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Court: Fischbach can remain senator and lieutenant governor for now

Minnesota Senate President Michelle Fischbach of Paynesville says on Wednesday, Dec. 13, 2017, that she will remain in the Senate when she takes over Lt. Gov. Tina Smith's job. Don Davis / Forum News Service

ST. PAUL — Michelle Fischbach may remain Minnesota lieutenant governor and a state senator -- for now at least.

A judge dismissed a lawsuit against Fischbach, R-Paynesville, Monday, Feb. 12, saying it came too soon.

Ramsey County Judge John H. Guthmann wrote that the suit by Destiny Dusosky, who lives in Fischbach's district, "lacks ripeness," adding that her claim "is premature and based on speculation."

He said that Dusosky, a Sauk Rapids resident, "failed to demonstrate that she was injured in a way that is any different than all residents of Senate District 13." Also, Guthmann wrote, it is not known if Fischbach will retake her Senate seat (although she has said public that she will) or if she will vote.

The judge said it is not known if fellow senators will allow her to remain in the body. However, Republicans who control the Senate have backed Fischbach's attempt to hold both jobs.

Also, Guthmann said that the court has no jurisdiction to decide if Fischbach is eligible to remain in the Senate.

Guthmann said that the Constitution does not specifically allow judges to remove a lawmaker from office, but constituents may at a recall election or the Legislature may do that with a two-thirds vote.

However, the judge dismissed the case in a way that a new one may be filed. His decision also may be appealed.

The judge made it clear a new case could be accepted. "However, this is not the right case, the right plaintiff, the right time or the right legal context. ..."

Dusosky said the state Constitution does not allow Fischbach to be both senator and lieutenant governor. She automatically became lieutenant governor when Democratic Gov. Mark Dayton appointed then-Lt. Gov. Tina Smith to be U.S. senator.

However, seven of nine senators who also served as lieutenant governor did not resign from the Senate.

Fischbach, in the Senate since 1996, says past court cases say she can hold down both offices if the lieutenant governor job is "temporary." She said that since the job would end early next year, it must be considered temporary.

The case is politically charged because when the 2017 session ended, Republicans held a 34-33 margin over Democrats.

Such a narrow margin makes it difficult for Republicans, who need to have every member on board to pass a bill. It also opens up a possibility for Democrats, who could have more say if Fischbach were booted from her seat or if they could win one or two special elections before new senators are picked in 2020.

In arguing that she is lieutenant governor in title only, Fischbach has:

  • Not taken the oath of office to be lieutenant governor.
  • Not accepted the lieutenant governor's salary.
  • Not done any lieutenant governor activities.
  • Maintained that her main job is serving her Senate constituents.
Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.