ST. PAUL, Minn. — Republican Minnesota Lt. Gov. and state Sen. Michelle Fischbach was sued again over her dual roles on Tuesday, the long-awaited sequel to a previously dismissed lawsuit as Democrats attempt to win back control of the Senate.
As the Senate's elected president, Fischbach automatically ascended to become lieutenant governor in January after Democratic Gov. Mark Dayton's appointment of Tina Smith to fill the U.S. Senate vacated by Al Franken. But Fischbach has fought to keep her central Minnesota Senate district seat and protect the GOP's one-seat majority in the chamber.
A Ramsey County district judge dismissed a January lawsuit seeking to force Fischbach out of the Senate, in large part because it was filed before the Legislature resumed its session — and thus before Fischbach had carried out both roles.
"This is not the right case, the right plaintiff, the right time or the right legal context to consider defendant's eligibility to serve in the Minnesota Senate," Judge John Guthmann wrote.
The same constituent, Destiny Dusosky, filed a second legal challenge Tuesday. The lawsuit argues that Fischbach is violating a constitutional ban on holding two elected offices and must leave the Senate.
That rationale echoes the first lawsuit. But Tuesday's complaint comes nearly two months into the legislative session, and clearly sought to address the concerns of Guthmann, who called it "premature and based on speculation."
Tuesday's lawsuit included several pieces of legislation as exhibits, including Senate floor amendments that failed on 33-34 votes and a bill that Fischbach signed as presiding officer of the Senate.
"Circumstances have changed in the past eight weeks. The 2018 legislative session is well underway and Lt. Gov. Fischbach is exercising the powers and duties of the office of state senator for Senate District 13," the complaint said.
Republicans have countered that there's plenty of historical precedent for lawmakers serving as lieutenant governor simultaneously. Dusosky is a former local DFL Party chair in Fischbach's district and has been represented in the case by a high-powered Democratic attorney.
"Senate Democrats are resurrecting this controversy for political purposes, to create a needless distraction with only six weeks left of session," GOP Senate Majority Leader Paul Gazelka said in a statement.
The second lawsuit had been in the works for weeks. In mid-February, Democratic Senate Minority Leader Tom Bakk was coy about when it may be filed, but said he wanted to ensure the party was prepared for a special election in the event that Fischbach was forced from office.
"It's a futile point if you don't win the special election," Bakk said on the session's Feb. 20 opening day. "If it doesn't flip the majority, you've spent a lot of money to make a statement."
Fischbach has largely avoided the duties of lieutenant governor or any perception, including missing several meetings in which the lieutenant governor has official duties. She still hasn't taken the oath of office as lieutenant governor, nor is she taking its higher salary or the Capitol office space that comes with the job.
The longtime GOP senator vowed she'd resign as lieutenant governor and run for her St. Cloud-area seat again if she's forced out. Republicans have scoffed at the idea that Democrats could beat her in the heavily conservative district, where Fischbach has regularly won by more than 25 percentage points.
Bakk welcomed Dusosky's new lawsuit.
"Holding two offices in two branches of government at the same time is a clear violation of our Minnesota Constitution," he said in a statement. "It's time the constituents of Senate District 13 had a clear answer from the judicial branch.