Motion for Leave to File Reply in Support of Illinois Catholic Charities Emergency Motion for Stay

8/3/2019 Motion for Leave to File Reply in Support of Illinois Catholic Charities Emergency Motion for Stay

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No. 4-11-0905

IN THE ILLINOIS APPELLATE COURT

FOURTH JUDICIAL DISTRICT

CATHOLIC CHARITIES OF THE DIOCESE )

OF SPRINGFIELD-IN-ILLINOIS, an Illinois )

non-profit corporation, et al., )

Plaintiffs-Appellants, )

vs. ) Appeal from the Seventh Judicial

) Circuit, Sangamon County, Illinois

STATE OF ILLINOIS, et al., ) Circuit No. 2011-MR-254

Defendants-Appellees, ) Circuit Judge: Hon. John Schmidt

and )

)

SUSAN TONE PIERCE, et al., )Intervenors-Appellees. )

MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF

PLAINTIFFS-APPELLANTS EMERGENCY MOTION FOR STAY

Preliminary

Plaintiffs-appellants, three Catholic Charities entities for the Roman Catholic Dioceses of

Springfield, Joliet, and Belleville (hereinafter plaintiffs or, respectively, Springfield,

Joliet, and/or Belleville, or Catholic Charities), hereby move, respectfully and by their

undersigned counsel, that this Court grant them leave to file this reply in further support of their

pending emergency motion for stay of enforcement of the Circuit Courts summary judgment

order, which dismissed all of their claims, with prejudice, and for renewal or reissuance of the

preliminary injunction which had been vacated below, in order to avert an imminent crisis in

Illinoiss child welfare system and preserve the status quo ante, pending adjudication of the

merits of this appeal.

Plaintiffs also seek leave to file a Supplemental Affidavit of Gary Huelsmann, executive

director of Bellevilles Catholic Charities, to update this Court on developments that have taken


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place since filing of plaintiffs emergency motion for stay, their suggestions, and Huelsmanns

initial affidavit in support thereof. The most salient new fact is that defendant DCFS now has

agreedto reinstate the status quo ante for the Catholic Charities entity for the Diocese of Peoria,

which declined to pursue this appeal, at least until January 31, 2012, before it too must transition

its cases (i.e., children) to other agencies that do not share Catholics conscientious objections to

processing foster care applications from civil union couples.

By this reply, plaintiffs seek merely to bring to the Courts attention such new facts that

have arisen in the wake of their prior filings, as well as addressing several misstatements and

new issues contained in the oppositions forty-five pages of filings, and to highlight several

issues whose particular importance has become more sharply apparent in light of those filings.

Plaintiffs thus respectfully reassert their arguments in their emergency motion for stay herein to

avoid unnecessary repetition.

Plaintiffs central contention on appeal remains fully substantial and ought to prove

dispositive: Property ownership is not a prerequisite to asserting ones fundamental right to free

exercise of religion here in Illinois. 775 ILCS 35/1 (2010) et seq. No such qualification or

hedge on the fundamental right to religious liberty was imposed or even suggested by our

Supreme Court inMorr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 464, 502 (2008), when it held that

the Illinois Religious Freedom Restoration Act (IRFRA) affords a right to file a judicial

action when the rights protected therein are infringed upon, citing 775 ILCS 35/20 (2010). That

statute provides, without any reference to property rights or interests, that whenever a persons

exercise of religion has been burdened in violation of [the] Act, that person may assert the


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violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against

a government.1

As Mr. Huelsmanns Supplemental Affidavit makes painfully evident, the Illinois

Department of Children & Family Services (DCFS) is now accelerating its insistent demands

that over a thousand foster children precariously poised on the brink of being transitioned from

the ongoing care and oversight of the plaintiff Catholic agencies and the foster families they

recruited be moved to other agencies a move that inevitably will cause disruption, dislocation,

and discontinuity to at least some, if not a good many, of those children. Now DCFS insists that

the transitioning process begin immediately, and without further delay, and that the entire

process be completed by November 30th a date that will arrive well before this Court could

adjudicate the merits of plaintiffs claims, even subject to an expedited briefing schedule. Any

supposed need for this hurry up is belied by the fact that DCFS apparently is willing to leave

the status quo ante fully intact through January 31, 2012, for the foster children under the care

and oversight of the Peoria Dioceses Catholic Charities entity, also a plaintiff below but which

opted not to pursue its religious liberty claims on appeal.

I. New Information Provided by DCFS This Past Wednesday BeliesAny Claimof Harm on the Part of the Defendants and Intervenors.

Four other large Illinois child welfare agencies have already been forced to submit to the

defendant DCFSs coercive choice, three of them quitting the field altogether and the other

1Also, cf. Perry v. Sinderman, 408 U.S. 593, 597-98 (1972), discussed in plaintiffs motion to

reconsider (SR-100-101), holding that the plaintiffs lack of a contractual or tenure right to re-

employment for the 1969-1970 academic year is immaterial to his free speech claim, and that

even though a person has no right to a valuable governmental benefit and even though thegovernment may deny him the benefit for any number of reasons, there are some reasons upon

which the government may not rely that infringes his constitutionally protected interests

especially, his interest in freedom of speech, etc. Thus the high Court held that the grant of

summary judgment against the respondent, without full exploration of this issue, was improper.


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denying its church affiliation and changing its policy.2

Because plaintiffs refuse to jettison or

abandon their religious beliefs and practices, DCFS is moving forward with its plan to

transition or remove the more than one thousand children under the care and oversight of the

plaintiff religious agencies and trigger a swift, abrupt and decisive end to plaintiffs foster care

ministry a ministry carried on over the four decades since DCFSs inception, when DCFS

became guardian for all of Illinois neglected, abused and otherwise dependent children, and for

many decades before DCFS existed. See, Huelsmann Supplemental Affidavit, attached hereto as

Exhibit 1; Lago Declaration, C-1000, 1036-1038 (indicating that Catholic Charities began foster

care in 1921, while DCFS entered the field in 1969).

Even prior to the Circuit Courts ruling on plaintiffs emergency motion for stay, DCFS

has been demanding that plaintiffs attend transitioning meetings, the first of which occurred

this past Wednesday, October 12th. Huelsmann Supplemental Affidavit,passim. At that

meeting, DCFS revealed its intentions to have the transitioning fully completed with all children

removed from plaintiffs care and transferred to secular agencies, or religious agencies that do

not share plaintiffs beliefs, by November 30, 2011.Id., 5. That would be well prior to the

conclusion of the briefing schedule for this appeal, even upon the accelerated briefing schedule

requested by plaintiffs, to which defendants have objected insofar as that accelerated schedule

would cause their brief to be due prior to December 6, a few days after the completion of the

transitioning.

On questioning as to why the transition must occur so quickly, Dixie Peterson, General

Counsel for DCFS, stated that the State Comptrollers Office would not continue payments

2 Catholic Charities of the Diocese of Rockford, Evangelical Child and Family Agency, and

Catholic Charities of the Diocese of Peoria; and Lutheran Child and Family Services.


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without a signed contract between DCFS and plaintiffs.Id. However, according to

Comptrollers Office staff, the presence or absence of a signed contract has no impact on the

payment of foster care expenses by private agencies.Id., 13.

Furthermore, in that same transitioning meeting, DCFS also acknowledged that it has

given an accommodation to Catholic Charities of the Diocese of Peoria, which agreed to drop its

legal claims against DCFS and not to participate in this appeal. DCFS will allow Peoria Catholic

Charities to carry on the status quo ante, that is, to maintain business as usual, until January 31,

2011.3 Only after that date will Peoria Catholic Charities foster children be scheduled for

transition to a new agency.Id., 4-6. DCFSs action with regard to the Catholic Charities of

the Diocese of Peoria belies defendants claims that the plaintiffs requested emergency stay

which would provide the parties the roughly two additional months needed to complete the

accelerated briefing schedule would inflict any harm on Illinois foster children. Thus as

plaintiffs demonstrated in their suggestions in support of their emergency motion for stay, the

balance of harms tips entirely, and thus decisively, in plaintiffs favor. See, Suggestions in

support of emergency motion for stay, etc., pp. 2-3, 5-7, 19-24.

II. Defendants Misstate the Standard for Adjudication of a Claim Under theIllinois Religious Freedom Restoration Act, 775 ILCS 35/1 et seq.

Plaintiffs have asserted a claim inter alia that defendants DCFS and its Acting Director

have violated the Illinois Religious Freedom Restoration Act, 775 ILCS 35/1 (2010) et seq., by

forcing on plaintiffs and other agencies sharing plaintiffs religious beliefs and practices a classic

coercive choice. Either plaintiffs must (a) forfeit or surrender their religious beliefs by dropping

their decades-long practice of declining to process traditional foster parent applications from

3 Peoria is not aiding with DCFSs licensing new foster parents during this time period.


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unmarried couples, upon which DCFS would allow them to continue their foster care and related

adoption ministries; or they must (b) abide by their religious beliefs and suffer the adverse

consequence of being branded as invidious perpetrators of illicit discrimination (see,

Intervening Defendants-Appellees Opposition to Emgncy. Mot.,passim)4

and be debarred and

blacklisted from any prospective resumption of their foster care and related adoption ministry.

See, e.g., Verified 2d Amd. & Suppl. Compl., 4-10, 14, 16, uncontradicted; C-303-313, 316-

318.

Defendant DCFSs insistence on forcing this coercive choice upon plaintiffs exercise of

religion clearly constitutes a substantial burden under any conceivably reasonable definition

of that term and is barred by the Act. 775 ILCS 35/5, 15, 10 (citing, inter alia, Sherbert v.

Verner, 374 U.S. 398, 404-406 (1963)(It is too late in the day to doubt that the liberties of

religion and expression may be infringed by the denial of or placing of conditions upon a benefit

or privilege . To deny an exemption to claimants who engage in certain forms of speech is in

effect to penalize them for such speech. Likewise, to condition the availability of benefits upon

this appellant's willingness to violate a cardinal principle of her religious faith effectively

penalizes the free exercise of her constitutional liberties.)(internal citations omitted)); see, e.g.,

substantial, Macmillan Online Dictionary, October 17, 2011, found at

http://www.macmillandictionary.com/dictionary/american/substantial (large in amount or

degree; important, or real).

4

For instance, intervening-defendants opposition alleges that plaintiffs discrimination infects(p. 3) their entire respective ministries, that plaintiffs policy on unmarried couples harms fosterchildren (p. 4) and undermine[s] their self-esteem and emotional well-being (p. 5), that

plaintiffs want to discriminate openly while performing state duties (p. 6), etc. Intervenors

also compare plaintiffs sincere religious beliefs in the sanctity of marriage to the hateful beliefsof segregationists and other racists. See, e.g., intervenors response, pp. 4 & 9 (e.g., citingBrown

v. Bd. of Educ. Of Topeka against plaintiffs, etc.).


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A. Defendants Misstate the Meaning of Substantially Burden the Exercise ofReligion under the Illinois Religious Freedom Restoration Act and Leave

Unaddressed Plaintiffs Cases on Point.

Defendants and intervenors argue that plaintiffs must prove under the Illinois Religious

Freedom Restoration Act (the Act) that their religious faith mandates the provision of foster

care for needy and vulnerable children in order to state a cause of action the Act. In support,

they rely exclusively on a single quotation from the Appellate Courts decision inDiggs v.

Snyder, 333 Ill. App. 3d 189, 195 (5th Dist. 2002). See, Defendants response to plaintiffs

emergency motion, p. 16.5 However, defendants do not cite the source of the internal quotation

inDiggs upon which they rely, nor do they note that the case quoted and relied upon inDiggs

was Stefanow v. McFadden, 103 F.3d 1466, 1471 (9th Cir. 1996).6 This bears significance

inasmuch as a panel of the Ninth Circuit later disparaged Stefanow as no longer good law.

Navajo Nation v. United States Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007), vacd at506

F.3d 717 (en banc), later proceeding at535 F.3d 1058 (en banc).

Nor do defendants address any of plaintiffs cases opposing their spurious attempt to read

a mandates requirement into the Act. Indeed, they ignore that the Acts text specifically

defines the exercise of religion to mean an act or refusal to act that is substantially motivated

by religious belief, whether or not the religious exercise is compulsory or central to a larger

system of religious belief. 775 ILCS 35/5 (2010)(emphasis supplied). Seealso, plaintiffs

emergency motion for stay, p. 11, incorporating by reference plaintiffs motion reconsider,

5

Defendants and intervenors ignored in their responses that, for the sake of judicial economy, atpage 11 of plaintiffs suggestions in support of the emergency motion for stay, etc., plaintiffs

incorporated by reference their motion to reconsider and rehear filed in the Circuit Court (SR-94-127). Any contention by defendants and intervenors that plaintiffs have not fully supported their

arguments with authority or analysis is thus belied by the record.

6 Intervenors omitted the internal quotation marks entirely in their quotation ofDiggs.


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rehear, and vacate, etc., pp. 19-20; SR-112-113 (citingCity of Chicago Heights v. Living Word

Outreach Full Gospel Church & Ministries, 302 Ill.App.3d 564, 571 (1st Dist. 1998), revd on

other grounds, 196 Ill.2d 1 (2001)(holding that a church seeking a special use permit to locate in

commercial zone met the substantial burden test under IRFRA);Morr-Fitz, Inc. v. Blagojevich,

371 Ill.App.3d 1175, 1187 (4th Dist. 2007)(Turner, J., dissenting), revd by 231 Ill.2d 474, 502

(2008)(A forced choice between violating ones religious beliefs and complying with the law

can amount to a substantial burden within the meaning of the Religious Freedom Restoration

Act. In this case, plaintiffs claim the Rule, along with the Governors edicts, has placed

substantial government pressure on them to modify or violate their religious beliefs or face the

threat of government sanction. The alleged disregard here by the States Chief Executive of the

fundamental constitutional rights of these Illinois citizens to the free exercise of their religious

beliefs is sufficient to grant them standing under [the Act])(internal citations omitted); Morr-

Fitz v. Blagojevich, Sangamon Co., No. 2005-CH-495, Order, April 5, 2011, pp. 2-3, 5 (finding a

substantial burden, despite lack of any finding that the pharmacist-plaintiffs religious faith

mandates their practice of pharmacy)(attached to plaintiffs motion to reconsider, etc., SR-121-

127));Nelson v. Miller, 570 F.3d 868, 882 (7th Cir. 2009)(applying IRFRA, defendants

argument that a religious diet must be based on a religious requirement is erroneous); World

Outreach Conference Center v. City of Chicago, 591 F.3d 531, 535 (7th Cir. 2009)(recognizing

applicability of IRFRA to recreational and other nonreligious services, Acts protections

triggered because plaintiff was impeded in its religious mission of providing living facilities to

homeless and other needy people).

Defendants further serve up a false and unsupported claim that aggrieved Illinoisans

may not use [the Act] as a sword to require a government to grant them unique rights or to


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require the government to conform its discretionary choices to their religious beliefs. Response,

pg. 16. This assertion is belied by numerous authorities, starting with the seminal case, Sherbert

v. Verner, supra, in which the Supreme Court upheld the use of the First Amendments Free

Exercise Clause as a sword, requiring that South Carolina grant Ms. Sherbert unemployment

benefits which would seem to count as unique rights even though Ms. Sherbert,

tenaciously faithful to the tenets of her Seventh Day Adventist religion, refused to comply with

South Carolinas unemployment benefits law and make herself available for work on Saturdays,

when her religion forbade her to work. See also, 775 ILCS 35/10(2) (2010)(Laws neutral

toward religion, as well as laws intended to interfere with the exercise of religion, may burden

the exercise of religion.). Further, defendants claim (Response, p. 14) that the fate of two bills

out of thousands filed in the 97th

General Assembly should bear on the interpretation of the

Religious Freedom Protection and Civil Union Act7 is unsupported by case law. The Act was

passed by a differently-constituted General Assembly the 96th and neither of defendants bills

have received a vote on the floor in either chamber.

Intervenors cite Teen Ranch v. Udow, 479 F.3d 403 (6th Cir. 2007), a case in which the

plaintiff incorporated explicit religious content amounting to subtle coercion of young folks in

their program. The Teen Ranch government funding violated the Establishment Clause of the

First Amendment of the United States Constitution, a situation not even in the ballpark of this

case. Here, the undisputed facts of record show that the sole and but for reason that DCFS

debarred and refused Catholic Charities their ability to continue in foster care is the Charities

religious objection to processing traditional foster parent applications from civil union

7 Defendants and intervenors repeatedly refer to this law not by its title, the Religious Freedom

Protection and Civil Union Act, but as the Civil Union Act, an alteration of the title suiting

their legal position.


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participants. The record is clear: DCFS presented plaintiffs their FY12 foster care contracts;

plaintiffs signed and returned them without any change in contract terms; and in response, DCFS

refused to contract with the Charities, instead falsely accusing them of not complying with the

Religious Freedom Protection and Civil Union Act. See, e.g., 2d Amd. & Suppl. Compl., pp. 10-

11 & Exh. B; C-308-309 & 348. The facts thus show that the Catholic Charities do not seek

unilaterally to create special terms for the States child care contracts (intervenors opposition,

p. 21) or to assert some sort of veto power over the way the State performs its duties ( id., p.

22). The Charities merely seek to constrain the executive branch from violating their

fundamental rights.

B. Plaintiffs Have Presented a Substantial Claim Under the ReligiousFreedom Restoration Act.

It is unchallenged, indeed indisputable, that plaintiffs foster care and related adoption

ministry is substantially motivated by religious belief and thus protected as the exercise of

religion. 755 ILCS 35/5 (2010); plaintiffs motion to reconsider, rehear, and vacate, etc., pg. 19;

SR-112; Verified 2d Amd. & Suppl. Compl., 39, pp. 31-35; C-329-333. Defendants actions to

terminate, debar, and blacklist plaintiffs from their 90-year-long ministry thus substantially

burden[s] plaintiffs exercise of religion under the Act. 755 ILCS 35/15 (2010); plaintiffs

motion to reconsider, rehear, and vacate, etc., pg. 18-21; SR-111-115.

Defendants have offered no argument, either in the Circuit Court or here, that their

actions are in furtherance of a compelling governmental interest or that they are the least

restrictive means of furthering that compelling governmental interest.Id. Moreover,

intervenors have presented no admissible evidence that the application of the burden

debarring from future contracts, branding as discriminators, etc. is in furtherance of a


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compelling government interest, much less that applying such burden is the least restrictive

means of furthering such an interest.

In fact, neither defendants nor intervenors can credibly claim a compelling interest in

relation to civil union participants, since the Religious Freedom Protection and Civil Union Act

itself affirmativelyprotects religious agencies provision of social services from interference or

regulation. 750 ILCS 75/15 (2010); see, plaintiffs memorandum in support of summary

judgment, pp. 24-28; C-852-856; plaintiffs memorandum in opposition to intervenors motion

for summary judgment, pp. 44-48, 49-54; C-1133-1137, 1138-1143; and plaintiffs verified and

uncontradicted 2d amended & supplemental complaint, pp. 5-7; C-303-305. And, since the

General Assembly passed a specific amendment to exempt sectarian adoption agencies like

plaintiffs from the Human Rights Act, the interests forwarded by that Act cannot be

characterized as compelling in relation to these same exempt entities. See, e.g., Verified 2d

Amd. & Suppl. Compl., Counts I, II,passim.; plaintiffs memorandum in support of summary

judgment, pp. 20-24; C-848-852.

Therefore, plaintiffs have not merely shown the substantial claim required for a stay or

other temporary injunctive relief on appeal plaintiffs have shown a likelihood of success on

their claim under the Illinois Religious Freedom Restoration Act. Defendants should thus be

enjoined from violating plaintiffs exercise of religion by terminating, debarring, and blacklisting

plaintiffs that is, from persisting in deeming them ineligible as a matter of law from continuing

their foster care and related adoption ministry with DCFS. That is a classic injunctive remedy,

affording prospective relief to cure an ongoing wrong for which there is no adequate remedy at

law, and thereby to avert irreparable harm, in furtherance of the public interest guarding

against an apparent suppression of a statutory right (see infra, pp. 11 et seq.).


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III. Plaintiffs Factual Allegations Are Almost Entirely Uncontradicted and MustBe Accepted as True for Purposes of this Appeal.

In their emergency motion for stay, etc., plaintiffs cited case law holding that, when a

defendant files a summary judgment motion in lieu of an answer, the Court must accept[] all

plaintiffs uncontradicted allegations as true, unless defendant establishes by affidavit that such

allegations cannot be proven. Suggestions in support of emergency motion to stay, etc., p. 4, n.

3, quoting American Natl Bank & Trust Co. v. Edgeworth, 249 Ill.App.3d 52, 53 (1st Dist.

1993). Neither defendants nor the intervenors challenge this point of law in their responses.

A. Intervenors Conceded Below That Their Key Evidentiary Affidavits ViolatedSupreme Court Rule 191(a) Yet Both They and Defendants AssertAllegations From Those Defective Affidavits as Facts to This Court.

Both intervenors and defendants cite intervenors Brodzinsky and Shaver Affidavits in

their response to plaintiffs emergency motion for stay, etc. See, e.g., intervenors response, pp.

3, 4, 5, 7, 9, 10, 11, citing & quoting Shaver affidavit and Brodzinsky affidavit; defendants

response, p. 19, citing & quoting Shaver affidavit. Plaintiffs moved to strike these affidavits in

the Circuit Court (SR-21-27), and the Circuit Court denied plaintiffs motion (SR-53). However,

intervenors later confessed error, conceding that these key evidentiary affidavits were defective,

contravening the requirement of Supreme Court Rule 191(a) that affidavits shall have attached

thereto sworn or certified copies of all papers upon which the affiant[s] rel[y]. Intervenors

motion for leave to supplement record, p. 3; SR-330;8see Robidoux v. Oliphant, 201 Ill.2d 324,

337, 339 (2002)(The Rule 191(a) provisions barring conclusionary assertions and requiring an

affidavit to state facts with particularity would have little meaning were we to construe the

8Plaintiffs have provided a Supporting Record to this motion containing intervenors motion for

leave to supplement record, in which they confessed that their affidavits were defective. SR-328

et seq.


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attached-papers provision as merely a technical requirement that could be disregarded so long as

the affiant were competent to testify at trial.). This Court should disregard these affidavits and

any allegations premised on them.

IV. Defendants Colloquy on Stays Versus Interlocutory Injunctions Misstatesthe Applicable Standard for This Courts Consideration of the Emergency

Motion for Stay.

Defendants contend that plaintiffs more properly seek reinstatement and continuance of

the preliminary injunction instead of a stay, but defendants neither cite case law in support of

their contention nor do they address or even cite plaintiffs cases and citations on the topic.

Compare, Defendants response, pp. 4-5, with plaintiffs suggestions in support of emergency

motion to stay, p. 10, n. 5. It is clear and undeniable that, even apart from the general grant of

power to this Court under Supreme Court Rule 366(a)(5), Rule 305(b) gives this Court the power

to stay a self-executing judgment an affirmative act not part of the common law supersedeas

power of the Court. See Western United Dairy v. Miller, 40 Ill. App. 2d 403, 411-414 (1st Dist.

1963)(dismissal of complaint is a self-executing judgment); Schnepper v. American Information

Technologies, Inc., 136 Ill. App. 3d 678, 679 (1st Dist. 1985)(assuming that a stay is the

appropriate vehicle to continue an interlocutory injunction on appeal, noting that Plaintiff did

not move for a stay any time thereafter of an order denying a preliminary injunction and

dissolving a temporary restraining order that had prevented construction of a cellular telephone

facility, the Court then dismissing the interlocutory appeal of that order because the defendant

completed the tower in the interim).

Moreover, while Rule 305(a) allows a stay of The enforcementof a judgment for

money, Rule 305(b) allows a stay of the the enforcement, force and effectof appealable

interlocutory orders or any other appealable judicial or administrative order (emphasis


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supplied). See January 5, 1981, Committee Comments to Rule 305 (The 1971 amendments to

the rule abandoned the use of the term supersedeas, while preserving the distinction,

introduced in 1969, between judgments for money only, the enforcement of which is stayed upon

the filing of an approved bond, and other judgments and orders, the force and effect of which

may be stayed by order of the court.). Plaintiffs seek here to stay the force and effect of the

Summary Judgment Order, in particular that part of the Order vacating the preliminary

injunction.

Plaintiffs are thus entitled to rely upon the more flexible standard for granting a stay laid

out by the Illinois Supreme Court in Stacke v. Bates, 138 Ill.2d 295, 301-309 (1990). However,

under either the Stacke standard or the traditional preliminary injunction standard, plaintiffs are

entitled to relief.

A. The Circuit Courts Ruling on the Emergency Motion for Stay Is ReviewableDe Novo by This Court

Supreme Court Rule 305(d) allows a party to file a motion for a stay in the reviewing

court, not limiting a party to a mere appeal of a denial of a motion for stay below: A motion for

a stay may be made to the reviewing court, or to a judge thereof, but such a motion must show

that the circuit court has denied an application.

In its consideration of the plaintiffs emergency motion for stay, the Circuit Court noted

that, I understand the pain, and the harm, and the economy, and all those issues you bring up

. Transcript of Proceedings, 9/26/11, p. 22, lns. 2-3; SR-306. The Court, however, denied

plaintiffs a stay, instead reaffirming its Summary Judgment Order and holding that the analysis

all flows from the beginning of do you have a property right. And the reason for that, if I begin

anywhere else, I risk issuing an advisory opinion . Now, let's talk about the motion to stay

enforcement of judgment. I see no reason, there's been no reason to me to issue that because the


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courts basically said they're without authority to do anything else. So anything you would ask

me to do further in this case, I do not believe I have authority to do. Transcript of Proceedings,

9/26/11, pg. 22, lns. 20-24 & pg. 23, lns. 11-20; SR-306 & SR-307.

Even under an abuse of discretion standard, [a] circuit court abuses its discretion when it

makes an error of law. Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d 15, 24

(1st Dist. 2009)(citing Koon v. United States, 518 U.S. 81, 100 (1996)); see also People v.

Chapman, 194 Ill. 2d 186, 223 (2000)(error occurs when a trial court refuses to exercise

discretion in the erroneous belief that it has no discretion as to the question presented.)(quoting

People v. Queen, 56 Ill. 2d 560, 565 (1974)).

The question whether plaintiffs have presented a substantial case against defendants

summary judgment motion presents a question of law, reviewable de novo by this Court. See

Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997)(Because the construction of a statute is a question of

law, our review is de novo.); Schillerstrom Homes v. City of Naperville, 198 Ill. 2d 281, 286

(2001)(standard of review on summary judgment is de novo). As the Circuit Court didnt get

past the likelihood of success on the merits factor (Stacke, supra, at 306), much less engage in

a balancing of the likelihood of success against the harms that the Court readily acknowledged, it

committed an error of law, which is reviewable by this Court de novo.

V. Defendants Sovereign Immunity Argument is Meritless.Plaintiffs seek relief here for violations of their fundamental rights to free exercise of

religion and to due process, along with seeking declarations that they are not invidious

discriminators or otherwise in violation of Illinois law. Plaintiffs do not seek mandatory

injunctions that DCFS grant them contracts. Instead, plaintiffs seek a negative, prohibitory

injunction to prevent defendants from an ongoing, prospective violation of their rights.


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State Building Venture v. ODonnell, 239 Ill.2d 151 (2010), does not bar plaintiffs

claims. In State Building Venture, the plaintiff sought a declaration that the defendant state

official had the authority to enter into a particular contract and that the contract was binding

against the state. The Supreme Court distinguished the relief sought by the plaintiff, which the

Court held was barred by sovereign immunity, from other types of relief that do not offend

sovereign immunity, such as claims that allege the Director has taken any action in excess of its

delegated authority under the enabling statute (239 Ill.2d at 163) or claims that seek[] to

prevent the Director from acting in an unauthorized matter (239 Ill.2d at 164).

Defendants misrepresent plaintiffs claims, alleging that they arise from the

Departments decision to permit plaintiffs foster care services contracts to expire.9 Response,

p. 7. The record is clear that DCFS debarred plaintiffs from future contract renewals, branding

them discriminators and lawbreakers. See, Emerg. Mot. for Stay, Exh. B thereto, Pls. Verified 2d

Amd. & Suppl. Compl., 8, 14, 15, 57, 59, 60. Defendants also ignore the fact that, in many

previous years, plaintiffs and defendants continued their shared work of caring for Illinois

children, even without a formal contract in place (fn. 9, supra) and, of course, plaintiffs and

defendants have been working together since July 1, 2011, all without a contract.

VI. Plaintiffs Are Not State Actors And Are Thus Not Bound By the Illinois AndUnited States Constitutions.

Both defendants and intervenors contend that plaintiffs are state actors10

, but they have

presented little or no evidence in support of that argument, which is meritless. See,e.g., Garner v.

9 Obviously, each one-year contract expires at the end of its term, but the parties routinely

continued the status quo ante past the expiration of the prior years contract. Pls. Verified 2dAmd. & Suppl. Compl., 6, 55; C-308-309 & 342.

10Defendants claim would create an entirely new class of state actors, rendering those private

agencies actions attributable to the State of Illinois.


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Lakeside Cmty. Comm., 2011 U.S. Dist. LEXIS 62860 (N.D. Ill. June 13, 2011)(attached

hereto)(holding that a private child welfare agency is not a state actor and noting that, The

Court cannot merely assume that functions like foster care case management, adoptions, and

prevention of child abuse are functions that are traditionally only performed by the State. In fact,

many courts have found that they are not.)(citations omitted). In further response, plaintiffs

respectfully reassert their arguments below in their response to the summary judgment motion of

intervenors, pp. 34-43, 43-54; C-1123-1132, 1132-1143.

Intervenors arguments that plaintiffs are violating the constitutional rights of foster

parents and foster children have no foundation in fact or law. Intervenors arguments are a

rehash of their summary judgment motion below, which plaintiffs fully answered below, which

answers they respectfully reassert as if fully set forth herein. See, e.g., Plaintiffs memorandum

of law in opposition to intervenors motion for summary judgment,passim (I. Intervenors have

no standing; II. Next friend Pierces claims are 20 years late and barred by laches; IV. Relief

plaintiffs seek is consistent with best interests of Illinois foster children; V. Relief sought by

intervenors would cause incalculable harm to Illinois foster children; VII. Plaintiffs are entitled

to rely upon statutory exemptions and rights of free exercise of religion). In particular,

intervenors citation ofPerry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal. 2010), is belied

by the rulings of eleven11 of the thirteen federal circuits that homosexuals do not constitute a

11Cook v. Gates, 528 F.3d 42, 60-62 (1st Cir. 2008); Veney v. Wyche, 293 F.3d 726, 731-32 (4th

Cir. 2002);Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Scarborough v. MorganCounty Board of Education, 470 F.3d 250, 261 (6th Cir. 2006); Schroeder v. Hamilton School

District, 282 F.3d 946, 950-51, 953-54 (7th Cir. 2002), id. at 957 (Posner, J., concurring);Ben-

Shalom v. Marsh, 881 F.2d 454, 464-65 & n. 8 (7th Cir. 1989); Citizens for Equal Protection v.

Bruning, 455 F.3d 859, 866-69 (8th Cir. 2006); Witt v. Dept of the Air Force, 527 F.3d 806, 821

(9th Cir. 2008); Price-Cornelison, 524 F.3d 1103, 1113-14 & n. 9 (10th Cir. 2008);Lofton v.

Secretary of the Dept of Children & Family Services, 358 F.3d 804, 817-18 & n. 16 (11th Cir.


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suspect or quasi-suspect class requiring greater than rational basis review under either the Equal

Protection Clause of the Fourteenth Amendment or the equal protection component of the Fifth

Amendment,and a twelfth12 federal circuit has applied rational basis review without deciding

whether a higher standard would be warranted.

It bears repeating that, after over 20 years as next friend for all of the foster children in

Illinois, intervenors did not cite, let alone adduce any proof, of a single concrete instance of harm

caused by plaintiffs policies. The record is devoid of any such evidence. In fact, intervenors

Riddle and Weseman could not even allege that they themselves suffered any actionable harm, as

they have never even applied to become foster parents, nor asserted anything more than a vague

future intent to become foster parents. See, Weseman declaration; C-407; Riddle declaration;

C-405. So far as this record is concerned, not even a single person has been prevented from

foster parenting by plaintiffs decades-long policies. See, plaintiffs memorandum in opposition

to intervenors motion for summary judgment, pp. 18-25; C-1107-1114; Declarations of Glenn

Van Cura, Steve Roach, and Gary Huelsmann; SR-128, 140, 160. Moreover, if intervenors

arguments, which the Circuit Court did not address, have any merit, then a stay should be

granted so that the parties may have a decent opportunity to brief them properly before this

Court.

VII. Conclusion.Plaintiffs seek relief in this case for a gross abridgment of their fundamental civil rights.

They have asserted claims which, upon this record, are at the very least formidable and

2004); Steffan v. Perry, 41 F.3d 677, 684 n. 3 (D.C. Cir. 1994) (en banc); Woodward v. United

States, 871 F.2d 1068, 1075-76 (Fed. Cir. 1989).

12Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998). The Third Circuit has not addressed

the issue.


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substantial. Those claims have been rebuffed, almost peremptorily, without consideration of the

statutes on which they were founded, including not only the Illinois Religious Freedom

Restoration Act, but also the Religious Freedom Protection and Civil Union Act, which bars any

interference or regulation of religious activities or religious bodies, whereas here plaintiffs

religious ministry is to be altogether shut down!. See generally, Plaintiffs verified 2d amended

& supplemental complaint, Count II,passim.

While the executive branch of Illinois State Government may well claim the right to

choose the States contract partners free of any constraint, surely that claimed immunity does not

give Illinois or any of its Departments, such as DCFS, the right to ignore, much less flout, our

civil rights laws including the Illinois laws that protect our fundamental right to religious liberty

and the free exercise of religious faith. The summary judgment record leaves no doubt that

DCFS deemed plaintiffs ineligible for any further foster care referrals or other work for the sole

stated reason that plaintiffs religious practice was objectionable.

WHEREFORE, plaintiffs pray that they be allowed to file this reply in support of their

emergency motion for stay, etc., that their emergency motion for stay be granted, that DCFS be

enjoined, without bond andpendente lite, from continuing to deem them legally ineligible for

any ongoing contractual relationship with DCFS or otherwise with the State of Illinois; and for

all other relief on the premises to which they may be justly entitled.

Respectfully submitted,

/s/Bradley E. HuffOne of the attorneys for the Plaintiffs-Appellants

Of Counsel:

Thomas BrejchaPaul Benjamin Linton

Peter Breen

Thomas More Society,A public interest law firm

Bradley E. HuffRichard Wilderson

Graham & Graham, Ltd.

1201 South Eighth StreetSpringfield, IL 62703


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29 South LaSalle Street Suite 440Chicago, IL 60603

Tel. 312-782-1680

Attorney for all Plaintiffs

Tel. 217-523-4569Attorneys for Catholic Charities for

the Diocese of Springfield-in-Illinois

James C. ByrneSpesia & Ayers1415 Black Road

Joliet, IL 60435

Tel. 815-726-4311Attorney for Catholic Charities

for the Diocese of Joliet, Inc.

David WellsCatherine A. SchroederThompson Coburn LLP

One US Bank Plaza

St. Louis, MO 63101-1611

Tel. 314-552-7500Attorneys for Catholic Social Services for

Southern Illinois, Diocese of Belleville


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No. 4-11-0905

IN THE ILLINOIS APPELLATE COURT

FOURTH JUDICIAL DISTRICT

CATHOLIC CHARITIES OF THE DIOCESE )

OF SPRINGFIELD-IN-ILLINOIS, an Illinois ) Appeal from the Circuit Court for

non-profit corporation, et al., ) the Seventh Judicial Circuit,

Plaintiffs-Appellants, ) Sangamon County

)

vs. ) Circuit No.: 2011-MR-254

) Trial Judge: Hon. John Schmidt

STATE OF ILLINOIS, et al., )

Defendants-Appellees, )

)

and ))

SUSAN TONE PIERCE, et al., )

Intervenors-Appellees. )

______________________________________________________________________________

ORDER

Plaintiffs motion for leave to reply is

ALLOWED

DENIEDENTER:

DATED: ___________________ _______________________________

_______________________________

_______________________________


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Exhibit

1


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Illinois Department of Children & Family Services

CSS-Belleville Transition Activity TimelineOctober 12, 2011

The following is a timeline strategy for the transition of the CSS Belleville foster

care and adoption work. The timeline activity is related to informing CSS of thework, engaging them and the receiving agencies in the process, and beginningthe internal and external transition work. This timeline assumes a transitioncompletion date of November 30, 2011.

Currently Ongoing

APT has already begun to review CSS cases to determine what casesneed to be closed or transferred by policy, prior to the transition of CSScases to other agencies. Efforts to effect that work has already begun as apart of our regular monitoring processes.

By Wednesday, October 12, 2011

Recalculation of up-to-date caseload numbers including specialized andmedically specialized cases, staffing & supervision ratios specific to CSSBelleville (current as of 10-12-2011)

Deputy Director Anderson and other Department staff vital to the transitionprocess meet via teleconference (or other means determined appropriate)with CSS CEO Huelsmann. The focus of the meeting will be thediscussion of the following

1. Departments transition plan, including necessary file reviews (on-site reviews and SACWIS reviews), and transition activitytimeframes,

2. schedule meeting with CSS administration, foster care managersand supervisors to discuss critical cases, i.e. heater cases/highprofile cases, placements in danger of disruption, kids absent fromplacement, medically specialized cases, etc.,

3. possible Department communication with CSS care providersregarding the Departments intent to maintain all placementsthrough the transition process,

4. Catholic transition concerns moving forward, and5. other issues that may arise.

Ongoing after Wednesday, October 12, 2011

APT, and other DCFS staff as deemed appropriate, will begin to reviewCSS files on-site and on SACWIS utilizing a format to be established.

Exhibit

A


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By Thursday, October 13, 2011

The Department will contact all private agencies slated to receive casesfrom CSS to inform them of the transition status. That includes ChildrensHome & Aid, Lutheran Child & Family Services, and Lutheran Social

Services of Illinois. The following will be discussed

1. Current CSS transition status, including projected timeframes fortransition activities,

2. Updated case numbers, staffing and supervision ratios,3. Elicit specific agency plans to manage additional workload, i.e.

establishing new office locations on the Marion side of the Region.

After Thursday, October 13, 2011 and before Wednesday October 26, 2011

The Department will facilitate, as necessary or as requested, meetings

between CSS Belleville and the identified receiving agency. Thepurpose of these meetings are to discuss and agree upon a strategy for

1. CSS Belleville staff retention,2. specific case transition issues,3. ongoing communication,4. facility management issues,5. equipment transfers,6. discussion and resolution of any other issues.

Tuesday, October 18, 2011 @ 11am (and every Tuesday during the CSS

transition processes)

The Department will convene an internal workgroup specific to effectingessential transition activity including Office of the Budget, Contracts,Central Payment Unit, Case Transfer Data Entry Staff, CAPU, APT,Placement & Permanency, SACWIS and Licensing to discuss thefollowing

1. Transition status update for CSS Belleville, including projectedtransition activity timeframes,

2. Stable Funding recommendations,

3. Contract updates, amendments, etc.,4. Specialized case dispositions, including medically specializedcases,

5. Licensing interests and ramifications, including licensed homeswithout placements,

6. Confirmation of data entry, case assignment activity, and7. Other items as needed.


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By Wednesday, November 2, 2011

meet with CSS administration, foster care managers and supervisors todiscuss the following

1. critical cases, i.e. heater cases/high profile cases,2. placements in danger of disruption, kids absent from placement,medically specialized cases, etc.,

3. document cases for transition purposes, SACWIS documentation4. strategize special transition activity related to individual cases as

necessary.

Effective Date of Transition Completion November 30, 2011

Via CYCIS, all cases would be removed from their assigned CSS worker.

Catholic Social Services is responsible for all pass through foster carepayments for the month of November. The receiving agency is responsiblefor paying providers assigned to their agency for the entire month ofDecember.

December 1, 2011 all CSS cases will be reassigned to casework staffemployed by the receiving agencies.

On-going data clean-up as necessary.

Documents

Motion for Leave to File Reply in Support of Illinois Catholic Charities Emergency Motion for Stay