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April 16, 2024

Written Order Denying Carlinville’s Motion to Dismiss –

By John Kraft & Kirk Allen

On October 23, 2019

Carlinville, IL. (ECWd) –

On October 21, 2019, the following Order was entered in Macoupin County Circuit Court:

Before considering the parties’ substantive arguments at hearing, the Court offered the following opening remarks, which the Court will reiterate:

The Court recognizes water supply is an issue for the residents of Carlinville. The Court recognizes that the City has tried to take steps to rectify the issue. And while the Court is sympathetic to the needs of the residents with regard to clean, potable water, the Court cannot allow sympathy and compassion to enter into its analysis; nor can the Court consider what developments may or may not be occurring right now or how much money has since been invested because those facts are not before the Court. That is why this Court cannot and will not consider the hearsay article that Defense counsel attached to its Motion to Dismiss. The parties know that is not a proper way to present evidence to the Court at this pleading stage. What we know is this … had Illinois Alluvial already been in existence as non-for-profit organization in the business of supplying potable water, we would not even be here arguing these issues today, but that is not what happened.

Illinois Alluvial is clearly a legal entity on paper, but if Plaintiffs were to succeed in their argument, then Illinois Alluvial would have been created in violation of the law and/or without express authority. In other words, if a Higher Court were to determine that the City of Carlinville exceeded its statutory and constitutional authority, then Illinois Alluvial arguably would cease to exist.

As the parties know, a Writ of Mandamus can be used to compel the undoing of an act not authorized by law or to require public entities and/or officials to comply with State law. Plaintiffs have raised a valid argumen, and this Court will not deprive them of the opportunity to litigate their cause of action. Defendant’s Motions to Dismiss are denied and Plaintiff’s Request to present a certified question for appeal is granted subject to review of any additional legal authority Defendant may present in opposition and a review and consideration of the parties’ proposed certified questions.

Read the complete written Order below (or here).

Our previous article is (here).

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