Strict Compliance with Supreme Court Rule 191(a) is mandatory

The Illinois Appellate Court for the Second District recently ruled in the case of Jane Doe v. Chad Coe, et al.; Case Number 2017 IL App (2d) 160875 in an opinion filed on August 17, 2017 that strict compliance with Supreme Court Rule 191(a) was mandatory and that failure to attach documents relied upon in support of a 191(a) affidavit is fatal, in a reversal of a previously granted Motion to Dismiss.

The Doe case involves a Complaint filed on behalf of Plaintiffs Jane Doe, Jane A. Doe and John Doe against multiple Defendants including the United Church of Christ (UCC) and The First Congregational Church of Dundee, Illinois (FCC) based upon the sexual misconduct of Defendant Chad Coe during his tenure as a youth pastor of the FCC. Plaintiffs allege in their Complaint that Defendant Coe groomed Jane Doe, a minor and a member of the FCC Youth Group and eventually had sexual contact with her on FCC’s property. The Defendants-Appellees UCC (United Church of Christ) and others filed a hybrid 2-615 and 2-619 Motion to Dismiss (735 ILCS 5/2-615, 2-619 (West 2014)) attacking both the legal sufficiency of the Complaint and other affirmative matters including Plaintiffs allegation that Defendant Coe was an employee or agent of the Defendant. In support of their Motion, the Defendants filed affidavits of two individuals, Jorge Morales and John Dorhauer purporting to be knowledgeable representatives of the Appellees UCC and IUCC in their affidavits that they were quite “knowledgeable regarding the Constitution and Bylaws of the (UCC) as well as the ecclesiastical structure of the (UCC).” They averred that the various entities within the UCC were “separate, distinct, and autonomous,” and therefore “free to choose the manner and methods in which they conduct their own business affairs.” In support of their position they referred to the organizational structure of the UCC and quoted from the UCC’s Constitution. They further claimed that the Defendants UCC and IUCC were not involved with (the hiring of Coe) and had no authority to be involved in his hiring and/or possible discharge from the FCC. Plaintiffs responded to the hybrid Motion to Dismiss that the affidavits of Morales and Dorhauer should be stricken for non-compliance with Supreme Court Rule 191(a) for their failure to attach the Constitution and Bylaws of the UCC being relied upon by each affiant. The trial court rejected the Plaintiffs’ argument regarding the insufficiencies of the affiants’ compliance with Supreme Court Rule 191(a) finding that the affidavits were “conclusive on the autonomous relationship of the church and the formation of the UCC as a congregational organization.” The court further found that the affidavits were conclusive that Coe was not employed by the defendants therefore the affidavits defeated the plaintiffs’ claims.

In reversing and remanding the decision of the trial court, the Second District Appellate Court in a decision written by Justice Birkett and concurred by Justice Hutchinson and Justice Zenoff reversed and remanded the trial court’s decision for further proceedings on the basis that the provisions of Supreme Court Rule 191(a) with respect to said affidavits being made on the personal knowledge of the affiants and “shall have attached thereto sworn or certified copies of all documents upon which the affiant relies” are mandatory. In citing the case of Robidoux v. Oliphant, 201 Ill. 2d 324, 344 (2002). In Robidoux, Illinois Supreme Court found that the failure of the plaintiff’s expert to attach papers relied upon in support of his affidavit was fatal in that “strict compliance with Rule 191(a) is necessary to insure that trial judges are presented with valid evidentiary facts upon which to make a decision.” Id. At 336. Robidoux involved an affidavit in opposition to a summary judgment proceeding where the court found that the strict compliance with Rule 191(a) is mandatory, which the Doe Court found equally applies in a proceeding on a motion for involuntary dismissal under section 2-619 of the Code.

With respect to the Defendant-Appellees’ claim that the attached-papers requirement did not mandate attachment of the UCC Constitution and bylaws because both affiants had professed personal knowledge of the same and that the same documents were referred to or quoted elsewhere in the record in plaintiff’s complaint, the Court made short shrift of those arguments finding that although the defendants ultimately attached the documents to their reply brief in support of their Motion to Dismiss the strict construction of 191(a) must be enforced as written and rejected the notion that failure to comply was a mere “technical violation.” As an aside, this office points out that the Defendants/Appellees attempted to sway the Appellate Court’s decision regarding the attached-papers requirement citing to an unpublished decision for which the appellate court admonished them citing that the Supreme Court Rules prohibit such citations except under certain purposes, none of which were involved herein. See Ill. S. Ct. R. 23(e) (1) (eff. July 1, 2011). We cite to this admonishment in light of the repeated attempts on the part of our association to seek approval of our Supreme Court to allow citation to unpublished opinions as “persuasive authority” and not necessarily precedent. Further, the Defendants/Appellees cited the case of Nichols v. City of Chicago Heights, 2015 IL App (1st) 122994. The plaintiffs attacked an affidavit submitted by the defense which failed to comply with Supreme Court Rule 191(a) by not attaching certain city resolutions on which the affiant relied. The Appellate Court, without acknowledging Robidoux implicitly rejected the plaintiff’s argument. The Second District Appellate Court in Doe failed to follow the Nichols decision by finding that it was inconsistent with the Supreme Court decision in Robidoux. We therefore may have conflict between the First and Second Districts with reference to the strict applicability of the 191(a) requirement.

In light of the Robidoux decision the Second District panel in Doe found that the trial court erred in relying on the affidavits of Morales and Dorhauer in granting defendants’ 2-619 motion to dismiss by their failure to attach the requisite documents being relied upon. Since the Defendants/Appellees failed to provide any other legal challenge for the sufficiency of plaintiffs complaint in their appellate argument, the court citing to Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) reversed the decision of the trial court and remanded for further proceedings.

It would seem based upon an alternative view of Doe decision that we might see this case again should the defendants refile their motion to dismiss and this time attach to their supporting affidavits the UCC Constitution and Bylaws being relied upon. Until there is a decision from the Supreme Court excepting the applicability with strict compliance of Supreme Court Rule 191(a) it is suggested that any motion brought in support or opposition to a 2-19 Motion to Dismiss or 2-1004 Motion for Summary Judgment must attach to those affidavits any pertinent documents being relied upon by the affiants or said affidavits will be subject to a similar fate to those of Mr. Morales and Mr. Dorhauer in the Doe decision. 