Mayfield Cooper Brotze v. City of Carlinville ( 2021 )

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Mayfield Cooper Brotze v. City of Carlinville, 2021 IL App (4th) 200369Appellate Court CAMILLE MAYFIELD COOPER BROTZE and WAYNE BROTZE,
Caption Husband and Wife, Plaintiffs-Appellees, v. THE CITY OF
CARLINVILLE, ILLINOIS, a Municipal Corporation; THE
VILLAGE OF DORCHESTER, ILLINOIS, a Municipal Corporation;
JERSEY COUNTY RURAL WATER COMPANY, INC., an Illinois
Not-for-Profit Corporation; and ILLINOIS ALLUVIAL REGIONAL
WATER COMPANY, INC., an Illinois Not-for-Profit Corporation,
Defendants (Illinois Alluvial Regional Water Company, Inc.,
Defendant-Appellant).–CAMILLE MAYFIELD COOPER BROTZE
and WAYNE BROTZE, Husband and Wife, Plaintiffs-Appellees, v.
THE CITY OF CARLINVILLE, ILLINOIS, a Municipal Corporation,
Defendant-Appellant.
District & No. Fourth District
Nos. 4-20-0369, 4-20-0383, 4-20-0384 cons.
Filed March 2, 2021
Decision Under Appeal from the Circuit Court of Macoupin County, Nos. 18-L-5, 19-
Review MR-92; the Hon. April Troemper, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on John M. Gabala, of Giffin, Winning, Cohen & Bodewes, P.C., of
Appeal Springfield, and Dan O’Brien, of Carlinville, for appellant City of
Carlinville.
David M. Foreman, of Foreman & Kessler, Ltd., of Salem, for
appellant Illinois Alluvial Regional Water Company, Inc.
Jacob N. Smallhorn and Garth E. Flygare, of Smallhorn Law LLC, of
Charleston, for appellees.
Tracy A. Willenborg and Kara J. Wade, of Taylor Law Offices, P.C.,
of Effingham, for amicus curiae EJ Water Cooperative, Inc.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Turner and Cavanagh concurred in the judgment and opinion.
OPINION
¶1 For several years, the City of Carlinville, Illinois (Carlinville), has been urgently searching
for a sustainable, cost-effective, and long-term supply of potable water. In an attempt to solve
its problem, Carlinville joined with the nearby Village of Dorchester, Illinois (Dorchester), and
Jersey County Rural Water Company, Inc. (Jersey Water), a not-for-profit corporation, to form
another not-for-profit corporation: Illinois Alluvial Regional Water Company, Inc. (Alluvial).
Once formed, Alluvial received approval for tens of millions of dollars in grants and loans
from federal agencies to build the infrastructure necessary to provide its members (Carlinville,
Dorchester, and Jersey Water) with potable water.
¶2 In these consolidated cases, Carlinville residents Camille Mayfield Cooper Brotze and
Wayne Brotze (the Brotzes), contend that Carlinville may not lawfully form and participate in
Alluvial. The trial court agreed, entered summary judgment in favor of the Brotzes, and
concluded that Alluvial was an illegal company. We disagree and reverse.
¶3 I. BACKGROUND
¶4 The procedural history of this case is complicated and mostly irrelevant to our resolution
of the issues on appeal. Accordingly, we set forth only the information necessary to understand
the procedural context in which this case arrives before this court.
¶5 A. The Complaint (Macoupin County Case No. 18-L-5)
¶6 In February 2018, the Brotzes filed a complaint against defendants, Carlinville, Dorchester,
Jersey Water, and Alluvial. The complaint stated that (1) Alluvial was incorporated in
December 2017 and its sole members were Carlinville, Dorchester, and Jersey Water and
(2) Alluvial’s purpose was to use an underground aquifer to develop a supply of potable water
for the surrounding counties. The complaint alleged that (1) Alluvial was not formed pursuant
to any of the statutory methods provided by law for municipalities to create a water supply and
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(2) none of the defendants had entered into any contracts or intergovernmental agreements
prior to forming Alluvial.
¶7 The complaint further alleged that Carlinville had received grant money from a federal
agency for the purpose of exploring engineering options to develop a “viable water supply,
treatment, and transmission system” to serve multiple counties. Carlinville had appropriated
its own funds as well as this grant money for use by Alluvial, while Dorchester provided its
own funds to Alluvial. The complaint asserted that Carlinville and Dorchester had no
constitutional or statutory authority to join with Jersey Water to form another private company
to solve their water problems or to fund such a private company. Further, the Brotzes claimed
Alluvial was formed to “circumvent Illinois Sunshine laws like the Open Meetings Act.” The
Brotzes sought a declaratory judgment that Carlinville and Dorchester could not participate in
the formation or continued funding and operation of Alluvial.
¶8 In April and May 2018, Carlinville, Dorchester, and Jersey Water filed motions to dismiss,
asserting, in relevant part, that the Brotzes lacked standing to bring their claims.
¶9 In May 2018, Alluvial filed an answer to the complaint in which it denied that Carlinville,
Dorchester, and Jersey Water lacked the power to form Alluvial. Alluvial further requested a
declaratory judgment in its favor that it was properly formed pursuant to section 10(a) of article
VII of the Illinois Constitution. Ill. Const. 1970, art. VII, § 10(a). Alluvial also alleged that the
Brotzes lacked standing to sue Alluvial because (1) Alluvial was a private company not subject
to public access and disclosure laws and (2) the Brotzes had no relationship with Alluvial. That
same month, Alluvial filed a motion for summary judgment based on its argument that section
10(a) authorized Alluvial’s formation.
¶ 10 In June and July 2018, the parties fully briefed the pending dispositive motions, and in
August 2018, the trial court conducted a hearing before taking the motions under advisement.
In January 2019, the court entered a written order in which it concluded that the Brotzes lacked
standing to bring suit against Dorchester and Jersey Water and dismissed the claims against
them. The court also dismissed the claims against Alluvial for lack of standing—despite
Alluvial not filing such a motion—because Alluvial had raised standing in its answer and had
argued the Brotzes lacked standing during oral arguments. The court denied Alluvial’s motion
for summary judgment as moot.
¶ 11 Regarding Carlinville, the trial court concluded that the Brotzes had standing to sue and
permitted the Brotzes to file an amended complaint.
¶ 12 B. The Amended Complaint (Macoupin County Case No. 19-MR-92)
¶ 13 In July 2019, the Brotzes filed an amended complaint seeking mandamus. The case was
given an “MR” case number, but the court subsequently consolidated the two suits (that is, it
consolidated the MR case with the previously filed L case). The amended complaint named
only Carlinville as a defendant and contained many of the same allegations explaining the
formation of Alluvial as the initial complaint. The amended complaint further alleged that
Carlinville did not have the authority under the Illinois Constitution or state law to form
Alluvial and its doing so was an unlawful attempt to avoid transparency, public oversight, and
statutory duties, such as those imposed by the Open Meetings Act. The Brotzes contended that
without a mandamus order they would have no ability to “challenge Carlinville’s abuse of
authority regarding *** the creation, funding, and operation of Illinois Alluvial.”
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¶ 14 In April 2020, Carlinville filed a motion for summary judgment. Relevant to this appeal,
Carlinville asserted that section 10(a) of article VII of the Illinois Constitution granted it the
authority to “contract and otherwise associate with *** corporations in any manner not
prohibited by law or ordinance.” Ill. Const. 1970, art. VII, § 10(a). Because the plain meaning
of the term “associate” included joining together with another, Carlinville asserted that it was
authorized to join with Dorchester and Jersey Water to form Alluvial so long as such action
was not prohibited by law. Carlinville also asserted that (1) the Illinois Municipal Code granted
Carlinville and Dorchester the authority to construct and maintain facilities for supplying
potable water (see 65 ILCS 5/11-125-1 et seq. (West 2016)) and (2) the Brotzes had not pointed
to any statute or ordinance that prohibited Carlinville’s actions.
¶ 15 Later in April 2020, the Brotzes filed a cross-motion for summary judgment, arguing that
section 7 of article VII, when read in conjunction with section 10 and applicable state laws,
demonstrated that Carlinville could exercise “only powers granted to [it] by law.” Ill. Const.
1970, art. VII, § 7. The Brotzes contended that section 7 was the embodiment of “Dillon’s
Rule,” which required municipal powers to be construed strictly against the municipality (see
Pesticide Public Policy Foundation v. Village of Wauconda, 117 Ill. 2d 107, 111-12, 510
N.E.2d 858, 860-61 (1987)), and section 10 did not grant Carlinville any new power that was
not expressly granted by law. The Brotzes maintained that the legislature had enumerated
several different statutory methods by which Carlinville could address its water problems.
Because Carlinville attempted to use a method not expressly authorized by statute, Dillon’s
Rule applied and prevented Carlinville from joining with Dorchester and Jersey Water to form
Alluvial.
¶ 16 In addition, the Brotzes explained that Carlinville had not demonstrated that it complied
with section 10(a) because “[t]his case does not concern an intergovernmental agreement or
even a contract of any kind.” In particular, Alluvial was not incorporated until December 2017.
Accordingly, “[t]here was no entity for Carlinville to associate with or contract with when
[Carlinville] took its vote to participate in and fund Illinois Alluvial in October 2017.”
¶ 17 C. The Trial Court’s Ruling
¶ 18 In June 2020, the trial court conducted a hearing on the parties’ motions for summary
judgment, and in July 2020, the trial court entered a written order granting summary judgment
in favor of the Brotzes. The court identified “[t]he only issue *** [as] whether Defendant
Carlinville had constitutional and statutory authority to join with another non-home rule
municipality and a not-for-profit corporation to form and operate Illinois Alluvial.” The court
examined the language of section 10(a) and emphasized that the first sentence of that section
stated that units of local government “may contract or otherwise associate among themselves,”
while the second sentence stated that units of local government “may contract and otherwise
associate with” private parties. (Emphases in original.) The court reasoned that the use of a
different word in each sentence meant the drafters intended a different result and the court
could not interpret the provision in a manner that rendered any word superfluous.
¶ 19 The trial court determined that units of government “may choose between a contract or
another form of association when dealing with other units of local government.” But, when
dealing with private corporations, the court concluded “there must be both a contract and a
type of association for the constitutional requirement to be fulfilled.” The court noted that
Carlinville, Dorchester, and Jersey Water never entered into any contract at all, including one
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to form Alluvial. The court maintained that Dillon’s Rule, as expressed in section 7, continued
to apply and Carlinville was not allowed to create a new method of obtaining water when the
legislature provided multiple options for the same by statute. The court concluded that even
though Carlinville “could have associated with *** Dorchester and contracted with [Jersey
Water] for purposes of creating a potable water supply,” those three entities could not “create
a brand new, private not-for-profit corporation for purposes of ultimately selling water without
public input” because such action was “inconsistent with the Illinois Constitution” and “was
an attempt to circumvent the [legislature’s] grant of authority.” (Emphases in original.)
Because Carlinville acted without authorization, the court declared Alluvial was “a void
corporation” and entered summary judgment in favor of the Brotzes.
¶ 20 D. The Present Appeals
¶ 21 In August 2020, Carlinville filed a notice of appeal, and within 10 days, Alluvial filed a
notice to appeal pursuant to Illinois Supreme Court Rule 303(a)(3) (eff. July 1, 2017) in both
the MR case and the L case. Due to the unusual procedural posture in the trial court, three
separate appeals were docketed in this court. Alluvial moved to consolidate the cases, but
because of the absence of a record on appeal at that time, this court consolidated only Alluvial’s
appeals (Macoupin County case Nos. 4-20-0383 and 4-20-0384) and invited counsel to move
for consolidation with Carlinville’s appeal (Macoupin County case No. 4-20-0369) again after
briefing. No such motion was filed.
¶ 22 In January and February 2021, this court conducted two separate oral arguments, one
involving Alluvial and another involving Carlinville. Because our resolution of the central
issue in these cases controls the result in each appeal, we now consolidate these cases on our
own motion.
¶ 23 II. ANALYSIS
¶ 24 Carlinville and Alluvial appeal, arguing, in relevant part, (1) the trial court’s interpretation
of section 10(a) was erroneous and (2) under the correct interpretation, they were entitled to
summary judgment in their favor. We agree and reverse.
¶ 25 A. The Applicable Law and Standard of Review
¶ 26 1. Summary Judgment
¶ 27 Summary judgment is appropriate if “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2018). “When, as here, parties file cross-motions for summary judgment, they mutually
agree that there are no genuine issues of material fact and that the case may be resolved as a
matter of law.” Iwan Ries & Co. v. City of Chicago, 2019 IL 124469, ¶ 18, 160 N.E.3d 916.
Issues involving statutory construction, the applicability and effect of constitutional provisions,
and whether summary judgment should have been allowed in a case all present questions of
law, which this court reviews de novo. Hawthorne v. Village of Olympia Fields, 204 Ill. 2d
243, 254-55, 790 N.E.2d 832, 840 (2003).
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¶ 28 2. Interpretation of Constitutional Provisions
¶ 29 Resolution of this case requires an interpretation of two provisions of the Illinois
Constitution pertaining to local government. “In construing a constitutional provision, our
primary goal is to ascertain and give effect to the common understanding of the citizens who
adopted it, and courts look first to the plain and generally understood meaning of the words
used.” Blanchard v. Berrios, 2016 IL 120315, ¶ 16, 72 N.E.3d 309. “In addition, it is proper to
consider constitutional language in light of the history and condition of the times, and the
particular problem which the [constitutional] convention sought to address ***.” (Internal
quotation marks omitted.) Kanerva v. Weems, 2014 IL 115811, ¶ 36, 13 N.E.3d 1228.
¶ 30 3. The Provisions at Issue
¶ 31 Section 7 of article VII states the following: “Counties and municipalities which are not
home rule units shall have only powers granted to them by law and the powers [set forth in
section 7].” Ill. Const. 1970, art. VII, § 7. The rule encompassed in section 7 is commonly
called “Dillon’s Rule”—named after the nineteenth century jurist who popularized the rule—
and stands for the proposition that municipalities cannot act unless they have a specific grant
of authority from the legislature. See Village of Sherman v. Village of Williamsville, 106 Ill.
App. 3d 174, 179, 435 N.E.2d 548, 551 (1982). Prior to 1970, Illinois strictly applied Dillon’s
Rule. See, e.g., Elsenau v. City of Chicago, 334 Ill. 78, 81, 165 N.E. 129, 130 (1929).
¶ 32 In 1970, section 10 of article VII was added, which provides in pertinent part as follows:
“Units of local government and school districts may contract or otherwise associate
among themselves, with the State, with other states and their units of local government
and school districts, and with the United States to obtain or share services and to
exercise, combine, or transfer any power or function, in any manner not prohibited by
law or by ordinance. 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. VII, § 10(a).
¶ 33 B. This Case
¶ 34 This court has recognized that the delegates drafted section 10(a) with Dillon’s Rule in
mind, or, more specifically, with ending Dillon’s Rule, at least in certain circumstances. See
Village of Sherman, 106 Ill. App. 3d at 179 (“Article VII, section 10, eliminated the effect of
‘Dillon’s Rule’ in construing intergovernmental agreements.”); Connelly v. County of Clark,
16 Ill. App. 3d 947, 951, 307 N.E.2d 128, 131 (1973) (“Thus[,] Dillon’s Rule of strictly
construing legislative grants of authority to local governmental units has been abrogated by
section 10 *** when local governments voluntarily cooperate ***.”).
¶ 35 In Sherman and Connelly, this court reviewed the drafting process and report of
proceedings to reach our conclusion. See Village of Sherman, 106 Ill. App. 3d at 178-79;
Connelly, 16 Ill. App. 3d at 950-51. On first reading, the second sentence of section 10(a) was
not present, and an amendment to add similar language was defeated by a tie vote. 4 Record
of Proceedings, Sixth Illinois Constitutional Convention 3425-29 (hereinafter Proceedings);
see also Joan G. Anderson & Ann Lousin, From Bone Gap to Chicago: A History of the Local
Government Article of the 1970 Illinois Constitution, 9 J. Marshall J. Prac. & Proc. 697, 793
(1976). On second reading, the drafters amended that section to include the following, “Where
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authorized by law, units of local government and school districts may contract and otherwise
associate with individuals, associations, and corporations.” 5 Proceedings 4165. However, on
third reading, the drafters amended the second sentence to its present form—that is, the phrase
“when authorized by law” was deleted and the phrase “in any manner not prohibited by law or
by ordinance” was added. 5 Proceedings 4444-46. Thus, the interpretation advocated for by
the Brotzes was present at the second reading, but the convention rejected that interpretation
and replaced it with text that reverses Dillon’s Rule.
¶ 36 In this case, the Brotzes maintain that Dillon’s Rule is still applicable notwithstanding
section 10. The Brotzes employ the canon of construction “expressio unius”—the expression
of one is to the exclusion of others—to support their claim that Carlinville was only permitted
to address its water problems in one of the five ways prescribed by statute. We disagree.
¶ 37 As we just explained, section 10(a) reverses Dillon’s Rule when municipalities enter into
intergovernmental agreements to exercise the powers they are provided by law. Contrary to
the Brotzes claims, the defendants’ interpretation of section 10(a) does not grant power over
new subject matters. See People ex rel. Devine v. Suburban Cook County Tuberculosis
Sanitarium District, 349 Ill. App. 3d 790, 798 n.3, 812 N.E.2d 679, 686 n.3 (2004) (explaining
that contracts and associations under section 10(a) are limited to subject matters over which
the municipality has been granted authority). Instead, section 10(a) expands the methods by
which units of local government may exercise the powers granted to them by law—namely,
by contracting and otherwise associating with other public and private entities “in any manner
not prohibited by law or by ordinance.” (Emphasis added.) Ill. Const. 1970, art. VII, § 10(a).
¶ 38 All parties agree that Carlinville could build and maintain a water supply, and the same is
true of every other defendant. See 65 ILCS 5/11-124-1 to 11-126-7 (West 2016); 65 ILCS
5/11-125-1 et seq. (West 2016) (granting municipalities the authority to construct wells,
reservoirs, and waterworks); see also 805 ILCS 105/103.05(a)(23) (West 2016) (permitting
not-for-profit corporations to be organized for the purpose of owning and operating water
supply facilities on a mutual cooperative basis). The Brotzes do not point to any statute or
ordinance that prohibits Carlinville from joining together with other municipalities and
nonprofits, each of which has the power to do individually what they wish to do collectively,
to create a company to build and maintain a water supply for its members. Because the Brotzes
cannot do so, we conclude that the trial court should have granted Carlinville’s motion for
summary judgment.
¶ 39 As an alternative, the Brotzes attempt to defend the trial court’s reading of section 10(a).
The court emphasized that when dealing with public entities, section 10(a) states, “may
contract or otherwise associate,” whereas when discussing private entities, section 10(a) states,
“may contract and otherwise associate.” (Emphases added.) See Ill. Const. 1970, art. VII,
§ 10(a). Because the constitution uses the conjunction “and” instead of “or,” the court
concluded that Carlinville was required to enter into a contract and associate with private
entities. Carlinville conceded that it had not entered into any contracts, and the court found the
formation of Alluvial unconstitutional. (We note that Carlinville argued that the articles of
incorporation and bylaws of Alluvial were such contracts, but the court rejected this assertion.
We need not address this argument on appeal.)
¶ 40 The trial court’s reading of section 10(a) is simply incorrect. We acknowledge that “and”
is frequently used in statutes to signify that all of the listed factors must be present. See, e.g.,
Soh v. Target Marketing Systems, Inc., 353 Ill. App. 3d 126, 131, 817 N.E.2d 1105, 1109
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(2004) (use of “and” required all factors listed in section 2 of the Wage Act to be present).
However, “and” is also frequently used as a coordinating conjunction to “join[ ] together words
or word groups of equal grammatical rank.” Merriam-Webster Online Dictionary, https://
www.merriam-webster.com/dictionary/coordinating%20conjunction (last visited Feb. 26,
2021) [https://perma.cc/797D-PLHZ]. This usage is why the Illinois Supreme Court has
repeatedly “recognized that ‘and’ is often used interchangeably with ‘or,’ the meaning being
determined by the context.” County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d
593, 606, 900 N.E.2d 1095, 1102 (2008). Further, such usage is most logical considering the
context in this case that (1) “and” follows the word “may,” (2) “and” is used to link “contract”
with “otherwise associate,” and (3) the sentence ends with the phrase “in any manner not
prohibited by law or by ordinance.” (Emphases added.) See Ill. Const. 1970, art. VII, § 10(a).
¶ 41 For example, imagine a family visiting a public lake for recreation. Upon entering, a sign
states in bold lettering, “Visitors to the lake may boat, fish, swim, and otherwise enjoy the lake
in any manner not prohibited by park rules.” No reasonable speaker of English would
understand the sign to say visitors may swim but only if they also boat and fish and enjoy
themselves. To do so, one would have to ignore the words “may,” “otherwise,” and “in any
manner.” With the addition of those words, every reader would know that visitors may do
(1) any one of those activities, (2) all of them, (3) any other activity so long as it is not
prohibited, or (4) any combination thereof. Likewise, in section 10(a), units of local
government may contract, associate, or contract and associate with private entities. By using a
strict interpretation of “and,” the trial court rendered the words “otherwise” and “in any
manner” superfluous.
¶ 42 Our understanding of the plain language is confirmed by our prior cases that examined the
constitutional debates. See Village of Sherman, 106 Ill. App. 3d at 178-79; Connelly, 16 Ill.
App. 3d at 950-51. The problem the convention was attempting to solve was that non-home-
rule units of government had to get legislative approval before taking action to address local
government problems, which led to delay and awkward workarounds. Connelly, 16 Ill. App.
3d at 957 (Craven, P.J., concurring in part and dissenting in part). The delegates were eager to
remove this barrier so that units of local government at all levels could cooperate and associate
to address problems without legislative authorization. Id. at 950-51 (majority opinion). This is
why the language “in any manner not prohibited by law” was employed. (Internal quotation
marks omitted.) Id. at 950. The clear purpose of section 10 was to allow local governments
“maximum flexibility” to address local issues (internal quotation marks omitted) (id.) and to
use any method “unless the General Assembly says you can’t” (internal quotation marks
omitted) (Village of Sherman, 106 Ill. App. 3d at 179). The Brotzes offer no justification
whatsoever for limiting this clear rationale from our cases to cooperation only between units
of local government.
¶ 43 For the reasons stated, we conclude that the trial court erred by granting summary judgment
in favor of the Brotzes and denying summary judgment for Carlinville. Accordingly, we
reverse the trial court’s judgment and remand the case with instructions to enter summary
judgment in favor of Carlinville.
¶ 44 Prior to briefing, Alluvial filed a motion to strike, asking this court to strike the portion of
the trial court’s order that declared Alluvial a void corporation. We took that motion with the
case and now deny it as moot. Because we conclude that nothing prohibited defendants from
forming Alluvial, our reversal of the trial court’s judgment necessarily includes a determination
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that Alluvial is not a void company. As part of our directions, on remand, the trial court shall
vacate its prior order, enter summary judgment in favor of Carlinville consistent with the
reasoning of this opinion, and make clear that Alluvial may continue operating as a valid
corporation.
¶ 45 III. CONCLUSION
¶ 46 For the reasons stated, we reverse the trial court’s judgment and remand the case with
directions for the trial court to (1) vacate its July 7, 2020, judgment in its entirety, (2) enter
summary judgment in favor of Carlinville, and (3) as part of that judgment, make clear that
Alluvial may continue to operate as a valid corporation.
¶ 47 Reversed and remanded with directions.
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