Alluvial lawsuit: Judge denies city's motion to stay

Alluvial lawsuit: Judge denies city’s motion to stay


Posted Tuesday, Aug. 4, at 3 p.m.

To grant would set ‘staggering precedent’

By: DANIEL WINNINGHAM

Enquirer~Democrat managing editor

The city of Carlinville lost another court ruling earlier this week in the alluvial water lawsuit.

Seventh judicial circuit judge April Troemper, in a three-page order, denied the city’s motion to stay pending appeal Monday, Aug. 3.

“This court found the city of Carlinville, as a non home-rule municipality, exceeded and circumvented its constitutional statutory authority when it participated in the creation of Illinois Alluvial, a non-for-profit corporation, which deprived plaintiffs and the citizens of Carlinville the right to an open and transparent government,” Troemper stated in her second point of the order.

Troemper said no evidence was presented by the city as to any contractual obligations or the number of existing water customers, or how the ruling would disrupt the water supply presently in use.

Troemper agreed with the plaintiff (Camille M.C. Brotze and Wayne Brotze) that granting a stay “would eliminate the city of Carlinville’s uncertainty as to whether it can still participate as a water customer of Illinois Alluvial.” This had been the case since the original complaint was filed in February 2018, when the plaintiffs first “raised the validity of that corporation and questioned the city of Calrinville’s actions in creating that separate entity.”

Troemper further stated the city must establish that a stay is necessary to secure the fruits of the appeal if the appellant is successful and/or also must establish third parties will suffer a hardship if the stay is not granted.”

“The court understands the city of Carlinville’s desperate need to find a potable water supply for its citizens,” Troemper stated in her decision. “The court’s order merely instructs the city to go about it the right way. The manner it chose does not comply with the constitution or the statutory options available, and courts around this state must ensure non home-rule municipalities do not exceed their authority; otherwise, a staggering precedent will be set for generations to come.”

Troemper, in her sixth point, recognizes if the appellate court reverses the previous decision, this entire process will have led to a delay in securing a potable water supply. At the same time, Troemper, in restating her earlier point about exceeding and circumventing statutory authority said if an appellate court affirms the earlier decision, the city “will be years away from creating a viable water source for its citizens that conforms with the options the legislature specifically carved out because it chose to stay the course and treat into a territory that has never been done before.”

Troemper also took a strong stand in favor of government transparency.

“Either way, the citizens of Carlinville will suffer, but they do and always have deserved to know what decisions are being made by their elected officials,” Troemper stated. “That is the purpose of open government, yet they have been deprived transparency because the Open Meetings Act does not apply to non-for-profit corporations, such as Illinois Alluvial, and various citizens have been throated with being charged with criminal trespass for appearing at Illinois Alluvial’s meetings.”

The original July 7, 2020 court order “remains final and appealable.”

Troemper later added “there is not just reason to delay its enforcement or appeal.”

Note: The photo in this story is from a May 2019 court hearing involving Judge Troemper.