Op. Atty. Gen 280k
Background
- Governor Dayton planned to appoint Lt. Gov. Tina Smith to the U.S. Senate vacancy created by Al Franken’s resignation, which would create a vacancy in the lieutenant governor’s office.
- Minnesota Constitution Art. V §5 provides that the last elected presiding officer of the senate becomes lieutenant governor if a vacancy occurs.
- Senate President Michelle Fischbach stated she would serve as both state senator and lieutenant governor; she relied on an 1898 Minnesota Supreme Court decision (Marr v. Stearns).
- Governor Dayton and others questioned whether a senator may simultaneously hold the lieutenant governorship because of constitutional prohibitions on holding offices in different branches and modern executive duties vested in the lieutenant governor.
- The Attorney General was asked for a written opinion on (1) whether the senate president becomes lieutenant governor upon a vacancy, and (2) whether that person can concurrently serve as senator and lieutenant governor.
- The AG concluded the senate president does become lieutenant governor, but given post-1898 statutory and constitutional changes creating significant executive functions for the lieutenant governor, a strong argument exists that the offices are now incompatible and cannot be held simultaneously; final resolution would require judicial determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Does the last elected presiding officer of the senate become lieutenant governor when the office is vacant? | Dayton: Yes — Constitution requires succession. | Fischbach: Agrees she becomes lieutenant governor. | AG: Yes — Art. V §5 makes the presiding officer the lieutenant governor on vacancy. |
| 2) Can the senate president simultaneously serve as state senator and lieutenant governor? | Fischbach / Senate Counsel: Yes — Marr v. Stearns permits dual service. | Dayton / AG: No — modern lieutenant governor has executive duties; dual officeholding would create incompatibility and separation-of-powers concerns. | AG: Strong argument that dual service is incompatible now; Marr is undermined by later constitutional/statutory changes; ultimate resolution for courts. |
Key Cases Cited
- State ex rel. Marr v. Stearns, 75 N.W. 210 (Minn. 1898) (held a senator could simultaneously serve as lieutenant governor under 1898 constitutional framework)
- Kenney v. Goergen, 31 N.W. 210 (Minn. 1886) (discusses common-law incompatibility doctrine for public offices)
- State ex rel. Klitzke v. Indep. Consol. Sch. Dist. No. 88, 61 N.W.2d 410 (Minn. 1953) (defines incompatibility where duties conflict and fidelity to both cannot be maintained)
- State v. Victorsen, 627 N.W.2d 655 (Minn. Ct. App. 2001) (recognizes that changes in statutes can warrant departing from prior precedent)