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
COURTS 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
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only recently resigned and has been newly replaced as Acting Director by Jean Ortega-
Piron (DCFSs Acting Director),
1
the Illinois Attorney General, Lisa Madigan, sued as
well in her official capacity (the Attorney Generals Office), and the Illinois
Department of Human Rights (IDHR), and its current Director, Rocco Claps, also sued
in his official capacity (IDHRs Director), and against the plaintiffs-appellants.
What is urgently pressing and requires emergency relief is that the Circuit Courts
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 weeks (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 DCFSs 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 Courts 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
DCFSs 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
DCFSs 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 didnt 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
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services for FY2012 (Exh. B, 6, pp. 9-10). Worse, on account of their assertion of a
religion-based conscientious objection to DCFSs 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 Teresas 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 DCFSs 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).
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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
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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 DCFSs 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 DCFSs 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 1960s, 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 Lagos Declaration
describe DCFSs new Permanency Initiative legislation, which Lago helped DCFS to
pass and implement. DCFSs initiation of performance-based contracting helped
drastically to improve the success rate of DCFS in moving foster children into
permanency outcomes.
Also attached to Lagos Declaration are excerpts from a Chicago Archdiocesan
history of Catholic Charities endeavors which reflects the Churchs long and
distinguished history of charitable services rendered for the benefit of disadvantaged and
needy young people.
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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.
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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 Courts 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
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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 (7
th
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.
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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 (1
st
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 partys 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 Courts Summary Judgment Order, rendering it fraught with
doubt, rather than free from doubt, as mandated for summary disposition by the Illinois
Supreme Courts 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
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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 States continuing to do business with them! The record below, indeed,
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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 (41
st
) 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 latters 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 persons 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 Courts
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 Generals
Office contention that plaintiffs-appellants are subject to that Act and thus exposed to the
Attorney Generals statewide investigation as to whether plaintiffs-appellants had been
guilty of a pattern or practice violation of the Human Rights Act. Despite the Circuit
Courts ruling, plaintiffs-appellants remain vulnerable to the Attorney Generals
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 Generals 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. Dept 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 isnt 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 Courts 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 Courts 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 DCFSs 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 Courts 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 Archdioceses 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 childrens cases and foster parent
licenses can have a detrimental impact on the childrens 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] agencys cases to a
single private agency, although the Department had research demonstrating the strain a
large influx of cases has on an agencys 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 DCFSs 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 lions
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 Courts 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 Courts 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 & )
Family Services, )
el. al., )
2011-MR-254
Defendants, and )
)
)
)
)
AUG 1 B 2011 ClV..s
Susan Tone Pierce, 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 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 is free from doubt. Purtm v. Hess, 1 I 1 Ill.2d 229 (1986) The
issues presented in this are ripe for summary judgment. There is no dispute as to the
facts. The controversy 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
I
The Plaintiffs for the past forty years have provided foster care and adoption
I
services" for families in I1Jihois. The Plaintiffs eriter successive one year contracts
,. "
. '"
...
,1.
(08/31/11) C: 01286
Exhibit
A
Exhibit
B
Exhibit
C
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
Exhibit
D
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 O e ~ ,2011
3
Attachment
A
Attachment
B
Attachment
C
Attachment
D