IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT SANGAMON COUNTY, ILLINOIS CATHOLIC CHARITIES OF THE DIOCESE) OF SPRINGFIELD-IN-ILLINOIS, an Illinois) non-profit corporation, et al.,) )Case No. 2011 MR 254 Plaintiffs,)Hon. John Schmidt )Presiding Judge vs.) ) STATE OF ILLINOIS, et al.,) ) Defendants,) ) SUSAN TONE PIERCE, et al.,) ) Intervening Defendants.) NOTICE OF FILING TO:Deborah L. Barnes, Esq. Assistant Attorney General 500 South Second Street Springfield, IL 62706 Tel. 217-782-5819 Fax 217-524-5091 Attorney for Defendants Brent D. Stratton, Esq. Chief Deputy Atty General 100 W. Randolph St., Ste.10-100 Chicago, IL 60601 Tel. 312-814-6234 Fax 312-814-1436 Attorney for Defendants Harvey Grossman, Esq. Roger Baldwin Fdn. Of ACLU, Inc. 180 N. Michigan Ave. Suite 2300 Chicago, IL 60601 Tel. 312-201-9740 Fax 312-288-5225 One of Attorneys for Intervening Defendants Please take notice that on the 15th of August, 2011, the undersigned counsel for Plaintiffs herein caused to be filed with the Clerk of the above Court the following papers:Plaintiffs Memo in Opposition to Defendants Cross Motion for Summary Judgment;Plaintiffs Memo of Law in Opposition to Intervenors Motion to Dismiss Their Second Amended Complaint or, in the Alternative, for Summary Judgment;Patricia Foxs Fourth Declaration;Glenn Van Curas Third Declaration;Anthony Riordans Declaration;Gary Huelsmanns Second Declaration;Steve Roachs Third Declaration;Lynda Lower-Sharps Declaration;Monsignor Michael Bolands Declaration;Jimmy Lagos Declaration;Michele Martins Declaration;Sister Lea Stefancoveas Declaration.Copies of all of the foregoing court papers are served on you herewith. ____________________________________ One of the Attorneys for Plaintiffs 1 of 3Case No. 2011 MR 254 Of Counsel: Thomas Brejcha Peter Breen Thomas More Society, A public interest law firm 29 South LaSalle Street Suite 440 Chicago, IL 60603 Tel. 312-782-1680 Fax 312-782-1887 ARDC # 0288446 Attorney for all Plaintiffs Bradley E. Huff Richard Wilderson Graham & Graham, Ltd. 1201 South Eighth Street Springfield, IL 62703 Tel. 217-523-4569 Fax 217-523-4656 Attorneys for Catholic Charities for the Diocese of Springfield in Illinois Patricia Gibson Chancellor & Diocesan Counsel Diocese of Peoria Spalding Pastoral Center 419 NE Madison Avenue Peoria, IL 61603 Tel. 309-671-1550 Fax 309-671-1576 Attorney for Catholic Charities for the Diocese of Peoria James C. Byrne Spesia & Ayers 1415 Black Road Joliet, IL 60435 Tel. 815-726-4311 Fax 815-726-6828 Attorney for Catholic Charities for the Diocese of Joliet, Inc. David Wells Catherine A. Schroeder Thompson Coburn LLP One US Bank Plaza 2 of 3Case No. 2011 MR 254 St. Louis, MO 63101-1611 Tel. 314-552-7500 Fax 314-552-7000 Attorneys for Catholic Social Services for Southern Illinois, Diocese of Belleville CERTIFICATE OF SERVICE Thomas Brejcha hereby certifies that he is one of the attorneys for the plaintiffs herein and that he caused copies of the foregoing Notice of Filing to be served on all persons listed on the attached Service List by electronic delivery from tbrejcha@thomasmoresociety.org to the ascertainable email addresses of all said persons and/or by telefax to said persons telefax addresses of record, and also by first class mail in envelopes property addressed, bearing U.S. first class postage prepaid, and depositing same in the U.S. mail chute at 29 So. LaSalle St., Suite 440, Chicago, IL 60603, this 15th day of August, 2011. ___________________________________ 3 of 3Case No. 2011 MR 254 IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT SANGAMON COUNTY, ILLINOIS CATHOLIC CHARITIES OF THE DIOCESE) OF SPRINGFIELD-IN-ILLINOIS, an Illinois) non-profit corporation, CATHOLICCHARI-) TIES OF THE DIOCESE OF PEORIA, an) Illinois non-profit corporation, CATHOLIC) CHARITIES OF THE DIOCESE OF JOLIET,) INC., an Illinois non-profit corporation, and) CATHOLIC SOCIAL SERVICES OF SO.) ILLINOIS, DIOCESE OF BELLEVILLE, an)Case No. 2011 MR 25 Illinois non-profit corporation,) Plaintiffs,)Hon. John Schmidt vs.)Judge Presiding ) STATE OF ILLINOIS, LISA MADIGAN, in) her official capacity as the Attorney General) of the State of Illinois, ERWIN McEWEN,) in his official capacity as Director of the Dept) of Children & Family Services, State of Illinois,) the DEPARTMENT OF CHILDREN & FAM-) ILY SERVICES, State of Illinois, ROCCO J.) CLAPSS in his official capacity as Director of the) Department of Human Rights, State of Illinois,) and the DEPARTMENT OF HUMAN RIGHTS, ) State of Illinois,) Defendants.) and) SUSAN TONE PIERCE, as Next Friend and on) Behalf of a certified class of all current and ) Future foster children in custody of DCFS in) B.H. v. McEwen, No. 88 cv 5589 (N.D.Ill. 1988);) SARAH RIDDLE and KATHERINE) WESEMAN,) Intervenors.) ______________________________________________________________________________ PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS CROSS MOTION FOR SUMMARY JUDGMENT Preliminary Defendants cross motion for summary judgment largely rehashes the same failed legal 1 arguments which they raised last month in objecting to plaintiffs motion for preliminary injunction.Although partly re-packaged and dressed up in new glossy rhetoric, those worn arguments should fare no better now than when this Court rejected them over a month ago.The material facts at the storm center of this entire lawsuit remain undisputed, indeed beyond any genuine dispute.Those facts warrant a summary judgment for plaintiffs, as a matter of law. The most glaring example of defendants new slants and spins on the incontrovertible facts of record here the same facts that have been before the Court from the inception of this case touches the core of plaintiffs case.Defendants are now trying to trump up a claim that the parties were in a dispute over the terms of the parties proposed new Fiscal Year (FY) 2012 child welfare services contracts, which arose when plaintiffs unilaterally tried to dictate new terms to the defendant, Department of Children & Family Services (DCFS), which DCFS could not, and would not, accept.Defendants claim that plaintiffs insisted that DCFS engage in illegal discrimination.DCFS refused and, as a result, there was no meeting of the minds between the parties (e.g., Def. Memo, pp. 2, 30 fn. 13).Summing up, defendants assert that no case states that under Illinois law, freedom to contract is the freedom to demand a contract from the state on ones own unilateral terms (id.).But all this is mere spin.The plain truth is that, after some four decades of contractual relations, defendants suddenly refused to enter into another contract with plaintiffs for FY 2012 for an illegal reason.Plaintiffs were thus debarred, declared ineligible for any future contract with the State of Illinois, without prior notice or an opportunity for hearing, on the expressly stated ground that they were violating the Illinois Religious Freedom Protection and Civil Union Act a reason devoid of legal basis in Illinois law. Defendants themselves admit it is not disputed that the contracts at issue are entered into 2 annually upon the start of each fiscal year (id., p. 30). Moreover, [t]hese contracts are not competitively bid, as they are purchase of care contracts, which are exempt from the Procurement Code under 30 ILCS 500/1-10(b)(3) (id., p. 4, fn. 1), and DCFS has the authority to enter into these contracts (id., p. 4).On pp. 4-5 of their Memorandum, defendants quote paragraphs 4.12 and 4.14 of the fiscal year 2011 contracts, each of which required the contractor i.e., the plaintiffs to comply with all applicable federal, state, and local laws, etc. and were subject to the laws and rules of the State of Illinois, etc. (id., pp. 4-5).Then defendants concede, as they must, that: 7.Proposed contracts for fiscal year 2012 contain the same language as set out in Paragraph six, above. (id., p. 5). That is, there was no clash between the parties over the terms of the new 2012 contracts, let alone any unilateral demand by plaintiffs that the State of Illinois agree to some new or variant terms!On the contrary, it was DCFS which sent the proposed new contracts for FY 2012 to each of the plaintiffs, which each of the plaintiffs then executed and returned to DCFS, and in relevant parts those new FY 2012 contracts contained the same terms as the 2011 contracts terms that repeated the boilerplate commitment by DCFSs contractors to comply with all of the applicable Illinois laws.Plaintiffs agreed to those terms, signing them just as the defendants proposed them, without changing a single word or phrase! What the parties really are disputing, therefore, is not any newly, let alone unilaterally dictated contract terms, but rather what DCFSs standard term, requiring compliance with the applicable Illinois laws, means for plaintiffs, who claim 1) they are not bound by that law, and 2) they are exempt from compliance with that law, namely, the Illinois Religious Freedom Protection and Civil Union Act. What is squarely presented here, therefore, are clear cut questions of law.Are plaintiffs bound, and if so, are they exempt? 3 Similarly, the Attorney General is now enforcing the Illinois Human Rights Act, from which plaintiffs also are exempt. Moreover, both of those Illinois laws may not be enforced against plaintiffs by reason of a third Illinois law, namely, theIllinois Religious Freedom Restoration Act. Thus this case is a classic candidate for entry of a series of declaratory judgments over (1) the meaning of agreed contract terms, which commit the contracting party to comply with the applicable Illinois laws, and (2) the parties conflicting interpretation of the three Illinois laws, as to whether they bind plaintiffs, exempt the plaintiffs, or are precluded from application to plaintiffs. The July 8, 2011, letters which DCFS sent to all four plaintiffs (Def. Memo, p. 6, par. 12, fn. 3 & accompanying text, Exh. 2) made explicit that it was the parties different interpretations of law that proved decisive, and no other consideration.Thus DCFS Director McEwen wrote to each plaintiff that DCFS would not countersign the 2012 contracts only because plaintiffs made it clear that they do not intend to comply with the Illinois Religious Freedom and Civil Union Act, 750 ILCS 75/1 et seq. [which] applies to foster care and adoption services. As a result, DCFS would insist on transitioning cases to other providers.Defendants are bound by that sole stated reason for declaring an end to the parties ongoing contractual relationship, either as a matter of estoppels or pursuant to Illinois mend the hold doctrine, as described by Judge Posner in Harbor Ins. Co. v. Continental Bank N.A., 922 F.2d 357, 362-63 (7th Cir. 1990).It is too late for defendants to conjure up new or other grounds as their stated basis for trying to eject plaintiffs, which number among their best performers, from Illinois child welfare system. Plaintiffs were denied any notice or hearing at which to counter this unilateral, precipitate, arbitrary, capricious, and illegal action by defendants. 4 Defendants also now argue as if to hand plaintiffs a consolation prize that plaintiffs had been licensed as private child welfare agencies under the provisions of 225 ILCS 10/2.08, and continue as such because those licenses to provide child welfare services have not been removed, nor has the [DCFS] given them notice that their licenses will be terminated if they do not hold contracts with the agency (id., p. 4, 2).But that fact weighs heavily in favor of plaintiffs claim, for why should they be so summarily dismissed from eligibility for further contractual services rendered to DCFS and the children and families they serve.Indeed, it was shortly before the defendants decision to declare plaintiffs ineligible for further service contracts when plaintiffs licenses were renewed and those renewals were effective for multiple years into the future.These renewals were based upon plaintiffs very positive evaluations and reviews on the part of DCFS, which ranked plaintiffs among the highest rated performers in terms of quality of service and achievement of permanency results, as compared to all other Illinois child welfare agencies providing foster care and adoption services. But defendants omit mention of the fact that any proposal to remove plaintiffs licenses tacitly conceded to constitute a property interest fully deserving of due process protections would have triggered an elaborate regulatory scheme mandatingnotice and hearing. See, 89 Ill. Adm. Code 383.85 et seq.Yet while defendants do not, as they could not, legally take away plaintiffs licenses without prior notice and opportunity for hearing (especially given plaintiffs exemplary performance), the use of those licenses effectively would be frustrated, if not wholly thwarted, by DCFSs illegal refusal to enter into new contracts with plaintiffs, without basis in law.Why so?Because if DCFS ceases the referral of new cases to plaintiffs (as it tried to do even after this Court entered its preliminary injunction nunc pro tunc as of July 12, 2011), plaintiffs who receive new children [for placement with foster parents] to replace children 5 [they] move to permanency, and [who] rely on the steady flow of new children to maintain a consistent staffing level and to budget for [their] operations, could no longer stay in business.See, Plaintiffs Motion To Clarify The Preliminary Injunction, etc. filed shortly after July 12th, plus accompanying Second Declarations of Steven Roach, quoted supra, Patricia Fox, and Glenn Van Cura).Compare, Balmoral Racing Club v. Illinois Racing Bd., 151 Ill.2d 367, 405-06 (1992)(every racing license creates a property interest because [w]ithout racing, a racetrack becomes useless [r]acing is the business of the racetrack this interest in maintaining an occupation makes Balmorals interest in retraining a license a property interest which cannot be denied without affording due process).Similarly a child welfare agency license to handle foster care and adoption cases would be useless absent the ongoing referral of new cases by DCFS, and also has been held to constitute a property interest, deserving of due process protections.Easter House v. Felder, 910 F.2d 1387, 1395, 1408 (7th Cir. 1990)(we conclude that Easter House had a property interest in the renewal of its license). Defendants renewed effort to deny that plaintiffs have any legally protected interest warranting due process protection on the part of this Court founders anew on the shoals of the Illinois Supreme Courts decision in Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill.2d 540, 546-47 (1977), not to mention Buetell v. Walker, 59 Ill.2d 146, 151-52 (1974), and the host of other precedents cited in Bio-Medical, supra, not to mention Easter House, supra, dealing specifically with a child welfare agency license. Defendants citation and discussion of the Polyvend litigation (Def. Memo, p. 27) proves this beyond peradventure.Defendants argue that in Polyvend, Inc. v. Puckorius, 77 Ill.2d 287 (1979), the court rejected the similar claim of a license plate manufacturer that was denied a contract with the State of Illinois after several years of having such a contract.The Supreme 6 Court stated clearly that simply [b]eing awarded the contract in a given year did not give rise to any right or interest in future State contracts, which were entirely independent matters. Id. at 298.The court found that standing is an issue equally pertinent to the present controversy, quoting from Perkins v. Lukens Steel Co., 310 UI.S. 113, 127 (1940). But this ignores the thrust of what our Illinois Supreme Court said in Polyvend, which fully supports plaintiffs in this case.Thus the Court said the following in that case, clearly distinguishing Bio-Medical in a way that proves that plaintiffs in this case have an even stronger claim to due process protection than did the plaintiff in Bio-Medical: This right to continuing participation in an ongoing program, which was recognized as a protectable legal right by the court, arose by virtue of the fact that the plaintiff had participated in the Medicaid program for approximately eight years prior to the decision of the Director to suspend.The program was a continuing one, not requiring annual competitive bids, in direct contrast with the present case, where plaintiff was not a participant in an ongoing, continuous program.Rather, there was simply an annual invitation to bid and a resulting annual award of the license plate contract.Being awarded the contract in a given year did not give rise to any right or interest in future State contracts, which were entirely independent matters.While plaintiff may have had an abstract concern in being awarded the 1979 license plate contract, it certainly did not have a legally protectable property interest and, absent such an interest, a prospective government contractors bid does not trigger due process safeguards.(77 Ill.2d at 298)(emphasis supplied). In light of these authorities, Bio-Medical, Polyvend, Buetell, and Easter House, as well as the many cases cited in these precedents, it is indeed free from doubt and an eminent candidate for summary judgment that plaintiffs four decade long ongoing, non-bid contractual relationship with DCFS a relationship which had flourished to the parties mutual benefit, and for the benefit of many thousands of Illinois children and families gave rise to a legally protected interest on plaintiffs part, as a matter of law.If the plaintiffs mere approximately eight years prior tenure in the Medicaid program warranted due process protection in Bio-Medical, then it is a fortiori that plaintiffs after four decades deserve such protection here! 7 It is all too clear, therefore, that if plaintiffs were deemed ineligible for, or debarred from, state contracts by the defendants on patently illegal grounds, or if they reached that decision without timely notice or opportunity for hearing, as plaintiffs have argued, then this Court is fully empowered to declare it to be so, upon the undisputed facts at bar.Moreover, this Court should not hesitate to fashion a remedy tailored to the exigencies of this case, barring defendants from continuing to give effect to that illegal decision.That is a far cry from unilaterally dictating, or forcing, contract terms upon a sovereign State, but rather enforcing the laws of the sovereign against those guilty of having violated them. We now address some of the more particularly notable misstatements and errors in the defendants cross motion for summary judgment, relying in the main and incorporating by reference our extensive legal argument on many pertinent points in our multiple other submissions in this case. I.DEFENDANTS MISSTATE OR DISTORT MANY UNDISPUTED FACTS OR RIP THEM FROM THEIR CONTEXT We already have addressed many of the spins contained in the defendants list ofundisputed facts, which sought to divert the Courts focus on the plain and simple facts, as pled in the Second Amended & Supplemental Verified Complaint (whose averments are for the most part uncontradicted on the record), that the parties dispute was over questions of law, which were incorporated into contract terms, barring contractors such as plaintiffs from failures to comply with the applicable law.As plaintiffs argue extensively that they are fully in compliance with law, there is no evidenceon the basis of which defendants may properly brand plaintiffs as guilty of discrimination.That is a legal conclusion, not an undisputed fact.Indeed, it is the pivotal question in this case.Observance of religious practice in fulfillment of ones mission as a sectarian adoption agency is a legally protected exercise of religion, 8 indeed it is a civil right and a civil liberty deserving of legal protection, and not condemnation as illegal discrimination.Here, the shoe is really on the other foot.The State of Illinois seems insistent on failing to follow its own laws. Plaintiffs actual religious practice in discharge of their mission to serve the needs of vulnerable Illinois children and families a mission that is both secular and sacred on the part of plaintiffs is delineated in detail in additional declarations submitted, together with this responsive memorandum as well as the plaintiffs memorandum responsive to the intervenors motion, by Steven Roach, Patricia Fox, Glenn Van Cura, and Gary Huelsmann.Plaintiffs note here only that the greater percentage of their cases involve relative placements, which are made by DCFS, and not by plaintiffs themselves, and when those placements are made, whether to traditionally configured households or to others, plaintiffs handle them as the childs interest in securing a stable family placement is then paramount. Repeatedly, defendants insist that plaintiffs have stated that they do not intend to comply with Illinois law (e.g., Def. Memo, p. 6, 13).That, of course, is a distortion of plaintiffs position which has always been, and remains, that they are indeed fully in compliance with the applicable Illinois law, including inter alia the Religious Freedom Protection and Civil Union Act, 750 ILCS 75/1 et seq.). The defendants version of the March 8, 2011, letter sent to each plaintiff by the Illinois Attorney Generals Office, is inaccurate.That letter, printed verbatim in the Verified Second Amended & Supplemental Complaint (Verified 2d Am. & Suppl. Compl., 11, p. 15, & Exh. B), does not merely announce an investigation, but sets forth an official, hard position of the Attorney Generals Office on which she has insisted, through her Deputy and counsel herein to the effect that Catholic Charities has requirements for potential foster or adoptive parents that 9 are not required by Illinois law or that it refuses to provide services to potential foster or adoptive parents in violation of Illinois law.The letter goes on to articulate an interpretation of the Illinois Human Rights Act as applicable to plaintiffs and as having been violated by plaintiffs, insofar as they, for example, refuse to provide services based on the marital status or sexual orientation of a potential foster or adoptive parent.There is nothing iffy about the position espoused in that letter.Thus it indeed hangs the proverbial Sword of Damocles over plaintiffs heads and casts a shadow over their provision of foster care and adoption services, even though it is clear that they are not covered by the Human Rights Act.As the letter states that the Office has received notice of violations on the part of plaintiffs, it is utterly clear that it constitutes a threat of a statewide prosecution under the pattern or practice provisions of the Human Rights Act, contrary to law.Plaintiffs thus disagree that this letter may be brushed off as a mere investigatory letter.It is rather a throwing down of the gantlet, a precursor to imminent litigation.Defendants undisputed facts also omit that the Human Rights Act itself may be invoked to put plaintiffs in default, based on their allegedly failing to respond to the request for information and documents plaintiffs indeed responded, but having chosen rather to respond by putting the issue of statutory application to them vel non before this Court, by way of complaint for declaratory judgment. As for the Illinois Department of Human Rights, whether they have received a charge or a complaint against any plaintiff is beside the point, given the Attorney Generals interest in pursuing a statewide pattern or practice prosecution of the plaintiffs under the Human Rights Act, which would preempt any individual charge being entertained.As for no enforcement action having been taken (Def. Memo, p. 8, 19), the defendant Department and its head, defendant Claps, are part of the Executive Branch, and work for the Governor, who has been 10 outspoken in his embrace of defendants position in this litigation, addressing this case at a press conference the daybefore plaintiffs appeared before this Court seeking emergency injunctive relief, insisting, We have a law in Illinois.Were not going back, as reported in the State Journal-Register, and available online at SJ-R.COM (http://www.sj-r.com/top-stories/x910597699/Quinn-defends-civil-unions-law-in-adoption-dispute).These remarks were widely circulated and reported throughout Illinois (e.g., an item in the News-Gazette, serving East Central Illinois, online at http://www.news-gazette.com/opinions/editorials/2011-07-15/mistake-bar-religious-group.html).Mr. Claps appeared with the Governor at Millenium Park in Chicago, on June 1, 2011, when the Religious Freedom Protection and Civil Union Act first took effect, when many civil union couples registered their new relationships, as proclaimed on the Department of Human Rights website. (http://www.state.il.us/dhr/news_rel/contents.htm & http://www2.illinois.gov/gov/Pages/CivilUnionCeremony.aspx).No doubt these public statements by the Governor and this publicity by his Department head, defendant Clapss, signals an enforcement policy by IDHR against plaintiffs as surely as statements by Governor Blagojevich signaled to Illinois pharmacists that he would prosecute any pharmacist who refused on conscientious religious grounds not to stock or dispense Plan B, and yet the Illinois Supreme Court ruled in Morr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 474, 488-89 (2008), that the mere existence of a claim, assertion or challenge to plaintiffs legal interests which casts doubt, insecurity, and uncertainty upon plaintiffs rights or status, damages plaintiffs pecuniary or material interests and establishes a condition of justiciability, citing Alternate Fuels, 215 Ill.2d at 231.Thus defendants strong public statements and gestures, within this overall context, clearly constitute an imminently threatened enforcement action against plaintiffs justifying plaintiffs joining them as defendants in this declaratory judgment action. 11 II.SOVEREIGN IMMUNITY IS NO BAR TO RELIEF FOR PLAINTIFFS Defendants further distort the facts by claiming under III, p. 8, that plaintiffs demand a ruling from this Court compelling the State of Illinois to enter into new contracts with the plaintiffs.Plaintiffs do seek declaratory judgments, and a negative or prohibitory injunction, or order of prohibition, but not issuance of any mandatory injunction. Whether sovereign immunity bars this relief is a question of law to be decided by this Court.The short answer was supplied by the Supreme Court in Bio-Medical Laboratories v. Trainer, supra, 68 Ill.2d at 548: A challenge is also made on the grounds that plaintiffs action is barred by the doctrine of sovereign immunity. It is argued that, in essence, this action is one against the State, seeking to have it continue to do business with plaintiff.Plaintiff is not attempting to enforce a present claim against the State but rather seeks to enjoin the defendant from taking actions in excess of his delegated authority and in violation of plaintiffs protectable legal interests.Such a suit does not contravene the immunity prohibition [citations omitted]. Here, defendants now admit, as they must, that plaintiffs have repeatedly alleged that the defendant officials have exceeded the bounds of their authority, under Illinois law, in taking the threats and enforcement actions and other steps complained of herein (Def. Memo, p. 9).Curiously, however, they say that no allegation established that any named state officials exceeded their authority or acted illegally (id.) an assertion with which we differ rather sharply, and as against which we urge the entirety of our case and supporting evidence so far adduced herein.But also they say that our allegations are unsupported by fact (id.) to which we say, again, that our submissions prove the contrary, and amply so. The Illinois Human Rights Act does not apply to sectarian adoption agencies such as plaintiffs (see, Plaintiffs Verified 2d Am. & Suppl. Compl., Count I, and Pls. Memo in Spt. of Mot. for Summ. Judgmt., Argument I, pp. 20 et seq.).Therefore, the Attorney Generals 12 assertion to the contrary, and her actions taken pursuant to that assertion, are in excess of her statutory authority.Also, defendants IDHRs and Director Clapss threatened enforcement is equally ultra vires and in excess of his authority (id.).Similarly, as the Religious Freedom Protection and Civil Union Act does not restrict plaintiffs action, and deems them exempt insofar as they engage in religious practices, proves that defendants McEwen and DCFS acted in excess of their authority in declaring plaintiffs ineligible to contract with the State of Illinois and DCFS owing to their alleged non-compliance with that Act, when in fact they do comply therewith (see, Pls. Verified 2d Am. & Suppl. Compl., Count II, and Pls. Memo in Spt. of Mot. for Summ. Judgmt., Argument II, pp. 24 et seq.).Furthermore, all these officials are acting in excess of their powers in ignoring the Illinois Religious Freedom Restoration Act (see, Pls. Verified 2d Am. & Suppl. Compl., Count III, and Pls. Memo in Spt. of Mot. for Summ. Judgmt., Argument III, pp. 28 et seq.). That sovereign immunity affords no shelter to these defendants is proved absolutely by the decision of the Appellate Court, First District, in In re V.H., 197 Ill.App.3d 52, 58 (1st Dist. 1990), where the Court said that the legislature has imposed on DCFS the duty to provide social services to certain children, etc. as there is a protectable liberty interest which requires DCFS to provide minimally adequate care and treatment of children in its custody, and accordingly the trial court property enjoined respondents from taking actions in excess of their delegated authority and in violation of petitioners protectable liberty interests, and that such a ruling does not contravene the immunity prohibition, citing, inter alia, Bio-Medical Laboratories, supra. III.JUSTICIABILITY AFFORDS NO BAR TO COUNT I OF PLAINTIFFS VERIFIED SECOND AMENDED & SUPPLEMENTAL COMPLAINT Defendants argument against Count I is pegged on a vain objection to justiciability on the false premise that there is no case or controversy as to whether or not the plaintiffs qualify 13 as places of public accommodation under the Human Rights Act, so that they would be held subject to that Acts proscriptions against marital status and sexual orientation discrimination and in violation thereof (Def. Memo, pp. 12-14). Here, plaintiffs stand on their verified allegations (Verified 2d Am. & Suppl. Compl., 3-12, describing the three actual controversies at bar, 8-20, addressing issues of justiciability) and as well upon their memorandum supporting their cross motion for summary judgment (Memo in Spt. of Pls. Mot. for Summ. Jdgmt., pp. 4-10). Indeed, plaintiffs submit, with respect, that this case is eminently justiciable as while plaintiffs were threatened when they filed this lawsuit, since then the state agencies and officials have been outspokenly hostile and critical of their legal position, from the Governor on down, and the defendant DCFS actually cut the thread that held the Sword of Damocles dangling over their heads, declaring them abruptly, arbitrarily and capriciously ineligible for any ongoing contractual relationship with the State.That the Attorney General intends to proceed against them under the Illinois Human Rights Act is all too menacing, and when this Court asked counsel for defendants if indeed the Attorney General was willing to back off, defense counsel answered that she was no authorized to say so.Since then, the silence has been deafening, except for defendants having appealed the Courts preliminary injunction, pressing a cross motion for summary judgment, and otherwise defending this case with the utmost vigor. Furthermore, the claim that Count I is not justiciable is especially feeble in light of the Illinois Supreme Courts ruling inBd. of Trustees of Southern Illinois Univ. v. Dept of Human Rights, 159 Ill.2d 2067, 211 (1994), in which the Illinois Department of Human Rights (IDHR), also a defendant herein, was the target of a writ of prohibition, barring its further conduct of nothing more or less than an investigation of the plaintiff in that case.This was held to be an 14 adjudicatory proceeding, carried on ultra vires, and without statutory warrant.Defendants argument that an investigation is not an enforcement action (Def. Memo, p. 14) simply cannot be squared with this governing Supreme Court precedent.Here, too, the Attorney Generals pattern or practice investigation of the plaintiffs is all the more an unwarranted imposition that the IDHRs investigation of SIU.It is no less ultra vires than the investigation conducted by IDHR itself.The Attorney Generals investigatory powers are more draconian, if anything, as they range statewide, and thus the concomitant burden on plaintiffs is all that much greater.As plaintiff S.I.U. prevailed in that case, a fortiori plaintiffs should prevail herein on Count I. Finally, we take issue with the Defendants denial that paragraph twenty-six of the Verified Second Amended & Supplemental Complaint is untrue (Def. Memo, p. 13).That allegation was to the effect that the Attorney Generals Office charged that defendants were bound by the public accommodations provisions of the Human Rights Act.A fair reading of the letter (Exh. B to the Verified 2d Am. & Suppl. Compl.) could support no other conclusion!If plaintiffs did not qualify as places of public accommodation, then their activities in connection with foster care and adoption wouldnt be covered at all by the Human Rights Act, as only such places of public accommodation are subject to its non-discrimination prohibitions.Thats precisely the thrust of Count I, namely, that plaintiffs are not so covered, and therefore, they are not subject to those prohibitions, nor to the Attorney Generals delegated powers to conduct statewide investigations of pattern or practice violations of the Illinois Human Rights Act. IV.THE EXEMPTING LANGUAGE IN THE RELIGIOUS FREEDOM PRO- TECTION AND CIVIL UNION ACT APPLIES TO PLAINTIFFS Defendants argument against Count II of the Verified Amended & Supplemental Complaint is rather astonishing to plaintiffs.They would, in effect, rip the first sentence of750 ILCS 75/15 right out of the Act, reducing the scope and effect of that provision to its second 15 sentence, focused on officiating at civil union ceremonies.That is in the teeth of settled precedent with respect to construction of Illinois statutes, as urged in Argument II of our memorandum in support of plaintiffs cross motion for summary judgment (Pls. Memo in Spt. of Pls. Mot. for Summ. Judgmt., II, pp. 24-28).Senator Koehlers words may not be brushed aside, as defendants urge (Def. Memo, p. 16) as he is not merely a single legislator, but rather the sponsor of the legislation!There is utterly nothing throughout the entire legislative history of this Act that is contrary to, let alone negates what Senator Koehler said in response to the explicit questions posed to him, as the bills sponsor, by Senator Haine.This was not, furthermore, any sort of blanket exemption (Def. Memo, p. 17), but rather one that was sought and adopted in recognition that religious bodies have played a vital, indeed indispensable role in providing foster care and adoption, as well as other social services, for the benefit of vulnerable and needy Illinois young people and families. Otherwise, plaintiffs stand on their prior submissions except for one final note.It is notable that defendants wear horse blinders in referring to this statute, calling it repeatedly the Civil Union Act (e.g., Def. Memo, passim), except on rare occasions (e.g., id., p. 14).Its title puts the horse before the cart, as it is the Religious Freedom Protection and Civil Union Act.Defendants prefer the cart, sans the horse a tactic that only reflects an unwillingness on the part of the State of Illinois defendants herein to abide by this law, in its entirety. V.PLAINTIFFS EXERCISE OF RELIGION IS PROTECTED BY THE ILLINOIS RELIGIOUS FREEDOM RESTORATION ACT Here, plaintiffs elect for the most part of stand on their prior submissions, which havebeen extensive, including their Verified Second Amended & Supplemental Complaint, Count III, 1-47, their memorandum in support of their cross motion for summary judgment, Argument III, pp. 28-37, and their memorandum in opposition to the intervenors motion to dismiss their 16 second amended verified complaint or, in the alternative, for summary judgment, Argument VII, especially the subsection addressing The Illinois Religious Freedom Restoration Act.Plaintiffs note, for the present, only that the Defendants seem insistent that their actions were not coercive in any respect toward plaintiffs in the exercise of their religious faith (Def. Memo, pp. 22, 23, etc.).Quite the contrary, DCFS effectively has given plaintiffs a choice that could not be any more coercive in terms of having to betray ones faith or comply with the secular sovereigns decree.Weve addressed the legal authorities, including the Fifth District Appellate Court ruling in the case of Diggs v. Snyder, 333 Ill.App. 3d 189, 195 (2002), at length elsewhere (referred to, supra). Finally, conspicuous by its absence is any response that defendants have to offer with respect to the Federal Executive Order and its explicit protections for faith-based social services providers and provisions for referral procedures (Verified 2d Am. & Suppl. Compl., Ct. III, 47 & Exh. C).If referral procedures are provided in compliance with federal directives for those who wish to avoid religious-inspired social service agencies, how could defendants justify their disapproval for those who cherish religion-based conscientious objections?Wouldnt that qualify as discriminatory? VI.SUMMARY JUDGMENT SHOULD BE GRANTED ON PLAINTIFFS DUE PROCESS CLAIMS ASSERTED IN COUNT IV As weve argued at length already (supra, pp. 5-8) and elsewhere (Verified 2d Am. &Suppl. Compl., Count IV 1-61, pp. 42-46;Pls. Memo in Spt. Pls. Mot. Summ. Judgmt., Argument IV, pp. 37-40;and Pls. Memo in Oppos. to Intervenors Mot. to Dismiss or, in the Alternative, for Summ. Jdgmt., Argument VII). Nothing more need to said about plaintiffs legally protected interest, whose deprivation is subject to both substantive and procedural due process protections.The Bio-Medical Labora-17 tories decision of our Supreme Court has withstood the test of time, and if that Medicaid plaintiffs eight year contractual relationship with the State warranted protection, then plaintiffs entitlement to protection seems solidly grounded in Illinois jurisprudence.Defendants desperate resort to reliance on the Polyvend decision of the Supreme Court (supra, pp. 7-8) confirms that Bio-Medical squarely applies here, as explicated by the high Court in Polyvend. Defendants silence on the matter of procedural due process protection speaks volumes.Given that there is a clear property interest at stake (not to mention the liberty interest bound up with Illinois statutory protection, couched in the Religious Freedom Restoration Act, for the exercise of religion), surely more process was due than was afforded to the plaintiffs here, which amounted to zero process.Indeed, defendants timing suggested an effort to cut off plaintiffs effort to seek emergency relief from this Court, given the late delivery of Mr. McEwens letter Friday afternoon, just after emergency motion papers had been served, noticing a hearing the following Tuesday when this Court had made time available to counsel for such a hearing on this case. Defendants say nothing about the minimal guarantees that the Supreme Court ruled in Balmoral Racing Club, Inc. v. Illinois Racing Bd., 151 Ill.2d 367, 408 (1992), must always be provided, namely, reasonable notice, the right to examine witnesses, to testify, to present witnesses, and to be represented by counsel (Pl. Memo in Spt. of Mot. for Summ. Jdgmt., Argument IV, p. 39). VII.THIS COURT SHOULD GRANT PLAINTIFFS A PERMANENT DECREE OF INJUNCTION, BARRING DEFENDANTS REFUSAL TODEAL WITH PLAINTIFFS FOR ILLEGAL REASONS Defendants say nothing about the relief for which plaintiffs have prayed, except to argue against granting plaintiffs any relief.Therefore, there is nothing to contradict our allegations and 18 arguments about irreparable harm or adequate of legal remedies, only about plaintiffs clearly ascertainable right to relief. On the latter score, plaintiffs respectfully urge that they have demonstrated a right to relief on multiple counts of their Verified Second Amended & Supplemental Complaint.The jurisprudence here in Illinois fully supports plaintiffs contention that they have a legally protected interest, and its deprivation was in utter defiance of Illinois law on several grounds.That deprivation has now been temporarily remedied, triggering defendants interlocutory appeal.A permanent injunction decree should be entered, without any further delay, in accordance with law and in furtherance of justice. If plaintiffs were deemed ineligible for, or debarred from, state contracts by the defendants on illegal grounds, or if they reached that decision without timely notice or opportunity for hearing, as plaintiffs contend, the Court is fully empowered to declare it to be so, and it should fashion a remedy tailored to the exigencies of this case, barring defendants from continuing to give effect to that illegal decision.That is not unilaterally dictating, or forcing, contract terms upon a sovereign state, but rather enforcing the laws of the sovereign against those guilty of having violated them. CONCLUSION Plaintiffs pray that the Court will grant their motion for summary judgment, deny the defendants cross motion for summary judgment, enter a permanent injunction decree as sought in plaintiffs motion, and grant them all other relief to which they may be entitled on the premises in accordance with law. Of Counsel:__________________________________________ Thomas BrejchaOne of the Attorneys for Plaintiffs Peter Breen Thomas More Society, 19 A public interest law firm 29 So. LaSalle St., Suite 440 Chicago, IL 60603 ARDC #0288446 Tel. 312-782-1680 Fax 312-782-1887 ARDC # 0288446 Attorney for all Plaintiffs Bradley E. Huff Richard Wilderson Graham & Graham, Ltd. 1201 South Eighth Street Springfield, IL 62703 Tel. 217-523-4569 Fax 217-523-4656 Attorneys for Catholic Charities for the Diocese of Springfield in Illinois Patricia Gibson Chancellor & Diocesan Counsel Diocese of Peoria Spalding Pastoral Center 419 NE Madison Avenue Peoria, IL 61603 Tel. 309-671-1550 Fax 309-671-1576 Attorney for Catholic Charities for the Diocese of Peoria James C. Byrne Spesia & Ayers 1415 Black Road Joliet, IL 60435 Tel. 815-726-4311 Fax 815-726-6828 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 Fax 314-552-7000 20 21 Attorneys for Catholic Social Services for Southern Illinois, Diocese of Belleville IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUITSANGAMON COUNTY, ILLINOIS______________________________________________________________________________CATHOLIC CHARITIES OF THE DIOCESE OF )SPRINGFIELD-IN-ILLINOIS, an Illinois non-profit)corporation, CATHOLIC CHARITIES OF THE)DIOCESE OF PEORIA, an Illinois non-profit )corporation, CATHOLIC CHARITIES OF THE )DIOCESE OF JOLIET, INC., an Illinois non-profit )corporation, and CATHOLIC SOCIAL SERVICES )OF ILLINOIS, INC., an Illinois non-profit)corporation, ))Plaintiffs, ) Case No. 11-MR-254)vs. ) Hon. John Schmidt,) Judge PresidingSTATE OF ILLINOIS, LISA MADIGAN, in her )official capacity as the Attorney General )of the State of Illinois, ERWIN McEWEN, in his )official capacity as Director of the Department of )Children & Family Services, State of Illinois, and )the DEPARTMENT OF CHILDREN & FAMILY )SERVICES, State of Illinois, ROCCO J. CLAPPS, )in his official capacity as Director of the)Department of Human Rights, State of Illinois, )and the DEPARTMENT OF HUMAN RIGHTS, )State of Illinois, ))Defendants, and ))SUSAN TONE PIERCE, as Next Friend and on )behalf of a certified class of all current and future )foster children in custody of DCFS in a federal )case titled B.H. v McEwen, No. 88 CV 5589 )(N.D. Ill. 1988); SARAH RIDDLE, and )KATHERINE WESEMAN, ))Intervening Defendants. )PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO INTERVENORS MOTION TO DISMISS THEIR SECOND AMENDED COMPLAINT OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT2ARGUMENTI.NONE OF THE INTERVENORS HAS STANDING TO OPPOSE THE RELIEFRELIEF PLAINTIFFS SEEK AGAINST DEFENDANTS IN THIS CASE.Intervenors are a couple who have entered into a civil union Katherine Weseman andSarah Riddle and the appointed next friend of the class of foster children certified in B.H. v.McEwen, No. 88 C 5589 (N.D. Ill.), Susan Tone Pierce.None of the intervenors has standing tooppose the relief plaintiffs seek against defendants in this case.The Civil Union CoupleIn their declarations, Ms. Weseman and Ms. Riddle aver that they want children in thefuture and intend in the future to seek to become licensed foster parents in Illinois and inhaving a state ward placed in our home for foster care and possibly adoption.Weseman Decl. 2; Riddle Decl. 2 (emphasis added).Neither Ms. Weseman nor Ms. Riddle, however, ispresently licensed as a foster parent; neither is presently seeking to become licensed as a fosterparent; neither has expressed a present intention to have a state ward placed in their home; neither is presently planning to adopt a child; and neither gives any indication of when in thefuture they may seek to be licensed as a foster parent or adopt a child in foster care.Based ontheir declarations, it is entirely speculative whether Ms. Weseman and Ms. Riddle will ever seekto be licensed as foster parents, have a state ward placed in their home or adopt a foster childwho has been placed in their home.Their averments fail to establish their standing to oppose therelief plaintiffs seek against defendants in this case.To possess standing, a person claiming that she has been or would be injured by Nothing in plaintiffs policies and practices would prevent Ms. Weseman and Ms.1Riddle from being licensed as foster parents through DCFS directly or through other socialservice agencies, from having a foster child placed in their care or from adopting a foster child intheir care.3the actions of another must demonstrate an injury in fact, that is, the injury must be,first, distinct and palpable, second, fairly traceable to [another persons] actions, and,third, substantially likely to be prevented or redressed by the grant of the requestedrelief, in this case, an order dismissing plaintiffs action or entering summary judgmentin favor of the intervenors.City of Carbondale v. Marion, 210 Ill.App.3d 870, 873 (5thDist. 1991).With respect to the first requirement, a party does not have standing merelyby asserting some future or speculative injury that may come to pass at some futuredate.DiSanto v. Warrenville, 59 Ill.App.3d 931, 936 (2d Dist. 1978).That preciselydescribes the injury Ms. Weseman and Ms. Riddle have alleged in their declarations.Here, Ms. Weseman and Ms. Riddle oppose the relief plaintiffs have soughtagainst defendants based upon an utterly conjectural, hypothetical possibility of futureharm their inability to be licensed as foster parents and to adopt. But, as noted above,1neither Ms. Weseman nor Ms. Riddle is licensed as a foster parent, neither seeks to belicensed as a foster parent and neither is even contemplating adopting a child in fostercare.The alleged injury which they claim they would suffer if plaintiffs prevail in thiscase is simply too remote and speculative to support their standing in this case.In Roe v. Wade, 410 U.S. 113 (1973), a married couple, John and Mary Doe,along with aphysician (Dr. Hallford) and an unmarried pregnant woman (Jane Roe), sought to challenge the4Texas statutes prohibiting abortion except to save the life of the mother.The Court held thatJane Roe had standing, but that Dr. Hallford and the Does did not.410 U.S. at 123-29.John andMary Doe were a childless couple.Mary Doe had been advised by her physician to avoidpregnancy. On medical advice, she had discontinued taking birth control pills.Although shewas not pregnant, Mary Doe feared that she might become pregnant if did not use contraception,forcing her and her husband to make a choice between refraining from having normal sexualrelations or possibly endangering her health if she became pregnant.In the latter event, she andher husband might want to obtain an abortion that would be illegal under Texas law.The Courtfound that the Does alleged injury rested on a speculative chain of events that might or mightnot ever materialize possible future contraceptive failure, possible future pregnancy, possiblefuture unpreparedness for parenthood, and possible future impairment of health.Id. at 128.Any one or more of these several possibilities may not take place and all may not combine.Id. The bare allegation of so indirect an injury is [not] sufficient to present an actual case orcontroversy.Id.Accordingly, the Court affirmed the dismissal of their complaint.Id. at 113.So, too, in the case at bar, the mere possibility that Ms. Weseman and Ms. Riddle might,at some indeterminate time in the future, apply to be licensed as foster parents (and possiblypursue an adoption of a child placed in their care) falls far short of giving them standing tooppose the relief plaintiffs seek in this case where neither has expressed a present intention ofapplying to become a foster parent or adopting a child in foster care.Accordingly, their motionto dismiss or, in the alternative, for summary judgment, should be denied for lack of standing.The Next Friend The next friend of the plaintiff class of foster children certified in B.H. v McEwen, Which may explain why a search of Illinois Supreme Court and Appellate Court2databases discloses no reported state case in which Ms. Pierce has sued or intervened (or soughtto intervene) in the more than twenty years since she was appointed as successor next friend. Rule 17(c)(2) provides, in relevant part:3(1) With a Representative.The following representatives may sue ordefend on behalf of a minor or an incompetent person: (A) a general guardian; (B)a committee; (C) a conservator; or (D) a like fiduciary.(2) Without a Representative.A minor or an incompetent person whodoes not have a duly appointed representative may sue by a next friend or by aguardian ad litem.The court must appoint a guardian ad litem or issue anotherappropriate order to protect a minor or incompetent person who is unrepresentedin an action.5Susan Tone Pierce, also lacks standing to oppose the relief plaintiffs seek against defendants. Ms. Pierce was appointed next friend of the plaintiff class on November 7, 1990, as successorto the first next friend appointed to represent members of the certified class.Pierce Decl. 6. In her declaration, Ms. Pierce identifies no authority in her appointment that would allow her tostep into an unrelated state case and ask that the complaint be dismissed or, in the alternative,that summary judgment be granted in her favor, on the basis that the relief requested by plaintiffs,if granted, would conflict with the consent decree originally entered in B.H. on December 20,1991, and subsequently modified in various respects, see Pierce Decl. Exhibit A (RestatedConsent Decree of July 15, 1997). Nor does such authority appear in the order of appointment2itself.See Pierce Decl. Exhibit B (Order of Nov. 7, 1990). In federal civil practice, a next friend may sue or defend on behalf of a minor orincompetent person pursuant to Rule 17(c)(2) of the Federal Rules of Civil Procedure. A child3who does not have a guardian or appointed representative may sue through a next friend, orguardian ad litem appointed by the district court.T.W. by Enk v. Brophy, 124 F.3d 893, 895 (7th6Cir. 1997).See also Bryan A. Garner, A DICTIONARY OF MODERN LEGAL USAGE (1990) (nextfriend, guardian ad litem and prochein ami all noted as synonyms).The terms next friendand guardian ad litem are essentially interchangeable, although the former is customarily usedwhen the child is the plaintiff and the latter when the child is the defendant.T.W. by Enk, 124F.3d at 895.Thus, both the courts and Rule 17(c)(2) distinguish between a general representative(guardians and appointed representatives) on the one hand, and a special representative(guardians ad litem and next friends) on the other.As next friend of the certified class of children in foster care in Illinois, Ms. Pierce hasbeen given no roving commission to right whatever wrongs she may believe her class hassuffered or may suffer from the conduct of others.Rather, her authority is limited to, and isessentially the same as, a guardian ad litem, that is, a guardian with respect to a particular case. That is confirmed by an examination of the consent decree itself, which expressly denies her (oranyone else) authority to enforce the decree outside of the federal court retaining jurisdiction ofthe case.Paragraph 3 of the Restated Consent Decree provides, in relevant part: Nor shallthis Decree create any right enforceable in any proceeding other than this case.Emphasisadded.That, however, is precisely what Ms. Pierce is attempting to do, i.e., she is trying toenforce, in another proceeding (the one at bar), a right purportedly created by the consent decreeentered in the federal class action.If Ms. Pierce believes that the relief plaintiffs seek wouldviolate the terms of the consent decree, she is free to initiate whatever proceedings she deemsappropriate in the federal court retaining jurisdiction of the case, as the decree itself envisions(par. 3 recognizes the courts power to enforce the terms of this decree). Under the terms of As the next friend herself acknowledges: If there is any question about whether the4case [brought by plaintiffs against defendants] presents a conflict with the [consent] decree, itshould be resolved by the federal court.Intervenors Memorandum at 7 (emphasis added). For the reasons set forth in Argument IV, infra, this policy does not prevent anyone in a5cohabiting relationship from becoming a foster parent or adopting.7the consent decree, that is her only option.4II.THE RELIEF REQUESTED BY THE NEXT FRIEND IS BARRED BY LACHESAssuming that Ms. Pierce has standing to oppose the relief plaintiffs seek in this action,the relief she asks for in this case dismissal of plaintiffs complaint or summary judgment isbarred by the doctrine of laches.As previously noted, Ms. Pierce was appointed as next friendof the plaintiff class certified in B.H. v. McEwen on November 7, 1990, more than a year beforethe original consent decree was entered in B.H. on December 20, 1991.Pierce Decl. 4, 6 &Exhibit A (Restated Consent Decree).At all times since her appointment (and long beforethen), it has been the policy of Catholic Charities, on the basis of sincerely-held religious beliefregarding the morality of cohabitation, not to accept foster parent applications from unmarriedpersons who are cohabiting (regardless of their sexual orientation) and not to process adoptionsof unrelated children by cohabiting persons (regardless of their sexual orientation).See [xxxDecl.] Yet, despite the direct conflict[] this policy supposedly creates with the terms of the5consent decree, and the actual harm this policy allegedly inflicts upon children in foster care,see Pierce Decl. 7, the next friend has taken no action in almost twenty years to challengeDCFSs relationship with plaintiffs or their suitability to act as social service agencies offeringfoster care and adoption services.Her attempt to do so at this late stage is barred by laches. In addition, [f]or laches to apply, a plaintiff must have knowledge of his right, yet fail6to assert it in a timely manner.Sundance Homes, 195 Ill.2d at 270.Given that Ms. Pierce hasbeen the next friend of children in foster care Illinois for more than twenty years and may becharged with a thorough and comprehensive knowledge of the foster care system in Illinois, thatrequirement is clearly met in this case.8The Illinois Supreme Court has explained,Laches is an equitable doctrine which precludes the assertion of aclaim by a litigant whose unreasonable delay in raising that claimhas prejudiced the opposing party.The doctrine is grounded in theequitable notion that courts are reluctant to come to the aid of aparty who has knowingly slept on his rights to the detriment of theopposing party.Tully v. State, 143 Ill.2d 425, 432 (1991) (citations omitted).The doctrine of laches may beapplied to actions at law, as well as in equity, Sundance Homes, Inc. v. County of DuPage, 195Ill.2d 257, 271 (2001), and may be raised against relief sought via a complaint or cross-complaint, Tully, 143 Ill.2d at 432.In order to find that laches applies, two elements arenecessary:first, a lack of diligence by the party asserting the claim, and, second, prejudice tothe opposing party resulting from the delay.Tully, 143 Ill.2d at 432.Both elements are presenthere. 6First, it would be an understatement to suggest that the appointed next friend in B.H. v.McEwen has failed to assert in a prompt, diligent manner her claim that the practices ofCatholic Charities adversely affect the interests of the children in their care and violate the termsof the consent decree when, for almost twenty years since the consent decree was entered onDecember 20, 1991, Ms. Pierce has taken no steps to sue Catholic Charities or DCFS orotherwise enforce the terms of the consent decree against Catholic Charities or DCFS, either infederal court or state court (assuming that she has the authority to sue in state court).Ms. Pierce This point is elaborated in Argument V, infra.79has not merely slept on [her] rights, Tully, she has been a veritable Rip van Winkle.It is a littlelate in the day for Ms. Pierce to trot out a parade of horribles that will ensue if plaintiffs prevailin their action, see Intervenors Memorandum 10-13 (purporting to identify how the interests ofchildren in foster care would be harmed [i]f Catholic Charities are allowed to continue todiscriminate as foster care agencies) (emphasis added), when the relief plaintiffs seek is nothingother than the restoration of the status quo ante, specifically, being allowed to continue to offertheir vital social services on the same terms that they have for far more than the twenty years Ms.Pierce has been the next friend of the plaintiff class of children in foster care.First Fox Decl. 9, 12; First Huelsmann Decl. 3; First Roach Decl. 19; First Van Cura Decl. 3.Apart fromthe issue of laches, it may be asked whether, given that plaintiffs do not ask for any relief in thiscase other than being able to do what they have been doing for decades, the failure of Ms. Pierceto prove (or even allege) past harms does not undermine her bare assertion of future harms.7Second, the prejudice to plaintiffs from the next friends failure to assert her claimagainst plaintiffs is obvious and profound.For the twenty years the consent decree in B.H. v.McEwen has been in force, Catholic Charities has provided foster care and adoption services to thousands of children in foster care in Illinois recruiting foster parents, processing theirapplications, placing children in stable homes, facilitating adoptions and building the staff andresources necessary to provide those services to Illinoisans from all walks of life.To allow Ms.Pierce to force Catholic Charities out of the social services it has provided in this area fordecades at this late date would severely prejudice plaintiffs.Accordingly, the relief she asks forin this case should be denied.10III.THE RELIEF PLAINTIFFS SEEK IN THIS CASE IS NOT BARRED BY THEFEDERAL CONSENT DECREE ENTERED IN B.H. v. McEWEN.Ms. Pierce has moved this Court to dismiss plaintiffs action as an impermissiblecollateral attack on the federal consent decree entered in B.H. v. McEwen, No. 88 C 5589 (N.D.Ill.).Intervenors Motion, 5, 6; Memorandum at 5-8.As authority for her motion, intervenorscite 2-619(a)(1) of the Code of Civil Procedure.Motion at 2; Memorandum at 4.Assumingthat intervenors have standing and that the relief the next friend seeks is not barred by thedoctrine of laches, plaintiffs respond that neither 2-619(a)(1) nor any other subsection of 2-619(a) authorizes dismissal of plaintiffs action on the ground asserted by intervenors.Section 2-619(a)(1) provides that, on motion of a defendant, an action may beinvoluntarily dismissed if the court does not have jurisdiction of the subject matter of theaction. 735 ILCS 5/2-619(a)(1).Curiously, neither in their motion nor in their supportingmemorandum have intervenors either quoted this language or cited any cases construing it. Given the language and interpretation of 2-619(a)(1), that is not surprising.The presence or absence of subject matter jurisdiction is determined from the nature ofthe case and the relief sought.Russell v. Kinney Contractors, Inc., 342 Ill.App.3d 666, 670 (5thDist. 2003) (citation omitted).Illinois circuit courts are courts of general jurisdiction havingoriginal jurisdiction over all justiciable controversies (Ill. Const. 1970, art. VI, 9), except (1)cases over which the federal courts have exclusive jurisdiction . . . , (2) matters committed toadministrative tribunals (see Ill. Const. 1980, art. VI, 9), and (3) those matters committed bythe Illinois Constitution to the exclusive original jurisdiction of the Illinois Supreme Court (Ill. That distinguishes the only other Illinois authority cited by intervenors, Kellerman v.8MCI Communications, 112 Ill.2d 428, 447-48 (1986) (recognizing that comity is one of thefactors a court should consider in staying a case between the same parties under 2-619(a)(3)). 11Const. 1970 art. VI, 9).Russell, 342 Ill.App.3d at 670-71 (case citation omitted).See alsoCohen v. McDonalds Corp., 347 Ill.App.3d 627, 632-33 (1st Dist. 2004) (following Russell). Plaintiffs action against defendants falls into none of these categories, and intervenors do notsuggest otherwise. Accordingly, there is no basis to dismiss plaintiffs action under 2-619(a)(1).Intervenors cite two cases in which Illinois state court actions were dismissed because ofthe pendency of the litigation in B.H., Memorandum at 8, citing In re M.K., 284 Ill.App.3d 449(1st Dist. 1996), and Katherine M. v. Ryder, 254 Ill.App.3d 479 (1st Dist. 1993), but in bothcases the dismissal was based on 2-619(a)(3), not 2-619(a)(1).Section 2-619(a)(3) allows, inthe discretion of the circuit court, see People ex rel. Dept of Public Aid v. Santos, 92 Ill.2d 120,125 (1982), an action to be involuntarily dismissed on the defendants motion on the ground thatthere is another action pending between the same parties for the same cause.735 ILCS 5/2-619(a)(3) (emphasis added).In both In re M.K. and Katherine M., the state court actions werebrought by certain minors in the custody of DCFS (a subclass of the plaintiff class in B.H. v.McEwen) against DCFS officials (the Director of DCFS was the defendant in B.H.), raisingissues that were subsumed within the federal litigation.In other words, the actions involved thesame parties for the same cause. Section 2-619(a)(3) provides no basis for dismissing the8present action (and intervenors have not alleged otherwise) because plaintiffs herein were notparties to the litigation in B.H. v. McEwen and the cause whether DCFS may refuse to renewplaintiffs contracts because of their invocation of their free exercise rights under Illinois law isentirely different.Apart from 2-619(a)(1), the only provision cited by intervenors, and 2- Intervenors have not sought to dismiss plaintiffs action under 2-619(a)(4), relating to9prior judgments, perhaps because they realize the inapplicability of that section.Section 2-619(a)(4) codifies the doctrines of res judicata and collateral estoppel.Yorulmazoglu v. LakeForest Hospital, 359 Ill.App.3d 554, 558 (1st Dist. 2005).Neither of those doctrines applies, ofcourse, because, first, there was no final judgment in B.H., only the entry of a consent decree,and, second, plaintiffs were not parties to the litigation.Neither in In re M.K. nor Katherine M. was the state action dismissed on the ground10that it constituted an impermissible collateral attack on a federal consent decree. Although resort to the judicial process, rather than relying upon the political process, to11remedy the ills sought to be corrected by the consent decree in B.H. has been severely criticizedby the Seventh Circuit, see B.H. v. McDonald, 49 F.3d 294, 301-04 (7th Cir. 1995) (Easterbrook,12619(a)(3), cited in In re M.K. and Katherine M., intervenors have failed to identify, directly orindirectly, any other statutory basis for dismissing plaintiffs complaint.9Intervenors, plaintiffs note, cite no Illinois case in which a state court action wasdismissed on the basis that it was an impermissible collateral attack on a federal consentdecree. And, in a case decided by the United States Supreme Court not cited by intervenors, the10Court expressly rejected the collateral attack doctrine intervenors press upon this Court.In Martin v. Wilks, 490 U.S. 755 (1989), the Supreme Court held that a group of whitefirefighters could sue Birmingham, Alabama, for reverse discrimination, notwithstanding the factthat the discrimination in question had been mandated by a federal consent decree in earlierlitigation to which the firefighters had not been made parties.The defendants in the actionbrought by the firefightersargued that because respondents [the firefighters] failed to timelyintervene in the initial proceedings, their current challenge to actions taken under the consentdecree constitutes an impermissible collateral attack on the decree, Martin, 490 U.S. at 762,precisely the same argument intervenors make here (i.e., that if plaintiffs objected to the terms ofthe federal consent decree, they should have sought to intervene in that case). The defendants11J., joined by Goodwin, concurring) (objecting to using the judiciary to fashion a remedy thatproperly belongs to the legislature, but noting that no one has asked us to restore this subject tothe peoples representatives), plaintiffs support, not oppose, the remedial measures required bythe decree. Both intervenors (Memorandum at 7) and the principal case on which they rely, Indiana12Dept of Environmental Management v. Conard, 614 N.E.2d 916, 922 (Ind. 1993), cited Marino. The Seventh Circuit, as the Court noted, had held otherwise.Martin, 490 U.S. at 762 n. 3, citingDunn v. Carey, 808 F.2d 555, 559-560 (7th Cir. 1986) (allowing collateral attacks on consentdecrees by non-parties).13argued that respondents were aware that the underlying suit might affect them, and if they choseto pass up an opportunity to intervene, they should not be permitted to later litigate the issues in anew action.Id.Although the Court acknowledged that the great majority of the federalcourts of appeals had approved of this position, id. at 762 & n. 3 (citing, inter alia, Marino v.Ortiz, 806 F.2d 1144, 1146-47 (2d Cir. 1986), affd by an equally divided Court, 484 U.S. 301(1988)),the Court agreed with the contrary view expressed by the Eleventh Circuit in Martin.12The Supreme Court began its analysis by noting that it is agreed as a principle ofgeneral application in Anglo-American jurisprudence that one is not bound by a judgment inpersonam in a litigation in which he is not designated as a party or to which he has not beenmade a party by service of process. Martin, 490 U.S. at 761, quoting Hansberry v. Lee, 311U.S. 32, 40 (1940).The law does not impose upon any person absolutely entitled to a hearingthe burden of voluntary intervention in a suit to which he is a stranger. . . . Unless dulysummoned to appear in a legal proceeding, a person not a privy may rest assured that a judgmentrecovered therein will not affect his legal rights. Id. at 763, quotingChase National Bank v.Norwalk, 291 U.S. 431, 441 (1934).That is also the case under the Federal Rules of CivilProcedure, i.e., a party seeking a judgment binding on another cannot obligation that person to14intervene; he must be joined.Id., citing Rule 24 of the Federal Rules of Civil Procedure(governing intervention).Rule 24 does not require anyone to seek intervention as of right or bypermission.Id. (nor, of course, does the Illinois statute on intervention, 735 ILCS 5/2-408,which is based on Rule 24).Potential parties are subjected to the jurisdiction of the court andbound by a judgment or decree by [j]oinder as a party [under Rule 19], rather than knowledgeof a lawsuit and an opportunity to intervene.Martin, 490 U.S. at 765.Again, the same is trueunder Illinois law, see 735 ILCS 5/2-404 through 2-407 (joinder provisions).The parties to a lawsuit presumably know better than anyone else the nature andscope of relief sought in the action, and at whose expense such relief might begranted.It makes sense, therefore, to place on them a burden of bringing inadditional parties where such a step is indicated, rather than placing on potentialadditional parties a duty to intervene when they acquire knowledge of the lawsuit.The linchpin of the impermissible collateral attack doctrine the attribution ofpreclusive effect to a failure to intervene is therefore quite inconsistent withRule 19 and Rule 24.Martin, 490 U.S. at 765 (emphasis added).The Supreme Court has recently reaffirmed the rule against nonparty preclusion. Taylor v. Sturgell, 128 S.Ct. 2161,2172 (2008) (citing, inter alia, Martin v. Wilks).The Courthas recognized certain limited exceptions to the rule.Id. at 2172-73 (if a person agrees to bebound by the determination of issues in an action between others, if there is a pre-existingsubstantive legal relationship between the person to be bound and a party to the judgment, inproperly conducted class actions in which a member of the class may be bound by a judgmentbecause she was adequately represented by someone with the same interests who [wa]s a party,if the nonparty assumed control over the litigation in which that judgment was rendered, if aparty to the litigation seeks to avoid its preclusive effect by relitigating through a proxy, and Plaintiffs do not concede that their action in any way undermines the consent decree13issued in B.H. v. McEwen.See Argument IV, infra. Entirely apart from the Supreme Courtsdecision in Martin v. Wilks, that distinguishes the authorities cited by intervenors.IntervenorsMemorandum at 5-8 citing, Indiana Dept of Environmental Management v. Conard, 614 N.E.2d916, 921-22 (Ind. 1993) (third parties claims, if allowed, would have conflicted with federalconsent decree setting PCB levels); Huston v. Mercedes-Benz USA, LLC., 2011 WL 2446608(West Virginia) (members of certified class who did not opt out of a federal class actionsettlement could not collaterally attack decree in state court); In re N.Y. State Commr ofCorrections v. Gulotta, 598 N.Y.S.2d 547, 549 (App. Div. 1993) (in state court proceeding, theCommissioner of Correction sought to end immediately the practice of double-celling ofinmates contrary to the terms of a federal consent decree that allowed the practice to be phasedout over time); Indiana Public Interest Research Group v. City of Bloomington, 501 N.E.2d 476(Ind. Ct. App. 1987) (plaintiffs state action sought to challenge the procedures leading up to afederal consent decree).Citing Martin v. Wilks, Gulotta recognized that in general, a nonpartyto litigation is not precluded from challenging a consent decree, but found it appropriate it topreclude the [Commissioner] from litigating this claim in an independent State court, since [he]was served with process in the Federal action and was a party to the litigation for several yearsbefore being dismissed from the action.598 N.Y.S.2d at 549-50.Other cases cited byintervenors did not involve federal consent decrees, but were actual judgments determining therights and responsibilities of the parties.See Black and White Children of the Pontiac SchoolSystem v. School District of the City of Pontiac, 464 F.2d 1030, 1030 (6th Cir. 1972) (federalaction seeking to modify desegregation decree was an improper collateral attack on the decree);Burns v. Board of School Commissioners of the City of Indianapolis, 437 F.2d 1143, 1144 (7thCir. 1971) (state court action brought by public teachers challenging provisions of federal courtjudgment determining teacher assignments was properly removed to federal court).Alsodistinguishable is State of Washington v. Washington Commercial Passenger Fishing VesselAssn, 443 U.S. 658, 695 (1979) (State-law prohibition against compliance with the DistrictCourts decree cannot survive the command of the Supremacy Clause).The relief sought byplaintiffs cannot be characterized as a state-law prohibition in conflict with a court judgment. 15in certain circumstances in which a special statutory scheme . . . expressly foreclos[es]successive litigation by nonlitigants) (citations and internal quotation marks omitted).See alsoMartin, 490 U.S. at 762 n. 2 (noting exceptions).None of those exceptions applies here.In light of the Supreme Courts rejection of the impermissible collateral attack doctrinein Martin v. Wilks, the authorities upon which intervenors rely in support of their argument thatplaintiffs action must be dismissed are entitled to no force or weight.Accordingly, plaintiffsaction is not barred by the consent decree entered in B.H. v. McEwen. Nor is that decree a13As the consent decree itself provides. See Restated Consent Decree, 3: Nor shall14this Decree create any right enforceable in any proceeding other than this case.16judicial precedent that must be followed under principles of stare decisis.Consent decrees, as the product of settlement negotiations between the parties and not theresult of a final adjudication of the merits, are not judicial precedents that must be followedunder principles of stare decisis, Stare decisis applies only to legal issues that were actuallydecided in a prior action, Beacon Oil Co. v. OLeary, 71 F.3d 391, 395 (Fed. Cir. 1995), andissues underlying a consent judgment generally are neither actually litigated nor essential to thejudgment.La Preferida v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir. 1990). See also United States v. Allegheny-Ludlum Industries, Inc. 517 F.2d 826, 845-46 n. 21 (5th Cir.1975) (same); County of Orange v. Air California, 799 F.2d 535, 538-39 (9th Cir. 1986) (same). The way in which a consent judgment or consent decree resolves, between the parties, a disputeover a legal issue is not a ruling on the merits of the legal issue that . . . becomes precedentapplicable to any other proceedings under the law of stare decisis . . . .Langton v. Hogan, 71F.3d 930, 935 (1st Cir. 1995) (emphasis in original).The leading treatise on federal practice and14procedure explains why consent decrees (or judgments) are not binding precedents:Consent judgments entered upon settlement by the parties may assumeforms that range from simple orders of dismissal with or without prejudice todetailed decrees. . . . If there is a judgment in some form, the centralcharacteristic of a consent judgment is that the court has not actually resolved thesubstance of the issues presented.To be sure, in various circumstances judicialapproval of a consent judgment may require careful scrutiny of its fairness in lightof the probable outcome on the merits. . . .However close the examination maybe, the fact remains that it does not involve contest or decision on the merits.Anyfindings made as part of the approval process go to the reasonableness of thesettlement, not the merits of the dispute.The judgment results not fromadjudication but from a basically contractual agreement of the parties.1718A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice andProcedure:Jurisdiction and Related Matters 2d 4443, at255-57 (2d ed. 2002) (emphasisadded). The Seventh Circuit has held that in determining whether a proposed consent decree islawful, fair, reasonable, and adequate, the district court should refrain from resolving themerits of the controversy or making a precise determination of the parties respective legalrights.E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985).And in theconsent decree adopted in B.H. v. McEwen, the district court did not resolve[] the merits of thecontroversy or mak[e] a precise determination of the parties respective legal rights.The decreeexpressly notes: This Decree is the result of a compromise and settlement and is not adetermination of liability.Nothing herein shall be considered an admission of fault of any kindby defendant, nor shall anything herein be considered a reflection of any weakness of proof byplaintiffs.Restated Consent Decree, p. 5.The Supreme Court has recognized that it is the agreement of the parties, rather than theforce of law upon which the complaint was originally based, that creates the obligationsembodied in consent decrees.Intl Assn of Firefighters, supra, 478 U.S. at 522.[C]onsentdecrees . . . are not true adjudications of the underlying issues, Lipsky v. Commonwealth UnitedCorp., 551 F.2d 887, 893-94 (2d Cir. 1976), and their precedential value is nil.In re A. CardiConstruction Co., Inc., 154 B.R. 403, 406 (D. R.I. 1993).Nevertheless, while plaintiffs are notbound by the consent decree in B.H. v McEwen, and that decree is not a judicial precedent thatthis Court is required to follow, their policies and practices are entirely consonant with the decreeand with the best interests of the children in foster care Illinois. Because neither Ms. Weseman nor Ms. Riddle is currently licensed as a foster parent15and because neither has expressed a present intention of becoming licensed, neither has standingto oppose the relief plaintiffs seek in this action.See Argument I, supra.Accordingly, it isunnecessary to address arguments in their memorandum that relate to the rights of foster parents. Intervenors Memorandum at 20-27.Plaintiffs note, however, that nothing in their policiesdeclining, on the basis of sincerely-held religious beliefs, to process the foster parent applicationsof persons who are cohabiting outside of marriage, prevents Ms. Weseman and Ms. Riddle frombeing licensed as foster parents, either though DCFS directly or through another private agency.First Fox Decl. 9; Third Fox Decl. 12; Second Huelsmann Decl. 9; Riordan Decl. 9; ThirdRoach Decl. 9; Third Van Cura Decl. 9.In any event, as the Seventh Circuit has recognized,Illinois law confers no liberty interest on foster parents to a relationship with a foster child. . . .Dupuy v. Samuels, 397 F.3d 493, 513 (7th Cir. 2005), citing Procopio v. Johnson, 994 F.2d 325,330 (7th Cir. 1993).18IV.THE RELIEF PLAINTIFFS SEEK IN THIS CASE IS CONSISTENT WITH THE BEST INTERESTS OF CHILDREN IN FOSTER CARE IN ILLINOIS.Plaintiffs are not bound by the terms of the consent decree entered in B.H. v. McEwen. (see Argument III, supra), nor are they state actors for purposes of determining whether theyare subject to the constitutional constraints that bind the State (see Argument VI, infra).But,contra intervenors, see Memorandum at 15-20, their policies and practices are wholly consistentwith and, indeed, promote, the best interests of children in foster care in Illinois.15The overarching objective of the foster child care system is to achieve permanency for thechildren in foster care, Lago Decl. 5, 7 & Exhibits B, D, which objective is, in the firstinstance, reunification with the childs family or, if that is not possible, adoption.And the twomost critical factors in successful foster care child placements and eventual permanency are, asexplained below, stability in placement and continuity of services from the assigned caseworker. First, contrary to the understanding of the intervenors, see Memorandum at 17-18, and theiraffiants, see Brodzinsky Aff. 26, Shaver Aff. 14, 16, 17, plaintiffs never seek to remove a19child from a foster home, once the child has been placed in the home, without the consent of thefoster parent(s), for reasons relating to the marital status or sexual orientation of the fosterparent(s).First Fox Decl. 9; Third Fox Decl. 13, 14; First Huelsmann Decl. 3; SecondHuelsmann Decl. 6, 12; Riordan Decl. 6, 12; Third Roach Decl. 6, 12; Third Van CuraDecl. 6, 12.Second, although, in certain circumstances, plaintiffs may transfer the license of afoster parent to another agency, plaintiffs never transfer the case of a foster child to anotheragency for reasons relating to the marital status or sexual orientation of the foster parent(s). Third Fox Decl. 13, 14; Second Huelsmann Decl. 10, 11; Riordan Decl. 10, 11; ThirdRoach Decl. 10, 11; Third Van Cura Decl. 10, 11.This assures continuity of servicesthrough the caseworker assigned to the case.Once again, intervenors do not apparentlyunderstand this policy and practice.See Memorandum at 19, citing Brodzinsky Aff. 27.In theevent a placement with a relative or traditional foster caregiver is disrupted, plaintiffs make everyeffort to find another appropriate relative caregiver, and will work with that relative caregiver toobtain a foster care license.Second Huelsmann Decl. 7; Riordan Decl. 7; Third Roach Decl. 7; Third Van Cura Decl. 7.The Brodzinsky and Shaver declarations should be stricken ordisregarded, for the defects in their allegations are legion:their conclusions that are speculativeand otherwise lacking in foundation; the declarants lack of documentary evidence to support theiropinions and conclusions; and, the declarants lack personal knowledge of the facts necessary tomake their allegations (including with regard to plaintiffs practices). S.C.R. 191(a).With respect to adoption, plaintiffs will assist relative caregivers in all cases in which acourt determines that it is in the childs best interest to be adopted by the relative caregiver. Second Huelsmann Decl. 8; Riordan Decl. 8; Third Roach Decl. 8; Third Van Cura Decl.20 8.In cases in which a traditional caregiver has entered into a cohabiting relationship or a civilunion and a court determines that it is in the childs best interest to be adopted by thecaregiver(s), plaintiffs continue to provide foster care services to the child and foster family, andarrange with DCFS or another provider agency to complete the adoption process.SecondHuelsmann Decl. 13; Riordan Decl. 13; Third Roach Decl. 13; Third Van Cura Decl. 13.Intervenors argue, however, that plaintiffs policies and practices are not in the bestinterests of children in foster care.They state that childrens physical, psychological, social,academic, moral, and spiritual adjustment do not depend on the type of family they grow up in(i.e., family structure) but rather with the quality of parenting they receive and the resourcesavailable to them.Memorandum at 15, citing Brodzinsky Aff. 22.That statement, of course,necessarily implies that the best interests of a child may be served as well by placement in thehome of a married couple or a single person who is not cohabiting as in the home of a cohabitingcouple or a couple who have entered into a civil union, an implication plaintiffs accept. Intervenors argue further that [c]hild welfare decision-making that categoricallyexcludes prospective foster or adoptive parents based solely or primarily on their family structurerather than on their parenting competence, resources, and supports is inconsistent with acceptedprofessional judgment and practices and the best interests of children, and that [t]here is norational basis for categorically excluding gay and male lesbian individuals and couples fromadopting or fostering children . . . . Id., citing Brodzinsky Aff. 20, 22.Plaintiffs policies andpractices not to process foster parent applications from persons who are cohabiting outside ofmarriage, however, do not categorically exclude such persons from adopting or fosteringchildren.They may be licensed through other private adoption agencies or by DCFS directly, By going to the following website, prospective foster parents can locate all of the foster16parent agencies in their county:http://www.fosterkidsareourkids.org/how-i-can-help? By the same token, as the Casey Field Office Mental Health Study (CFOMH) reveals,17some youth who identified as gay, lesbian, bisexual, transgender, or questioning (LGBTQ) maynot be comfortable in being placed in a foster home with a LGBTQ person.See ExecutiveSummary: Mental Health, Ethnicity, Sexuality, and Spirituality Among Youth in Foster Care,Findings from the Casey Field Office Mental Health Study (attached) (reporting finding that lessthan half of youth who identified as LGBTQ reported feeling moderately or very comfortablebeing placed in a foster home with an LGBTQ person).21become foster parents and, if they choose and are otherwise appropriate parents, adopt thechildren in their care.Third Fox Decl. 5, 7, 11; Fourth Fox Decl. 3; Second HuelsmannDecl. 14; Riordan Decl. 14; Third Roach Decl. 14; Third Van Cura Decl. 14.Intervenorssuggestion that plaintiffs policy and practice of referring such applicants to DCFS or otheragencies only delays the timeliness of placement for chose children for whom the agency isalready responsible, thereby increasing the adjustment risk for these youngsters,Memorandum at 18, citing Brodzinsky Aff. 27, is entirely speculative.Moreover, it ignores theobvious point that, in view of plaintiffs longstanding policy and practice with regard tocohabiting applicants, such applicants would not likely approach plaintiffs for licensing in thefirst instance, thus avoiding the delays of which intervenors complain.16Intervenors observe that, in light of their unique resources and strengths, many gaysand lesbians . . . may make them a best interest placement for a particular child . . . Memorandum at 16, citing Brodzinsky Aff. 23-25. But nothing in plaintiffs policies and17practices prevents either cohabiting gays and lesbians or same-sexcouples who have enteredinto civil union from having a foster child placed with them through DCFS or another privateagency.Second Huelsmann Decl. 9; Riordan Decl. 9; Third Roach Decl. 9; Third Van Cura22Decl. 9.Moreover, licensing of foster parents is not the Illinois State Lottery in which one canimprove the odds or enhance ones marginal chances ofwinning by buying more tickets. An individual or a couple (in the case of persons who are married or in a civil union) can belicensed through only one agency at a time, whether it is one of plaintiffs agencies, anotherprivate agency (or DCFS).Fourth Fox Decl. 3.If a non-relative placement comes up and it isthe turn of the agency through which one has been licensed to find an appropriate placement,individuals and couples licensed through that agency (including cohabiting gays and lesbians orsame-sex couples who have entered into a civil union) will be considered if they live in theappropriate geographic area.Fourth Fox Decl. 3. Intervenors also emphasize that foster children who are lesbian, gay, bisexual,transgender or questioning (LGBTQ) require services from agencies prepared to understand andrespond to their needs in a sensitive, respectful, and LGBTQ-affirmative matter.Memorandumat 19, citing DCFS Procedures 302, Appendix K(H)(4) (mandating that its agencies [m]akeevery effort to ensure that LGBTQ youth are placed in gay-affirming environments that respectthe youths right to self-determination.Of course, foster parents (whether single or married)who are not gay, lesbian, bisexual, transgender or questioning may be quite as capable ofrespect[ing] the youths right to self-determination as a cohabiting person or a couple who haveentered into a civil union.Plaintiffs own policies and practices accord with Appendix K.See,e.g., Fourth Fox Decl. 9.In their memorandum and supporting affidavits, intervenors appear to misapprehend bothhow the foster child care system operates and plaintiffs own policies and practices.Intervenorssuggest that, for some children, the best interest placement may be with an excluded couple, for23example with a relative with whom the child has an established relationship.Memorandum at16, citing Brodzinsky Aff. 25.What intervenors do not appear to understand, however, is thatplacements with relatives is done by DCFS directly, not plaintiffs or other private adoptionagencies. Second Huelsmann Decl. 3; Riordan Decl. 3; Third Roach Decl. 3; Third VanCura Decl. 3.Neither plaintiffs nor any other adoption agency make that placement. Moreover,plaintiffs work closely with all relative caregivers to obtain a foster care license from DCFS. Fourth Fox Decl. 5; Second Huelsmann Decl. 4; Riordan Decl. 4; Third Roach Decl. 4;Third Van Cura Decl. 4.Indeed, DCFSs own most recent ranking reveals that CatholicCharities of Peoria has a achieved a licensed percentage of 68.9%, compared to state average of58.01%, a score of 57.7% for Mr. Shavers agency, and a score of 46.1% for DCFS for relativefoster caregivers.Fourth Fox Decl. 5 and Exhibit B attached to declaration.Intervenors also suggest that [a]nother best placement may be with [a] couple who livesin the childs community; placement in a d