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Judge Hears Arguments In Fischbach Case

Thursday, February 8, 2018  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

A lawsuit got its first hearing Tuesday in the case of Michelle Fischbach, the Paynesville Republican who at least nominally is both Minnesota’s lieutenant governor and a state senator.

Plaintiff Destiny Dusosky, a Sauk Rapids DFL activist, contends that Fischbach’s plan to keep her Senate seat while serving as lieutenant governor deprives her of valid Senate representation and violates the Minnesota Constitution.

“Simultaneously holding these two offices violates the constitutional separation of powers,” her lawyer, Charles N. Nauen, told Ramsey County District Court Chief Judge John H. Guthmann on Tuesday. “And also [it] violates the plain language of the constitution that prohibits a senator from holding another state office.”

Fischbach, a 22-year incumbent senator, automatically ascended to lieutenant governor on Jan. 3 when the post’s former officeholder, Tina Smith, was appointed to replace U.S. Sen. Al Franken. He resigned on Jan. 2 amid sexual misconduct allegations.

Fischbach insists that an 1898 Supreme Court precedent, Marr v. Stearns, justifies her decision to hold both posts because that court found holding both offices constitutional. She is the seventh state senator to hold both jobs simultaneously, Fischbach said in an exchange with reporters after the hearing.

However, her opponents said, all seven previous senators — beginning with Sen. Henry Adoniram Swift in 1863 — held the dual roles before a flurry of constitutional amendments barred the practice and rendered Marr obsolete.

Nauen asked Guthmann to grant an injunction to temporarily suspend Fischbach from the Senate to prevent her from casting votes after the next legislative session begins Feb. 20.

He also wants Guthmann to render a declaratory judgment requiring Fischbach to resign permanently, and to consolidate both matters for final judgment under Rule 65.02 of Minnesota’s Rules of Civil Procedure.

Plaintiff’s case

In their memo responding to Dusosky’s injunction motion, Fischbach’s lawyers argued that courts have no standing to determine a senator’s eligibility. Under the constitution, only senators can decide the composition of their body’s membership, they say.

Guthmann asked plaintiff’s attorney Nauen to respond to that. “Once she became lieutenant governor she was no longer eligible to be a senator, and that comes right from the constitution,” Guthmann said. “That’s what you argue?”

Not quite, Nauen said. Legislators’ “eligibility,” he said, is a constitutionally specific concept that deals with matters like whether lawmakers fairly win elections or qualify as residents of their legislative districts. It’s not the same concept at issue in this case, he said.

If the Senate asserts its right to keep Fischbach in office while also serving as lieutenant governor, Nauen said, it would violate constitutional provisions at issue in the case — Article III, Section 1 (the separation of powers clause) and Article IV, Section 5 (the ban on legislators holding other offices).

“There is nothing to suggest that ‘eligibility’ gives exclusive jurisdiction — or any jurisdiction — to the Senate here,” Nauen said. “This Minnesota Supreme Court said that’s for the courts to decide.”

The Marr case, meanwhile, has been superseded, he said. Various amendments combined to pull away the underpinnings the 1898 court used to decide that a senator could also be lieutenant governor. As a result, Nauen said, the case does not require Guthmann, as a district court judge, to overturn a standing Supreme Court precedent.

He pointed specifically to the 1960 Minnesota Constitution amendment, which altered the status of lieutenant governors who temporarily filled in for governors who were absent or incapacitated.

Before 1960, a lieutenant governor would be temporarily appointed governor, Nauen said. The amendment states that in a time of crisis, duties of governor “shall devolve on the lieutenant governor.” In other words, by Nauen’s description, lieutenant governors keep their job title while temporarily assuming a governor’s duties.

That’s important because of what it means for Senate presidents like Fischbach, Nauen said. Senate presidents no longer succeed briefly to lieutenant governor only to revert back later to their Senate role.

The need to allow that kind of temporary role switching was a key piece of the 1898 court’s reasoning in Marr, Nauen said. But the rationale no longer adheres, he said.

“Times have changed,” Nauen said.

‘Minor tweaks’

Arguing for Fischbach, attorney Kevin M. Magnuson contended that none of the 20th century’s constitutional amendments were “substantive.” Therefore, Marr remains a valid and guiding precedent.

“These constitutional amendments were minor tweaks,” Magnuson said. He pointed to the 1972 amendment as evidence. “All that did was remove the lieutenant governor as the ex officio president of the Senate,” Magnuson said.

Guthmann challenged the characterization. “Isn’t that a major difference?” the judge asked. “The legislative duties of the lieutenant governor that made them a member of two branches at the same time were removed. Isn’t that a sea change?”

Magnuson disagreed. “It was an ex officio position that gaveled in the session and presided over the session at times,” he said.

Guthmann dug in. “As the presiding officer, they could point at a legislator and say, ‘You’re out of order, I am calling on someone else instead,’” Guthmann said. “Right?”

“They could carry out different parliamentary functions within the Senate process,” Magnuson agreed. “But it doesn’t change the fundamental basis that the lieutenant governor’s role in the legislative function was extremely limited, as it was on the executive side.”

Moving on, Guthmann said that before the constitutional amendments — back in the time of the Marr court — a lieutenant governor’s duties were largely legislative. Afterward, he said, its role became mostly executive.

Magnuson was unable to refute the point.

Toward the end of his argument, Magnuson urged Guthmann to grant Fischbach’s motion to dismiss the case, on grounds that the lawsuit is non-justiciable under the political question doctrine. As Fischbach’s team asserted in their earlier memo, political remedies are available. The Senate could vote to retain or oust Fischbach, or voters could launch a recall petition.

In cases where political remedies are available, Magnuson indicated, the political-question doctrine directs courts to keep hands off.

“I don’t think that you can enjoin the Senate,” Magnuson said. “I don’t think that you can order them to not seat Senator Fischbach.”

During Nauen’s rebuttal, Guthmann asked if there was any legal significance to Fischbach’s refusal to take the oath of office as lieutenant governor.

Probably not, Nauen replied. “In this situation, you can be the lieutenant governor but not necessarily take the oath,” he said. “I don’t think it is really relevant to this analysis.”

“Except the constitution requires the taking of an oath,” Guthmann said. “Is that my next lawsuit — somebody suing Senator/Lieutenant Governor Fischbach to make her take the oath?”

It’s possible, Nauen said, citing Minnesota Statutes Section 351.02, which says that an office becomes vacant if the officeholder refuses or neglects to take the oath in the time prescribed.

“But I don’t think it applies in this situation,” Nauen said, “because that’s a statute and this is a constitutional requirement.”

Litigants speak

Guthmann took the matter under advisement and closed the hearing with no indication how quickly he would rule.

Afterward Dusosky and Fischbach appeared briefly before reporters. “It would be nice to have a quick decision,” Fischbach said. “But it is in his hands right now.”

Fischbach was asked about the significance of declining to swear the oath. She answered that she has twice sworn oaths of office — once when she became a senator and again when she became Senate president. Both were probably the same oath she would recite as lieutenant governor, she said.

But does her refusal mean, effectively, that she is not presently acting as lieutenant governor, she was then asked.

“I believe it was pointed out that I was not elected nor appointed, so I ascended to the position,” she replied. “So I don’t know the significance of the oath at this point.”

Dusosky, a former local DFL Party chair, also spoke to reporters. She said her suit was not politically motivated. “I would be in this same position now whether the person was a Democrat or a Republican,” she said.

Her interest in filing the suit, she said, was to preserve the separation of powers and the independence of the three branches of government.


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