WARSAW — Petitioners Mary Clemens, Merle Conner, Judith Conner and Chris Cummins, all of Warsaw, filed a response to the Kosciusko County Community Fair’s motions for dismissal and change of venue.

On June 11, the fair filed three motions for a dismissal, a change of venue and a change of judge. The change of judge motion was granted and Elkhart County Circuit Court Judge Michael Christofeno was appointed as a special judge on Monday, June 25. No action has been taken on the motions for dismissal or change of venue.

The plaintiff’s response to the change of venue motion states that the burden is to show the existence, not the possibility, that local prejudice or bias exists.

The fair’s motion states that Warsaw Mayor Joseph Thallemer is related to one of the plaintiffs and has “openly opposed the manner in which many of the events take place at the fairgrounds.” In response, the plaintiffs argue that they “have no idea which one of them is allegedly related to the mayor of Warsaw.” The response continues with stating, “aside from showing that perhaps the mayor would not make it onto the jury, the fact that a single person has spoken publicly about certain events at the fairgrounds, even if true, does not mean that a fair and impartial jury could not be impaneled from the entire population of Kosciusko County.”

The motion also stated that the case has been highly publicized and that any citizen who lives near the fairgrounds could become potential jurors. The plaintiff’s response points out that much of the publicity has been initiated by the fairgrounds, including press releases, statements on their Facebook page and providing interviews to local media. The response states, “The defendant cannot insert itself into the communal discourse in an attempt to sway public opinion and then complain that the case should be moved to another county because the litigation is ‘highly publicized.'”

The response to the motion for a change of venue concludes by stating, “There are people in Kosciusko County that are familiar with the parties’ dispute. There are people in Kosciusko County that may have formed opinions regarding the parties’ dispute. However, neither of these facts, nor any of the facts set forth by the defendant, support moving the litigation to another venue.”

The plaintiffs’ response to the dismissal motion states that the court has no jurisdiction to address the defendant’s motion and, even if jurisdiction existed, defendant’s motion should be denied.

One of the arguments listed in the response states that the court has already ruled upon the issues. “The defendant already raised these arguments to Kosciusko Circuit Court Judge Reed and he rejected them. The defendant is free to ask the court to reconsider its prior order, but a motion to reconsider is deemed denied if it is not ruled upon within five days. The defendant’s present motion is thus deemed denied.”

The response also argues that since an appeal has been made on the order, the court no longer has jurisdiction. “Once the Court of Appeals acquires jurisdiction, the trial court loses subject matter jurisdiction … The purpose of the rule is to facilitate the orderly presentation and disposition of appeals and prevent the confusing and awkward situation of having the trial and appellate courts simultaneously reviewing the correctness of the judgement.”

The response concludes by stating, “dismissals under Trial Rule 12(B)(6) are rarely appropriate. Defendant has not demonstrated that this is one of those rare occasions where dismissal is warranted. In fact, the defendant’s motion to dismiss is wholly without merit, for the reasons stated herein. Plaintiffs respectfully request that the defendant’s motion be denied and for all other just and proper relief.

The court case stems from the petitioners filing a complaint in Kosciusko County Circuit Court against the Kosciusko County Community Fair regarding racing events. In 1990, restrictive covenants were agreed upon which stated that the fair had the right to continue the use of its grandstand and racetrack facility for recreational and fairground activities other than motorized racing.

In March of this year, the plaintiffs discovered that the Kosciusko County Community Fair was planning to conduct motorized races in the spring and summer. A hearing was held on May 10. Both parties appeared in person at the hearing and presented evidence. The judge took the evidence under advisement and declared an order.

The order by Judge Reed declared that the plaintiffs’ motion for a preliminary injunction was granted. While this case continues, the fairgrounds is “prohibited from conducting, running, permitting or allowing motorized racing on fairgrounds property, or otherwise violating the restrictive covenants.” This preliminary injunction means that no racing can take place during fair week, which is scheduled for July 8 – 14.