REGIONAL— The state’s solicitor general has determined that GOP Sen. Michelle Fischbach, of Paynesville, must resign her seat once she is seated as Minnesota’s next lieutenant governor. That could happen as early as Jan. 2, when current Lt. Gov. Tina Smith takes the oath of office to replace Sen. Al Franken.

Franken announced his resignation on Dec. 7 following a series of sexual harassment allegations.

The advisory opinion, issued by solicitor Alan I. Gilbert on Dec. 21, almost certainly won’t be the last word on the subject. The matter is likely headed to court, with control of the Minnesota Senate potentially hanging in the balance. Republicans currently hold a two-seat majority in the Senate, but a special election to replace DFL Sen. Dan Schoen, of Cottage Grove, is set for Feb. 12. If the DFL maintains control of Schoen’s seat, as expected, they could take control of the Senate should Fischbach be forced to resign her seat and if the DFL manages to win a subsequent special election.

Gov. Mark Dayton, at the urging of Senate Majority Leader Paul Gazelka, GOP-Nisswa, had requested the opinion from the attorney general after Fischbach announced that she had no intention of resigning her seat in the Legislature. The Minnesota Constitution requires that any vacancy in the office of the lieutenant governor be filled automatically by the most-recently presiding president of the Senate— which happens to be Fischbach.

But Fischbach, citing an opinion from the Senate’s legal counsel, argued that she could hold both positions simultaneously, citing a case from 1898, when Sen. Frank Day retained his seat in the senate after being named lieutenant governor after a vacancy arose. That decision was subsequently challenged in court, but the state’s Supreme Court sided with Day, arguing that the two functions were not incompatible and that he was not expressly prohibited by the constitution from holding two offices. But the court’s ruling disregarded Article IV, Section 5 of the constitution, which states that “no senator or representative shall hold any other office under the authority of the United States for the state of Minnesota, except that of postmaster or of notary public.”

Solicitor Gilbert cited numerous subsequent court rulings that have affirmed the prohibition on anyone serving in two offices that would be considered “incompatible.” In 1898, noted Gilbert, the duties of the president of the Senate and the lieutenant governor were essentially identical, but that the roles of the two positions have since changed considerably as a result of amendments to the constitution and state statutes that have assigned purely executive branch functions to the lieutenant governor’s position. “The current responsibilities of the lieutenant governor are therefore materially different than they were in 1898 and involve powers exercised by the executive branch of government,” wrote Gilbert. “In 1989, the position of lieutenant governor had no executive branch responsibilities,” he noted. “Rather, as ex officio president of the senate, the lieutenant governor’s sole constitutional duties were “to preside over the senate” and “to authenticate by his signature the bills passed by the senate.” In light of the changes to the office, “a strong argument can be made that the 1898 decision of the Minnesota Super Court does not control the outcome of this dispute,” Gilbert concluded.

In more recent times, notes Gilbert, senators have resigned their seats upon filling a lieutenant governor vacancy, as previous attorneys general have recommended.

GOP seeks special session

Republican leaders in the Senate have called for a special session in January, in hopes of electing a DFLer as presiding officer of the Senate, but current Senate Minority Leader Tom Bakk, has been cool to that suggestion. It’s unlikely that the governor would call a special session under the circumstances without support from DFL leaders.

While Fischbach has held her seat in the typically Republican-leaning district since the 1990s, GOP leaders don’t appear as confident they can hold the seat as they might otherwise be. Democrats have been significantly outperforming past outcomes in recent special elections around the country since the election of Donald Trump, which could put the seat in play. “They’re worried sick about a special election given the current environment,” said Bakk.

For now, Republican leaders aren’t budging, despite the opinion from the solicitor general. “I have every confidence Sen. Fischbach will continue to be an effective public servant for her constituents in her roles as a state senator for District 13 and acting lieutenant governor of Minnesota,” Gazelka told Minnesota Public Radio.

While Smith’s appointment to Franken’s Senate seat does have potential downsides for the GOP, it is not without potential peril for Democrats. Fischbach, after all, would be in line to replace Dayton should anything happen to the governor. Dayton, now 70, has had a series of medical issues, although none currently appear to pose the risk that he might be unable to serve the remainder of his term.