During arguments in the Dusosky v. Fischbach lawsuit Tuesday, Judge John H. Guthmann wondered aloud whether Sen./Lt. Gov. Michelle Fischbach’s refusal to swear an oath of office as lieutenant governor lays the groundwork for future lawsuits.
“Is that my next lawsuit—somebody suing Sen./Lt. Gov. Fischbach to make her take the oath?” the judge asked counsel.
It’s not an idle question: Minnesota Statutes Section 351.02 says that an office becomes vacant if an officeholder is too tardy in swearing an oath.
Fischbach, the Senate’s president and the nominal lieutenant governor, noted after the court hearing that she has sworn oaths twice since becoming a senator in 1996. When asked if declining to take one now means she is refusing to accept the job of lieutenant governor, she didn’t answer directly.
Instead, she said she isn’t sure how significant swearing another oath would be in her case.
However, Jack Davies, a former judge, a longtime law professor and one of Fischbach’s predecessors as Senate president, thinks Fischbach’s refusal is both intentional and strategic. And, to Davies, it’s the right strategy.
Davies was cited by Guthmann in Tuesday’s court session. The judge described his former law school professor as a key mechanic behind an early 1970s overhaul of the Minnesota Constitution.
“Jack Davies, who taught us legislative process, told us that he had the constitution cut into little pieces and spread over his living room floor,” Guthmann said in court. “And they rebuilt it like Humpty Dumpty.”
Davies’ familiarity with the document convinces him that Fischbach cannot legally hold two offices at once. But by declining to take an oath as lieutenant governor, he said, arguably she does not really hold two offices.
Davies said Fischbach has publicly shown that her focus is on her Senate duties, to the exclusion of her lieutenant governor chores.
She sat out a Jan. 3 Advisory Committee on Capitol Security meeting — the only committee on which the lieutenant governor is statutory chair. But she participated, albeit silently, as the Senate’s co-chair during a Jan. 9 Legislative Task Force on Child Protection meeting.
“She has not done anything to say, ‘I accept the office,’” Davies said. “She hasn’t taken the oath to perform the duties of the office. And so it’s vacant. Big deal.” (You might detect that Davies, who has advocated unsuccessfully for the lieutenant governor’s abolishment, is no fan of the office.)
He says Fischbach has not sought his advice, but if she did he would advise her to do exactly what she is doing. He thinks her tactics could help her avoid ouster from the Senate.
“She is saying you can’t kick me out of the Senate because I have not assumed the office of lieutenant governor,” he said. If he is right about what she is doing, Davies hope she succeeds—for the good of the Senate with which he served from 1959 to 1982.
“I think there is a problem if they oust her as a senator,” he said. “Because I am not sure that any senator would ever take the job of president of the Senate again if it meant they could be ousted from the office by a lieutenant governor resigning.”
Destiny Dusosky, a DFL activist from Sauk Center, sued Fischbach in January hoping to convince a judge to have her removed as senator. Guthmann heard arguments in the case and took it under advisement on Feb. 6. He offered no timeline for a decision.