With only a few days to go before Lt. Gov. Tina Smith is scheduled to be seated in the U.S. Senate, it is unclear what will happen in the Minnesota Capitol when she departs.
The Republicans and Democrats are engaged in a constitutional battle over the possible impending move of Sen. Michelle Fischbach to lieutenant governor, as outlined in Article V, Section 3 of the Minnesota Constitution. Fischbach is a Republican and her party controls the Senate by only two votes. A special election on Feb. 12 to fill the seat vacated by Sen. Dan Schoen could narrow the gap to one vote. The Republicans do not want to lose Fischbach to the executive branch.
Senate Majority Leader Paul Gazelka asked Gov. Mark Dayton to seek a legal opinion from the attorney general’s office. When he got it, he said, “it’s just that—an opinion,” and that Fischbach would stay in the senate.
A special session of the Legislature was under consideration at press time. House Speaker Kurt Daudt and Gazelka sent a letter Friday to Dayton, asking him to call a special session to allow the Senate to elect a Democrat as president of the Senate. Dayton said he was open to considering a special session if it’s limited to the succession issue.
The parties are each armed with a legal opinion supporting their preference. Senate Counsel Thomas Bottern has opined that Fischbach can hold both jobs at the same time. He relied on an 1898 case, State ex rel. Marr v. Stearns, saying that the “core reasoning used by the court remains applicable.” The court said that since the constitution required the president of the Senate to assume the lieutenant governor’s seat, but did not require the president to resign the Senate, the court would not add that in.
Bottern also said that the court reasoned that neither the lieutenant governor nor the senate president had any power or duty belonging to the executive branch.
He concludes by reminding Fischbach that her seating as a senator may be challenged. “It is my belief that a legal challenge would not prevail, although that is difficult to predict.”
But the Office of the Attorney General, in a letter signed by Solicitor General Alan Gilbert, says that times and the constitution have changed in the more than 100 years since Marr was decided.
In Marr, the court decided that Sen. Frank Day could serve as senator and lieutenant governor. The constitution said that that time that lieutenant governor was the ex officio president of the senate. Even though the constitution said at that time that no senator or representative could hold any other office, the constitution also said that the president of the senate should become lieutenant governor.
“Indeed, this particular section has but little relevancy to the question under consideration, except to emphasize the necessity of construing the several provisions of the constitution as a harmonious whole, and not each section by itself,” Gilbert quotes the court as saying.
But the office of the lieutenant governor has changed, Gilbert wrote. In 1972 the constitution was amended to provide that the lieutenant governor is no longer the ex officio president of the senate. The lieutenant governor is fully a part of the executive branch and the senate selects its own presiding officer under Article IV, Section 15. “Under the current constitutional and statutory framework, potential conflicts exist if the same individual were to fulfill both executive and legislative responsibilities,” Gilbert wrote.
A strong argument can be made that Marr does not control the current dispute, he also said.
Concluding, Gilbert wrote, “Any dispute regarding the lieutenant governor exercising these dual functions under current law can ultimately only be resolved by judicial decision.”
Fischbach could not be reached for comment.