Dupuy, Belinda v. Samuels, Bryan , 465 F.3d 757 ( 2006 )

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 06—1027
BELINDA DUPUY, et al.,
Plaintiffs-Appellants,
V.
BRYAN SAMUELS, Director, Illinois Department of
Children and Family Services,
Defendant-Appellate.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 4199—Rebecca R. Pallmeyer, Judge.
Argued September 20, 2006-~Decided October 3, 2006‘r
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 Illi-
nois’ child—welfare agency claimed to infringe parental rights
that are protected by the due process clause of the Four-
teenth Amendment; for background, see Dupuy v. Samuels,
397 F.3d 493 (7th Cir. 2005). The present appeal is fi‘om a
preliminary injunction that the plaintiffs, who are the appel-
lants, contend does not go far enough; the defendants have
not cross—appealed. The plaintiffs are also attempting to ap-
‘ This opinion will be published, but is being released in typescript.
No. 06—1027 2
peal from the judge’s class certification order, which they
contend defined the plaintifi' class too narrowly. But their
time to appeal fi'om that order has long expired. Fed. R. Civ.
P. 23(i).
The injunction of which the plaintiffs complain violates
Rule 65(d) of the civil rules, which requires that an injunc-
tion 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 US. 473 (1974) (per curiam); International
Longshoremen’s Ass’n 0. Philadelphia Marine Tracie Ass’n,
389 US. 64, 74-176 (1967); D. Patrick, Inc. 1). 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—7 7 (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 '71, Inc. U. McCord, 452 F.3d 1126, 1132-—
33 (9th Cir. 2006); California 0. Campbell, 138 F.3d 772, 783
(9th Cir. 1998). There is no reason to complicate the admini-
stration 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 par—
ties 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 cer-
tain modifications, outlined below,” and the “outline” follows.
If the “certain modifications” were literally an “outline,”
No. 06—1027 11
The case nicely illustrates the line between a lawful threat
and duress.
Craft 1). Westmoreland County Children. & Youth Ser-
vices, supra, another case on which the plaintifis place heavy
weight, is closer to the present case, but still distinguishable.
The defendant’s case worker, suspecting that a father was
abusing his child but having no objective basis for the suspi—
cion, gave the father an “ultimatum” that if he didn’t leave
the family home immediately, the agency would place the
child in foster care. The court held the threat improper on
the ground that the case worker did not have adequate
grounds for removing the child from the parents’ custody
even temporarily. The threat was not grounded in proper le-
gal authority. The coercion about which the plaintiffs com-
plain in this case does not include such ultimate; the consent
form informs the parents of the possibility that the child will
be removed—information that is in the nature of a truism.
The trial of the merits of the plaintiffs’ challenge to the
administration of the safety plans is scheduled to begin on
October 16. Maybe they’ll be able to prove that the state
really does coerce agreement to its safety plans wrongfully
by misrepresentations or other improper means. They have
not done so yet. On the record compiled so far, the plaintiffs
are entitled to no relief at all. It is only the state’s decisiOn
not to file a cross appeal that prevents us from reversing the
grant of the preliminary injunction, and that instead re-
quires that the injunction be
AFFIRMED.
No. 06—1027 3
there would be no injunction but merely the sketch of one.
But it is apparent that the word “outlined” was used impre-
cisely; and likewise that when the court, as one of its modifi-
cations, said vaguely that “the court would add a statement
to this effect...” (emphasis added), it meant that the lan-
guage 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” eta—and a recom-
mendation 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 ap-
pendix. 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. 1). Railway Labor Ex-
ecutives’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 u. 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
cauld not be punished for violating the injunction. For in that
event he would lack standing to challenge the injunction be-
cause, being unenforceable, it would place no burden on him.
He could thumb his nose at it with impunity. Marseilles Hy-
dro Power, LLC v. Marseilles Land d”: Water Ca, 299 F.3d
643, 646—47 (7th Cir. 2002); Chicago & North Western
Transportation Co. 0. Railway Labor Executives’ Ass'n, su-
pra, 908 F.2d at 149—50; see also Bates 0. Johnson, 901 F.2d
1424, 1428 (7th Cir. 1990). “[A]n unenforceable order is no
No. 06—1027 4
order at all.” Marseilles Hydro Power, LLC U. Marseilles
Land (ft Water 00., supra, 299 F.3d at 647.
The power to review an injunction that violates Rule
65(d) extends to any adequately clear materials clearly in-
corporated into the injunction by reference. Original Great
American Chocolate Chip Cookie Co. U. River Valley Cookies,
Ltd, 970 F.2d 273, 275—76 (7th Cir. 1992); cf. Abbott Labora—
tories v. Unlimited Beverages, Inc, 218 F.3d 1238, 1241—42
(11th Cir. 2000). And that is this case. The core of the injunc-
tion is clear enough to be enforceable; it requires the defen-
dant to provide informal administrative review of “safety
plans.”
There is tension between Original Great American
Chocolate Chip Cookie Co. 1). River Valley Cookies, Ltd., su-
pra, and D. Patrick, Inc. v. Ford Motor Co., supra, which
states that an injunction that incorporates materials by ref-
erence 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 unenforce—
ability, which is not limited to incorporation by reference but
embraces any injunction that violates Rule 65(d), is inconsis-
tent 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 defen-
dant are clear enough that he can be punished should he vio-
late them.
D. Patrick justified its unorthodox position by quoting
fi‘Om HK. Porter Co. v. National Friction Products Corp, 568
F.2d 24, 27 (7th Cir. 1977), that “Rule 65(d) is no mere ex-
tract from a manual of procedural practice. It is a page from
the book of liberty.” 8 F.8d at 461. Beware decision by meta-
phor. 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,
No. 06—1027 5
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 Eli. 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 appeal—
ing 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 endanger-
ing 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 cus-
tody” 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., 799 NE. 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 Cus-
tody,” 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 proc—
ess 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 parents to the custody of their
No. 06-1027 6
children. Santosky v. Kramer, 455 U.S. 745, 753—54 (1982);
Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion).
But “when a child’s safety is threatened, that is justification
enough for action first and hearing afterward.” Lossmcm v.
Pekarske, 707 F.2d 288, 291 (7th Cir. 1983); see also
Duchesne U. Sugarman, 566 F.2d 817, 825—26 (2d Cir. 1977).
But sometimes, in lieu of immediately removing the child
from its parents, the state will offer the parents the option of
agreeing to a “safety plan,” under which restrictions short of
removal are imposed pending completion of the state's inves-
tigation into abuse or neglect. The plan might require that
one of the parents leave the house where the child is living,
or that he keep out of the child’s presence unless a desig-
nated family member is present as well, or that the child he
sent to live with other family members. Although these cur-
tailments of parental rights are less extreme than removing
the child from parental custody altogether and sticking him
in foster care, they may be invasive enough to count as dep-
rivations of liberty, thus triggering the right to a hearing.
The difference from the standpoint of parental rights be-
tween removing the parent fi'om the child’s home and remov-
ing the child from the home is not negligible, because in the
first case the child remains in his accustomed residence and
often with one of his parents. But it is not great enough to
justify concluding that there is no invasion of parental lib-
erty in the first case, Croft u. Westmoreland County Children
(9; Youth Services, supra, 103 F.3d at 1125—27, although the
amount of process that is constitutionally required may be
less since the deprivation is less. See Gottlieb U. County of
Orange, 84 F.3d 511, 522 (2d Cir. 1996).
Critically, however, the decision to agree to a safety plan
is optional with the parents. If they think that if they turn
down the plan the state will not try to remove the child from
their custody, or that if it does they will prevail in the
prompt judicial hearing to which they are entitled on the
propriety of the removal, they will reject the plan. The plan
is thus a form of interim settlement agreement pending the
outcome of the investigation, as when a plaintiff in a suit for
No. 06—1027 7
restitution agrees not to move for immediate seizure of as-
sets held by the defendant if the latter agrees to place them
in judicial custody. It is not surprising that the safety-plan
program is not embodied in a statute or formal regulation,
but merely in internal directives of the Department of Chil-
dren and Family Services. It imposes no obligation on any»
body.
Which answers the plaintiffs' argument that the Consti-
tution entitles parents to a hearing before they are offered
the option of agreeing to such a plan. There is no right to a
hearing when no substantive right has been infringed or is
threatened with being infringed. The state does not force a
safety plan on the parents; it merely offers it. Parents are
entitled to a hearing if their parental rights are impaired,
and the offer of a settlement no more impairs those rights
than a prosecutor’s offer to accept a guilty plea impairs the
defendant’s right to trial by jury.
It is true that by refusing to agree to a safety plan, as by
refusing to plead guilty, a person may find himself in a worse
pickle than if he had accepted it. The plan might be for the
child’s father to move out of the house for a week. If he re-
fused, the state might decide to place the child in foster care,
and though if it did so he could demand a judicial hearing,
the judge’s ruling might go against him. That is a dilemma
implicit in any settlement process. If there weren’t a down-
side to refusing to settle, there would be no settlements.
Of course should the state violate the terms of the safety
plan and by doing so curtail parental rights beyond what the
parents had agreed to, they would be entitled by the Consti-
tution to a prompt hearing. But that is not the complaint.
The plaintiffs are very wroth because, they say, the state
sometimes offers a safety plan on the basis of “mere suspi-
cion” of child abuse or neglect, rather than probable cause or
at least reasonable suspicion. But as mere suspicion—some
inarticulable hunch—is not a statutory ground for actually
removing a child from his parents’ custody (Illinois law re-
quires, as we know, that the state have reason to believe that
the child is in imminent danger), the parents in such a case
No. 06—1027 8
have only to thumb their nose at the offer and the agency can
do nothing but continue its investigation, which it would do
anyway. The plaintiffs complain that the prospect of a hear-
ing if the state removes a child is not adequate because the
hearing will not address the details of the safety plan; it will
deal exclusively with the validity of the child’s removal from
the home and therefore, the plaintiffs insist, is inadequate.
The argument is silly; a plaintiff might as well say that a
tort suit can’t be settled without a hearing on the validity of
the settlement. Because the safety plan is voluntary, no
hearing of any kind is necessary; hearings are required for
deprivations taken over objection, not for steps authorized by
consent.
It adds nothing to say as the plaintiffs do that they did
not really consent—mthat the state “coerces” agreement to
safety plans by threatening to remove the child from his par»
ents’ custody unless they agree to the plan; It is not a forbid-
den means of “coercing” a settlement to threaten merely to
enforce one’s legal rights. If you sue and before judgment set-
tle because the defendant is willing to settle on more favor-
able terms than you expect to obtain from pressing the suit
to judgment, you’ve obtained a favorable settlement on the
basis of an implicit threat to litigate to an outcome that
would make the defendant worse off than if he settled; but
you have not infringed any right of his. Coercion is objection-
able—and when objectionable is more aptly described as du-
ress or extortion—when illegal means are used to obtain a
benefit.
There is no evidence of that. The consent form that the
state gives parents requires them if they consent to state in
writing that they “understand that failure to agree to the
[safety] plan or to carry out the plan may result in a reas—
sessment of my home and possible protective custody and/or
referral to the State’s Attorney's Office for ’a court order to
remove my children from my home.” This just notifies the
parents of the lawful measures that may ensue from their
failure to agree to a plan or, if they agreed to it, from their
violating the plan. There is no suggestion that the agency of-
No. 06—1027 9
fers a safety plan when it has no suspicion at all of neglect or
abuse, and even in that case the ordinary prerequisite to a
finding of duress—that the person have no effective legal
remedy against the threat, Zapata Hermanos Sucesores, SA.
1). Hearthside Baking Co., 313 F.3d 385, 390 (7th Cir. 2002);
Oxxford Clothes XX, Inc. v. Expediters Int’l, Inc, 127 F.3d
574, 579 (7th Cir. 1997); Abbadessa n. Moore Business
Forms, Inc., 987 F.2d 18, 22—23 (1st Cir. 1993)—would be
missing, since if a child is actually taken, the parents have a
very prompt legal remedy. If the agency has even a bare sus-
picion, this may ripen in the course of the investigation into
cause to obtain a court order of removal, and this possibility
is all that the consent form should and does warn the par-
ents of.
We can’t see how parents are made worse off by being
given the option of accepting the offer of a safety plan. It is
rare to be disadvantaged by having more rather than fewer
options. If you tell a guest that you will mix him either a
Martini or a Manhattan, how is he worse off than if you tell
him you’ll mix him a Martini? And yet the belief that giving
people more options makes them worse off is common, espe—
cially in cases involving guilty pleas, as in our recent case of
United States U. Spilmon, 454 F.3d 657 (7th Cir. 2006). The
defendant agreed to plead guilty and receive a 57mmonth
sentence. As part of the plea agreement the government
dismissed charges against his wife. The defendant moved to
set aside the guilty plea on the ground that he had been co—
erced to plead guilty by the realization that otherwise his
wife would be prosecuted. We affirmed the denial of the mo-
tion. We said “it would be in no one’s interest if a defendant
could not negotiate for leniency for another person. From the
defendant’s standpoint the purpose of pleading guilty is pre—
cisely to obtain a more lenient outcome than he could expect
if he went to trial.” Id. at 658. In words equally applicable to
this case, we added that “suppose Spilmon were innocent,
and knowing this but wanting to convict him the government
told him that unless he pleaded guilty it would prosecute his
wife—whom it also knew to be innocent. The couple could of
No. 06—1027 10
course reject the package deal, hoping to be acquitted (being
by hypothesis innocent), but given the inherent uncertainties
of the trial process they might be afraid to do so, and the re-
sult would be a plea of guilty that resulted in the conviction
of an innocent person (the husband). That would be a case of
duress—uthat is, of pressure exerted to obtain a result to
which the party applying the pressure had no right—and
likewise if the government threatened to prosecute the de-
fendant’s wife knowing that she was innocent. But it is not
duress to offer someone a benefit you have every right to re-
fuse to confer, in exchange for suitable consideration.” Id. at
658—59 (emphasis added; citations omitted). To the same ef—
fect, see United States v. Miller, 450 F.3d 270, 272—73 (7th
Cir. 2006).
The fact that the safety-plan option is a boon to parents
may explain why, though similar options are offered by other
states, see, e.g., In. re TA, 631 S.E.2d 399, 400 (Ga. App.
2006); In re MG.T.~B, 629 S.E.2d 916, 917—19 (NC App.
2006), lawsuits challenging them have been rare—indeed
this is the first we’ve found. A safety plan seems a sensible,
perhaps indeed an unavoidable, partial solution to the ago-
nizingly difficult problem of balancing the right of parents to
the custody and control of their children with the children‘s
right to be protected against abuse and neglect.
The plaintiffs point us to Doe v. Heck, 327 F.3d 492, 524—
25 (7th Cir. 2003), which held, as far as bears on this case,
that a state agency violated the Constitution by threatening
parents with removing their child fi'om their custody if they
did not have their attorney call the agency within 24 heurs.
But it was a threat the agency had no right to make. It did
not suspect the parents of child abuse. The child had been
spanked at school, and the agency was investigating the
school and wanted to interview the child and the parents
were not cooperating. The agency had a right to interview
the child, but there are procedures for compelling such an
interview, and threatening the parents with the loss of their
parental rights was not among the authorized procedures.