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Legal battle erupts with appointment to replace Al Franken

In this 2015 photo, Minnesota Lt. Gov. Tina Smith is pictured talking in Brainerd. Gov. Mark Dayton has appointed Smith to the U.S. Senate as a replacement for Al Franken, who will resign after allegations of sexual harassment. File photo / Forum News Service.

ST. PAUL — That didn't take long.

Shortly after Tina Smith was named successor to Al Franken, a legal battle erupted over control of the Minnesota Senate — and the state Supreme Court might have to settle it.

Immediately at stake is whether Republicans can maintain their one-vote margin in the Senate.

Perhaps a larger issue at stake is the separation of powers between the legislative and executive branches.

Things got heated quickly, as Jennifer Carnahan, chair of the Republican Party of Minnesota, alleged a Democratic power grab was Gov. Mark Dayton's motive.

"Governor Dayton chose to play politics with Senator Franken's replacement," Carnahan said in a statement. "It's an underhanded 'House of Cards'-style move. This is clearly an attempt to throw the Republican majority in the Minnesota Senate out of balance."

It's all the result of a cascade that began when Dayton named Smith, his lieutenant governor, to Franken's seat after his resignation last week amid accusations of sexual misconduct. There's no dispute he has the authority to fill the vacancy.

Here's what's going on.

Fischbach succeeds Smith

When Smith becomes senator, the vacancy in her office "shall" be filled by the president of the state Senate, according to Minnesota's succession plans.

That person is Michelle Fischbach, a Republican. That's weird — since Dayton is a Democrat — but the governor said he hoped the two could work together.

And Fischbach said she was "honored to become lieutenant governor."

Fischbach wants both jobs

But, she added: "I want to assure my constituents in Stearns and Benton counties that I will continue to be their senator."

And, she'll continue to serve as Senate president, she said.

Fischbach, of Paynesville, said she presumes her role in the executive branch would be that of caretaker of the lieutenant governorship, since the job has no actual duties prescribed by the state Constitution. She said that Dayton, being on opposite sides from her on many issues, probably wouldn't want her in his inner circle. So she'd have time for both gigs, she reasoned.

When asked whether she would plan on being paid for both jobs, she said she hadn't thought about it. She said she also hadn't thought about running for the No. 2 post, or that of the governor, in 2018, when it will be on the ballot.

Democrats object

That's not at all how Democrats see it.

Dayton and Senate Minority Leader Tom Bakk, DFL-Cook, said they think Fischbach would have to resign from her Senate seat.

They point to this passage from the Minnesota Constitution: "No senator or representative shall hold any other office under the authority of the United States or the state of Minnesota, except that of postmaster or of notary public."

Fischbach would have to resign, they say, and her vacancy would be filled during a special election early next year. Her district is solidly Republican, but the seat wasn't due to be up until 2020. So if Fischbach, who has served for more than 20 years, does have to resign, she serves out the remainder of the lieutenant governor's role for just over a year, and then would have no ability to return to the Senate for two years.

1898 case

Dayton and Bakk said they've had lawyers look at the situation, and they're right.

Fischbach and the Senate Republican caucus said they've done the same, and they're right. They point to an 1898 Minnesota Supreme Court decision that allowed for a lieutenant governor to serve in both roles.

Dayton said he has asked the Minnesota attorney general's office, led by Democrat Lori Swanson, to render an opinion. Fischbach implied she wouldn't heed the opinion if it comes to the conclusion she must step down. "It would be an opinion," she said. "The Supreme Court would have the final say."

There's some time. The Legislature convenes Feb. 20.

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