Virtual File - Item

Text: TO: Senator Michelle Fischbach
FROM: Thomas S. Bottern, Senate Counsel
DATE: December 13, 2017
RE: Succession of the President of the Senate to the Lieutenant Governorship

You have asked for guidance regarding the succession of the President of the Senate to the
Lieutenant Governorship in the event that Governor Dayton appoints the current Lieutenant
Governor, Tina Smith, to succeed Senator Franken in the United States Senate.

The Minnesota Constitution, Article V, Section 5, provides in part that:
The last elected presiding officer of the senate shall become lieutenant governor in case a
vacancy occurs in that office.

Minnesota Statutes, section 4.06, paragraph (a), clarifies that a Senate president succeeding the
Lieutenant Governor under this provision serves for the "remainder of the term."

This presents the question of whether you would be required to resign your Senate seat or the
Lieutenant Governorship in order to avoid a conflict with the provisions of Article IV, Section 9,
of the Minnesota Constitution, which provides that:
No senator or representative shall hold any other office under the authority of the United
States or the State of Minnesota, except that of postmaster or of notary public.

The Minnesota Supreme Court has considered and decided this exact question, and determined
that it is compatible with the Minnesota Constitution for a sitting Senate president to remain in
office as a Senator and to serve simultaneously as Lieutenant Governor. See State ex rel. Marr v.
Stearns, 72 Minn. 200 (1898) (reversed on other grounds, 179 U.S. 223 (1900)). I believe this
case is still good law, and that you could therefore serve as both Lieutenant Governor and as a
Senator for the remainder of the current Lieutenant Governor's term. Although there have been
several changes made to some of the provisions in the Minnesota Constitution that were cited by
the court in Stearns, I think the core reasoning used by the court remains applicable.

The Stearns decision focused on the applicability of the provision requiring the president of the
Senate to assume the Lieutenant Governorship both temporarily and permanently. The court
reasoned that in a case where the Senate president temporarily assumes the Office of the
Lieutenant Governor (in situations where the Governor is temporarily incapacitated, such as in
the event of impeachment, and the Lieutenant Governor must assume the duties of the Governor)
it would be not be proper to assume that the president of the Senate could not continue serving as
a Senator once the Governor resumed the duties of the office. The court further reasoned that
since the constitution did not provide different procedures for a temporary assumption of the
duties of the Lieutenant Governor and a permanent assumption of those duties, it would be
unreasonable to require the resignation of a Senator serving as president from the Senate seat in
order for the Senate president to assume the duties of the Lieutenant Governor: "Such being the
case, the president ... , when he becomes lieutenant governor for the time being, during such
a vacancy, ought not to be held no longer a senator, unless the express words of the
constitution imperatively require such a construction." (Stearns at 214.) The court went on to
find that there was no such express language in the Minnesota Constitution: "There is no
language in the constitution requiring or justifying the conclusion that the senatorial office of the
president pro tempore becomes vacant when he becomes lieutenant governor by reason of, and
during, a vacancy in the office of governor." (Stearns at 214.) In effect, the Stearns court held
that since the constitution established the requirement for the Senate president to assume the
Office of Lieutenant Governor in the event of a vacancy in that office, without explicit language
in the constitution to vacate the president's Senate seat in the event of succession, the court
would not supply that requirement.

The court also reasoned that the character of the duties of the Lieutenant Governor and of the
president pro tempore were identical, finding that "neither of them has any power or duty
belonging to the executive department." (Stearns at 215.) To support this assertion, the court
noted that the Lieutenant Governor was not "authorized to exercise a single power or perform a
single duty, as lieutenant governor, properly belonging to the executive department." This
remains true today. When time permits, I will provide you with a listing of the roles currently
assigned to the Lieutenant Governor, none of which qualifies as an executive function. It is
significant that the court noted that the Lieutenant Governor is not included among the officers
subject to impeachment, and cited this as proof that "it was not intended by the constitution to
confer executive powers upon the lieutenant governor." It is still true today, even after the
reforms made to the Minnesota Constitution in 1972, that the Lieutenant Governor is not subject
to impeachment.

Based on the foregoing analysis, I believe you could serve as both Lieutenant Governor and as a
Senator if you succeed the current Lieutenant Governor by virtue of your status as the last
elected president of the Senate. There is historical precedent for this:
• From 1929 to 1931, Senator Charles Adams served as Lieutenant Governor while serving
in the Senate.
• From August 1936 to January 193 7, Senator William Richardson served as Lieutenant
Governor while serving in the Senate.

I am researching the historical precedents and may be able to provide more when time permits.

Bear in mind that it is possible that your seating as a Senator could be challenged, both by
another member by motion made in the Senate, or through a court challenge. It is my belief that a
legal challenge would not prevail, although that is difficult to predict.

I will follow up with an expanded version of this memorandum. I have prepared this version
within the limited time available so that you are prepared for questions that may follow from
Governor Dayton's announcement today.