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Judge dismisses lawsuit challenging Fischbach’s dual roles as lieutenant governor, state senator

Pool/Renee Jones Schneider/Star Tribune
Michelle Fischbach, who served as Senate president, automatically became lieutenant governor in January, after Gov. Mark Dayton appointed former Lt. Gov. Tina Smith to the U.S. Senate.

A judge has dismissed a lawsuit brought by Democrats arguing Michelle Fischbach cannot serve as a state senator and lieutenant governor of Minnesota at the same time.

Second Judicial District Judge John Guthmann issued a ruling late Monday saying attorneys for Destiny Dusosky, a resident in Fischbach’s central Minnesota Senate district, failed to show actual harm caused to her due to the fact that Fischbach is serving in both roles at once. That’s because the legislative session doesn’t convene until Feb. 20 and Fischbach has yet to take any votes that could be argued as harmful to someone, Guthmann said. 

Guthmann also ruled that the judicial branch does not have a say in whether a legislator is seated in either the House or the Senate. Under the law, legislators can be recalled, expelled, each chamber can refuse to seat them or they can resign from office.

“There is nothing in the Constitution granting courts the authority to remove legislators from office through citizen lawsuits,” Guthmann wrote.

Fischbach, who served as Senate president, automatically became lieutenant governor in January, after Gov. Mark Dayton appointed former Lt. Gov. Tina Smith to the U.S. Senate. Fischbach and her attorneys argued that a 1898 Minnesota Supreme Court case says the Senate president can serve as lieutenant governor at the same time. Seven people have served in dual roles over the course of history, they added. 

The ruling is a major victory for Fischbach and Senate Republicans, who are defending a slim 34-33 majority. The Senate would be tied 33-33 if Fischbach is forced to leave her role in the Senate, which would trigger a special election in her central Minnesota district. 

The quick ruling, one week after a hearing in Guthmann’s courtroom, is the just the latest step in a larger legal battle. Charles Nauen, the attorney for Dusosky, left the door open to appealing the ruling to the Minnesota Supreme Court. Democrats have argued that most of the legislative duties of the lieutenant governor were stripped away in the 1970s, making the 1898 Supreme Court case moot. They also argue Fischbach is violating a provision in the Constitution that prohibits someone from serving in two offices at once.

Last year, Guthmann ruled that it was unconstitutional for Dayton to veto funding for the operation of the House and the Senate. That ruling was subsequently overturned by the Minnesota Supreme Court, which declared Dayton’s move constitutional under his line-item veto authority.

In his Monday ruling, Guthmann heavily cited Minnesota Supreme Court, noting it had  previously ruled that the courts can’t determine whether a legislator is eligible to serve. He also quoted from the Supreme Court ruling overturning him, which said the Constitution does not require the courts to “referee political disputes between our co-equal branches of government over appropriates and statewide policy when those branches have both an obligation and opportunity to resolve those disputes themselves.” 

Comments (4)

  1. Submitted by Paul Udstrand on 02/13/2018 - 09:52 am.

    He’ll be over-ruled again eventually.

    The judges logic is tortured. The MN Constitution clearly states that Lt. Governor can’t hold legislative office. There’s just not much point in pursuing it while the legislator is out of session. This really isn’t much of a victory for Republicans.

  2. Submitted by Barbara Skoglund on 02/13/2018 - 12:13 pm.

    GOP Judicial Activisim

    While the right regularly accuses judges of judicial activism, they have no problem when a GOP judge uses his office to make a highly political decision not based in law.

  3. Submitted by Kenneth Harris on 02/13/2018 - 12:32 pm.


    The honorable thing to do on Ms. Fischbach’s part would be to resign either the Lieutenant Governor or Senate position. But, then, we are talking about the Republican ethos, so don’t hold your breath waiting. Let’s make it a constitutional crisis!

  4. Submitted by John Webster on 02/13/2018 - 01:35 pm.


    The best solution: eliminate the useless Lt. Gov. office and specify a chain of succession as is done at the federal level. Even better, have a unicameral legislature like Nebraska.

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