Decision in Fischbach lawsuit pending as legislative session looms

The legal question of whether Minnesota Lt. Gov. Michelle Fischbach can remain a state senator may not be resolved before the start of the upcoming legislative session.

Ramsey County District Judge John Guthmann heard Tuesday morning from attorney Charles Nauen, who argued that the state Constitution demands that Fischbach resign her legislative seat now that she has ascended to lieutenant governor. The outcome of the lawsuit has the potential to realign power between the majority GOP and minority DFL in the closely divided Senate.

Fischbach's attorney, Kevin Magnuson, argued that the suit should be dismissed because the court has no jurisdiction over the dual offices, which he said is allowed under the state Constitution.

Guthmann took the matter under advisement after an hourlong hearing Tuesday. Reached afterward, Guthmann declined to say when he would rule, or whether the time frame would be influenced by the legislature's Feb. 20 start date.

He has 90 days to issue a decision.

Nauen is representing Sauk Rapids resident Destiny Dusosky, a Democrat who filed the suit in January against Fischbach, a Republican who represents Senate District 13.

"To me, it's a matter of the constitution," Dusosky said after the hearing. "Our constitution clearly plays out that we have three separate branches of government, and we need to keep those branches separate and keep those powers separate."

Fischbach also addressed media after the hearing, saying that she was "confident" in her attorney's arguments based on case law and a state Supreme Court decision.

"It would be nice to have a quick decision," she said.

Fischbach noted that seven male senators previously served as lieutenant governor while retaining their Senate seat.

Asked if she believed the lawsuit could be politically motivated, Fischbach said, "Well, it does have that potential. There has been potential for political motivation … through the entire kind of process."

Dusosky, who has served as DFL chairwoman of the St. Cloud-area Senate district, denied any political motivation.

Fischbach, as Senate president, automatically ascended to the lieutenant governor position after Gov. Mark Dayton appointed former Lt. Gov. Tina Smith to replace Al Franken in the U.S. Senate.

The lawsuit's outcome could temporarily affect control of the state Senate. If the judge agrees with Dusosky and the DFL wins a special Senate election next week, the Senate would be split 33-33 between the GOP and DFL.

"What we're trying to say is: let's not wait for an issue and have lawsuits about votes," Nauen said. "Let's see if we can get it addressed right now."

Nauen said at the hearing and in court filings that the state constitution prohibits Fischbach from keeping one foot in the legislative branch and the other in the executive branch of government, and that case law gives the court "broad discretion" to order her to give up her Senate seat.

He told Guthmann in court that amendments to the state Constitution no longer permitted the dual offices.

Magnuson argued in court that the amendments were "minor tweaks" that should not affect Fischbach.

He also argued that the lieutenant governor has "extremely limited" legislative function and no constitutional duties other than to replace the governor if necessary.

Guthmann asked about the office's other constitutional duties.

"Inquire daily to the health of the governor," Magnuson said.

"Well, that'll make you look forward to getting up in the morning," Guthmann said.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib