Gazelka looking to avoid legal battle over Fischbach job

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The top Republican in the Minnesota Senate is continuing his push for a special session to head off a likely court fight over the lieutenant governor succession, as well as the potential loss of majority control.

Senate Majority Leader Paul Gazelka, R-Nisswa, doesn’t believe Senate President Michele Fischbach, R-Paynesville, has to give up her Senate seat when she succeeds DFL Lt. Gov. Tina Smith next month.

Smith is going to the U.S. Senate, and the state constitution says a lieutenant governor vacancy is filled by the Senate’s presiding officer. But Senate Democrats and the attorney general say Fischbach cannot simultaneously hold both offices.

Gazelka is also worried about potentially losing Fischbach’s seat in a special election. Republicans currently hold a 34-32 advantage, with the vacancy created by DFLer Dan Schoen’s recent resignation set to be filled in a Feb. 12 special election. Two DFL special election wins would flip control.

Gazelka told MPR News Friday morning that he’s still trying to get Senate Minority Leader Tom Bakk, DFL-Cook, and other leaders to agree to a special session to instead put a Democrat in line to become lieutenant governor, even though he acknowledged the likelihood is slim.

“I’m not optimistic,” Gazelka said. “Obviously by having a shot to take the majority, I can see where Sen. Bakk would say ‘I’m not going to do that.’ But I do think Minnesota is best served if we have some sense of transition that works smoothly, and this will not be a smooth transition.”

An advisory opinion from DFL Attorney General Lori Swanson’s office Thursday said “the simultaneous discharge of executive and legislative branch functions implicates the incompatibility doctrine, as well as principles of separation of powers.” It also stressed that final resolution would come from judicial branch.

Gazelka disagrees with the attorney general’s opinion, because the nonpartisan Senate Counsel previously concluded that Fischbach can hold both jobs.

“It sets up for another legal battle, and it’s unfortunate,” Gazelka said.

Late Friday, Gazelka and House Speaker Kurt Daudt sent a letter to Gov. Dayton and DFL legislative leaders, proposing a brief special session on Jan. 3.

Here’s the letter:

12.22.17 Letter Regarding Special Session

Bakk said there doesn’t appear to be enough time to organize a special session before Smith becomes a Senator on January 3rd.

He agrees with the attorney general’s opinion and believes Fischbach will have to resign her seat when she becomes lieutenant governor.

If Democrats keep the Schoen seat, Bakk said it could temporarily put them in a 33-33 tie with Republicans. Bakk is already talking about a power-sharing scenario.

“I think there’s a fairly high probability that could be the situation. Minnesota hasn’t seen one of their legislative bodies in a tied situation since 1978, when the House was tied 67-67, and a power sharing arrangement was worked out then between the two caucuses.”

Bakk is also optimistic about picking up Fischbach’s Paynesville-area seat in a potential special election even though it’s been reliably Republican territory in recent years.

“It’s tough ground for us,” he said. “But if we find a good, strong candidate that actually fits the district, the constituents there, I think it’s something we can win.”

  • Alex

    “Gazelka told MPR News Friday morning that he’s still trying to get Senate Minority Leader Tom Bakk, DFL-Cook, and other leaders to agree to a special session to instead put a Democrat in line to become lieutenant governor, even though he acknowledged the likelihood is slim.”

    But what’s the legal basis for ignoring constitutionally-established patterns of succession? It says “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office” (V.5), not “The last elected presiding officer of the senate gets first crack at becoming lieutenant governor in case a vacancy occurs in that office, but they don’t have to if they don’t feel like it.”

    Further, why bother with incompatibility doctrine and separation of powers as concepts when you can just cite the constitution itself: “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 of notary public” (IV.5). I’m going to assume that the next sentence that states that the senator “may” resign if appointed or elected to another office gives them the out of being able to turn down the other office, but it still seems like plain language that the President of the Senate must take the office of Lt. Governor.

  • Fred

    Does anybody think Franken would have resigned had there been a Republican governor? Politics trumps all with the DFL.

    • Garry Clum Jr.

      Seriously? The whole article is about how Republicans want to twist the system to maybe not lose their majority and you see politics in Al Franken’s motivations? You can’t make this stuff up.

      • Fred

        Al Franken clearly wanted to stay. What I was getting at is that the female Senate righteous warriors on their high horses wouldn’t have called for him to resign if Minnesota had a Republican governor, because then the Republican governor would have appointed a Republican senator. Which implies that Democrats don’t really care about sexual harassment. All they care about is politics. After all, sleazebag Bill Clinton was welcomed as a featured speaker at the 2016 Democratic convention. And for that matter in 1999 after the vote that allowed Clinton to stay in office there was a big celebration by Democratic leaders, many of whom are still around. And where is Hillary on all this? Has she come out and said Bill should have resigned? I don’t think so.

        • metis1

          doubling up the tu quoque Fred, you argument is really horrible.