Session will end before Fischbach lawsuit is heard

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Minnesota's legislative session will have been over for more than two weeks before a Ramsey County judge hears a legal challenge to Senate President Michelle Fischbach's ability to serve in the Legislature and as lieutenant governor.

The first hearing is slated for June 5 in a lawsuit filed earlier this month. The lawsuit is the second to contest Fischbach's dual roles; the first was tossed in February before the 2018 session began.

Fischbach, a Republican senator since 1996, involuntarily ascended to the lieutenant governor post in January. That's when DFL Gov. Mark Dayton named then-Lt. Gov. Tina Smith a U.S. senator, setting off a succession plan that puts the Senate president into the post Smith left.

The shuffle is important because Republicans hold a 34-33 majority in a Senate that won't be on the ballot again until 2020. Democrats hoped that by forcing Fischbach from the Senate they would knot up the chamber in the short term and give them a long-shot chance to claim the Paynesville-area seat she holds.

The first case was dismissed by Ramsey County District Court Judge John Guthmann on the grounds it was premature and the plaintiff in the case wasn't the right person to lodge the challenge. Guthmann is presiding over the new case and the plaintiff, Fischbach constituent Destiny Dusosky, is the same.

Fischbach and her attorneys argue that the lieutenant governor job is largely ceremonial, except when it comes time to replace a departed governor. They say other senators have held the jobs simultaneously without strong objection. Democrats contend the other instances shouldn't apply because they came before a change to Minnesota's Constitution that they argue barred legislators from holding another office at the same time.

Even if Fischbach remains in the Senate for the rest of the session, those behind the lawsuit say votes she has taken could be undone if she loses the case. There have been a few 34-33 votes this year, but some came on votes to defeat amendments that would have also gone down on 33-33 votes.

Fischbach's legal fees could eventually be borne by taxpayers. Dusosky hasn't disclosed who is paying her legal fees for a law firm that has previously done work for the Senate DFL. The latest campaign fundraising reports show no recent payments to the firm from the Senate DFL's campaign arm. The state DFL Party lists $45,000 in legal fees to the Minneapolis law firm since the start of 2018.

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