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Destiny Dusosky, center, a DFL activist from Sauk Center, first sued Michelle Fischbach in January, hoping to persuade a judge to have her removed as senator. The suit was dismissed in February, but has since been refiled. (AP pool photo)
Destiny Dusosky, center, a DFL activist from Sauk Center, first sued Michelle Fischbach in January, hoping to persuade a judge to have her removed as senator. The suit was dismissed in February, but has since been refiled. (AP pool photo)

Bar Buzz: Fischbach’s attorneys move to dismiss

Lawyers for Sen./Lt. Gov. Michelle Fischbach are unimpressed that a constituent is determined to remove her from the Senate.

“This is still the wrong case, the wrong plaintiff, the wrong time and the wrong legal context,” says a motion memo from the Fischbach team that seeks to dismiss Round 2 of Destiny Dusosky’s lawsuit against the sitting Senate president.

The motion was filed April 30. The revived case’s first hearing is scheduled June 5 — after the current legislative session is over. It will be heard in Ramsey County District Court before Chief Judge John H. Guthmann.

The same judge dismissed virtually the same lawsuit in February. Then he said his court lacked subject matter jurisdiction; that Dusosky lacked standing; her case was unripe; and it involved non-justiciable political questions. The defendant’s 17-page memo argues for all those points and adds two more.

First, the motion signed by Kevin Magnuson says, Dusosky fails to state sufficient claims for relief. In that context, Magnuson argues, Marr v. Stearns, the 1898 state Supreme Court precedent holding that lieutenant governors can serve as senators, still guides.

Second, the memo says the court can dismiss because Dusosky failed to join the Minnesota Senate as an indispensable party to her claim.

Gov. Mark Dayton recently was asked whether Dusosky and any DFL senators who might silently support her case should give up and seek another remedy — perhaps a constitutional amendment allowing governors to fill vacancies when lieutenants move on.

Dayton — whose 2017 line-item vetoes were upheld in 90th Minnesota State Senate v. Dayton — wouldn’t bite.

“I ended my participation in the legal matters pertaining to the Legislature when my particular issues were resolved by the Supreme Court,” Dayton said during an April 26 press conference. “I don’t have any comment on what their options are and I don’t know what they’re considering.”

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