Strange bedfellows, it seems, can be separated by centuries.
Presumptive Lt. Gov., Michelle Fischbach, R-Paynesville, argues that she can remain a GOP senator and join the DFL Dayton administration after Lt. Gov. Tina Smith exits to become a U.S. senator. And that is exactly what Fischbach intends to do.
“That is what is prescribed by law,” she said at a Dec. 13 news conference.
Cue the ghostly bedfellows. Fischbach, a member of a GOP party that steadily pushes for lower business taxes, bases her legal claim on an 1898 Minnesota Supreme Court case originally fought and won by an angry populist who wanted to force rich railroad barons to pay their share of taxes.
That case was State ex rel. Marr v. Stearns. It was decided on May 11, 1898.
By the early 1890s, railroads held about 5.5 million acres of land in Minnesota. Its aggregate worth was an estimated $27.5 million, and its taxable value was calculated at around $800,000, according to an April 11, 1891, story in the long-defunct St. Paul Globe newspaper. Dollar for dollar, that taxable value is roughly $20.7 million in current dollars, according the U.S. Bureau of Labor Statistics website.
But that was irrelevant in the 1800s; railroads did not pay property taxes. Instead, they paid “commuted taxes”—annual taxes on gross earnings in lieu of property assessments.
According to contemporary accounts, railroads received tax-free land grants while Minnesota was still a mostly unsettled territory. In the decades after statehood, however, populations increased and land values ballooned. Still railroads—among the era’s most lucrative businesses—paid no property taxes because of the terms of their territorial land grants.
Populists fumed. Particularly galling to farmers was the notion that they had to pay for roads and other improvements—thereby boosting property values and their taxes—while railroads sat back and enjoyed the benefits for free.
“That’s exactly what was happening all across the country,” said Mary Jane Morrison, a retired Mitchell Hamline law professor and state Constitution expert. “That includes Minnesota.”
In 1895, the Legislature passed “the Anderson bill,” named after its House author, Rep. August J. Anderson, R-Waconia. For the first time, the state levied property taxes on unused railroad lands. Property used for railroad rights of way, depots, side tracks or outbuildings remained untaxed.
Shortly thereafter, J.N. Marr, described in the ruling simply as “a taxpayer,” sued Aitken County Auditor Fred Stearns. Marr wanted to force Stearns to place unused railroad lands on the county’s 1897 tax rolls.
“Mr. Stearns was willing to do this,” says an article in the St. Paul Globe from May 12, 1898. However, the auditor thought it wise first to test the Anderson bill’s legality “beyond the possibility of a doubt,” the story says. With railroad support, he allowed the lawsuit to proceed without putting their land on the tax rolls.
So what does any of this have to do with lieutenant governors and senators? The answer lies in the person of Sen. Frank Day, R- Fairmont, founder of the Fairmont Sentinel newspaper.
Early in the 1895 legislative session, Day’s fellows elected him Senate president. Six days later, he suddenly became lieutenant governor when Gov. Knute Nelson was boosted to the U.S. Senate and Nelson’s lieutenant governor, David Marston Clough, succeeded him as governor.
Day—in a political play that Sen. Fischbach hopes to emulate—remained a senator while occupying the lieutenant governor’s post. Throughout the 1895 session he continued casting votes—including, critically, the tie-breaking vote on the Anderson bill. He did so, the ruling says, “with the tacit approval, at least, of the Senate.”
The ruling refutes Stearns’ argument that the Anderson bill was thus rendered invalid. Because he was lieutenant governor, lawyers claimed, Day had no business voting as a senator. The state Constitution, then as now, bars any senator or representative from holding another office besides postmaster. (Somewhere along the line, notary publics were added as a second exception.)
So by rights, attorneys argued, Day was not a senator at all when he cast the Anderson bill’s deciding vote. Therefore the law was invalid.
The court, rather circuitously, disagreed. Justices argued that a vacancy to the governor’s office could be temporary—a governor could become briefly incapacitated by illness, for example. But once the crisis passes, everyone reverts to their original roles.
That being true, justices reasoned, it would be ludicrous for a senator lose his or her elective office when succeeding to lieutenant governor. If carried to the extreme, the court said, every official along the chain of succession would permanently lose their posts to any vacancy, however temporary.
That, they continued, could set the stage a kind of bloodless coup. Merely by filing articles of impeachment against a governor—a move that suspends the governor from duty while issues gets sorted out—a governor could be permanently ousted, justices ruled.
To complete the coup, a Legislature would only have to file articles of impeachment a second time against the governor’s successor—throwing both out of office even if there is no conviction. The Legislature could thus anoint a governor of their choosing. Clearly, the opinion says, the framers had no such intention.
Morrison says that portion of the 1898 ruling still stands up. But she is not sure why it’s there. The court might have sensed political intrigue in the air during those turbulent years, she said, causing them to latch onto Marr’s case to head off a palace coup. Or there might be a less dramatic reason.
“Maybe they were just Aristotelean justices and when they saw an argument, they couldn’t resist,” she said. “It doesn’t matter. Either way, they are absolutely right.”
The other part of the 1898 ruling on the matter is not such a sure thing today, experts indicate. In 1898, lieutenant governors automatically took on the job of Senate president pro tempore—a purely formal role; lieutenant governors did not cast votes even to break ties.
But given that constitutionally defined dual role, the 1898 court said, it was wrong to suggest a lieutenant governor could not also be a senator. The lieutenant governor already was—if in name only—part of the Senate.
That is not true anymore.
Fischbach’s resistance to leaving the Senate before becoming lieutenant governor—something Gov. Mark Dayton has said he thinks she must do—has many speculating that another executive versus legislative branch court fight is right around the corner.
If so, Senate Counsel Thomas S. Bottern has given Fischbach a legal hook for her position, based on the Marr decision.
In a Dec. 13 memo to Fischbach, Bottern argues that—even though it was later overturned by a 1900 U.S. Supreme Court ruling—Marr v. Stearns is valid case law. In part, he said it supports her stance because it found that no constitutional language requires a senator to vacate his or her seat upon succeeding to lieutenant governor. Bottern declined a request for comment.
Constitutional and political experts tend to disagree with that because of subsequent constitutional amendments in 1966, 1968 and 1972, which combined to dramatically change the Capitol’s political landscape.
The 1966 amendment paved a legal path for legislators to run for higher office. It pointedly states that any lawmaker elected to another office “shall automatically terminate his term of office as senator or representative and create a vacancy therein.”
Possibly to cover the contingency of someone being appointed rather than elected to another office, a similar constitutional amendment was passed in 1968. “If elected or appointed to another office,” the 1968 provision says, “a legislator may resign from the legislature by tendering his resignation to the governor.”
But the trump card, experts indicate, is the 1972 amendment. That revision wiped away the lieutenant governor’s role as ex officio president of the Senate, thereby tearing down a key plank of the 1898 court’s opinion on the issue.
“That’s gone,” said Hamline University political science professor and attorney David Schultz. “That’s out of the Constitution.”
Its absence weighs heavily against Fischbach’s claims, Schultz asserts. Before the 1972 amendment, the Constitution contained an explicit exception to the separation-of-powers clause, so that lieutenant governors could be the Senate’s president pro tempore, Schultz said. When the role was abolished, he said, so was the exception.
Former state Sen. Jack Davies, DFL-Minneapolis, was instrumental in a massive early-1970s project to pare down and simplify the Minnesota Constitution for modern readers. He says that, in the wake of those amendments, the Constitution now clearly shows that Fischbach cannot hold both offices.
“I do like the words of the Constitution to be read the way they are written,” Davies said. “I read those words and I didn’t see any way they could arrive at the other conclusion.”
Several others approached for this piece suggest that Fischbach and the GOP Senate majority might be less interested in winning a lawsuit than playing for time.
If Democrats file suit to force her resignation, those sources suggest, Marr v. Stearns might generate a colorable enough claim to merit close court scrutiny. That might delay final resolution and allow Fischbach to occupy both offices, staving off a special election for her Senate seat until after the next session ends.
If a special election were to proceed, the Senate’s balance of power could tip toward Democrats in the middle of session.
Sen. Ron Latz, DFL-St. Louis Park, an attorney, is among those who think that strategy might be in play. “It might just be a tactical approach.”
All this would be moot if U.S. Sen. Al Franken heeds recent calls to reverse himself and stay in office. While most expect he will leave in early January, Franken has given no specific date. Until he does, Lt. Gov. Tina Smith’s appointment—and the opening in the lieutenant governor’s office—are unofficial.
Both GOP senators and the Dayton administration say they are awaiting an opinion from state Attorney General Lori Swanson on the matter before deciding how to proceed further.
Calls to Swanson’s office seeking a timetable for its release were not returned. Likewise, Fischbach did not return a call.