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

December 21, 2017 07:12 PM

The Minnesota Attorney General's office has cast strong doubt on whether state Sen. Michelle Fischbach can serve simultaneously as lieutenant governor. 

In an opinion released by the state solicitor general, an 1898 Minnesota Supreme Court ruling that allowed the state senate president to retain a senate seat after ascending to lieutenant governor would not hold sway now because the duties of the lieutenant governor's office have changed since then.


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

He does say this questions can likely only be resolved by a judicial decision.

RELATED: Minnesota Senate Appointment Could Spur Legal Fight

Fischbach will ascend to the executive branch as lieutenant governor when Sen. Al Franken's resignation becomes official. That's because Gov. Mark Dayton last week announced current Lt. Gov. Tina Smith would take over for Franken.

State law dictates the presiding member of the Senate would become lieutenant governor in the event of a vacancy. 

Senate Republican and Democratic leaders immediately weighed in with reaction to the opinion.

"We just received the opinion of Solicitor General Gilbert, and it's just that – an opinion," read a statement from Sen. Majority Leader Paul Gazelka. "Based on the opinion of our nonpartisan Senate counsel, Senator Fischbach will retain her Senate seat while she temporarily serves as acting lieutenant governor."

Senate DFL Minority Leader Tom Bakk sees it differently.

"I agree with the Attorney General's office," Bakk's statement read. "Sen. Fischbach may not hold both the office of state senator and the Office of Lieutenant Governor at the same time. I respectfully request that Sen. Fischbach consider this advisory opinion very seriously. I have concerns with the validity of votes cast during the legislative session if Sen. Fischbach continues to pursue serving in both in the executive branch and the legislature."

State Democrats argue the state constitution bans legislators from holding another office. Dayton's legal counsel has made a similar argument.

Dayton had issued a formal request from Attorney General Lori Swanson's office, which came Thursday in Gilbert's opinion. 

"Any dispute regarding the lieutenant governor exercising these duel 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."

RELATED: Fischbach Expects to Retain Senate Seat Upon Becoming Lt. 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 of 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."


Tom Hauser, Michael Oakes and Frank Rajkowski

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