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June 19, 2024

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

By John Kraft & Kirk Allen

On June 17, 2020

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.


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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  • Kathiann
    Posted at 08:17h, 17 June Reply

    Poor Carlinville citizens who will now have to pay appellate costS so that someone can be right. What are the odds it’s the same lawyer who advised them this move was OK?

  • Robert O. Bogue
    Posted at 11:24h, 17 June Reply

    Government has deep pockets…free taxpayer money…all the while…citizens preventing illegal and criminal act via our court system have to foot the bill and hope they live long enough to see justice.

    Government officials have no incentive to do the right thing in something like this…they’re trying to save face as well as dry up all opposition’s funding and will: for now and in the future..
    Stuff like this is exactly why Illinois is broke, and why we lead the nation in citizen departures from this state.

    The State of Illinois needs to leave the State of Chicago.

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