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. STATE OF ILLINOIS, et al., Defendants-Appellees, and SUSAN TONE PIERCE, et al., Intervenors-Appellees.

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Appeal from the Seventh Judicial Circuit, Sangamon County, Illinois Circuit No. 2011-MR-254 Circuit Judge: Hon. John Schmidt

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

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 agreed to 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 in Morr-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

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 Belies Any Claim of 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
1

Also, 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 reemployment 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 the government 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.

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.

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 the Illinois 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.

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, 316318. 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). For instance, intervening-defendants opposition alleges that plaintiffs discrimination infects (p. 3) their entire respective ministries, that plaintiffs policy on unmarried couples harms foster children (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 beliefs of segregationists and other racists. See, e.g., intervenors response, pp. 4 & 9 (e.g., citing Brown v. Bd. of Educ. Of Topeka against plaintiffs, etc.).
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A. Defendants Misstate the Meaning of Substantially Burden the Exercise of Religion 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 in Diggs 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 in Diggs upon which they rely, nor do they note that the case quoted and relied upon in Diggs 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 at 506 F.3d 717 (en banc), later proceeding at 535 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). See also, plaintiffs emergency motion for stay, p. 11, incorporating by reference plaintiffs motion reconsider, Defendants and intervenors ignored in their responses that, for the sake of judicial economy, at page 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-94127). 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 5

Intervenors omitted the internal quotation marks entirely in their quotation of Diggs.

rehear, and vacate, etc., pp. 19-20; SR-112-113 (citing City 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); MorrFitz 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-121127)); 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

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.

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. 1011 & 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 Religious Freedom 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 affirmatively protects 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 Must Be 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 Violated Supreme Court Rule 191(a) Yet Both They and Defendants Assert Allegations 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;8 see 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
8

Plaintiffs 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 Misstates the 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 enforcement of a judgment for money, Rule 305(b) allows a stay of the the enforcement, force and effect of 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 Reviewable De 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 And United 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 2d Amd. & Suppl. Compl., 6, 55; C-308-309 & 342. Defendants 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 of Perry 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

Cook 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. Morgan County 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); BenShalom 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). Able 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 and pendente 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. Huff 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 Bradley E. Huff Richard Wilderson Graham & Graham, Ltd. 1201 South Eighth Street Springfield, IL 62703

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29 South LaSalle Street Suite 440 Chicago, IL 60603 Tel. 312-782-1680 Attorney for all Plaintiffs 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.

Tel. 217-523-4569 Attorneys for Catholic Charities for the Diocese of Springfield-in-Illinois

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

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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,

) ) Appeal from the Circuit Court for ) the Seventh Judicial Circuit, ) 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

DENIED ENTER:

DATED: ___________________

_______________________________

_______________________________

_______________________________

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Exhibit 1

Illinois Department of Children & Family Services

CSS-Belleville Transition Activity Timeline

October 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 the work, engaging them and the receiving agencies in the process, and beginning the internal and external transition work. This timeline assumes a transition completion date of November 30, 2011. Currently Ongoing APT has already begun to review CSS cases to determine what cases need to be closed or transferred by policy, prior to the transition of CSS cases to other agencies. Efforts to effect that work has already begun as a part of our regular monitoring processes.

By Wednesday, October 12, 2011 Recalculation of up-to-date caseload numbers including specialized and medically specialized cases, staffing & supervision ratios specific to CSS Belleville (current as of 10-12-2011) Deputy Director Anderson and other Department staff vital to the transition process meet via teleconference (or other means determined appropriate) with CSS CEO Huelsmann. The focus of the meeting will be the discussion of the following 1. Departments transition plan, including necessary file reviews (onsite reviews and SACWIS reviews), and transition activity timeframes, 2. schedule meeting with CSS administration, foster care managers and supervisors to discuss critical cases, i.e. heater cases/high profile cases, placements in danger of disruption, kids absent from placement, medically specialized cases, etc., 3. possible Department communication with CSS care providers regarding the Departments intent to maintain all placements through the transition process, 4. Catholic transition concerns moving forward, and 5. other issues that may arise. Ongoing after Wednesday, October 12, 2011 APT, and other DCFS staff as deemed appropriate, will begin to review CSS files on-site and on SACWIS utilizing a format to be established.

Exhibit A

By Thursday, October 13, 2011 The Department will contact all private agencies slated to receive cases from CSS to inform them of the transition status. That includes Childrens Home & Aid, Lutheran Child & Family Services, and Lutheran Social Services of Illinois. The following will be discussed 1. Current CSS transition status, including projected timeframes for transition 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. The purpose of these meetings are to discuss and agree upon a strategy for 1. 2. 3. 4. 5. 6. CSS Belleville staff retention, specific case transition issues, ongoing communication, facility management issues, equipment transfers, 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 effecting essential 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 the following 1. Transition status update for CSS Belleville, including projected transition activity timeframes, 2. Stable Funding recommendations, 3. Contract updates, amendments, etc., 4. Specialized case dispositions, including medically specialized cases, 5. Licensing interests and ramifications, including licensed homes without placements, 6. Confirmation of data entry, case assignment activity, and 7. Other items as needed.

By Wednesday, November 2, 2011 meet with CSS administration, foster care managers and supervisors to discuss 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 documentation 4. 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 care payments for the month of November. The receiving agency is responsible for paying providers assigned to their agency for the entire month of December. December 1, 2011 all CSS cases will be reassigned to casework staff employed by the receiving agencies. On-going data clean-up as necessary.