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Published August 18 2010

Dismissal of suit recommended

A U.S. District Court judge says a lawsuit against Fargo over the Ten Commandments monument should be dismissed.

Magistrate Judge Karen K. Klein said the Red River Freethinkers are raising similar issues already decided by the court and they fail to meet the necessary criteria to bring the lawsuit.

Attorneys for Fargo and the Freethinkers declined to comment Tuesday.

The Freethinkers have 14 days to object to Klein’s recommendation, if they choose. After that time, U.S. District Court Judge Ralph Erickson will decide whether to dismiss the case.

The Freethinkers sued Fargo in 2008, claiming the city gave the monument a religious purpose in voting three years ago to keep it on public property outside the Fargo Civic Center.

The lawsuit revived a First Amendment argument originally addressed in a 2005 federal lawsuit, when the court determined the display was secular in nature.

In the latest lawsuit, the Freethinkers argued that Fargo commissioners endorsed a “religious motive” in approving a 2007 ordinance that allowed the monument to stay in the same location it had been since 1958.

But, in her recommendation released this week, Klein said the Freethinkers’ argument “simply repackages” the earlier case, rather than addressing new grievances the group has on the issue.

The Freethinkers want the court to rule that the city’s ordinance is unconstitutional and require the city to remove the monument from public property.

The group argues the city’s actions in 2007 caused new harm “by magnifying the feelings of exclusion, discomfort and anger caused by the original presence of the Ten Commandments monument on city property and by verifying the validity of those feelings.”

However, Klein said any legal decision by the court now would deal with the Fargo ordinance – not the presence of the monument, since that was already addressed in the previous lawsuit.

Therefore, Klein said, a legal remedy can’t address the Freethinkers’ new claims of harm, which is a requirement to have legal standing in bringing the lawsuit.

“Even if the court were to invalidate the ordinance, the city would be free to leave the monument in place or to move it, as it chose,” Klein wrote in her recommendation. “An action to force the removal of the monument reprises the (previous) case, which (the Freethinkers are) barred from doing.”

Readers can reach Forum reporter Kristen Daum at (701) 241-5541