Minnesota Lawyer
A constituent who sued in January to oust Sen./Lt. Gov. Michelle Fischbach, R-Paynesville, from her Senate seat has refiled essentially the same action that a judge dismissed without prejudice just nine weeks ago.
“Plaintiff Destiny Dusosky brings this action, again,” the complaint states, “seeking an order declaring that Lieutenant Governor Fischbach is prohibited from holding the office of state senator and enjoining her from continuing to exercise the powers and duties of that office.”
Dusosky, of Sauk Rapids, is a college maintenance worker and former local DFL Party chair in Fischbach’s district. Ramsey County District Court Chief Judge John H. Guthmann dismissed her earlier suit without prejudice on Feb. 12.
That ruling said Dusosky lacked standing because she had sustained no particularized injury.
But the new suit says circumstances have changed because the legislative session — which hadn’t yet started on Feb. 12 — is now well underway.
Fischbach, barred from holding two seats, nonetheless continues to act as a voting senator while constitutionally obligated to serve as lieutenant governor, the complaint states. The Senate, meanwhile, has failed to decide whether that’s appropriate, the complaint says.
That means Dusosky is and will continue to be “deprived of representation” in the Senate until the court intervenes, her April 10 complaint states.
Fischbach, while acknowledging her ascension to lieutenant governor, has not sworn an oath for that office and instead has carried on as Senate president.
Guthmann hinted in his ruling that the case against Fischbach might ripen and be heard in court should a 34-33 Senate vote be cast on a contested bill in which Fischbach’s vote is decisive.
Such an outcome is possible — the GOP holds a 34-33 Senate majority. But it has not happened yet.
There was one 33-33 floor vote on Feb. 22, which failed to overrule a Fischbach germaneness ruling. Another 33-33 vote was cast on March 15 in a failed attempt to suspend Senate rules and immediately debate a fix to the Minnesota Licensing and Registration System (MNLARS). Several days later, several 34-33 votes were cast on failed floor amendments to that bill.
But none of the four bills actually passed by the Senate so far was remotely a close call. The closet vote, on House File 399 to reboot last year’s vetoed legislative appropriation, passed the bill 38-28.
Senate Majority Leader Paul Gazelka, R-Nisswa, said Wednesday that he has “worked hard” to ensure there have been no close votes so far this year.
Given that, Gazelka said, it is frustrating that an essentially identical lawsuit has been refiled. “We all looked at the lawsuit and we came to the same conclusion—why are they doing this again?” Gazelka said. “It only drives a wedge that we just don’t need in the Senate.”
It also will drive up legal costs borne by taxpayers, Gazelka said, and he sees no good reason for that. “I think we’re going to come to the same conclusion that we did last time,” Gazelka said.
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Reaction mixed
Gazelka did not directly respond when asked if he thinks Senate Democrats are working with Dusosky behind the scenes. However, it is clear that, at the highest levels of Senate leadership, DFLers support what she is doing.
Senate Minority Leader Tom Bakk, DFL-Cook, issued a written statement almost immediately after the latest complaint was filed. Fischbach’s constituents deserve a “clear answer from the Judicial Branch” on her constitutional status, Bakk said.
“As I’ve said since December,” his statement reads, “it’s important for this constitutional question to be resolved. I commend Ms. Dusosky for helping Minnesotans find clarity.”
Four legal experts contacted for comment are somewhat divided in their opinions.
Mary Jane Morrison, the retired Mitchell Hamline School of Law professor and Minnesota Constitution scholar, said Dusosky’s latest complaint offers more substantive legal arguments than her first. She is impressed by its analysis of the 1976 ascension of Senate president Alec Olson to lieutenant governor after Rudy Perpich became governor.
But the complaint doesn’t resolve what Morrison sees as Dusosky’s two core difficulties: Fischbach is acting as a senator, so Dusosky does have representation; and Dusosky has suffered no “perceivable injury.”
“Plaintiff’s injury looks at best political and at worst speculative,” Morrison said. Claiming a “constitutional injury,” she added, is too abstract and generalized a concept for courts to recognize.
David Schultz, the Hamline University political science professor and attorney, agrees. “I am perplexed as to what her injury is,” he said. “She is claiming that she doesn’t have representation. But she does — because Fischbach is still there.”
It’s possible that Dusosky filed suit simply to get the matter onto the court’s calendar so Senate Democrats can join up later, after a 34-33 bill vote gets cast, Schultz said.
“I would have both of them filing,” Schultz said. “That way, if Guthmann comes back again and says that the constituent doesn’t have standing, possibly at that point he would say but a senator does have standing here.”
Short of that, Schultz thinks Fischbach’s attorneys could have grounds to move for dismissal based on frivolous litigation. The complaint effectively is a rerun of an already dismissed case, Schultz said: “I think it’s just a harassment lawsuit right now.”
Charles Nauen, Dusosky’s attorney, did not return a call seeking comment before deadline. However, Fischbach’s attorney Kevin M. Magnuson did send a brief statement by email.
“I can say that the new complaint against Senator Fischbach adds nothing new that would change the earlier court’s dismissal of the case,” Magnuson said. “This is still not the right case, the right plaintiff, the right time, or the right legal context to consider defendant’s eligibility to serve in the Minnesota Senate.”
Two other legal experts contacted are semi-supportive of the latest complaint — or at least its key goal of getting the courts to decide the constitutional issue it raises.
Peter Wattson is the former Senate counsel whose 1976 advisory memo to Olson is cited in the Dusosky’s suit. The complaint says that Wattson advised Olson to resign upon taking the oath of office as lieutenant governor.
Wattson says that characterization is overstated. Actually, Wattson said, he merely laid out Olson’s choice and informed him of their consequences.
“I was just pointing out that if he attempted to stay in the position of president of the Senate and also be lieutenant governor, there might be a lawsuit challenging his ability to do that,” Wattson said. Were he still Senate counsel, he said, he would offer the same guidance.
While declining to dissect the latest complaint, Wattson takes a clear stand when it comes to holding two offices at once: It’s unconstitutional, he said.
Wattson hopes the courts will decide the issue—however the case ultimately lands on their doorstep. “As long as [Fischbach] tries to exercise the duties of both offices,” Wattson said, “[we’ve] got a problem.”
Jack Davies is the retired senator and appellate judge who was central to an early 1970s rewrite of the Minnesota Constitution. He wouldn’t comment on the substance of Dusosky’s complaint but agrees the courts should take on the issue.
He worries that Fischbach’s plight — she was forced into an office she does not want, he said — points the way to future constitutional mischief at the Capitol.
Anytime a governor belongs to the opposite party from the Senate’s majority, Davies said, the lieutenant governor’s office — which has no constitutional duties — can becomes a potential pawn. It can be intentionally vacated to force a Senate president into the executive branch, putting that seat up for grabs in a special election.
Among many consequences, Davies said, that would force Senate majorities to always select presidents from electorally safe districts. Others could be at risk of flipping majorities to the other party with a simple lieutenant governor vacancy.
“You have the potential for this game playing,” Davies said. “That’s a terrible consequence.”
Davies said hopes the courts will “rescue the future from the slight oversights of the past.” The latest Dusosky suit at least gives the court a chance to make a wise decision on the matter, he said.
“But unfortunately it also gives the court an opportunity to make a bad decision,” Davies said.
