Judge: Illinois Alluvial water company a ‘void corporation’

Judge: Illinois Alluvial water company a ‘void corporation’

Posted July 8, at 10:45 a.m.

By: DANIEL WINNINGHAM

Enquirer~Democrat managing editor

Seventh judicial circuit judge April Troemper has ruled against the city of Carlinville and in favor of the plaintiffs in a lawsuit related to the formation of an alluvial water company.

Troemper issued a July 7 written decision granting plaintiffs’ motion for summary judgment, denying defendant’s motion for summary judgment and issuing a writ of mandamus. The mandamus is to “compel the undoing of an act not authorized by law and to require public entities, such as the city of Carlinville and its officials, to comply with state law.”

At the conclusion of the 18-page decision by Troemper, she states:

“The court further finds that based on the city of Carlinville’s unauthorized actions, Illinois Alluvial was created in violation of the law and is a void corporation.”

“The defendant was put on notice in February 2018 (within six months of learning of the defendant’s conduct) that plaintiffs were asking this court to find defendant exceeded its authority and that Illinois Alluvial is, therefore, a void corporation,” Troemper wrote.

In response to the city’s argument that the “plaintiffs delay in filing their mandamus action will result in significant inconvenience and detriment to the public in that the abandonment of the ongoing association with (Illinois) Alluvial will be more disruptive to the financial position of the city, interfere with contractual obligations, and jeopardize the safety of the city water water supply,”  Troemper declared this argument “misplaced.”

The judge said both parties actions contributed to delays, and dismissing the plaintiffs’ complaint wasn’t an option for Troemper. “Moreover, it would have been improper for this court to dismiss plaintiffs’ complaint with prejudice when it was clear from the facts as alleged that they had a viable cause of action. It was simply pled incorrectly…At the end of the day, no one forced the city of Carlinville to continue moving forward with its participation in and creation of Illinois Alluvial after being put on notice. Defendant voluntarily took that risk and gambled with how this court would ultimately rule.”

Procedural background

The city submitted an application for federal assistance to form a regional water system in December 2015. Later, in March 2016, the city entered into a grant agreement with the United States Department of Agriculture and was awarded $30,000 in federal funding for purposes of developing a regional water commission.

In November 2017, the city adopted by-laws for Illinois Alluvial along with Jersey County Rural Water and the village of Dorchester.At no time did Carlinville, a non-home rule municipality, enter into a contract of intergovernmental agreement with JCRW or Dorchester. Illinois Alluvial was incorporated as a non-for-profit corporation Dec. 5, 2017.

The plaintiffs claimed the city was without constitutional and statutory authority to participate in the incorporation, funding, or operation of Illinois Alluvial and that the residents of the city of Carlinville have the right to expect their elected officials will comply with the law while maintaining transparency.

The city had argued the state’s municipal code provides broad authority to enter into contracts to purchase potable water from private companies as well as construct, own and operate their own public potable water treatment facilities and distribution systems.

The original complaint for declaratory judgment and injunctive relief was filed Feb. 23, 2018.

City attorney Dan O’Brien, in an interview about the law suit last week, was optimistic a ruling would be found in the city’s favor. If not, he said the city would proceed with an appeal.