Bethune Plaza, Inc. v. Lumpkin

• Decision Date: 23 November 1988
• Docket Number: Nos. 88-1068,88-1214 and 88-1270,s. 88-1068
• Citation: 863 F.2d 525
• Parties: BETHUNE PLAZA, INC., Plaintiff-Appellee/Cross-Appellant, Illinois Council on Long-Term Care, Intervening Plaintiff-Appellee, v. John LUMPKIN, Associate Director of the Illinois Department of Public Health, et al., Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 525

863 F.2d 525

12 Fed.R.Serv.3d 1400

BETHUNE PLAZA, INC., Plaintiff-Appellee/Cross-Appellant, Illinois Council on Long-Term Care, Intervening Plaintiff-Appellee, v. John LUMPKIN, Associate Director of the Illinois Department

of Public Health, et al.,

Defendants-Appellants/Cross-Appellees.

Nos. 88-1068, 88-1214 and 88-1270.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 26, 1988.

Decided Nov. 23, 1988.

Valerie J. Peiler, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

Malcolm A. Chandler, Robert K. Neiman, Holleb & Coff, Chicago, Ill., for plaintiffs-appellees.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Bethune Plaza, Inc., runs a nursing home in Illinois. On July 17, 1986, an inspector from the state's Department of Public Health arrived to investigate complaints of excessive heat and humidity; Bethune's security guard prevented her from entering. Bethune admitted John Lumpkin, the Associate Director of the Department's Office of Health Regulation, the following day. On November 14 the Department charged Bethune with a violation of its rules for excluding the first inspector, levied a $5,000 fine, and informed Bethune that on November 20 its license would be demoted to "conditional", which would bar state and federal agencies from referring new patients to Bethune. The Department gave Bethune ten days to request a hearing if it chose to contest the charge or penalties. Instead of asking the state to hold an immediate hearing or defer the alteration of its license, Bethune filed this suit under 42 U.S.C. Sec. 1983, contending that the state's proposed course of action violated both state law (because the state acted more than 60 days after the violation) and the Due Process Clause of the fourteenth amendment (because the state diminished Bethune's property interest in its license in advance of a hearing).

The state consented to the extension of a temporary restraining order forbidding imposition of the sanctions. The district court ultimately filed an opinion concluding that the state's delay in issuing the notice violated Ill.Rev.Stat. ch. 111 1/2 p 4153-212(c), which requires action within 60 days; the statute, the court held, blocks further action based on the events of July 17. The court went on to declare that the state's attempt to alter the status of Bethune's license prior to an opportunity for an evidentiary hearing is unconstitutional. The last paragraph of the opinion reads:

It is therefore ordered, that summary judgment is granted in favor of the plaintiff. The court further orders that the preliminary injunction now in effect against defendant be made permanent, subject to the following conditions: defendant is permanently enjoined from determining any violations, or assessing any penalties or fines, or issuing a conditional license, to plaintiff, for any matter arising out of the matters listed in the Proof of Service dated November 14, 1986.

The court's judgment, however, does not put this conclusion into effect. It reads: "IT IS ORDERED AND ADJUDGED that the defendant's motion for summary judgment is denied. Plaintiff's motion for summary judgment is granted, and the preliminary injunction previously entered against defendant is hereby made permanent."

None of the parties called to the district judge's attention the divergence between the opinion and the judgment. They turned their attention to attorneys' fees instead. Counsel for Bethune asked for more than $90,000 in fees under 42 U.S.C. Sec. 1988; the district court slashed this to $50,000. Counsel for the Illinois Council on Long-Term Care, a trade association of nursing homes that had intervened to make legal arguments against the state, asked for more than $16,000 in fees and received $12,000. The state has appealed the disposition on the merits, the order allowing the intervention, and the amount of the award in Bethune's favor. Bethune has filed a cross-appeal contending that the judge was too stingy.

I

Our first question is what, precisely, is under review. The state, taking the district court's opinion as the expression of its ruling, believes that it has been forbidden to hold a hearing or impose sanctions on the basis of Bethune's acts on July 17, 1986. Such an order, necessarily dependent on state law, would run afoul of Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), for a district court may not use its views of state law as the basis of relief against the state itself. Bethune submits that the preliminary injunction simply directed the state not to change the nature of its license until giving it a hearing. Because the final judgment extends this injunction, Bethune reasons, the state may hold a hearing any time it likes and impose sanctions if the record justifies that disposition.

An injunction "shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained". Fed.R.Civ.P. 65(d) (emphasis added). If the court had issued the preliminary injunction both parties informed us it had--one requiring the state to hold a hearing before taking action--then Bethune would be right. Only reading the language of the opinion into the injunction could produce a broader prohibition. Yet Rule 65(d) would forbid giving effect to such an incorporation. Addressees of an injunction are entitled to clear notice of what they are required or forbidden to do. A judicial opinion is not itself an order to act or desist; it is a statement of reasons supporting the judgment. The command comes in the separate document entered under Fed.R.Civ.P. 58, which alone is enforceable. There must be a separate document, with a self-contained statement of what the court directs be done. So if the opinion contains language awarding declaratory relief, but the judgment does not, the opinion has been reduced to dictum; only the judgment need be obeyed. Azeez v. Fairman, 795 F.2d 1296, 1297 (7th Cir.1986).

Neither party referred us to the preliminary injunction, although both seemed sure of its contents. Our efforts to verify their assumption were in vain, for the district court never entered a preliminary injunction. Early in the suit the court entered a temporary restraining order, forbidding the state "from in any way impairing [Bethune's] unrestricted license" for ten days. The parties agreed to the extension of this order until the court could rule on the merits. Counsel for the state said in open court that this "effectively would make it a preliminary injunction." A deputy clerk may have entered a minute order to this effect. None is in the record, however, and the docket sheet says only: "By agreement, temporary restraining order is made into a preliminary injunction until the Court rules on defendants [sic] for summary judgment." Later in the case the judge said that he would reexamine the preliminary injunction if the state held a hearing. This is the source of the parties' belief that the preliminary injunction did no more than require the hearing to precede the sanction. The judge did not alter the TRO to reflect his statement, however, and, as we have explained, statements in court or in opinions do not change the contents of injunctions. Anyway, this statement was a promise to review the subject, not an immediate alteration of the restraints.

This is a mess. The problem may be attributable to a practice of some judges of having the deputy clerk enter as the judgment language in the last paragraph of the court's opinion. The practice produces frequent mismatches between the court's intent and the contents of its judgments and carries great potential for confusion--sometimes, as in American Interinsurance Exchange v. Occidental Fire & Casualty Co., 835 F.2d 157 (7th Cir.1987), confusion about whether the judgment is final; sometimes, as in this case, in Soo Line R.R. v. Escanaba & Lake Superior R.R., 840 F.2d 546 (7th Cir.1988), and in Azeez, about what the judgment requires; sometimes, as in Foremost Sales Promotions, Inc. v. Director, BATF, 812 F.2d 1044 (7th Cir.1987), about both the content and appellate jurisdiction. Rule 58 requires the judge personally to approve the judgment in every case other than one in which all relief has been denied or a jury has rendered a verdict for a sum certain. That directive is designed to prevent the sort of problem that has arisen too frequently in this circuit. We trust that district judges will carry out their responsibilities under Rule 58, and that counsel will flag for the court's attention anything overlooked in the process.

What, then, is before us for review? One possibility is nothing at all--that the judgment spends itself on the air, incorporating by reference something that does not exist. Another is that the TRO converted itself into a preliminary injunction, with or without the parties' agreement and the court's aid, after ten days. Then the final judgment continuing the "preliminary injunction" would refer to the TRO, which absolutely precludes the state from altering Bethune's license. The latter approach is preferable. A TRO may be deemed a preliminary injunction if it lingers beyond ten days, Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974), and we must assume that the final disposition had some effect. So we shall treat the final judgment as having the effect the state attributes to it, because no document entered in the record permits it to have any other effect, if it has any at all.

II

Starting from the premise that it has been forbidden to inquire into Bethune's conduct on July 17, the state contends that the district court should have abstained under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), which was applied to states' administrative processes in Ohio Civil Rights Commission v. Dayton Christian...