Ramsey County judge dismisses lawsuit against Fischbach over Senate seat, but fight likely not over

A Ramsey County District Court judge on Monday dismissed a lawsuit attempting to block Lt. Gov. Michelle Fischbach from serving in the state Senate while holding the lieutenant governor's seat.

Judge John Guthmann dismissed the suit without prejudice, meaning plaintiff Destiny Dusosky could bring the lawsuit against Fischbach before the court again. He wrote that the lawsuit, the latest legal grudge to get between DFLers and Republicans at the State Capitol, was premature ahead of the legislative session that starts on Feb. 20.

"If defendant attempts to take her seat when the Senate session resumes, it is not known whether the Minnesota Senate will agree to seat her as an eligible member," Guthmann wrote. "Petitioner [Dusosky] demonstrates no more than a hypothetical injury because it is not known whether defendant will take her seat, whether defendant will cast a vote, or whether the Minnesota Senate will allow her to serve."

Dusosky, a resident of Fischbach's St. Cloud-area Senate district who has been involved with the local DFL Party, sued the GOP senator in January. Dusosky also requested a temporary restraining order to prevent Fischbach from serving in the Senate, which Guthmann also denied.

Fischbach, of Paynesville, had been serving as Senate president, meaning that she automatically ascended to the role of Gov. Mark Dayton's lieutenant governor after former Lt. Gov. Tina Smith left the post. Dayton appointed Smith to fill former U.S. Sen. Al Franken's open seat, after Franken resigned following multiple allegations that he sexually harassed women.

DFLers argue that Fischbach violates the state's constitutional separation of powers by serving in those two jobs at the same time. The GOP, however, points to a 1898 Supreme Court ruling that said a lieutenant governor could keep his Senate seat.

Dusosky's suit claimed she would be "deprived of representation in the Minnesota Senate" if Fischbach attempted to continue to hold office.

Dusosky's attorney, Charlie Nauen, said Monday evening that he had not yet talked to his client about next steps, but they would determine quickly how they want to proceed. Dusosky could wait until the legislative session starts and Fischbach votes on an issue, then bring the case back before the district court — or they could appeal the judge's decision directly to the state Supreme Court, he said.

The judge did not rule on Dusosky's claim that the constitutional separation of powers prohibits Fischbach from simultaneously representing a Senate district, Nauen said, adding, "We think that is a question for a judge."

Fischbach declined to comment Monday evening and her lawyers were still examining the ruling, said Katie Fulkerson, a spokeswoman for Senate Republicans.

Jessie Van Berkel • 651-925-5044