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Michelle Fischbach Constituent's Lawsuit Tossed

Wednesday, February 14, 2018  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

For now, Michelle Fischbach can keep both jobs.

Ramsey County District Court Chief Judge John H. Guthmann has ruled in favor of the GOP’s senator/lieutenant governor from Paynesville and against a constituent who sued to remove her from the Senate.

The ruling never addresses a key question — whether Fischbach constitutionally can hold both posts. In effect, Guthmann’s ruling says that Sauk Center DFL activist Destiny Dusosky lacks standing to bring that case and that the court lacks jurisdiction to decide it, at least as things now stand.

“There is nothing in the constitution granting courts the authority to remove legislators from office though citizen lawsuits,” Guthmann wrote in his ruling issued late Monday. Neither does statute or common law support such a determination, he wrote.

Granting the relief requested by Dusosky would disregard the constitution’s plain language and overrule established case law, the judge wrote.

Dusosky sought an injunction to keep Fischbach out of the Senate while Dusosky’s primary lawsuit — a declaratory judgment case seeking permanent ouster — got sorted out in court.

Guthmann dismissed Dusosky’s entire case without prejudice. His ruling is based, in part, on a finding that she suffered no unique harm as a result of Fischbach’s decision to keep both jobs.

Dusosky’s complaint held that because Fischbach insists on fulfilling both roles, Dusosky lacks valid Senate representation because the constitution forbids legislators from holding two offices. That, Dusosky argued, is sufficient injury to give her standing.

No, Guthmann ruled. The “injury-in-fact” necessary to establish standing is missing from her case and with it any justiciable controversy, his opinion states. “The harm sustained by plaintiff is specific to no person,” the judge wrote. “In fact, plaintiff offers no authority for the proposition that she has standing.”

At any rate, all harm is hypothetical, the judge wrote.

It is not yet certain if Fischbach will actually resume her Senate duties while serving as lieutenant governor when the legislative session begins on Feb. 20, he wrote. (She has, however, repeatedly said that she will and actually served last month as the Senate co-chair of a joint legislative task force.)

Likewise, Guthmann added, it is not known whether the Senate will vote to remove her from office.

Question of eligibility

Guthmann ruled that courts lack jurisdiction to determine a senator’s eligibility for office. Citing both the constitution and case law, he said that only the Senate has that authority.

That knocks down a key argument offered in court by Dusosky’s attorney, Charles Nauen, on Feb. 6. He maintained that, constitutionally, the concept of Senate “eligibility” addresses such questions as whether a senator fairly wins an election, is old enough to hold the seat and lives inside a legislative district.

Granting the Senate a right to determine a member’s constitutional eligibility would hand the chamber a free pass to violate the constitution, he argued. It can’t do that, he argued, making the question a constitutional one that only the courts can decide.

Guthmann batted that aside, saying Nauen’s argument ignores the simple dictionary definition of the word “eligible.”

Guthmann’s ruling “closely follows the rationale” of the Supreme Court’s decision in Ninetieth Minnesota State Senate v. Dayton, he wrote. In that case, Guthmann notes, “the court exercised restraint” and he is following their lead.

Notably, that decision overturned Guthmann’s own 2017 district court ruling. In the Dayton case, the Supreme Court declined to invalidate the governor’s line-item veto of the Legislature’s funding. Money was available to keep the Legislature in business, the high court ruled, so lawmakers’ argument that they were “abolished” was incorrect.

Though Monday’s ruling was a lopsided victory for Fischbach, not everything in it was entirely good news for her and her legal team.

In the ruling’s final paragraph, the judge expressed “grave concern” about the team’s reliance on a musty 1898 Supreme Court ruling, Marr v. Stearns. They had argued that Marr, which found a senator could double as lieutenant governor, supersedes a series of “minor tweaks” made to the constitution over subsequent decades.

If a higher court shares Guthmann’s concern, it could be a problem should Senate Democrats opt to sue Fischbach after Feb. 20.

Guthmann’s ruling says the courts would have jurisdiction over a Marr-like scenario in which the Senate passes a law by a single vote — such as one cast by a potentially ineligible senator.

Intriguingly, the ruling and Washington County Commissioner Karla Bigham’s victory in the Senate District 54 special election Monday maintain for now a 34-33 GOP Senate majority.

Next steps

Mary Jane Morrison, a retired Mitchell Hamline School of Law professor and MinnesotaConstitution expert, said that in her reading, Guthmann made the right call in the case.

“The constitution does say that the Senate has the power to decide eligibility,” she said. “So this is a pretty straightforward decision by the court.”

David Schultz, an attorney and Hamline University political science professor, previously guessed that Dusosky might prevail. But Guthmann’s ruling comes as no shock, he said.

“I thought there was a possibility that they might say there is no taxpayer standing to bring this case,” he said. “So that doesn’t completely surprise me.”

Schultz does not think the case is over. The next step, he said, likely would involve a DFL senator filing suit against Fischbach, once the session resumes and she starts casting votes as a dual senator/lieutenant governor.

“It may be possible that the court is willing to step in at the point,” Schultz said.

Nauen said late Monday he had not yet discussed the ruling with his client, so no decision about a possible appeal had been made. He could not be reached for comment Tuesday.


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