Judge rules against Carlinville in their Motion to Dismiss re: Brotze

Carlinville, IL. (ECWd) –

A Circuit Judge in Carlinville, Illinois ruled against the City of Carlinville on 3 of 4 counts in their Motion to Dismiss the Brotze lawsuit filed several years ago challenging the city’s legal authority to form a nonprofit company with a water district and another nonprofit, in order to contract from the new nonprofit to supply water to its residents.

The Court verbally issued partial rulings denying Defendant Carlinville’s arguments of 1) Plaintiffs’ failure to file formal answer to affirmative defenses, 2) standing, and 3) laches.

A 4th Count will be determined in writing, after proposed orders are submitted by the Brotze’s and Carlinville.

The key points being addressed in the Proposed Orders are:

• defining “in any manner not prohibited by law or ordinance” and
• constitutional construction of “may contract or” and “may contract and” as found in the Illinois Constitution, Article VII, Section 10(a).

Carlinville’s attorney, during this week’s city council meeting, said he expects the ruling to go against the city, and that they would appeal the decision to the Appellate Court.

We will update this as decisions are made and published.

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For further reading, an Illinois 5th District (Carlinville is in the 4th District) Appellate Court decision in 1981 determined what “prohibited by law” means in Art VII, Section 10(a):

“This long established common law rule has been accepted in the Illinois Constitution of 1970, article 7, section 10(a), which states, “Units of local government and school districts may contract and otherwise associate with individuals, associations, and corporations in any manner not prohibited by law or by ordinance.” (Ill. Const. 1970, art. 7, § 10(a).) As school districts are given certain express and implied powers by the School Code of 1961 (Ill. Rev. Stat. 1979, ch. 122 par. 1-1 et seq.), any attempt to alienate those powers by contracting them away would dilute the effect of the Code and would be “prohibited by law.“

Our opinion is that the Municipal Code and the Intergovernmental Cooperation Act grant certain specific express and implied powers for a non home rule municipality to provide drinking water to its residents, and the path Carlinville chose to go down is not one of the granted powers found within the statutes, and therefore, is “prohibited by law” when applying Dillon’s Rule.

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