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Fischbach advised to quit Senate: Minnesota solicitor general says state senator can’t also be lieutenant governor

Sen. Michelle L. Fischbach, R- Paynesville. Fishbach is president of the Minnesota Senate. (Courtesy of the Minnesota Senate)

ST. PAUL — You can’t be a Minnesota state senator and the state’s lieutenant governor at the same time.

That’s the opinion, issued Thursday, of a top lawyer in the attorney general’s office regarding a  legal battle brewing over the fallout of U.S. Sen. Al Franken’s impending resignation.

But it doesn’t appear that will stop the dispute.

Thursday’s opinion by Solicitor General Alan Gilbert is advisory; it has no actual power.

And it looks like Sen. Michelle Fischbach plans to hold both offices, according to statements from Republican leaders.

So this thing might be headed for the courts.

What’s this about?

Power. It’s about party political power. Franken’s resignation has created a cascade of succession that could result in Republicans losing control of the state Senate.

Franken, a Democrat, has said he’ll resign Jan. 2. Gov. Mark Dayton, a Democrat, has named Lt. Gov. Tina Smith, also a Democrat, to replace Franken.

Before Smith is sworn in Jan. 3, she’ll have to resign from her job as lieutenant governor. At that moment, Fischbach, a Republican, will automatically ascend to fill Smith’s vacancy. That’s because Fischbach is also president of the Senate, and the state constitution says that person fills a vacancy in the lieutenant governor’s office.

None of that is in dispute.

Fischbach said she’s happy to be lieutenant governor, but she doesn’t want to give up her Paynesville-based Senate seat, which she has held since 1996.

That’s the dispute.

Even though the state’s constitution says no senator can hold any other state office except postmaster or notary public, Fischbach, Republican Senate leaders and a Senate attorney pointed to an  1898 state Supreme Court ruling that did allow a lieutenant governor in a similar situation to hang onto his Senate seat.

Dayton said his lawyers don’t see it that way, and Sen. Tom Bakk, the Senate’s leading Democrat, has said he’d sue if Fischbach wouldn’t resign.

What’s the news?

Dayton asked the office of Attorney General Lori Swanson, a Democrat, to weigh in. On Thursday, Dec. 21, Gilbert released his advisory opinion.

It says:

  • A lot has changed since 1898, so “a strong argument can be made that the 1898 decision … does not control the outcome of this dispute.”
  • Allowing someone to hold positions in both the executive branch and the legislative branch violates the principle of separation of powers — the executive-legislative-judicial tripod on which American democracy is balanced.
  • This feud can “ultimately only be resolved by judicial decision”; the courts might have to settle this.
Reaction

Bakk was happy.

The Democrat from Cook’s statement: “I agree with the Attorney General’s office; Sen. Fischbach may not hold both the office of State Senator and the office of Lieutenant Governor at the same time. I respectfully request that Sen. Fischbach consider this advisory opinion very seriously. I have concerns with the validity of votes cast during the legislative session if Sen. Fischbach continues to pursue serving in both the executive branch and the legislature.”

Senate Majority Leader Paul Gazelka, a Republican from Nisswa, was resolute.

His statement: “We just received the opinion of Solicitor General Gilbert, and it’s just that — an opinion. Based on the opinion of our nonpartisan Senate counsel, Senator Fischbach will retain her Senate seat while she temporarily serves as acting lieutenant governor. As the attorney general’s own website states, ‘(her) opinions do not generally have legally binding effect as would a court decision. …’

“I have every confidence Senator Fischbach will continue to be an effective public servant for her constituents in her roles as a state senator for District 13 and acting lieutenant governor of Minnesota.”

Why does this matter?

With a Democrat in the governor’s office and Republicans in control of the House, a Republican-controlled Senate can make a huge difference in passing Republican-supported legislation. Or not.

The balance of party power in the Senate is razor-thin. The Republican Party currently holds a two-vote lead over the Democratic-Farmer-Labor Party. There’s a vacant seat formerly held by Democrat Dan Schoen, a Democrat, who resigned. A special election is scheduled for Feb. 12.

If a Democrat wins that election, and if Fischbach has to resign her seat, the Senate would be evenly split — a situation that many believe will lead to an inability of the body to get much done if there’s any controversy.

The fact that Fischbach’s seat is in a strongly GOP district — a Republican would probably be favored to win a special election — seems to not be a factor for the players at the moment. Fischbach herself would be out of a job when Dayton’s — and her — terms expire at the end of next year; her Senate seat is not up for election until 2020.

What’s next?

None of this matters until the Legislature convenes Feb. 20.

It’s unclear whether anything will get resolved by then — or when.

Franken’s resignation and Smith’s appointment won’t be affected.

It seems unlikely Fischbach’s ascension to lieutenant governor would be affected, although her role in Dayton’s administration will likely be as a sideline player on partisan matters.

Some sort of lawsuit by Bakk attempting to force Fischbach to resign could come anytime after she becomes lieutenant governor.

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