Judge Dismisses Lawsuit Against Lt. Governor Michelle Fischbach

Mitchell Rolling

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Republican Michelle Fischbach received a judicial victory on Monday, February 12, when a judge dismissed a lawsuit brought by the Democrats arguing she cannot serve simultaneously in the position of state senator and lieutenant governor.

In his ruling, District Judge John Guthmann issued a statement saying the attorneys for Destiny Dusosky, the resident in Fischbach’s Senate district bringing the lawsuit, failed to prove that this dual role harmed her in any way. Guthmann said that since the legislative session has not yet convened, it was impossible for Fischbach to have done something that could be argued as harmful.  

He called the lawsuit “premature and based on speculation.”

Guthmann also stated that the judicial branch has no role in deciding whether a legislator stays in office or not. 

“There is nothing in the Constitution granting courts the authority to remove legislators from office through citizen lawsuits,” Guthmann wrote. He said there are other existing means of removing legislators: resignation, expulsion, being recalled, and more. 

Minnesota Senate President Michelle Fischbach automatically became the lieutenant governor when Governor Mark Dayton appointed then-Lieutenant Governor Tina Smith to a seat in the U.S. Senate. According to an 1898 Minnesota Supreme Court case that Guthmann cited, the senate president can serve as lieutenant governor at the same time, and seven others have done so previously.

This ruling reserves the 34-33 Republican control of the Minnesota Senate — something the Democrats desperately want to change. A special election would result if Fischbach were determined to be unable to serve in both positions. The attorney for Dusosky, Charles Nauen, did not rule out appealing the ruling to the Minnesota Supreme Court.

Democrats are arguing that Fischbach is violating the Minnesota Constitution by serving in two offices at once. Fischbach and her attorney reply that the lieutenant governor job is only temporary because it ends next year, making it permissible for her to hold both offices.

Fischbach argues the temporary nature of her job as lieutenant governor by the fact she has not taken the oath to be in that office, she has not accepted the position’s salary, and she has not participated in lieutenant governor activities. 

Guthmann recently had one of his rulings overturned by the Minnesota Supreme Court regarding Dayton’s veto of legislative funding. In an extraordinarily ironic twist, in this ruling he heavily cited the same Supreme Court ruling and relied on the argument that the court has no say in legislators remaining in office.

He also quoted directly from the ruling overturning him in the Dayton case, which said the Constitution does not require the courts to “referee political disputes between our co-equal branches of government over appropriates and statewide policy when those branches have both an obligation and opportunity to resolve those disputes themselves.”

Guthmann left the case open for appeal and asserted that this simply was “not the right case, the right plaintiff, the right time or the right legal context.”