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Judge dismisses lawsuit that challenged recall of Two Harbors mayor

Chris Swanson will face an Aug. 9 recall election.

Chris Swanson
Two Harbors Mayor Chris Swanson listens as residents speak during the public comment period March 28.
Jimmy Lovrien / File / Duluth News Tribune
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TWO HARBORS — A judge has dismissed the lawsuit that sought to nullify the recall of Two Harbors Mayor Chris Swanson.

In an order for dismissal filed Wednesday morning in State District Court in Two Harbors, Judge Shawn L. Pearson said those who filed the lawsuit — Lake County Republicans Chair Tim Jezierski and a John and Jane Doe — failed to identify challenges to the language of the state law they cited , and therefore, the court lacked jurisdiction.

The law they based their lawsuit on is intended “to provide a mechanism for correcting errors related to a state or local officials’ duty concerning an election,” Pearson wrote. “Historically, that statue is most commonly used for purposes of correcting errors or omissions related to the printing and publication of ballots.”

Pearson wrote that the Minnesota Supreme Court has clarified that the law should not be used for “any and all disputes concerning official conduct that relates to or may affect elections in general.”

In the now-dismissed lawsuit, Jezierski and the Does had argued the city's recall process "fails to confirm with Minnesota law."

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Additionally, Pearson said their argument that the recall petition failed to define “malfeasance” and hold a hearing on the matter also did “not fall within the scope of” the law.

Jezierski and the Does had also argued against the recall petition because it and the city’s charter do not define “malfeasance” and “nonfeasance,” but Pearson, in a footnote, said “Minnesota case law provides clarity on that topic.”

Pearson cited a 1959 case that defines it as “the doing of the which one not ought to do, the performance of an act by an officer in his official capacity that is wholly illegal and wrongful.”

Pearson dismissed the lawsuit without prejudice, meaning the parties could file again.

Swanson did not respond to an email or voicemail from the News Tribune seeking comment.

Although Swanson was not a party to the case, his attorney, Brendan Tupa, represented Jezierski and the Does.

Jezierzki said as he read the dismissal, he believed Pearson "didn't want to deal with it." He is now considering appealing the decision.

"All options are still on the table," Jezierzki told the News Tribune. "I'm going through them with my lawyer."

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In an email, Cynthia Kosiak, an organizer and attorney for the Resign or Recall Committee, told the News Tribune the lawsuit dismissal “is great news.”

“I was confident the judge would dismiss the Committee and Committee members but wasn't sure about the defining malfeasance issue,” Koziak said.

Two Harbors brought in outside attorneys to help defend itself. In addition to the Resign or Recall Committee and five of its members, the lawsuit also named the city of Two Harbors, Two Harbors City Council, City Clerk Patty Nordean and Interim City Administrator Joel Dhein.

“We’re obviously happy that it landed in our favor,” Dhein said of the case’s dismissal in a brief phone call with the News Tribune.

Recall efforts were spurred by Swanson's underwater hotel and cryptocurrency pursuits and other potential conflicts of interest and ethical concerns coming to light.

In a memorandum of opinion, City Attorney Tim Costley wrote that Swanson repeatedly used his official city position “for personal benefit or business interests” on a number of issues, the News Tribune reported in March.

In a response to the lawsuit filed earlier this month, Charles Nauen, the outside attorney representing the city, said the recall process followed the city’s charter.

Additionally, Nauen said it was clear Swanson showed malfeasance in three issues that appear in both the recall petition and Costley’s memorandum of opinion:

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  • When Swanson used his mayoral email address and title to solicit money for the Friends of the Bandshell Park nonprofit and the organization was reportedly paying Garage Starts, a company that listed Swanson as CEO on its website, to help raise money for a public performing arts center;
  • When Swanson solicited investors for the underwater hotel via a website that claimed “Mayor Swanson will be in touch; and
  • A 2017 incident in which Swanson reportedly used information told to him in confidence, as mayor, to influence his wife to buy the Lou’s Fish House building.

“Each of these allegations independently, and all of them collectively, demonstrate malfeasance — wrongful or unlawful acts — by Mayor Swanson,” Nauen wrote. “Contrary to Petitioners’ assertions, there are not merely disagreements with political positions or votes taken by the mayor; rather this conduct directly violates the provisions of the city code that lay out the duties and responsibilities of elected officials in the city of Two Harbors.”
Swanson will face a recall election Aug. 9. Two Harbors voters will answer yes or no to the question: “Shall Mayor Christopher Swanson be recalled?”

Earlier this week, the City Council voted 6-0 to urge Swanson to resign. Swanson did not attend the meeting.

This story was updated at 5:37 p.m. June 22 with quotes from Tim Jezierzki. It was originally posted at 4:51 p.m. June 22.

Jimmy Lovrien covers energy, mining and the 8th Congressional District for the Duluth News Tribune. He can be reached at jlovrien@duluthnews.com or 218-723-5332.
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