illinois supreme court in the jane doe three case and it also involves statutory claims for will call violent nation of the abused and neglected child reporting act or both played in the fourth amended complaint arising out of the same facts of passing a known pedophile teacher to another school district while concealing and misrepresenting his known prior teacher and student sexual harassment the facts of this case are already known to the court from it dissent justice car meyer said why aren't we talking about it and i believe it should be talked about i tried to raise it in the supreme court has found a way but i i think there's a good faith extension of the law here this is the case that extends held but i do want to begin there because i think that the reporting act which i've worked with for years now and i've become more familiar with the reporting act during my work on these many cases but i think the reporting act is exactly where  i should begin in this court should be it mandated reporting is mandated that makes it mandatory it's immediate it must be immediate the reporters are clearly defined including all school personnel and they are mandated to report suspected abuse risk of abuse and known abuse if you take the immediacy and the girls at the future school the next school down the line they are definitely the future school victims that's who jane doe two three who are represent are but they are the included in that language and in the immediacy of the reporting and the risk of future abuse that must be reported they belong to the class the protected class the jane dos do definitely they belong to that protected class they abused children children who have been abused in a public school setting when there was knowledge of the abuse prior to their abuse so they belong to that protected class in every possible way that a child can belong to a class of persons that are protected as these children are in this statute under this statute well i want to look today at some ways in which these facts play into th before you do i mean you you talked about the price of a law to it that would be one of the of the factors that the fisher court identified to be considered in determining whether or not there is  right of action but there are three others the one that i'd like to ask you about those of whether or not employing a private right of action is necessary to provide an adequate remedy for violations of the statu the third and fourth party gathered here the underlying purposes of this act are still clear and they're the same purpose as public protection of children children in schools protection of their education safety in their education those are so clearly held in the jane doe three case but in all the court's cases on in illinois for hundreds of years the protection of children is paramount the protection of children policies that under support i think can only be protected by a civil cause of action and let me just briefly lay out why when these groups faced when the little girls faced the perpetrator john white there were three different powers a levy against them  there was the power of a male schoolteacher who was big and strong of course and was physically more powerful they were mentally more powerful too because they were six and then there was the power of his position he was their teacher in their class and then there was the power of his employer the school district and there their motivations the school districts motivations were to get him out of their school district to protect their children and their institution but they really were not protecting the girls down the way and then the third power laid out against these girls was the teachers union which had the power of representing the professional status of the teacher so they also wanted to protect john white from adverse consequences to his profession so the combination of those three the only workable solution was the solution i believe that's often reached which was to send outside to another school district there his position is protected he's professionally protected and yet the school district's institution is protected because they don't have to face the public plaque the outraged parents the bad press the types of things that would follow if he was known to the public to be harassed in their school just these three powers are kind of the perfect storm and the girls in the next school are the true victims so i do believe that implying a civil cause of action is a cautious and careful thing to do in this instance it for years when civil cause of action has come up in these cases i don't think it's ever come up in this type of case with those three very powerful forces arrayed against the victims who are protected in this state and their safety and the innocence in their education is protective full and protective so i think that is why this is a unique case for implying the simple cause of you know when the when the school district and the teachers union crafted are constructed this way to get john white out of their back yard out of their problem range they solved the problem for themselves and but they did not solve a problem for the girls in the next district oh oh and there was there's a lot of facts in this case that have been i think looked at through like i'm just going to look at this fact right now and not this one but actually the john white abuse of these children was a long and unbroken prior knowledge of prior events in march of two thousand october two thousand and four he's investigated for watching pornography on his fast from computer which i personally think is a horrible thing and should be should be fired right away but whatever whether or not i think that doesn't matter because this was only a few meeting there was this teacher's union representative julie pasting and then there was character concern from the illinois education association which seems a little bit much to put somebody from springfield nice town into mclean school district at that point then they took him out for ten days and while he was out for ten days in october two thousand and four he had a letter that was copied to all those same people that said you're out for ten days for using your computer to watch inappropriate sites and i think is somebody whose business i think it's a parent's business but i think it's also d c ephesus business this anchor will tell you so he was returned to the classroom with secrecy in place that his principal had given him and then he immediately begin both types of offensive behavior the visualisation and also the touching and there's this situation i don't think it's white's worst crime i think his crimes towards my scientists are his worst crimes but it's one of his oddest he follows a little girl around the school who's the sister of one of his students showing her sexually suggestive photographs of actresses and telling her she looks like this actress now i don't think they were totally nude i think they were kind of like scantily clothes  but the mother went ballistic and she complained and said she was going to call him already when she said this high and high newman then when she said let's get him out of town and he put him on a thirty five day leave letter ending his employment on april fourteenth signed by two school district board members that are not being sued today and then second fourteen days later he is  given a voluntary severance agreement just that chronology is is asked raises questions because you can't terminate somebody if he's done he's done it doesn't need to be given special severance so let me ask you this obstacle you phrase is whether or not there is an adequate remedy or violation to stare at you because your position that because they weren't prosecuted it's an adequate or it's an adequate as it exists even have they been prosecuted well b elaborate rules to do this other act which is pass the trash type thing instead of doing mandated reporting i think that i the mandated reporting has to have teeth and i think maybe the public or myself and all of us thought that it would have more chief with the criminal i think it's rather gotten more and more leaning towards these private passing solutions over time over the past decade and fewer in fewer hopes that it will be enforced through criminal mechanisms which would be i think a a good thing but it is not happening and i don't think that we have to wait around at the expense of our children school children i just don't think that's required i think these are official strategies to pass these teachers always it's been planned from the beginning i played it as something violations ankara were willful and wanton breaches of duty in themselves under the common law so i think that at least i would say i plan to use that in the trial  that would be but i think that i think the mandated reporting statute is a really important statute i think it's be ignored in this passing situation and i i think that's a problem you know that self these are school district employees they're high level school district employees they certainly know all they're supposed to follow up so it's a problem that they're not and that they're not with impunity and that's where this case is that i wrote to basting when or when white was arrested or panna for my little girl says abuse  basting please keep this information confidential again anti tank rockets nationalities and but i thought you would be interested in hearing that john white was arrested in urbana today i don't know the specific charges but it appears to be much worse than the issues he faced here i'm glad we took the steps we did to get him out of the district i believe it was you who said he was on a path to further problems let me make brief mention my time is almost up of this path to further problem pedophilia unlike some other very serious criminal acts is serial it's it's predatory in its serial there were two victims of white in mclean for acts he committed for supreme court that pedophilia is serial in nature we have to put some teeth and and we have to make sure that the different players who are working together here all of them powerful are not allowed to do this kind of little fancy track where you move to the next just not our problem anymore we got rid of them we're the teachers union one of the school district administration we like to work to get there would be really cool operative prosecution the feds by the quake county state's attorney i want to point out the chevy county state's attorney prosecuted your benefits and i also want to point out that while all of us here are required by the rules to accept as true everything in that complaint the state's attorney mclean county is not so required he's required to know that he has a cause of action before he goes forward and i think that's important not to forget that  prosecuted that means that the remedy is not adequate is nonsense we have states attorneys offices in one hundred two counties you know money spend their lives prosecuting people who ignore the statute that doesn't mean that the punishments are appropriate point out that in two thousand and four for the first of about seven or eight decisions interpret the law the court determined that there was no private cause of action since two thousand the legislature has amended this statute at least ten times it couldn't be more clear that the judicial interpretation given to the statute by the legislature by the judiciary has been ratified by the legislature every time they have had the opportunity to change the there's not one word about a private cause of action in this statute there never has been and that's why it should not be considered now i want to go back and point out a couple things we're set up some sort of a special relationship and left that are going on of this of the sixteen if it's for them or less should have known that john white that there were complaints about john white unif they didn't perfect their appeal that issue they didn't ask the court to address it it's the law of the case it's not the law the case against those four guys it's the law of the case the players have been are barred from arguing that khaybar applies to this man and a new but when they had that sanction they did it a thing about civil remedies and they didn't provide it in the first place there's just no reason to do so and whether you look at the language of the statute you'll see that the that this statute is talking about the abused children there's nothing in that stance you to imply that the law intended to provide for any be silly if i said that they're not it's not forseeable that if he doesn't get stuck she'll continue to do something you can't argue that it's obviously true but the question here for you is what the legislature do when they created a the legislature created private cause of action or not the place argument seems to be your next year's super legislature you can you can add teeth to this legislation that were put there brought the standard rules in turkey what the legislature does after judicial opinion is that if the standard rules of saying what they mean when they did the first place any reasonable to limit the liability and they inserted the statement that there's no liability for provision of information you know this as i said i don't think the complaint even attempts to thank you my name is ralph lowenstein a nine year on behalf of three of the defense julia vastly carla jurgensen and the illinois education since there are many similarities between but there are a number of factual and legal distinctions as well that i want to concentrate on in my short minutes julia besting has a teacher who is employed by the unified school district and at the time she was the local association president she's never been an administrator she had no supervisory responsibility with regard to mr white or any other employee of the school d had no authority by virtue of the school code or the collective bargaining agreement to hire retain discharge we move from a classroom put it teacher in a classroom evaluate put information in a personnel file remove information from the personnel file or make any kind of employment decisions with her with regard to mr white or any other employee all of these rights are once reserved to the board of education and to the administrators she is not alleged to have produced or transmitted the employment verification form she's not alleged nor did she have any communication whatsoever with your band school district or with either of the plaintiffs in this case in kansas but if i could interrupt that just for a moment in terms of the supreme court's handling of the issue the majority sampling of it they found a think clearly not i mean they said that there was part of a special relationship which was not established nor could it be established there is no duty as the court i think said to cry out and tell everybody everything you know but in this case even if there had been such a responsibility the only information that my clients knew about was watching adult eventually ended up in a severance agreement with the board of education which once again were not parties to that separation were not mentioned in the separation agreement we didn't sign the separation agreement and something which counsel for the plaintiffs tends to pass over there's no confidentiality provision there there's not no non disclosure provision in the separation agreement nor was the separation agreement anything that was was an employee of the illinois education association as a field represented she was never employed by the board of education she had no supervisor responsibility with regard to is based upon respond yacht's theory you're not alleged to have done anything as the organization other than employee carla jurgensen and if there is no cause of action against carl jurgensen is alleged to have produced or transmitted this notice of cation employment they're not even alleged to have any contact whatsoever with your van the school district or they have any contact whatsoever with the plaintiffs as mr kern said the supreme court has defined what the five will causes of action are in a viable cause of action is if you convey information to a third party in this case the rabbanit school district you can't misrepresent that that information well we didn't make any of it representations whatsoever students in the unified district which were not even alleged to have had that knowledge that would not create a duty on our part to pass that information on to with third party in the in the form of some kind of warning we're not even alleged to have had any knowledge of misconduct conduct the students were alleged to have knowledge that he was watching the door adult pornography on the school computer determinations about what this case was about legal what the plaintiff here is doing is and has done throughout this litigation is bring forth an episode of the public policy issues and no one here would disagree with public policy pedophiles should be punished they should be punished through the criminal justice system but the problem is is that that the supreme court has made it clear that there was a waiver that took place and what the plaintiff here wants to happen is that this court ignore their rule this court devise a new role that waiver doesn't apply to this particular case and that the rules of war off that the trial court judge judge jones applied to this case don't apply here there's no precedent for that she has cited any of the plaintiffs have inside of any precedent for that there's no reason the only thing the default argument has been is this is a public policy it's important there are a lot of public policies that are important no one here is arguing that mr white shouldn't be punished or that his wrong shouldn't be punished appropriately but the fact the matter is is that what the supreme court found was that the sole c of action that survived was the proposition that a letter of the days that this gentleman worked at unit five were the only cause that that survived the motions to dismiss and so there really is no reason for dale reader to be in his courtroom today there was no reason for him to be in a courtroom in champaign urbana for those reasons we play just counsel is asking these court this court in the tr to ignore the rules of law as they applied to this case as determined by the supreme court without basis i don't believe there's a that is an argument that's compelling for reversal of what the the one issue that was raised that i think is fair use worthy of comment is this in their brief the plaintiffs contend they weren't entitled to do some discovery in this case the fact of the matter is is that it is clear that this there were prohibitions to the plaintiff in engaging in any discovery at any time in fact if you look at the entirety of the record in this case there was a protective order in or early on in the litigation to provide that document shared among the parties would be protected so the argument that gee i wasn't entitled to do some discovery which makes it a big part of the plaintiff's brief doesn't hold water there's no basis for that intention because the original request for more time to do discovery in this case prior to oral argument on the motion to dismiss nor was there a prohibition what period of time we talking about in terms of when discovery would have been allowed well discovery would have been allowed at a minimum for thirteen months from the typer in this case was returned from the supreme court back to the trial court and so that time period existed there was a time period prior to that time when the case was initially filed on the side and we had a second first and second minute complaint the discovery did take place in the documents were strange things happen in that regard but there was no request for depositions of for instance the unit one sixteen employees one of the things the plaintiff certainly had the opportunity to do it didn't take advantage of which to depose those individuals to find out if they had some information that wasn't brought out otherwise and so the contention that that right wasn't provided is not is not true the contention is also unsupported because there was no request to engage in further discovery until the time period that motion to dismiss was so for those reasons there just is not sufficient argument there's not sufficient law to support briefly on rebuttal there's been a couple misrepresentations us to the knowledge and i think i want to speak to that because it's a again everybody keeps saying who knew about just adult pornography and who position here and not let me be clear people can think what they want to about the position but plaintiff's position is that the fourth amended complaint leaves knowledge of more than just knowledge of pornography against all of the defendants named in those capacities because it i use the example of the ostrich with the head in their sand in march two thousand and four three parents parents of three children are actually prison said yeah i think they they were saying it was sexual i know they were those three parents in march two thousand and four but that's not in this record which it would then following that you have to hope for two thousand and four there was this additional issue of the pornography it was additional but it wasn't only i don't think a school district can say i don't know about those three paragraphs of complaints were made to the assistant principal and the principal both a m completing remarks and that has to do with the discovery that was conducted in your request with dismissal without prejudice sounds like there was a substantial period of time after the the case was sent back  court and then with pretty clear direction i think in terms of the majority analysis seems to where do the laws was there deposition taking the oral question of the depositions to be taken during th period of time prior because he'll if not why not well there was not there recently has been since the motion to dismiss was ruled on the court trial court said go ahead with your claims against john hi  mclean school district so since the motions to dismiss have been ruled upon i have conducted discovery there was not prior to that and i don't know whether there was an opportunity or not there probably possibly was but there was no complaint at that time the complaint came back and there were different plaintiffs there were the other girls there was no court trial court discovery order there was no trial court discovery beginning but i don't know whether it was allowed or not i just don't know i guess what i would say as plaintiff's counsel i was waiting for the motions to dismiss to be resolved to conduct discovery and expression a sense that would tell  what that nature of the discovery who were the defendants what were the causes of the action things like that but it may have well have been a mistake but there was no discovery order saying you get to do this this this at that time and we were waiting i assume we're all waiting for the motions to dismiss to be sorted out before conducting discovery i don't think there was a prohibition nobody had said you can't and then when the court trial court said i'm moving this way on the motions to dismiss go ahead and proceed on your counts against john high in the mclean school district then since that time i have conducted discovery a little bit of a double bind  endless discovery but it can still scary we did conduct in that short recent time i think is valuable to this court i would love to be committed to this court and tell the court what it says but again that's not on the record and i can't and so there is a little bit of  problem i think in getting full discovery from plaintiff's side in this case up to this and certainly can i didn't think i would certainly never take discovery while it was on appeal to the supreme court i mean that went in logical in my mind limited to the tanaka feel to these defendants and that was misstated i think in the argument made by my opponents i think this is an important case i think it's an important public policy case my opponent said and that it's a public policy case and i