Illinois Catholic Charities Summary of Grounds for Entry of a Stay on Foster Care Case

1

IN THE ILLINOIS APPELLATE COURT FOURTH JUDICIAL DISTRICT

CATHOLIC CHARITIES OF THE DIOCESE ) OF SPRINGFIELD-IN-ILLINOIS, an Illinois ) non-profit corporation, et al., ) ) Appeal from the Seventh Plaintiffs-Appellants ) Judicial Circuit, Sangamon ) County, Illinois vs. ) ) Hon. John Schmidt, STATE OF ILLINOIS, et al., ) Circuit Judge ) Defendants-Appellees, ) Circuit No. 2011-MR-254 ) SUSAN TONE PIERCE, et al., ) ) Intervening Defendants-Appellees. )

SUGGESTIONS IN SUPPORT OF PLAINTIFFS-APPELLANTS’ MOTION FOR AN EMERGENCY STAY OF ENFORCEMENT OF THE CIRCUIT

COURT’S SUMMARY JUDGMENT ORDER OF AUGUST 18, 2011, AND FOR RENEWAL OR REISSUANCE OF THE PRELIMINARY INJUNCTION,

PRESERVING THE STATUS QUO ANTE, VACATED BY SAID SUMMARY JUDGMENT ORDER

Introduction and Summary of Grounds for Entry of a Stay

Plaintiffs-appellants, three Roman Catholic Dioceses’ Catholic Charities entities

for the Springfield-in-Illinois, Joliet, and Belleville Dioceses in Illinois, have filed a

motion for emergency stay of enforcement of the Summary Judgment Order, entered

below by the Circuit Court on August 18, 2011 (appended hereto as Exhibit A), pursuant

to Illinois Supreme Court Rules 305(b), (d), 361, and 366(a). By that Summary

Judgment Order, the Circuit Court entered final judgment in favor of the defendants-

appellees, the State of Illinois, the Illinois Department of Children & Family Services

(“DCFS”) and its former Director, Erwin McEwen, sued in his official capacity, who

2

only recently resigned and has been newly replaced as Acting Director by Jean Ortega-

Piron (“DCFS’s Acting Director”),1 the Illinois Attorney General, Lisa Madigan, sued as

well in her official capacity (“the Attorney General’s Office”), and the Illinois

Department of Human Rights (“IDHR”), and its current Director, Rocco Claps, also sued

in his official capacity (“IDHR’s Director”), and against the plaintiffs-appellants.

What is urgently pressing and requires emergency relief is that the Circuit Court’s

Summary Judgment Order not only dismissed all of plaintiffs-appellants’ claims, as pled

in Counts I through V inclusive of their Verified Second Amended & Supplemental

Complaint (“Verified 2d Amd. & Suppl. Compl.”), a copy of which is appended hereto as

Exhibit B,2 but it also vacated the preliminary injunction which the Circuit Court

previously had entered to preserve the status quo ante, pendente lite (Exhibit C, attached

hereto). Given the dissolution of that preliminary injunction and last week’s (September

26, 2011) ensuing decision on the part of the Circuit Court (SR-327), declining and

refusing to afford plaintiffs-appellants any stay in the enforcement of said Summary

Judgment Order, or any reinstatement or renewal of the preliminary injunction, or any

stay pending application to this Court, plaintiffs-appellants now confront an imminently

threatened grave emergency, namely, the DCFS’s demand for the immediate mass

“transitioning” of more than a thousand Illinois foster children from plaintiffs-appellants’

three Catholic Charities child welfare agencies to other child welfare agencies – a

massive transfer of “cases” (i.e., foster children) that would inevitably risk the infliction

1 Plaintiffs-appellants are also moving to substitute Ms. Ortega-Piron as a successor defendant-appellee, in place of former DCFS Director Mr. McEwen. 2 One of the four plaintiffs who brought the lawsuit below, the Catholic Charities for the Diocese of Peoria, Illinois, has decided not to appeal the Circuit Court’s decision.

3

of serious, irreversible harm on those children as well as on plaintiffs-appellants. See,

generally, Affidavit of Gary Huelsmann, attached hereto as Exhibit D.

Thus the plaintiff-appellant charities would suffer grievous harm, absent a stay

and restoration of the status quo ante, having to close down their religiously-motivated

foster care and related adoption programs in compliance with defendants-appellees’

coercive demands. Thus DCFS has insisted that plaintiffs-appellants either comply with

DCFS’s misinterpretation of Illinois’ new Religious Freedom Protection and Civil Union

Act, ignoring the plain text in that Act that prohibits any “interfere[nce] with” or

“regulat[ion]” of “the religious practice of any religious body” (750 ILCS 75/15), and

demanding that plaintiffs-appellants go against one of the tenets of their Roman Catholic

religious faith, by agreeing to process applications for foster care on the part of unmarried

cohabiting couples, regardless of their sexual orientation, or else forfeit their rights to do

business with DCFS.

When plaintiffs-appellants asserted their religion-based conscientious objection to

DCFS’s coercive demand, and then filed this lawsuit on June 7, 2011, seeking entry of a

Declaratory Judgment to secure a proper interpretation of the newly effective (as of June

1, 2011) law, DCFS had sent plaintiffs-appellants new contracts proposing to renew the

parties’ service contractor relations for FY2012, which plaintiffs-appellants signed

(without changing a word) and returned to DCFS. But then DCFS didn’t countersign the

contracts. It waited until plaintiffs-appellants had served notice of a motion for

temporary restraining order and preliminary injunction on Friday, July 8, 2011, and then

later on that very date DCFS abruptly advised plaintiffs-appellants that it was refusing to

renew plaintiffs-appellants’ contract for provision of foster care and related adoption

4

services for FY2012 (Exh. B, ¶6, pp. 9-10). Worse, on account of their assertion of a

religion-based conscientious objection to DCFS’s demands, plaintiffs-appellants have

been deemed ineligible, disqualified, “debarred,” and blacklisted from any ensuing

contractual relationship with DCFS (id., ¶¶7, 8, 14, 15, 57, 59, 60).

What is at stake for plaintiffs-appellants, therefore, is nothing less than their right

to freely exercise and practice their Roman Catholic religious faith – for plaintiffs’ foster

care and related adoption programs represent as much a religious ministry as was the late

Mother Teresa’s help for the poor and disadvantaged souls in Calcutta.3 Yet plaintiffs-

appellants are protected under the Illinois Religious Freedom Restoration Act, 775 ILCS

35/1 et seq., which guarantees their right to freely exercise their religious faith, free from

any such “substantial burden” as DCFS’s coercive demands have imposed on them (and

absent any compelling governmental interest, particularly one that could not be furthered

3 Plaintiffs-appellants pled in some detail the many ways in which their involvement in foster care, adoption, and other social services is a central, critical element of their “religious practice.” Pls. Verified Amd. & Suppl. Cmplt., Exhibit B hereto, ¶39, pp. 31-36. Defendants-appellees filed no answer to the complaint, nor did the State defendants-appellees file any verified declarations or affidavits contradicting any of plaintiffs-appellants’ verified allegations. See, American Nat'l Bank & Trust Co. v. Edgeworth, 249 Ill. App. 3d 52, 53 (1st Dist. 1993) (“… where a defendant files a motion for summary judgment, as opposed to a motion to strike or dismiss, in lieu of an answer, the trial court should consider whether the complaint, standing alone, states a cause of action, accepting all plaintiff's uncontradicted allegations as true, unless defendant establishes by affidavit that such allegations cannot be proven”)(internal citations omitted), Pinnacle Corp. v. Village of Lake in the Hills, 258 Ill. App. 3d 205, 206-209 (2d Dist. 1994)(on summary judgment, taking verified complaint as true, disregarding all unverified pleadings), Metropolitan Sanitary Dist. v. Anthony Pontarelli & Sons, Inc., 7 Ill.App.3d 829, 838-839 (1st Dist. 1972) (“When there is no answer filed and the defendant petitions for a summary judgment, the court must apply the same rule, and among other things which the court can and should consider is whether or not the complaint, standing alone, states a cause of action …. In this proceeding all uncontradicted allegations made by the plaintiff must be taken as true, unless there is a showing made in the affidavits and other documents in the record that the allegation cannot be proved.”)(internal citations omitted).

5

by less restrictive means)(infra, p. 8). This same “religious practice” on the part of

plaintiffs-appellants, which qualify as “religious bodies” that operate under the spiritual

direction and practical oversight of their respective Roman Catholic Bishops, is also

protected and insulated against any such “interference or regulation” on the part of DCFS

or other Illinois governmental officials by Illinois’ Religious Freedom Protection and

Civil Union Act, 750 ILCS 75/1, 75/15, et seq.

Denial of a stay and failure to restore the status quo ante would thereby put an

end to plaintiffs-appellants’ unbroken string of some forty (40) years of such annual

renewals of foster care and adoption services contracts with DCFS, forcing plaintiffs-

appellants to shut down their foster care and adoption programs (as DCFS is the sole

source statewide for referral of new foster care cases). This is despite the fact that

plaintiffs-appellants had built up their professional staff and facilities over the last forty

years to handle so many cases, which won them praise and plaudits, renewal of their

child welfare agency licenses (as distinguished from the failure to renew state contracts

enabling plaintiffs-appellants to exercise those licenses) for years into the future. Over

their many years of service to Illinois’ needy and vulnerable children and families,

plaintiffs-appellants had earned from DCFS and independent oversight agencies ratings

and evaluations of the highest order. Exh. B, Pls. Verified 2d Amd. & Suppl. Compl.,

e.g., ¶¶51, 53. Indeed, plaintiffs-appellants have been handling so many cases precisely

because they were so highly rated by DCFS, which assigns new cases to agencies by way

of a “performance-based” system. That is, those agencies, such as Catholic Charities,

who compile the best record of achieving “permanency” outcomes for children whose

cases are assigned to Catholic Charities, receive a disproportionate share of new case

6

referrals from DCFS. See, Decl. of Jimmy Lago, ¶¶6, 7, & Exh. C thereto, re “leadership

role that Illinois’ Catholic Charities have played in achieving permanency for the children

under their care,” and Exh. D thereto, Testimony by former DCFS Director Jess

McDonald on “Illinois’ Performance Contracting in Child Welfare”; C-1000-C-1016.

Denial of a stay and preservation of the status quo ante also would force Catholic

Charities to incur a host of other extraordinary, non-recurring expenses (e.g., accrued

vacation and holiday pay and plant shutdown expenses, etc.), generating “spillover costs”

which would impair their other charitable programs at this critical time when so many

Americans have been newly thrust below poverty levels.

Defendant-appellee DCFS’s immediate mass “transitioning” of all these foster

children would also jeopardize the capacity of plaintiffs-appellants to secure the fruits of

this appeal, even if ultimately it would prove successful. Once the over one thousand

children in the care of the Charities are transferred to other child welfare agencies, it

would be difficult, if not impossible, to try to “unscramble the eggs” where the “eggs” are

fragile and vulnerable children and when reversing those transfers would force yet

another potentially traumatic change on these children.

Defendants-appellees’ planned and imminently threatened “transitioning” process

would thus disrupt, if not destroy, the stability and continuity of the foster care

relationships of those children whom plaintiffs-appellants have been serving – in

cooperation with the defendants-appellees – for some four decades, and otherwise for

many more years, if not millennia, before the State ever became involved in child care

7

activities.4 And during their forty years of working with DCFS, it bears repeating that

plaintiffs-appellants have earned unqualified praise, plaudits, and evaluations of the

highest order with respect to the quality of the social and professional services which they

have rendered for the benefit of these children and families (supra, p. 5).

Because plaintiffs-appellants will only keep on providing these same high quality

professional services for the benefit of children and families if this Court grants them a

stay and preservation of the status quo ante, the balance of harms decisively favors

plaintiffs-appellants. Indeed, there is no harm – nil, zero! – on the opposite side of the

balance. Catholic Charities are not out of compliance with Illinois’ newly effective so-

called “civil union law,” whose provisions specifically protect plaintiffs-appellants’

religiously-motivated foster care and adoption programs (supra, pp. 5-6).

Similarly, plaintiffs-appellants are not out of compliance with the Illinois Human

Rights Act, which outlaws “sexual orientation” and “marital status” bias on the part of

4 See generally, the Declaration of Jimmy Lago, Chancellor of the Archdiocese of Chicago from 2000 to the present, whose educational and professional background has been focused very extensively on child welfare issues in Illinois, including inter alia service as Administrator and Project Director for the Winnebago County Child Protection Project in 1975-76, and thereafter service on DCFS’s Child Welfare Advisory Board, the State of Illinois Futures for Kids Advisory Panel, the DCFS Title IV-E Advisory Group, and the Advisory Board for the Center for Child Welfare and Education, a partnership between DCFS and Northern Illinois University. Chancellor Lago avers that prior to the creation of DCFS in the 1960’s, courts would place foster children under the direct care of Catholic Charities and other private agencies, with Catholic officials serving as court-appointed guardians for those foster children. Attachments to Lago’s Declaration describe DCFS’s new “Permanency Initiative” legislation, which Lago helped DCFS to pass and implement. DCFS’s initiation of “performance-based contracting” helped drastically to improve the success rate of DCFS in moving foster children into “permanency” outcomes.

Also attached to Lago’s Declaration are excerpts from a Chicago Archdiocesan history of Catholic Charities endeavors which reflects the Church’s long and distinguished history of charitable services rendered for the benefit of disadvantaged and needy young people.

8

“places of public accommodation” – the latter phrase being defined in the Act so as,

again, to exempt the plaintiffs as sectarian adoption agencies (Exh. B hereto, Verified 2d

Amd. & Suppl. Compl., Ct. I, ¶¶1-34).

Finally, plaintiffs-appellants are fully protected against suffering any “substantial

burden” on their “exercise of religion” by the Illinois Religious Freedom Restoration Act

(“RFRA”), given that defendants-appellees cannot show, and have not shown, that any

“compelling governmental interest” requires that plaintiffs-appellants go against their

religious faith by processing applications for foster care or adoption from unmarried

cohabiting couples, or that the governmental interest at stake cannot be satisfied

adequately by a “less restrictive alternative” than shutting down plaintiffs-appellants’

foster care program in its entirety. In fact, pursuant to the status quo ante, plaintiffs-

appellants’ resort to a referral option – referring unmarried cohabiting applicants for

foster care or adoption to DCFS for assignment to other child welfare agencies that do

not share plaintiffs-appellants’ conscientious religious objections – would appear to

constitute just such a “less restrictive alternative” as referred to in RFRA (id., Ct. III, ¶¶1-

47).

Thus plaintiffs-appellants are now asking this Court to bar and restrain the

defendants-appellees, more specifically the DCFS and its new Acting Director, from

continuing in their blatantly illegal determination that plaintiffs-appellants are ineligible,

debarred, blacklisted, and disqualified from any further dealing with defendants-appellees

as an independent contractor. Plaintiffs-appellants will demonstrate infra, pp. 11-19, that

the claims they have pled are not merely substantial ones, but claims upon which they are

fully likely to prevail upon this appeal and in the course of any further proceedings.

9

The Circuit Court has agreed with the defendants-appellees’ contention that this

refusal of DCFS to renew plaintiffs-appellants’ annual purchase of service contracts for

FY2012, communicated on the eve of plaintiffs’ presenting their motion for preliminary

injunction below, sufficed to defeat not only plaintiffs-appellants’ claim that they were

deprived of a property interest without due process of law (id., Count IV), but also that it

was fatal to all their other claims as well. In pertinent part, the Circuit Court’s Summary

Judgment Order thus recited in its footnote 1, p. 3 (C-1288), Exh. A hereto, as follows:

“As the court has found the Plaintiffs have no protected property right in the renewal of their contracts it is not necessary to address their claims the State violated their rights pursuant [to] the Illinois Human Rights Act, 7875 ILCS 5/1-101 et seq. the Illinois Religious Freedom Protection & Civil Union Act, 750 ILCS 75/1 et seq. and the Illinois Religio[u]s Freedom Restoration Act 775 ILCS 35/1 et seq.”

Plaintiffs-appellants, respectfully, disagree with this analysis as the question

whether or not they had a property interest warranting due process protection, as alleged

in Count IV, is a claim that must be viewed as separate and apart from their other claims,

which continue to pose actual controversies, as to each of which plaintiffs-appellants

contend on appeal that they are duly entitled to an adjudication by way of Declaratory

Judgment, as well as ancillary equitable and other relief. In addition, plaintiffs-appellants

will urge on appeal that the Circuit Court also erred in rejecting their due process claim

predicated on an alleged deprivation of their property interest.

Plaintiff-appellants now turn to a more detailed review of the factors warranting

entry of a stay on appeal, as follows:

Grounds for Plaintiffs-Appellants’ Motion for Emergency Stay on Appeal

Plaintiffs-appellants are granted a right to pursue this appeal, as of right, pursuant

to Illinois Supreme Court Rule 301, before this Court. Together with their motion for

10

entry of an emergency stay on appeal pursuant to Illinois Supreme Court Rules 305(b),

(d), 361, and 366(a), plaintiffs-appellants are filing a motion to accelerate the appeal

pursuant to Illinois Supreme Court Rule 311(b), so as to minimize the duration of the stay

which they are asking this Court to enter on their behalf, pending a final adjudication of

the issues presented on appeal.

In the event that any further appeal becomes necessary, inasmuch as they are

seeking entry of a stay pending the completion of all appeals herein, plaintiffs-appellants

will take the necessary steps to accelerate any further appeals as well.

Plaintiffs-appellants respectfully submit that entry of a stay on appeal is fully

warranted upon the principles set forth in Stacke v. Bates, 138 Ill.2d 295, 308-09 (1990),

in order to preserve the status quo ante pending appellate review.5

Application of the Principles for Granting or Denying a Stay in Stacke v. Bates

Whether to grant a stay or not is a matter entrusted to the discretion of this Court,

pursuant to the rules and principles laid down by the Illinois Supreme Court in Stacke v.

Bates, supra, 138 Ill.2d at 301. The Court is tasked to weigh multiple relevant factors

5 Defendants-appellees alleged that “there is nothing to ‘stay’” (SR-279), in response to plaintiffs-appellants’ motion to stay in the Trial Court. However, Supreme Court Rule 305(b) provides this Court the power to “stay the enforcement of any judgment … or the enforcement, force and effect of appealable interlocutory orders or any other appealable judicial or administrative order.” See Commercial Nat'l Bank v. Chicago, 89 Ill. 2d 45, 49 (1982)(reinstating a preliminary injunction against the operation of Chicago's service-tax ordinance that had been vacated on final judgment in the Circuit Court); see also, Committee Comments to Rule 305, January 5, 1981 (recognizing that, “[u]nder subparagraph (b)(1), the court is empowered to stay the force and effect of a self-executing judgment”); cf., Fed. R. Civ. Pro. 62 (“Stay of Proceedings to Enforce a Judgment” includes, at part (c), “Injunction Pending Appeal”), Cavel Int'l, Inc. v. Madigan, 500 F.3d 544, 546-547 (7th Cir. 2007)(reinstating preliminary injunction vacated on final judgment because plaintiffs would be driven out of business without stay). Supreme Court Rule 366(a)(5) also provides this Court the power to “enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief,” etc.

11

including: “whether a stay is necessary to secure the fruits of the appeal in the event the

movant is successful” (Id., at 305), “likelihood of success on the merits” (Id. at 306), and

“likelihood that the respondent will suffer hardship” (Id., at 307). Stays are most

commonly granted to keep the status quo ante intact throughout appellate review. See,

e.g., Jojan Corp. v. Brent, 307 Ill. App.3d 596, 609 (1st Dist. 1999). Ultimately, the

decision whether or not to grant a stay will entail a balancing of all the relevant factors.

Stacke, supra, 138 Ill.2d at 308-09. The burden on the party who seeks entry of a stay is

not to show any probability of success, but rather only a “substantial case” on the merits

of the party’s claim or claims. Also, that party must show that the balancing of all the

equitable factors tips in favor of granting a stay. Id. Here, in the case at bar, not just

some but all of the factors weigh decisively in favor of granting a stay so as to preserve

intact the status quo ante pending further action by this Court, and/or by the Supreme

Court, should a further appeal be necessary.

Plaintiffs-Appellants Have Made a Substantial Case on the Merits of Their Claims

Here, plaintiffs-appellants have adduced multiple compelling grounds warranting

a reversal of the Circuit Court’s Summary Judgment Order, rendering it fraught with

doubt, rather than “free from doubt,” as mandated for summary disposition by the Illinois

Supreme Court’s decision in Purtill v. Hess, 111 Ill.2d 229 (1986). Plaintiffs-appellants

hereby refer to and incorporate by reference the contents of their Motion to Reconsider,

Rehear, and Vacate, etc., filed in the Circuit Court on September 9, 2011, which may be

found at SR-94 through SR-127 inclusive, but for the present they merely state these high

points for consideration:

a. The Circuit Court Misconceived the Thrust of Plaintiffs-Appellants’ Advocacy

12

Repeatedly, the defendants-appellees argued below that plaintiffs-appellants were

trying somehow to force the State to enter into a contract with them, urging that this was

barred by fundamental and long settled law, going all the way back to Perkins v. Lukens

Steel Co., 310 U.S. 113, 127 (1940)(“Government enjoys the unrestricted power … to

determine those with whom it will deal and to fix the terms and conditions upon which it

will make needed purchases”). But plaintiffs-appellants never contended that either they,

or anybody else, could force the government to contract with them, or to dictate the terms

of such a contract, any more than a prospective employee might “force” the government,

or any other employer, to hire him or her ab initio. Rather, on the contrary, plaintiffs

have contended – and the uncontradicted allegations of plaintiffs-appellants’ Verified

Second Amended & Supplemental Complaint, having the benefit of all favorable

inferences therefrom, leave little room for doubt – that defendants-appellees would have

renewed their annual contract with plaintiffs-appellants, both parties having agreed to

each and every contract term that defendants-appellees had proposed to plaintiffs-

appellants – but for one critical reason, an illegal reason, which was the sole stated

reason that defendant-appellee, the Director of DCFS, enunciated in his July 8 letter to

each of the plaintiffs-appellants (supra, p. 3), namely, that plaintiffs-appellants had

voiced a religion-based conscientious objection to the defendants-appellees’ insistence

that the Illinois Religious Freedom Protection and Civil Union Act required that

plaintiffs-appellants renounce their religious objection to processing applications for

foster care or adoption from unmarried cohabiting couples. That is, defendants-appellees

coerced plaintiffs-appellants to give up their sincerely held religious objection as a

condition to the State’s continuing to do business with them! The record below, indeed,

13

left not a scintilla of doubt that but for said religious objection, the defendants-appellees

would have agreed to contractual relations with the plaintiffs-appellants for yet another,

forty-first (41st) year!

There never was any disagreement over even a single term of the FY2012

contracts which the defendants-appellees, DCFS and its Director, had proposed to each of

the plaintiffs-appellants. Rather, the parties only disagreed on a point of law, namely, the

meaning of the parties’ agreed covenant that the contractor – i.e., each of the plaintiffs-

appellants – would comply with all of the applicable laws, with respect to which laws

plaintiffs-appellants sought the issuance of Declaratory Judgments below. Those

questions were:

(i) were plaintiffs-appellants subject to the Human Rights Act

proscriptions against sexual orientation or marital status

discrimination, which were binding upon “places of public

accommodation”?;

(ii) were plaintiffs-appellants subject to the constraints imposed by the

newly effective (as of June 1, 2011) Illinois Religious Protection and

Civil Union Act?; and

(iii) were plaintiffs-appellants protected against defendants-appellees’

insistence that they process applications for foster parentage or

adoption on the part of unmarried cohabiting couples, as a condition to

their continuing contractual relations with the State of Illinois, by the

provisions of the Illinois Religious Freedom Restoration Act?

14

But defendants-appellees were unwilling to abide plaintiffs-appellants’ putting these

questions before the Circuit Court for resolution by way of Declaratory Judgment.

Instead, Director McEwen wrote the July 8 letters, refusing to renew plaintiffs-

appellants’ contracts for FY2012.

Plaintiffs-appellants contend that they were uncovered and unconstrained by, and

exempt from, both the Human Rights Act (Count I) and the Religious Freedom Protection

and Civil Union Act (Count II). Likewise they contend that they were protected against

any “regulation or interference” with their “religious practice” by the Religious Freedom

Protection and Civil Union Act (Count II), and against any “substantial burden” on their

“exercise of religion” by the Illinois Religious Freedom Restoration Act (Count III), so

that defendants-appellees were in fact barred from conditioning their continuing of

contractual relations with plaintiffs-appellants on the latter’s giving up their religious

commitments. Further, plaintiffs-appellants have contended that they enjoyed both a

liberty interest, not only in the free exercise of their religious faith in their foster care and

adoption ministry, but also in the preservation of their good name and reputation as

against defendant-appellees’ public charges that they were guilty of illegal discrimination

and therefore unfit for any further contractual relations with DCFS (based on the

foregoing Illinois statutes relative to religious liberties), and a property interest in renewal

of the FY2012 contract, as alleged in Count IV of their Verified 2d Amended &

Supplemental Complaint. Thus the thrust of plaintiffs-appellants’ lawsuit is not that

defendants-appellees’ should be forced to contract with them, but rather that defendants-

appellees, having only refused to contract with plaintiffs-appellees for illegal reasons,

should be required to redress and repair their violation of Illinois law.

15

b. The Ruling Below that Lack of a Property Right Was Fatal to All Claims Was Wrong

The Circuit Court erred in concluding, as recited in footnote 1 in its Summary

Judgment Order (Exh. A, p. 1, fn. 1; C-1288), that its finding that plaintiffs-appellants

had no legally protected property right made it unnecessary even to address, much less to

adjudicate on their merits, Counts I, II, or III, or the plaintiffs-appellants’ claim that they

had been deprived of a liberty interest, without due process of law, as alleged in Count

IV. All those claims stood on independent footing, separate and apart from any allegedly

requisite “property right.”

In Morr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 464, 502 (2008), the Supreme Court

held that the Illinois Religious Freedom Restoration Act affords “a right to file a judicial

action when the rights protected therein are infringed upon,” citing 775 ILCS 35/20,

which states, without limitation, that whenever “a person’s exercise of religion has been

burdened in violation of [the] Act, that person may assert that violation as a claim or

defense in a judicial proceeding and may obtain appropriate relief against a government.”

Here, the Circuit Court did find that defendants-appellees have forced plaintiffs-

appellants out of their non-profit “business” of providing foster care and related adoption

services “because the Plaintiff[s] would not provide those services to unmarried

cohabiting couples” (Summary Judgment Order, Exh. A, p. 2; C-1287). It is undisputed

that this is owing to plaintiffs-appellants’ Roman Catholic religious beliefs and practices.

Plaintiffs-appellants’ “exercise of religion” clearly suffered a “substantial burden,” as

indeed they have been “branded” and stigmatized by defendants-appellees as law

breakers, guilty of discrimination, and thus “debarred” as “ineligible” for contracts with

DCFS (e.g., Exh. B hereto, plaintiffs-appellants’ uncontradicted Verified 2d Amd. &

16

Suppl. Complaint, ¶¶7, 8, 14, 15, 57, 59, 60). Moreover, the critical phrase, “exercise of

religion,” is statutorily defined as “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). That statutory definition is

controlling, as whenever text is so explicit and clear, it controls. Thus as plaintiffs-

appellants previously urged (Motion to Reconsider, etc., pp. 19-21; SR-112-114), Count

III should have survived summary judgment regardless of any other claim involving

“property rights” or “interests” or “expectancy”. With all deference, the Circuit Court’s

Summary Judgment Order effectively wrote the Illinois Religious Freedom Restoration

Act out of existence, consigning it to oblivion.

c. Count I Likewise Should Have Survived Summary Judgment

Count I also should have survived summary judgment, apart from any claim or

decision about “property rights,” or “interests,” or “expectancy.” Plaintiffs-appellants

pled in Count I, and adduced compelling evidence in support of their claim, that they are

exempt as sectarian adoption agencies from the strictures against marital status and

sexual orientation discrimination in the Illinois Human Rights Act, applicable only to

“places of public accommodation.” This claim goes against the Attorney General’s

Office contention that plaintiffs-appellants are subject to that Act and thus exposed to the

Attorney General’s statewide investigation as to whether plaintiffs-appellants had been

guilty of a “pattern or practice” violation of the Human Rights Act. Despite the Circuit

Court’s ruling, plaintiffs-appellants remain vulnerable to the Attorney General’s

resumption of her investigation -- an investigation that presupposes that plaintiffs-

appellants are subject to that Act. That same presupposition renders plaintiffs-appellants

17

subject to still further charges of “discrimination” on the basis of sexual orientation or

marital status that may be entertained by the defendant-appellee Illinois Department of

Human Rights. But as alleged in Count I, the Attorney General’s investigatory actions

are contrary to law, and should be enjoined, arrested, and prohibited, according to the

clear legal precedent laid down by our Supreme Court in Bd. of Trustees of So. Ill. Univ.

v. Dep’t of Human Rights, 159 Ill.2d 206, 211 (1994). This claim in Count I likewise has

nothing to do with any “proof of property right” which the Circuit Court held to be

indispensable for plaintiffs-appellants’ prevailing upon any of their claims. Surely this

violation alleged in Count I isn’t moot, as it continues to aggrieve plaintiffs-appellants,

even apart from defendants-appellees’ non-renewal of FY2012 contracts, as they remain

vulnerable to statutorily baseless charges of lawless discrimination as “places of public

accommodation.”

d. Count II Also Should Have Survived Summary Judgment

Count II likewise presents a claim for declaratory judgment, to which plaintiffs-

appellants are duly entitled to have addressed and adjudicated on its merits. Branded as

law breakers and declared ineligible for, and debarred from, future contracting with

DCFS, all on account of the defendants-appellees’ baseless claims that plaintiffs-

appellants flouted the “Religious Freedom Protection and Civil Union Act,” plaintiffs-

appellants have standing to win a ruling from this Court that they are not in violation of

that Act but rather exempt from it, and not even constrained by its terms which only

restrict government. The Court’s Summary Judgment Order never touches the merits of

this claim, which goes to the heart of plaintiffs-appellants’ entire case. This Act

explicitly provides that plaintiffs-appellants’ religious practices may not be interfered

18

with or regulated by the State of Illinois, and yet it was in the teeth of that prohibition that

DCFS has totally suppressed plaintiffs-appellants’ foster care programs, which they have

operated with so much success over so many years. This claim is anything but moot,

given the ongoing consequences (the wrongful “interference” – amounting to a total

shutdown – of plaintiffs-appellants’ entire foster care “business,” not to mention

plaintiffs-appellants’ being branded as “law breakers” guilty of illegal “discrimination”

owing to their religious beliefs).

e. Plaintiffs-Appellants Were Deprived of a Liberty Interest Without Due Process

The Circuit Court overlooked that plaintiffs-appellants have pled a deprivation of

their liberty interest as well as their legally protected property interest, as a predicate for

their due process claims – both substantive and procedural – as alleged in Count IV.

Plaintiffs-appellants pled repeatedly that defendants-appellees’ actions have debarred

them from eligibility for future DCFS contracts, given their having been “branded” with

the stigma of “law breaker,” guilty of illegal discrimination (Verified 2d Amd. & Suppl.

Compl., ¶¶7. 8, 14, 16, 59, 60). This deprivation was procedurally flawed, in that it was

done without the slightest notice or opportunity for hearing. This factor alone warranted

the Court’s weighing the merits of Count IV, charging due process violations arising out

of the unconstitutional deprivation of plaintiffs-appellants’ liberty interest, leaving them

stigmatized, blacklisted, and utterly remediless. But Count IV also alleged a violation of

substantive due process, to the effect that DCFS’s refusal to renew the FY2012 contracts

was lawless, given that defendants-appellees’ sole justification for their precipitate action

was that plaintiffs-appellants violated the very law that guaranteed them “protection” for

19

their “religious freedom.” Indeed, this epitomized arbitrary and capricious government

action. This claim too should have survived summary judgment.

f. Plaintiffs-Appellants’ Due Process Claim Involving a Property Interest is Also Meritorious

Finally, plaintiffs have set forth substantial reasons why the Circuit Court erred in

repulsing their substantive and procedural due process claims in Count IV, which were

based on their having been so arbitrarily and capriciously stripped, without basis in law,

of their “objective expectancy” in renewal of their FY 2012 contracts – a legally

protected property interest (see generally, Pls. Mot. to Rehear, etc., pp. 4-13; SR-97-

106).

The Public Interest and the Balance of the Equities Strongly Favors Plaintiffs-Appellants

This critical factor involves weighing the potential harm that would be visited

upon both the plaintiffs-appellants and the public by an erroneous failure to grant a stay

of enforcement of the Circuit Court’s Summary Judgment Order, as against the potential

harm that would be suffered by defendants-appellees, including defendants-intervenors-

appellees, should this Court err in granting the stay of enforcement that plaintiffs-

appellants are seeking herein. Cf., Kanter & Eisenberg v. Madison Assoc., 116 Ill.2d

506, 510 (1987)(“the aim of the analysis must be to eliminate the risk of choosing

wrongly” on an adjudication of a motion for temporary injunction). This factor weighs

decisively in favor of the plaintiffs.

Defendants-Appellees Will Suffer No Cognizable Legal Harm if a Stay is Granted

The risk of any cognizable legal harm being inflicted on defendants-appellees, or

any of them, in the event that this Court grants the stay of enforcement that plaintiffs-

20

appellants are seeking is, at best, negligible. Plaintiffs-appellants have been providing

quality professional child welfare services to the State of Illinois, defendants-appellees,

as well as foster families and the infants and children they are taking care of for many

years, earning plaudits and praise. The worst that defendants-appellees could now claim

is that plaintiffs-appellants are discriminating in violation of law, owing to their religious

practices. But that begs the very legal question which plaintiffs-appellants disputed and

brought before the Circuit Court for resolution. Indeed, plaintiffs-appellants have

presented a compelling case to the effect that they are not violating any Illinois law,

neither the Illinois Human Rights Act, nor the Illinois Religious Freedom Protection and

Civil Union Act, and that it is plaintiffs-appellants’ rights that are being infringed, and

not defendants-appellees’.

In fact, it does not appear that a single “civil union couple” has applied for foster

care or adoption licensing from plaintiffs-appellants and been referred elsewhere since

the law legitimating civil unions became effective, on June 1, 2011 (see, Plaintiffs’

Supplemental Declarations; SR-128-171). At least, plaintiffs-appellants know of no such

cases.

Moreover, Federal Executive Order 13559 expressly provides that defendants’

federally funded child welfare programs (see, Exh. B, Verified 2d Amd. & Suppl.

Compl., ¶47, uncontradicted), must allow for referrals to alternate providers, thus

legitimating referral procedures such as plaintiffs-appellants have utilized without

objection for years. Surely the right to demand referrals for the purpose of avoiding

service by religiously affiliated providers, as guaranteed by Federal Executive Order

13559, establishes a precedent warranting resort to referral options to accommodate

21

religious objections on the part of religious providers of social services, such as plaintiffs

(see, Id., Exh. C, sub¶(b),(c)). At the very least, having to tolerate a brief referral to

another social service provider would fall in the category of de minimis non curat lex.

The Harm to the Public and the Plaintiffs-Appellants Absent a Stay Would Be Severe

On the other hand, the harm that would befall both the public and plaintiffs-

appellants if this Court did not grant a stay would be very severe, and plaintiffs-

appellants dare say that it would be calamitous:

(i) Harm to the Public – Should defendants-appellees be permitted to carry

out their imminently threatened mass “transition” of cases to other child welfare service

providers, they would likely inflict incalculable harm on children and infants already at

risk. Plaintiffs-appellants argued this point at length in Part V of their Memorandum of

Law in Opposition to Intervenors’ Motion to Dismiss their Second Amended Complaint

or, in the Alternative, for Summary Judgment, under the heading, “The Relief Sought By

The Intervenors Would Cause Incalculable Harm To Children In Foster Care In Illinois.”

Plaintiffs-appellants thus refer to and incorporate that argument herein (pp. 25-34; SR-

1114-1123).

Summarizing what was delineated in that Memorandum, the federal consent

decree signed by DCFS, the federal litigation brought by the ACLU against DCFS, out of

which the consent decree emerged, as well as independent studies all have demonstrated

that the two most critical factors in successful foster care child placements and eventual

permanency for the child are stability in placement and continuity of services. These

two factors would be seriously, inevitably undermined by defendants-appellees’

imminently threatened mass transition program. Stability in placement will be harmed by

22

shrinking the size of the pool of available foster parents – a clearly anticipated result of

eliminating Catholic Charities as a prime recruiter of candidates willing to serve as foster

parents, drawn from Catholic parishes all over the vast areas served by plaintiff-appellant

Dioceses throughout Northeastern, Central, and Southern Illinois.

Continuity of services would suffer greater risk of damage, as proved

convincingly by a study of children in private foster care agencies in Milwaukee County,

conducted by inter alii the former DCFS Director, Jess McDonald, a copy of which is in

the Supporting Record (SR-225-251). That study showed that there was a striking drop in

prospects for permanency as between foster children having only one caseworker and

those having two, from 74.5% to 17.5%. Clearly, mass transfers would invite

discontinuity in social workers for the children involved – a factor that alone looms heavy

on the scale in favor of staying this planned mass transition from plaintiffs-appellants to

other agencies.

Predictions offered by defendants-appellees about “seamless” transitioning have

been filtered through rose-colored lenses, as attested by the Declaration of Msgr. Michael

Boland, current Director of Catholic Charities for the Archdiocese of Chicago, who

recalls that when the Archdiocese’s Catholic Charities had to give up its foster care

program (owing to an inability to purchase enough insurance to cover sharply increased

liability risks), this “was in no way a seamless process” (Boland Decl., ¶7; SR-1048).

Indeed, DCFS itself has recognized that “transfer of children’s cases and foster parent

licenses can have a detrimental impact on the children’s services and permanency” (SR-

222).

23

One appalling case was reported by DCFS in its Inspector General Report, from

January 2005, where after a “mass” transition of “all 59 of [one] agency’s cases … to a

single private agency, although the Department had research demonstrating the strain a

large influx of cases has on an agency’s ability to provide effective services,” a three-year

old boy was found chained to his bed by the neck during a raid on a foster home (SR-

261).

Clearly, “mass transitions” are fraught with serious risk, as this 2005 case, plus

the DCFS’s research, has proved. See also, another important study, entitled, “Why

Should the Child Welfare Field Focus on Minimizing Placement Change as Part of

Permanency Planning for Children?” (SR-266-274; SR-271)(“Worker change may be one

of the factors that also drives placement instability because of disruptions in foster parent

and child support.”), again underscoring the critical importance of avoiding exactly what

defendants-appellees are now pressing for – a massive “placement change,” even 1% of

which would pose socially unacceptable risks where the balance of “harms” is so one-

sided.

(ii) Harm to the Plaintiffs-Appellants – The harm to plaintiffs-appellants, as

well as to the impoverished and needy constituencies which they serve in a vast area of

our State of Illinois, should a stay of enforcement be denied, would be devastating.

Indeed, plaintiffs-appellants’ earlier Second Declarations from Charities’ Directors (C-

207-237), amply showed that their respective foster care programs would die a slow

death from attrition if DCFS did not maintain a constant flow of new case referrals to

them, as part of the status quo ante. Plaintiffs-appellants thus urge that this Court grant a

stay and if need be, an injunction to preserve the status quo ante pending appeal, so that

24

plaintiffs-appellants may continue their charitable work in the foster care and adoption

fields until their claims are fully and finally adjudicated.

But there are worse harms that plaintiffs-appellants are suffering, which are

detailed in their Directors’ respective Supplemental Declarations (SR-128-171). Those

Declarations vividly recount the huge monetary as well as non-monetary blows that

Catholic Charities will suffer, losing the benefit of their huge investment in fixed assets

dedicated to these foster care and adoption ministries; the loss of so many valued, skilled,

trained and experienced professional staff members and other employees; the lion’s

shares of their entire annual budgets; and a lengthy train of dire consequences which only

a stay of enforcement of the Summary Judgment Order and preservation of the status quo

ante will avert, at least until plaintiffs-appellants’ claims are fully adjudicated on appeal.

The worst loss, now at stake, is plaintiffs-appellants’ impending loss of their right

to continue in their religious practices as protected under Illinois law – a loss they may

have to suffer without being able to get the full-fledged judicial and appellate

consideration to which they are entitled – should defendants-appellees be allowed to

proceed with their mass transitioning, absent an effective stay of the Court’s final

judgment and, if necessary, entry of an injunction on appeal, pendente lite.

WHEREFORE, plaintiffs-appellants respectfully pray for entry of an order

granting a stay of the enforcement of the Circuit Court’s Summary Judgment Order,

including a reinstatement and continuance of the preliminary injunction to preserve the

status quo ante, for the duration of the appeal pending before this Court, which plaintiffs-

appellants are moving now to expedite, and if need be, throughout the duration of any

25

further appeal; and that they be granted all other relief to which they may be entitled on

the premises in accordance with law.

Respectfully submitted, __________________________________________ One of the attorneys for the Plaintiffs-Appellants Of Counsel: Thomas Brejcha Paul Benjamin Linton Peter Breen Thomas More Society, A public interest law firm 29 South LaSalle Street – Suite 440 Chicago, IL 60603 Tel. 312-782-1680 Attorney for all Plaintiffs

Bradley E. Huff Richard Wilderson Graham & Graham, Ltd. 1201 South Eighth Street Springfield, IL 62703 Tel. 217-523-4569 Attorneys for Catholic Charities for the Diocese of Springfield-in-Illinois

James C. Byrne Spesia & Ayers 1415 Black Road Joliet, IL 60435 Tel. 815-726-4311 Attorney for Catholic Charities for the Diocese of Joliet, Inc.

David Wells Catherine A. Schroeder Thompson Coburn LLP One US Bank Plaza St. Louis, MO 63101-1611 Tel. 314-552-7500 Attorneys for Catholic Social Services for Southern Illinois, Diocese of Belleville

IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT

SPRINGFIELD, SANGAMON. COUNTY ILLINOIS

Catholic C/:tarities of : the Diocese of Springfielq, " el.o/. I

Plaintiffs,

v.

) ) ) ) ) ) )

State of Illinois, Lisa Maqigan in ) her official capacity as Illinois ) Attomcy General, Erwin McEwen ) in his official capacity as Director ) ofthe Department of Chil~ren & ) Family Services, ) el. al., )

2011-MR-254

Defendants, and ) ) ) ) )

AUG 1 B 2011 ClV..s Susan Tone Pierce, ~t. al. I

Interveners. , SUMMARY JUDGMENT ORDER

ClerkOUM Circuit Court

This matter comes. before the Court on cross motions for summary judgment by

the Plaintiffs and the Defe"ndants pursuan~ to 735 ILCS 5/2-1005. Sl,ll11mary judgment is

appropriate" where there iSlno genuine issue of material fact and the right of a party to

I .

judgment as a matter of la~ is free from doubt. Purtm v. Hess, 1 I 1 Ill.2d 229 (1986) The

issues presented in this ca~e are ripe for summary judgment. There is no dispute as to the

facts. The controversy re~olves around the applicatiof! of the law. In matters of vigorous

controversy this court is again reminded of its primary function; to apply the facts as

found to the law as writt~l!. I

The Plaintiffs for the past forty years have provided foster care and adoption I

services" for families in I1Jihois. The Plaintiffs eriter ~nto successive one year contracts

,. "

. '" ... ~ •• ,1.

(08/31/11) C: 01286

STATE OF ILLINOIS ) )

COUNTY OF ST. CLAIR )

AFFIDAVIT OF GARY HUELSMANN, EXECUTIVE DIRECTOR OF CATHOLIC SOCIAL SERVICES OF SOUTHERN ILLINOIS, BELLEVILLE DIOCESE

1. I am the Executive Director of Catholic Social Services of Southern Illinois, the

Catholic Charities affiliate of the Diocese of Belleville. I am competent to testify to the matters

stated herein. According to the most recent DCFS ratings of Illinois foster care agencies,

Catholic Social Services is the second-ranked foster care agency in the entire State of Illinois.}

2. On Monday, September 26,2011, the Circuit Court denied our motions for

reconsideration and for stay pending appeal.

3. On Tuesday, September 27,2011, Assistant Attorney General Deborah Barnes

sent the letter attached hereto as Attachment A to my attorneys, indicating that DCFS intends to

transition the cases of the foster children for whom we care without allowing us time to appeal

the ruling of the Circuit Court in this case.

4. On Friday, September 30,2011, my attorneys sent the letter attached hereto as

Attachment B in response to the letter of Assistant Attorney General Barnes.

5. On Monday, October 3,2011, I received the email attached hereto as Attachment

C from Scott Wiseman ofDCFS, in which he states that "the State intends to move forward with

the transition of all CSS/CC cases downstate to other private agencies." Later that morning, I

received the email attached hereto as Attachment D, cancelling the teleconference.

6. I previously swore a declaration in the Circuit Court (SR-160 - SR-171) detailing

the grave harm that the transitioning ofthe children under the Catholic Charities' care will

} The top-ranked agency, Evangelical Child & Family Services, in Wheaton, Illinois, recently ceased their foster care ministry, on account of their deeply-held religious beliefs.

1

inevitably inflict upon these children, who have already suffered significant abuse, neglect, or

abandonment in their young lives, and who risk even further suffering via the hasty and utterly

unnecessary transition of cases pressed here by DCFS.

7. DCFS' s proposed transition principles, as laid out by their attorneys in Court on

September 26 (SR-299), include that "no child gets a new caseworker," that "no caseworker's

current supervisor will change," and that "no child's current clinical provider will change."

However, for Catholic Charities' foster children, their caseworkers, supervisors, and mental

health providers are almost all full-time employees of Catholic Charities. DCFS seems to assume

that hundreds of Catholic Charities personnel will, without hesitation, take up with new agencies

with different missions than Catholic Charities, work under new management and with an

entirely new staff, and work under a new set of corporate policies and procedures. I know this

assumption to be wrong, as I have been informed by a substantial number of my staff members -

who are paid a pittance compared to what they would earn at an equivalent position at DCFS or

in the private sector - that they would not accept the "assignments" that DCFS intends for them.

We frequently describe the relationship between Catholic Charities staff, foster parents, and

foster children as a "family," and a family cannot be so easily tom asunder and transplanted, as

DCFS apparently intends here, thwarting our ability to have our claims reviewed on appeal.

8. A stay pending appeal will prevent the harm of our "family" being scattered.

Without a stay, our foster care and related adoption ministry will be immediately shut down by

DCFS, with all of our foster children reassigned to various other agencies and our highly-trained

and experienced staff would be terminated. Even if we eventually succeeded on appeal, we could

not reconstitute our foster care ministry, which was built up over decades. Moreover, the loss of

our foster care ministry also means the loss of approximately 72% of the annual program

2

revenue for our entire agency, a loss that will necessarily have a negative impact our other

ministries to the poor and needy in Southern Illinois.

FURTHER AFFIANT SA YETH NOT.

SUBSCRIBED AND SWORN

to before me this ~ day of Oe~ ,2011

3