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Grandchildren's pictures could mediate potential constitutional conflict

Minnesota Senate President Michelle Fischbach of Paynesville says on Wednesday, Dec. 13, 2017, that she will remain in the Senate when she takes over Lt. Gov. Tina Smith's job. Don Davis / Forum News Service

ST. PAUL — Minnesota's governor and soon-to-be lieutenant governor will sit down to discuss their relationship, and potential constitutional conflict, over pictures of their grandchildren.

Democratic Gov. Mark Dayton and Minnesota Senate President Michelle Fischbach, a Paynesville Republican, plan a Friday, Dec. 15, lunch at the governor's residence to discuss a rare relationship between a Democratic governor and Republican No. 2.

"We both are going to bring pictures of our grandchildren to share," Fischbach said Wednesday, a couple hours after Dayton announced Lt. Gov. Tina Smith will take over U.S. Sen. Al Franken's seat, which automatically promotes Fischbach to lieutenant governor.

Dayton said that his lawyer says that the Senate president, who the state Constitution says must move into a vacant lieutenant governor's seat, has to resign as senator.

"She cannot hold two offices simultaneously," Dayton said, referring to a constitutional provision that says: "No senator or representative shall hold any other office under the authority of the United States or the state of Minnesota, except that of postmaster or notary public."

Fischbach released a memorandum from Senate attorney Thomas Bottern that points to an 1898 Minnesota Supreme Court decision that says a sitting Senate president may remain in that job while also lieutenant governor.

Bottern said his opinion could be challenged in court, but "it is my legal belief that a legal challenge would not prevail, although that is difficult to predict."

The legislative auditor in recent years said that the Iron Range Resources and Rehabilitation Board, made up of northeastern MInnesota legislators, appeared to be unconstitutional because the lawmakers made spending decisions on the IRRRB. Lawmakers changed the law so the board now is just advisory.

Fischbach said the Constitution assigns no duties to the lieutenant governor, so there would be no problem for her to hold jobs in both the executive and legislative branches.

However, she did not address the issue of boards the lieutenant governor sits on under state law.

Dayton has asked Attorney General Lori Swanson, a fellow Democrat, for an opinion on the matter.

Fischbach said she would look at Swanson's opinion when it is available, but she did not sound like she would change her mind.

The Senate's top Democrat thinks it is illegal for the Republican senator to hold both jobs.

The "ascension of the Senate president to lieutenant governor means the Minnesota Senate will likely face two special elections this winter," one for an already vacant seat and one for Fischbach's seat, Senate Minority Leader Tom Bakk of Cook said. "The balance of power in the Minnesota Senate will be up for grabs."

State Republican Chairwoman Jennifer Carnahan said Dayton appointed Smith to replace Franken to give Democrats more power in the state Senate.

"Instead of nominating a leader who can effectively represent all Minnesotans, Gov. Dayton chose to play politics with Sen. Franken’s replacement," Carnahan said. "It’s an underhanded 'House of Cards'-style move. This is clearly an attempt to throw the Republican majority in the Minnesota Senate out of balance."

Republicans hold a 34-33 advantage over Democrats until Friday, when a Democrat's resignation becomes official.

If a Democratic candidate wins the seat in a Feb. 12 special election, the balance remains the same going into the Feb. 20 start of session. If the Republican hopeful wins, the GOP gains another seat of breathing room.

However, if Fishbach has to resign from the Senate, Republicans either will retain their one-vote lead or Democrats will get that advantage.

Fischbach and the governor gave no indication they are are thinking about going to court to settle the issue, but talk around the Capitol is that the issue will end up there.

The two have massive political differences.

Fischbach said she expects to only do duties in her new office that the governor assigns. However, she said that she doubted Dayton would assign her anything dealing with an issue where they differ.

Minnesota has elected governors and lieutenant governors of the same party on the same ticket. There are few examples of members of opposing parties serving together.

Most lieutenant governors have done little in public, although Smith has traveled widely for Dayton.

Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.