A constituent of state Sen. Michelle Fischbach sued Tuesday for a second time in an attempt to remove the legislator from office because she also holds the title lieutenant governor.
Destiny Dusosky of Sauk Rapids failed in an earlier attempt to have Fischbach removed. A Ramsey County district judge ruled in February that case wasn’t ripe and that the Senate had the duty to determine eligibility of its members.
The Senate is controlled 34-33 by Republicans and court-ordered removal of Fischbach would force a special election in her district.
Fischbach, of Paynesville, involuntarily become lieutenant governor in January when Tina Smith was named a U.S. Senator upon Al Franken’s resignation. To date, Fischbach has not taken the oath of office. But Dusosky and her attorneys argue that shouldn’t matter.
“The taking of the oath of office is not a prerequisite to ascending to the office of lieutenant governor,” attorney Charles Nauen writes in the new case in Ramsey County District Court. “Lieutenant Governor Fischbach holds the office of lieutenant governor but, until she takes the oath is precluded from carrying out any of the duties of the office.”
Fischbach and her defenders have maintained that the role is largely ceremonial, with few prescribed duties. The lieutenant governor sits on various commissions and boards, but Fischbach has steered clear of those and has refused a paycheck.
The biggest duty of the lieutenant governor is to become governor if a vacancy occurs.
Dusosky argues that the courts should act because Fischbach’s votes as a senator have violated the separation of powers clause in Minnesota’s constitution. She contends that the courts have the duty to respond because the Republican-led Senate hasn’t taken adequate measures.
So far this year, there have been a couple of 34-33 votes to defeat Democratic amendments to bills, but the outcome would have been identical with a 33-33 vote.
Minnesota Senate Republicans slammed the lawsuit as a waste of time and money.
Senate Majority Leader Paul Gazelka, R-Nisswa, said the effort to remove Fischbach from office is a distraction. Gazelka said it’s unlikely the lawsuit will be decided before the May 21st adjournment deadline.
“If we get past session, what is the point? We have another lieutenant governor and governor next January no matter which side wins,” Gazelka said.
Senate Minority Leader Tom Bakk, DFL-Cook, said even if the lawsuit isn’t dealt with by session’s end, the question about a lawmaker’s ability to hold two political roles simultaneously needs to be settled.
“The goal of this is not to disrupt this session or to throw the session into chaos at the end,” Bakk said. “The goal of the lawsuit is to resolve the constitutional challenge we’re presented with.”