As she has done in the past, Sen. Michelle Fischbach gaveled the Senate into session Tuesday and presided over its first day's business. The difference this year is Fischbach is also Minnesota's lieutenant governor, an office she ascended under the constitution when DFL Gov. Mark Dayton appointed Tina Smith to replace Al Franken as U.S. Senator.
Sen. Ron Latz, DFL- St. Louis Park stood on the Senate floor to note that the constitution also expressly prohibits a legislator from holding another office. He believes Fischbach is no longer an authorized member of the Senate.
"We want the record to reflect my objection to Lt. Gov. Fischbach presiding over the Senate," he said.
"So noted," Fischbach responded.
Latz later explained that he raised the point to put it on the public record. He said the filing of a formal objection would have to wait until Fischbach casts a vote. Latz said those votes could lead to litigation.
"Any vote that she takes between now and as long as she attempts to act as a member of the Senate will call into question the legality of whatever that vote was about."
Fischbach acknowledged Latz's objection was an allowable point of personal privilege, but she added that she believes the law and history are on her side.
"Seven men have done this before. I think we're on pretty good ground to do it. I feel pretty confident presiding and voting when it comes to that," she said, noting the recent dismissal of a lawsuit challenging her dual role.
The judge who dismissed the lawsuit from one of Fischbach's constituents said the challenge was premature because there had yet to be any votes or any harm. His ruling left the door open to an appeal or additional lawsuits.
Fischbach has declined a salary as lieutenant governor and has not yet performed any work related to the office. She said she talked to Dayton on the phone just once since they met for lunch in December.
Senate Minority Leader Tom Bakk, DFL Cook, believes the matter is headed to the Minnesota Supreme Court.
If the court orders Fischbach to resign her Paynesville-area Senate seat, the vacancy would create a 33-33 tie in the Senate until a special election could be held. Bakk is hoping for the chance to pick up that GOP-leaning district and winning majority control.
"There's a very good candidate that I think fits the district remarkably well. In this environment, coming out of D.C. that seems to kind of set the mood of elections nowadays, I think almost any seat is probably in play."
Republican Senate Majority Leader Paul Gazelka said the DFL objection was disappointing but not surprising. He contends the maneuvering is all about politics, not the constitution.
Gazelka also raised concerns that the spat could get in the way of important work this session on taxes, health care and transportation issues.
"At the end of the day, if we're going to figure out how to navigate through a successful session, we can't have a lot of wrenches thrown into the pot," he said.