Lt. Gov. Michelle Fischbach, who has steadfastly remained in the Senate even after her elevation to governor-in-waiting, is being sued again by a constituent who says the state constitution prohibits Fischbach from simultaneously serving as senator and lieutenant governor.
The lawsuit seeks to remove Fischbach, a Republican, from the Senate. It was refiled by Destiny Dusosky, a DFL activist who brought an earlier lawsuit against Fischbach over the same matter. Dusosky, of Sauk Rapids, lives in Fischbach’s central Minnesota Senate district.
Ramsey County District Judge John Guthmann dismissed the previous lawsuit without prejudice in February, allowing Dusosky to bring it before the court again. Guthmann wrote that the suit, the latest legal grudge to get between DFLers and Republicans at the State Capitol, was premature because the Senate had not at that time met in session.
Fischbach, a 22-year state Senate veteran, became lieutenant governor because she was president of the Senate when Gov. Mark Dayton appointed then-Lt. Gov. Tina Smith to the U.S. Senate following the resignation of Al Franken.
Fischbach has taken steps to distance herself from the lieutenant governor role she never sought, declining a paycheck and never taking the oath of office, for instance. She has stayed active in the Senate, where Republicans hold a slim 34-33 majority they could lose if Fischbach were forced to resign.
In a 13-page filing, Dusosky’s attorney, Charles Nauen, charged that the state Senate has not determined whether Fischbach can legitimately remain in the Legislature and thus has deprived Dusosky of representation.
The stakes are potentially significant: If the courts rule that Fischbach cannot serve in the Senate while also being lieutenant governor, a judge could order a special election to replace Fischbach. A DFL victory in a special election — however unlikely, given the Republican makeup of the district — would vault them into control of the chamber.
“Senate Democrats are resurrecting this controversy for political purposes, to create a needless distraction with only six weeks left of session,” Senate Majority Leader Paul Gazelka, R-Nisswa, said in a statement. “Minnesotans aren’t impressed by partisan bickering.”
Gazelka also suggested that Fischbach is being attacked because she’s a woman. “The precedent was set long ago: Seven previous male Senate Presidents have served as acting Lieutenant Governor, yet somehow it only became an issue when Sen. Michelle Fischbach took the job,” he said.
Senate Minority Leader Tom Bakk commended Dusosky for bringing the suit. “Holding two offices in two branches of government at the same time is a clear violation of our Minnesota Constitution. This conflict of interest could call each one of Lt. Gov. Fischbach’s Senate votes into question and undo months of work,” he said.
Fischbach’s attorney, Kevin Magnuson, disputed that the Constitution bars her from holding both posts. “The district court threw out the first complaint and today’s complaint adds nothing new,” he said.