Gazelka looking to avoid legal battle over Fischbach job

The top Republican in the Minnesota Senate is continuing his push for a special session to head off a likely court fight over the lieutenant governor succession, as well as the potential loss of majority control.

Senate Majority Leader Paul Gazelka, R-Nisswa, doesn’t believe Senate President Michele Fischbach, R-Paynesville, has to give up her Senate seat when she succeeds DFL Lt. Gov. Tina Smith next month.

Smith is going to the U.S. Senate, and the state constitution says a lieutenant governor vacancy is filled by the Senate’s presiding officer. But Senate Democrats and the attorney general say Fischbach cannot simultaneously hold both offices.

Gazelka is also worried about potentially losing Fischbach's seat in a special election. Republicans currently hold a 34-32 advantage, with the vacancy created by DFLer Dan Schoen's recent resignation set to be filled in a Feb. 12 special election. Two DFL special election wins would flip control.

Gazelka told MPR News Friday morning that he’s still trying to get Senate Minority Leader Tom Bakk, DFL-Cook, and other leaders to agree to a special session to instead put a Democrat in line to become lieutenant governor, even though he acknowledged the likelihood is slim.

“I’m not optimistic,” Gazelka said. “Obviously by having a shot to take the majority, I can see where Sen. Bakk would say ‘I’m not going to do that.’ But I do think Minnesota is best served if we have some sense of transition that works smoothly, and this will not be a smooth transition.”

An advisory opinion from DFL Attorney General Lori Swanson’s office Thursday said "the simultaneous discharge of executive and legislative branch functions implicates the incompatibility doctrine, as well as principles of separation of powers." It also stressed that final resolution would come from judicial branch.

Gazelka disagrees with the attorney general’s opinion, because the nonpartisan Senate Counsel previously concluded that Fischbach can hold both jobs.

“It sets up for another legal battle, and it’s unfortunate,” Gazelka said.

Late Friday, Gazelka and House Speaker Kurt Daudt sent a letter to Gov. Dayton and DFL legislative leaders, proposing a brief special session on Jan. 3.

Here's the letter:

12.22.17 Letter Regarding Special Session

Bakk said there doesn't appear to be enough time to organize a special session before Smith becomes a Senator on January 3rd.

He agrees with the attorney general’s opinion and believes Fischbach will have to resign her seat when she becomes lieutenant governor.

If Democrats keep the Schoen seat, Bakk said it could temporarily put them in a 33-33 tie with Republicans. Bakk is already talking about a power-sharing scenario.

“I think there’s a fairly high probability that could be the situation. Minnesota hasn’t seen one of their legislative bodies in a tied situation since 1978, when the House was tied 67-67, and a power sharing arrangement was worked out then between the two caucuses.”

Bakk is also optimistic about picking up Fischbach’s Paynesville-area seat in a potential special election even though it's been reliably Republican territory in recent years.

“It’s tough ground for us," he said. "But if we find a good, strong candidate that actually fits the district, the constituents there, I think it’s something we can win.”

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