In Statement, Fischbach Doubles Down on Ability to Serve Dual Roles

January 03, 2018 07:51 PM

Lt. Gov. Michelle Fischbach says her primary focus upon ascending to her new role will be to continue to serve her State Senate district constituents.

In a statement announcing her new post, Fischbach reiterated her intent to serve both as lieutenant governor and as the State Senate representative for District 13. She said she has declined to accept the salary for her new position, which would be 65 percent of that of Gov. Mark Dayton.

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RELATED: Solicitor General Expresses Doubt Fischbach Could Remain in Senate as Lt. Governor

"The position of Lieutenant Governor has no constitutional duties and its authority is what is provided by the governor," the statement reads. "I have had cordial conversations with Gov. Dayton and am looking forward to a positive relationship with him and his staff. I am confident I will be able to handle duties as both State Senator and Acting Lieutenant Governor through the remaining months of Gov. Dayton's term."

Fischbach takes over as lieutenant governor for Tina Smith, who was sworn in to the U.S. Senate Wednesday to serve until at least November, when a special election will be held to fill the remainder of former Sen. Al Franken's term.

On Wednesday, Senate DFL Leader Tom Baak sent a letter to Fisbach congratulating her on becoming lieutenant governor, but advised her the Minnesota Constitution prohibits her from simultaneously holding both offices.

"As your former colleague, I respectfully ask you to formally acknowledge that you no longer hold the office of state senator for Senate District 13," he said in the letter. "This will remove any uncertainty regarding the current vacancy in that office and is in the best interest of the Senate, the State of Minnesota and your former constituents."

RELATED: Sen. Tina Smith Sworn In; Record Number of Women in US Senate

Fischbach has maintained she has the legal ability to serve both as both state senator and lieutenant governor, in part based on an 1898 state Supreme Court ruling that allowed for one person to hold the dual roles. Dayton's legal counsel disagreed, and the governor sought an opinion from the state Attorney General's Office.

In that opinion, Solicitor General Alan Gilbert wrote that the Senate counsel opinion citing the 1898 ruling won't likely determine the outcome of this dispute because the dual roles could impact the "principles of separation of powers."

He said the question can likely only be resolved by a judicial decision.

RELATED: Sen. Tina Smith Sworn In; Record Number of Women in US Senate

"Any dispute regarding the lieutenant governor exercising these dual functions under current law can ultimately only be resolved by judicial decision," Gilbert writes in the opinion. "Having said that, for the reasons discussed above, a strong argument can be made that the 1898 decision of the Minnesota Supreme Court in Marr does not control the outcome of this dispute in light of the subsequent changes to the duties of the lieutenant governor."

Gilbert cited the case of Alec Olson, who became lieutenant governor and gave up his Senate seat when Rudy Perpich took over for Wendell Anderson as governor in November 1976.

"Senate Counsel recognized that subsequent to the Supreme Court's 1898 decision, changes had been made to the lieutenant governor's duties," Gilbert wrote in a footnote. "He therefor concluded that 'in view of this change in the character of the lieutenant governor's duties, the Minnesota Supreme Court, if again faced with the question, would have some justification for ruling that the presiding officer of the Senate can no longer retain his Senate seat upon the occurrence of a vacancy in the office of lieutenant governor."

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Michael Oakes

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