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New suit against Fishbach may depend on election timing

Minnesota Senate President Michelle Fischbach, also the state lieutenant governor, presides over the Senate on opening day of the session on Tuesday, Feb. 20, 2018. Democrats say Fischbach, a Republican, cannot hold both offices. David Oakes / Senate photographer1 / 5
Minnesota legislators pray Tuesday morning, Feb. 20, 2018, before the Legislature began work for the year. The event was lead by the Legislative Prayer Caucus. Don Davis / Forum News Service2 / 5
Hundreds of protesters filled the Minnesota Capitol on opening day of the Legislature on Tuesday, Feb. 20, 2018, demanding gun control. Don Davis / Forum News Service3 / 5
Minnesota Senate Majority Leader Paul Gazelka places his hand on a state Capitol column during morning prayers on Tuesday, Feb. 20, 2018. Don Davis / Forum News Service4 / 5
The Minnesota state Capitol chandelier, officially called an electrolier, is turned on Tuesday, Feb. 20, 2018, the first day of the legislative session. It is the first time it has been turned on for session. It generally only is lit on statehood day and when a governor's body lies in state. Don Davis / Forum News Service5 / 5

ST. PAUL — The chance of winning a special election, and thus taking control of the Minnesota Senate, will be a major factor as Democrats decide if and when to sue the Senate president, who also is lieutenant governor.

On the first day of the 2018 legislative session Tuesday, Feb. 20, one senator protested the fact that Michelle Fischbach, R-Paynesville, remains in the Senate after she automatically became lieutenant governor when that job opened. No formal action was taken against Fischbach.

"It is something we have to give some real thought to," Senate Minority Leader Tom Bakk, D-Cook, said about when to file a lawsuit, or appeal dismissal of one that already was filed.

Bakk said winning a special election if Fischbach is stripped of her Senate position is a key to deciding when to take action. "If it doesn't flip the majority, we spent a whole lot of money to protect the Constitution."

Republicans now hold a 34-33 edge in the Senate.

Bakk answered reporters' questions about Fischbach, but did not deliver a speech.

"Today kind of feels like the first day back in school..." Bakk said. "It is not the day to pick a partisan fight."

However, Sen. Ron Latz, D-St. Louis Park, did tell fellow senators that he and other Democrats object to Fishbach holding both offices. He said the state Constitution specifically bans legislators from holding other public offices, which he said means Fischbach no longer is senator.

"We believe that the person presiding (over the Senate) is the lieutenant governor of Minnesota and is in conflict of our Constitution," Latz said, after Fischbach called on him.

"So noted," Fischbach replied when Latz finished.

Latz said that just remaining a senator violates the Constitution, but Bakk said the real problem will come when she casts a tie-breaking vote.

The state would be better served if the Fischbach question is decided soon, Latz said.

However, Bakk indicated he is in no hurry. He wants to time a lawsuit so the court can remove Fischbach as senator when Democrats can best elect a replacement for her in the central Minnesota district. If that happened, Democrats would take control.

Fishbach said she is confident she can win her district again, if a court orders he removed from the Senate. But Bakk said Democrats have a candidate waiting who is "a good fit for the district."

Senate Majority Leader Paul Gazelka, R-Nisswa, said the Latz speech did not surprise him, "but I was disappointed."

Fischbach showed no indication the situation upsets her.

"I feel confident in presiding over the Senate," she said.

She said she has been in touch with the governor's office only for formalities, such as signing paperwork rejecting the lieutenant governor's pay, but has done nothing official. She does, she said, have a lieutenant governor email address.

Fischbach even was on the mind of legislators as they were praying Tuesday morning.

"I pray for Sen. Fischbach as she does two jobs," Rep. Jim Knoblach, R-St. Cloud, said.

Fischbach became lieutenant governor when Tina Smith left the job after fellow Democrat Gov. Mark Dayton appointed her to the U.S. Senate. Smith replaced Al Franken, who resigned after several women accused him of sexual misconduct.

While the state Constitution forbids state legislators from serving in other government jobs, Fischbach says a court ruling from 1898 backs her dual role since she would only have the office temporarily.

The lieutenant governor job ends when a new governor and lieutenant governor take office early in 2019.

Legislators must pass their final bill for the year three months to the day from when they convened on Tuesday. While they may be in session on May 21, the Constitution does not allow them to pass bills that day.

Most activity on the first day of session, like usual, was routine work to get set up for the year. The day included a reception for lawmakers thrown by Democratic Gov. Mark Dayton.

Hundreds of people gathered in the Capitol halls to urge lawmakers to pass gun control legislation. Shouts of "save our kids" could be heard inside the House and Senate.

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.