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When an injunction isn’t an injunction

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Like the smell of a rose, an injunction by any other name is still an injunction. Yet, calling it an injunction does not make itso. This article discusses the types of orders that constitute immediately appealable injunctions under Illinois Supreme Court Rule 307(a)(1).

Ordinarily, only final orders are appealable. However, the 300 series of the Illinois Supreme Court rules allows for certain exceptions. Under Rule 307(a)(1), an interlocutory order granting, modifying, refusing, dissolving or refusing to dissolve or modify an injunction is immediately appealable. In determining whether an order constitutes an injunction for purposes of appeal, courts look to the substance, not the form, of the action. Actions that have an injunctive effect are immediately appealable even if they are not labeled or called an injunction. In addition, so-called injunctions that are administrative or ministerial are not true injunctions and, therefore, cannot be the subject of an interlocutory appeal under Rule 307(a)(1).

Administrative or ministerial orders are described as orders stemming from the inherent power of all courts, not just courts of equity. These orders do not affect the daily relationship of the parties apart from the litigation. Hence, they are different than a traditional injunction. Knowing the difference between true injunctive orders and noninjunctive orders is critical in deciding if and when an order can be appealed. An interlocutory appeal of an order will be dismissed if the order does not qualify as one granting or modifying an injunction under Rule 307(a)(1).

In In re A. Minor, 127 Ill.2d 247 (Ill. 1989), the Illinois Supreme Court held that an order prohibiting a newspaper from publishing the name of a minor was an appealable injunction under Rule 307(a)(1) because it was beyond the scope of the courts’ powers. The court noted a policy of broadly construing the term injunction for appeal purposes and listed examples of appealable injunctive orders, such as temporary restraining orders, orders staying court proceedings and orders denying a motion for a stay. Another example of an appealable injunction is an order directing a doctor’s deposition and production of medical records, which would enjoin a party from asserting the patient-physician privilege.

Notwithstanding the policy of broadly construing the term injunction, the appellate court has repeatedly dismissed appeals from orders that do not qualify as injunctions.

In In re Marriage of Molloy, 2011 Ill. App. LEXIS 82 (1st Dist. 2011), the appellate court addressed the appealability of an order placing certain parameters on a Section 604.5 custody evaluation. The circuit court barred the husband’s attorney from attending the custody evaluation and the husband tried to appeal the order immediately. The appellate court dismissed the appeal for lack of jurisdiction, holding that the order barring the husband’s attorney from attending the evaluation was not an injunction subject to immediate appeal under Rule 307(a)(1). Rather, the trial court’s order regulated a procedural aspect of the litigation and imposed a condition on the custody evaluation as contemplated by Section 604.5. The appellate court clung to the procedural language in 750 ILCS 5/604.5, which expressly provides that an order for a custody evaluation “shall fix the time, place, conditions and scope of the evaluation.”

The appellate court has dismissed similar interlocutory appeals from orders in divorce cases that did not qualify as injunctions. For instance, the appellate court dismissed the interlocutory appeal of an order requiring a pension board to comply with a qualified domestic relations order because the order was not an injunction; rather, it declared the rights and obligations of the parties with respect to the husband’s pension benefits. The appellate court dismissed the appeal of an order allowing a party to use marital assets to purchase another residence during the divorce proceedings and dismissed the appeal of an order awarding interim attorney fees and requiring an attorney to place the interim fees into an escrow account. Dismissal was warranted even though the court used language relevant to the issuance of a preliminary injunction.

In the divorce context, the court has broad powers to order someone to do or not do something, particularly under the temporary relief provisions of 750 ILCS 5/501. However, ordering that something be done or not done does not always transform the order into an injunction. Nor does calling an order an injunction determine its true character and make it immediately appealable under Rule 307(a)(1). The key is to look at the substance, not the form, of the action taken and decide whether it is administrative or ministerial or injunctive in nature. Temporary relief under Section 501 is usually not a temporary restraining order or a preliminary injunction that is subject to immediate appeal.

Lawyers and judges must understand the difference between injunctions and noninjunctive orders, label them properly and appeal them at the right time. Failure to appeal from an injunction may result in irreparable harm, yet the premature appeal of an interlocutory order that results in dismissal will cause unnecessary delays and wasteful expenditures

Article originally appeared in the October 2011 issue of Chicago Lawyer