Commissioner's Attorney files motion to dismiss lawsuit

Attorney Michael Wukmer, with Ice Miller LLP in Indianapolis, was hired by the Marshall County Commissioners to represent them in the case filed by the County Council.  On Wednesday, December 11^th he submitted a motion to dismiss the complaint against the Commissioners and Tamarack Solar in court. 

During the Commissioner’s meeting Monday, County Attorney Jim Clevenger told the commissioners the motions were not scheduled for a hearing. As of Friday, the judge appointed by Marshall Superior County III Judge Matthew Sarber has not yet qualified.

Clevenger said he was unsure where everything was standing.

On November 6 Attorney Michael Roose, hired by the County Council’s legal counsel Marcel Lebbin, filed a complaint for Declaratory Judgement in Marshal County Circuit Court against the County Commissioners and Tamarack Solar Energy LLC.

In the motion to dismiss under Legal Standing, Attorney Wukmer states that Tamarack demonstrated in its brief that the Council does not have a legal interest in declaring the actions of the Commissioners to be invalid and therefore lacks standing to assert the conflict of interest in Count I and the same applies to Count II in which the Council seeks to challenge the Commissioner’s approval of Tamarack’s Economic Development Agreement. 

Indiana Code 36-2-2-2 states that the executive branch of government, the county commissioners, negotiates contracts for the county and the Economic Development Agreement is a contract. 

Under Insufficient Facts: the motion says Tamarack’s brief does an excellent job of demonstrating that the amended complaint filed by the Council, “does not allege any facts that would remotely support that the Council has “a personal state in the outcome of the litigation.”   Wukmer writes, “Specifically, there are no facts that demonstrate a present conflict of interest by Commissioner Overmyer.”  The Council alleges that Overmyer has an interest in the Decommissioning Plan Agreement that was approved by the commissioners, but that was a legal conclusion and not a fact.

While Commissioner Overmyer has real estate in the general proximity of Tamarack’s proposed solar farm, it is completely and legally a separate tract of real estate that is not factually tied to Tamarack’s proposed solar farm in any way.

The motion to dismiss states, “The Court must look at the Complaint for what it is, the Council’s attempt to control the power of the Commissioners.  There are no facts or law under which the Council can prevail.”   The motion urges the court to dismiss the amended complaint.