the rule does not affect the jurisdiction of the reviewing court as long as the obligations that the injunction imposes on the defendant are clear enough that he can be punished should he violate them.

D. Patrick justified its unorthodox position by quoting from H.K. Porter Co. v. National Friction Products Corp., 568 F.2d 24, 27 (7th Cir.1977), that "Rule 65(d) is no mere extract from a manual of procedural practice. It is a page from the book of liberty." 8 F.3d at 461. Beware decision by metaphor. What the court seems to have meant was that it would be unjust to punish someone for violating an injunction that he could not understand. It would be. But Rule 65(d) is not needed in order to ward off that injustice; if the injunction is not clear, the defendant cannot be punished for violating it, Rule 65(d) or no Rule 65(d). The purpose of the rule is to make sure that violations of injunctions are punishable.

The lofty language of H.K. Porter is particularly inapt when as in this case it is the plaintiff that is appealing the injunction. For it is then much as if the plaintiff were appealing from the denial of injunctive relief altogether, which would present no problem under Rule 65(d). The difference is that when there is an injunction and the plaintiff is seeking additional relief, the need for that relief is likely to depend on what relief the judge has already granted, and to be able to form a precise and concise understanding of that relief may require that the rule have been complied with.

Enough said about the procedural issue. Let us turn to the merits, and explain what a "safety plan" is.

If the State of Illinois (1) "has reason to believe that the child cannot be cared for at home or in the custody of the person responsible for the child's welfare without endangering the child's health or safety; and (2) there is not time to apply for a court order ... for temporary custody of the child," the state can take the child into "temporary protective custody" without additional process, 325 ILCS 5/5, but there is a right to a judicial hearing within 48 hours. 705 ILCS 405/1-3, -5, 405/2-9(1), (3); In re John Paul J., 343 Ill. App.3d 865, 278 Ill.Dec. 904, 799 N.E.2d 769, 776 (Ill.App.2003). Other states have similar laws, though often they require "reasonable cause" or "probable cause" rather than "reason to believe," Alyson Oswald, "Comment, They Took My Child! An Examination of the Circuit Split Over Emergency Removal of Children From Parental Custody," 53 Cath. U.L.Rev. 1161, 1183 n. 131 (2004), although it is doubtful whether there is any practical difference among these formulas, any one of which should satisfy the due process clause of the Fourteenth Amendment. See, e.g., Berman v. Young, 291 F.3d 976, 983-84 (7th Cir.2002); Brokaw v. Mercer County, 235 F.3d 1000, 1010-11 (7th Cir. 2000); Doe v. Kearney, 329 F.3d 1286, 1294-95 (11th Cir.2003); Croft v. Westmoreland County Children & Health Services, 103 F.3d 1123, 1126-27 (3d Cir.1997). Among the liberties protected by that clause is the right of...