When Minnesota's lieutenant governor moves up to fill a vacancy elsewhere and the president of the state senate constitutionally takes the lieutenant governor's seat, can that senator continue to hold the senate seat at the same time?

Plain-English summary

In December 2017, US Senator Al Franken announced his resignation. Governor Mark Dayton planned to appoint Lieutenant Governor Tina Smith to fill that US Senate vacancy. That move would in turn open the lieutenant governor seat. Under Minn. Const. art. V, § 5, the last elected presiding officer of the state senate automatically becomes lieutenant governor when a vacancy occurs. At the time, that was Senator Michelle Fischbach, President of the Minnesota Senate. The political question that followed was: must Senator Fischbach resign her senate seat when she became lieutenant governor, or could she hold both offices at once?

Senator Fischbach said she planned to hold both, citing Senate Counsel's reading of State ex rel. Marr v. Stearns, an 1898 Minnesota Supreme Court decision permitting simultaneous service. Governor Dayton argued she could not, citing Minn. Const. art. IV, § 5, which prohibits a senator from holding any other office under Minnesota or US authority (with limited exceptions for postmasters and notaries public). The Governor's General Counsel asked the Attorney General's Office for an opinion. Solicitor General Alan I. Gilbert wrote the response on behalf of AG Lori Swanson.

The opinion gave two answers:

1. On automatic succession: yes, the president of the senate becomes lieutenant governor under Art. V, § 5 if there is a vacancy. That is the constitutional text and it is undisputed.
2. On dual-service: the AG concluded there is "a strong argument" that under the current constitutional and statutory framework, the same person cannot simultaneously serve as state senator and lieutenant governor. The 1898 decision in Marr v. Stearns allowed simultaneous service then because the lieutenant governor at that time had no executive-branch duties (only presiding over the senate and authenticating bills). Constitutional and statutory changes in the 1970s gave the lieutenant governor genuine executive functions, removing the lieutenant governor as ex officio senate president, making the lieutenant governor a member of the Executive Council, designating the lieutenant governor as chair of the Capital Area Architectural and Planning Board, and allowing the governor to delegate executive-branch powers and duties to the lieutenant governor. Those changes, combined with separation of powers and the common-law incompatible-offices doctrine, distinguish Marr.

The opinion stops short of definitively saying a court would so hold. It says only that the dispute is one that can ultimately be resolved only by judicial decision, and that the strong-argument analysis would likely prevail.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: what the AG concluded

The Marr precedent. The Minnesota Supreme Court decided State ex rel. Marr v. Stearns, 75 N.W. 210 (Minn. 1898) (rev'd on other grounds sub nom. Stearns v. State of Minn., 179 U.S. 223 (1900)), in the same kind of factual posture. Governor Knute Nelson had resigned to take a US Senate seat. Lieutenant Governor David Clough became governor. President pro tempore Senator Frank Day became lieutenant governor and continued, for the remainder of the session, to serve as a state senator as well. The court held that simultaneous service was permitted. Its reasoning had two pieces:

• No constitutional language "imperatively required" the senator to vacate the senate seat upon becoming lieutenant governor.
• An impeachment provision in the 1858 Constitution prohibited the lieutenant governor from acting as a member of the impeachment court. That prohibition implied a sitting senator could be lieutenant governor, because the impeachment court was composed of senators. Otherwise the prohibition would be superfluous.

The court also relied on the fact that, in 1898, the lieutenant governor's duties were entirely legislative ("preside over the senate" and "authenticate by his signature the bills passed by the senate"). The court characterized the lieutenant governor as an executive officer only "as a matter of convenience," noting "he is not authorized to exercise a single power or perform a single duty . . . properly belonging to the executive department."

What changed after Marr. The opinion catalogs the structural changes:

• The impeachment provision in old Art. XIII, § 4, which formed part of the court's argument in Marr, was removed from the State Constitution in 1974 as "obsolete."
• A 1972 constitutional amendment (effective 1973) provided that the lieutenant governor is no longer the ex officio president of the senate; the senate elects its own presiding officer. See Minn. Const. art. V, § 6 (1973); Minn. Const. art. IV, § 15. The Executive Branch Committee Report described the intent: after the amendment, "the lieutenant governor would become a purely executive officer without legislative functions" and could serve as "a full-time member of the executive branch."
• In 1973, the lieutenant governor was made a member of the Executive Council (Minn. Stat. § 9.011), alongside the governor, attorney general, secretary of state, and state auditor.
• In 1974, the lieutenant governor was made chair of the Capital Area Architectural and Planning Board (Minn. Stat. § 15B.03).
• A 1971 statute (Minn. Stat. § 4.04, subd. 2) authorized the governor to delegate powers, duties, responsibilities, and functions to the lieutenant governor, except those imposed on the governor by the Constitution.

The opinion notes that the lieutenant governor still "calls the senate to order at the beginning of each session" under Minn. Stat. § 3.05, but otherwise the role has shifted decisively to the executive branch.

A prior internal precedent. In November 1976, after Lieutenant Governor Rudy Perpich became governor, Alec Olson (then Senate President) became lieutenant governor. The AG's Office at that time advised Olson to resign from the senate upon being sworn in, noting that "the rationale of [Marr] is sufficiently weak to raise serious doubts as to whether it would be adopted by the Court if the issue were presented to it again." Olson did resign from his Senate seat upon becoming lieutenant governor.

The current framework's pull. In the 2017 posture, the lieutenant governor has actual executive duties, and a senator simultaneously serving would face real conflict between legislative and executive responsibilities: voting on bills proposed by the governor whose powers the senator now exercises in a delegated capacity, or voting to override the governor's veto. Those conflicts implicate the common-law incompatible-offices doctrine, which Minnesota courts have recognized since at least Kenney v. Goergen, 31 N.W. 210 (Minn. 1886), and developed in State ex rel. Klitzke v. Independent Consolidated School District No. 88, 61 N.W.2d 410 (Minn. 1953) (offices are incompatible when "their functions are inconsistent, their performance resulting in antagonism and conflict of duty").

The opinion also cites State v. Victorsen, 627 N.W.2d 655 (Minn. App. 2001), for the proposition that intervening statutory changes can warrant departing from a prior precedent.

Bottom line as written by the AG: "[A] strong argument can be made that the 1898 decision of the Minnesota Supreme Court in Marr does not control the outcome of this dispute in light of the subsequent changes to the duties of the lieutenant governor." Only a court could definitively resolve the question.

Common questions

Q: Did the AG say outright that Sen. Fischbach had to resign her senate seat?
A: No. The opinion stops at "strong argument." The AG concluded that only a judicial decision could resolve the dispute definitively. The clear inference from the opinion's analysis, though, is that the AG's office viewed simultaneous service as inconsistent with current Minnesota law.

Q: What was the actual outcome in 2018?
A: This article does not track the post-opinion political resolution. Per public records and the opinion's analysis, the dual-service question was contested through 2018. Readers seeking the operational outcome should consult the Minnesota Legislative Reference Library and contemporary news sources from January through May 2018.

Q: What part of the Minnesota Constitution forbids holding multiple offices?
A: Minn. Const. art. IV, § 5, in the version in effect in 2017, provided 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." That provision has been in the Constitution since ratification in 1858.

Q: Why doesn't art. IV, § 5 settle the matter on its face?
A: Because the 1898 Marr court read art. IV, § 5 (as it stood) together with art. V, § 5 (succession) and concluded that the succession provision was a specific carve-out from the general bar. The two provisions had to be construed as a "harmonious whole." A 2017 court could revisit that harmonization in light of the post-1972 changes to the lieutenant governor's role.

Q: Does the common-law incompatible-offices doctrine apply to state constitutional offices?
A: The opinion treats the doctrine as a related and longstanding common law principle in Minnesota. Klitzke and Kenney both apply it to state public offices. The doctrine asks whether the functions of the two offices are factually incompatible; the modern lieutenant governor's executive functions create concrete antagonism with a senator's legislative duties.

Q: What if the simultaneous service is brief?
A: The opinion notes that the 1898 Marr court mentioned a "temporary" vacancy could be different. In the 2017 facts, the vacancy was not temporary: it covered approximately one year, including the entire 2018 legislative session. So the temporary-vacancy carve-out was not available.

Q: Is this opinion binding on the senate?
A: AG opinions are advisory in Minnesota. The senate retains its own counsel and reached a different conclusion. Only a Minnesota court applying current law can definitively resolve whether simultaneous service is permitted.

Q: Have other states resolved similar questions?
A: The opinion does not survey other states. The question turns on each state's constitutional text and the historical scope of lieutenant governor duties in that state. Marr is uniquely Minnesota.

Background and statutory framework

The opinion arises from a four-step succession sequence in 2017-2018:

1. US Senator Al Franken announces resignation (Dec. 7, 2017).
2. Under Minn. Stat. § 204D.28, subd. 11, the governor may appoint a successor to fill the US Senator vacancy.
3. Governor Dayton announces intention (Dec. 13, 2017) to appoint Lt. Gov. Tina Smith to the US Senate seat.
4. That appointment creates a vacancy in the lieutenant governor's office. Under Minn. Const. art. V, § 5, "the last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office."

Sen. Michelle Fischbach was the President of the Minnesota Senate. So the constitutional text automatically made her the next lieutenant governor.

The constitutional provisions at issue:

• Minn. Const. art. IV, § 5 (2017): senators and representatives may not hold other US or Minnesota office, except postmaster or notary public.
• Minn. Const. art. IV, § 15: the senate elects its own presiding officer.
• Minn. Const. art. V, § 3: the governor may require the opinion in writing of a principal officer of an executive department.
• Minn. Const. art. V, § 5: succession to lieutenant governor.
• Minn. Const. art. V, § 6 (1973): the lieutenant governor is no longer the ex officio president of the senate. Added by the 1972 constitutional amendment.

The statutory provisions on the lieutenant governor's executive duties:

• Minn. Stat. § 3.05: the lieutenant governor calls the senate to order at the beginning of each session.
• Minn. Stat. § 4.04, subd. 2: the governor may delegate non-constitutional powers and duties to the lieutenant governor.
• Minn. Stat. § 9.011: the lieutenant governor is a member of the Executive Council.
• Minn. Stat. § 15B.03: the lieutenant governor chairs the Capital Area Architectural and Planning Board.

The opinion is signed by Alan I. Gilbert, Solicitor General, on behalf of AG Lori Swanson, with copies to Senate Majority Leader Paul Gazelka, Senate President Michelle Fischbach, and Senate Minority Leader Thomas Bakk.

Citations and references

Constitutional provisions:
- Minn. Const. art. IV, §§ 5, 15
- Minn. Const. art. V, §§ 3, 5
- Minn. Const. art. V, § 6 (1973)
- Minn. Const. art. XIII, § 4 (removed 1974)

Statutes:
- Minn. Stat. § 3.05
- Minn. Stat. § 4.04, subd. 2
- Minn. Stat. § 9.011
- Minn. Stat. § 15B.03
- Minn. Stat. § 204D.28, subd. 11

Cases:
- State ex rel. Marr v. Stearns, 75 N.W. 210 (Minn. 1898), rev'd on other grounds sub nom. Stearns v. State of Minn., 179 U.S. 223 (1900)
- Kenney v. Goergen, 31 N.W. 210 (Minn. 1886)
- State ex rel. Klitzke v. Independent Consolidated School District No. 88, 61 N.W.2d 410 (Minn. 1953)
- State v. Victorsen, 627 N.W.2d 655 (Minn. App. 2001)

Session laws and legislative history:
- 1971 Minn. Laws ch. 949, § 1
- 1971 Minn. Laws ch. 958, § 2
- 1973 Minn. Laws ch. 394, § 1
- 1974 Minn. Laws ch. 409
- 1974 Minn. Laws ch. 580, § 4
- Minnesota Constitutional Study Commission, Final Report
- Minnesota Constitutional Study Commission, Executive Branch Committee Report

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/280k-20171221.pdf

Original opinion text

LEGISLATURE: LIEUTENANT GOVERNOR: INCOMPATIBLE OFFICES: Last elected president of state senate becomes lieutenant governor as a result of vacancy in that position; strong argument can be made president of senate cannot simultaneously serve as state senator and lieutenant governor in light of lieutenant governor's executive branch functions. Minn. Const. art. IV §§ 5, 15, art. V §§ 3, 5 (2017); Minn. Stat. §§ 3.05, 4.04, subd. 2, 9.011, 15B.03 (2016).

280k
STATE OF MINNESOTA
OFFICE OF THE ATTORNEY GENERAL SUITE 1100
445 MINNESOTA STREET
ST. PAUL, MN 55101-2128

December 21, 2017
TELEPHONE: (651) 282-5700

Ms. Kimberly Slay Holmes Via Email and U.S. Mail
General Counsel to Governor Mark Dayton
130 State Capitol
75 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, MN 55155

Dear Ms. Holmes:

I thank you for your letter dated December 12, 2017.

BACKGROUND

On December 7, 2017, United States Senator Al Franken announced his intention to resign as a United States Senator. Minnesota Statutes Section 204D.28, subdivision 11 provides that, in the event of a vacancy in the Office of United States Senator for Minnesota, the Governor may appoint a successor to fill the vacancy. On December 13, 2017, Governor Mark Dayton announced that he intended to appoint Lieutenant Governor Tina Smith to fill the vacancy created by Senator Franken's resignation. The appointment of Lieutenant Governor Smith would create a vacancy in the position of lieutenant governor.

Article V, Section 5 of the Minnesota Constitution states that the "last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office." Senator Michelle Fischbach is the President of the Minnesota Senate. Shortly after Governor Dayton announced his intention to appoint Lieutenant Governor Smith to the United States Senate seat, Senator Fischbach stated that she will hold both the position of senator and lieutenant governor. She refers to a recent opinion issued by Senate Counsel, which relies on an 1898 decision of the Minnesota Supreme Court discussed below. On December 13, 2017, Senator Fischbach stated: "I've been told by Senate Counsel the Minnesota Constitution allows the Senate President to serve both roles so that's what I plan to do for the remainder of Gov. Dayton's term."

In contrast, Governor Dayton argues that Senator Fischbach cannot simultaneously hold both positions. The Governor refers to a provision of the Minnesota Constitution that prohibits one person from holding two offices in different branches of government. At his December 13, 2017 news conference announcing his intention to appoint Lieutenant Governor Smith to the United States Senate seat, Governor Dayton said: "I am told by my in-house legal counsel that the constitution and the state statutes are clear that the . . . president of the senate becomes the lieutenant governor and that she cannot hold two offices simultaneously."

Senate Majority Leader Paul Gazelka states that he requested Governor Dayton to seek a legal opinion from the Attorney General's Office regarding this matter. Article V, Section 3 of the State Constitution provides that the Governor "may require the opinion in writing of the principal officer in each of the executive departments upon any subject" relating to their duties. On behalf of the Governor—and in accordance with the request of the Senate Majority Leader—you ask for a legal opinion from this Office regarding two questions arising out of the Governor's appointment of the Lieutenant Governor to fill a vacancy in the position of United States Senator from Minnesota. Specifically, you ask whether under the Minnesota Constitution (1) the last elected president of the state senate becomes lieutenant governor as a result of a vacancy in the position of lieutenant governor; and (2) if she becomes lieutenant governor, the president of the senate can simultaneously serve as state senator and lieutenant governor.

LEGAL ANALYSIS

As noted above, Article V, Section 5 of the Minnesota Constitution states that the "last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office." Accordingly, the answer to your first question is that the president of the senate becomes lieutenant governor if there is a vacancy in that office.

As to your second question, in 1898, the Minnesota Supreme Court considered whether an individual may simultaneously serve as a state senator and lieutenant governor. State ex rel. Marr v. Stearns, 75 N.W. 210 (Minn. 1898), rev'd on other grounds sub nom. Stearns v. State of Minn., 179 U.S. 223 (1900). The case involved Governor Knute Nelson who resigned to become a United States Senator. Id. at 211. Pursuant to the provisions of the Minnesota Constitution in effect at that time, Lieutenant Governor David Clough became governor, and the president pro tempore of the senate, Senator Frank Day, became lieutenant governor. Id. For the remainder of the legislative session, Mr. Day simultaneously served as lieutenant governor and state senator. Id.

In 1898, the position of lieutenant governor had no executive branch responsibilities. Id. at 213. Rather, as ex officio president of the senate, the lieutenant governor's sole constitutional duties were "to preside over the senate" and "to authenticate by his signature the bills passed by the senate." Id. at 211, 213.

A lawsuit was filed challenging Mr. Day's ability to be a state senator at the same time he was lieutenant governor. The Court concluded that Mr. Day could serve simultaneously in both positions. Id. at 212-14. The Court found no language in the Minnesota Constitution that "imperatively require[d]" Mr. Day to vacate his senate seat. Id. at 213. The Court reasoned that a contrary conclusion "cannot be sustained without disregarding both the letter and spirit of the constitution, when considered as a whole, and without adopting a construction well calculated, when party strife and spirit are intense, to disturb the public peace and order." Id. at 212.

The Court also determined that the Minnesota Constitution recognized "the fact that a senator may be a lieutenant governor" because the Constitution prohibited the lieutenant governor from acting "as a member of the court" during an impeachment trial against a governor. Id. at 214 (citing Minn. Const. art. XIII, § 4). The Court reasoned that only senators can act as members of the court in an impeachment trial, so "[t]his prohibition would be wholly unnecessary, except upon the assumption that a senator did not vacate his office on becoming lieutenant governor." Id. The provision referred to by the Court was removed from the State Constitution in 1974 because it was believed to be "obsolete" and/or "inconsequential." See Minn. Const. art. VIII (1976); Minnesota Constitutional Study Commission, Final Report at 14, 47; Statement of Purpose and Effect of Amendment No. 1 - Revise Organization and Language of Constitution, Finance and Commerce, Oct. 18, 1974 at 5 (same); see also 1974 Minn. Laws ch. 409 at 801 (legislation placing constitutional amendment on ballot).

You note that Article IV, Section 5 of the Minnesota Constitution states that "[n]o 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." This or a similar provision has been in the State Constitution since its ratification by Congress in 1858. The 1898 opinion of the Supreme Court concluded that this provision was not violated by the state senator who simultaneously served as lieutenant governor. In so doing, the Court reasoned in part as follows:

It is obvious that this section of the constitution does not, explicitly or otherwise, make the offices of lieutenant governor and senator incompatible, or a senator ineligible to the office of lieutenant governor during the term for which he was elected; for it is otherwise expressly provided by the constitution,—that a senator who is president pro tempore shall become lieutenant governor in case of a vacancy. Indeed, this particular section has but little relevancy to the question under consideration, except to emphasize the necessity of construing the several provisions of the constitution as a harmonious whole, and not each section by itself.

Marr, 75 N.W. at 214.

A related and longstanding common law doctrine in Minnesota prohibits a public official from holding two offices that are factually "incompatible" with each other. See, e.g., Kenney v. Goergen, 31 N.W. 210, 211 (Minn. 1886). Public offices are incompatible under the common law "when their functions are inconsistent, their performance resulting in antagonism and conflict of duty, so that the incumbent of one cannot discharge with fidelity or propriety the duties of both." State ex rel. Klitzke v. Indep. Consol. Sch. Dist. No. 88, 61 N.W.2d 410, 419 (Minn. 1953). In Marr, the Supreme Court reasoned that its opinion (that the state senator could simultaneously serve as lieutenant governor) was "further supported by the character of the duties of lieutenant governor and the president pro tempore," which at that time were "identical." Marr, 75 N.W. at 213. As noted above, the lieutenant governor's sole constitutional duties in the 1890s were to preside over the senate and to authenticate the bills passed by the senate. Id. The Court stated that the lieutenant governor's classification as an executive branch official "is simply one of convenience" as "he is not authorized to exercise a single power or perform a single duty . . . properly belonging to the executive department." Id. (emphasis added).

The duties of the lieutenant governor have changed since 1898. In 1972, the State Constitution was amended to provide that the lieutenant governor is no longer the ex officio president of the senate. See Minn. Const. art. V, § 6 (1973); see also 1971 Minn. Laws ch. 958, § 2, at 2034 (legislation placing constitutional amendment on ballot). An Executive Branch Committee Report in November, 1972 stated that if the constitutional amendment was adopted (which it was), "the lieutenant governor would become a purely executive officer without legislative functions." The Report further stated that "[t]he lieutenant governor would then be in a position to be a full-time member of the executive branch of state government" and "the duties of the office could be substantially increased by the legislature or by the governor through executive order." Id. at 5.

It is no longer the case today, as the Supreme Court found it was in 1898, that the lieutenant governor performs no duties "belonging to the executive department." Although the lieutenant governor still calls the senate to order at the beginning of each session, Minn. Stat. § 3.05, the senate now elects its own presiding officer. Minn. Const. art. IV, § 15. In 1973, the lieutenant governor was designated as a member of the Executive Council, 1973 Minn. Laws ch. 394, § 1, at 858 (codified as Minn. Stat. § 9.011), and in 1974 was made the chair of the Capital Area Architectural and Planning Board, 1974 Minn. Laws ch. 580, § 4, at 1442 (codified as Minn. Stat. § 15B.03). In addition, a law enacted by the Legislature in 1971 states that "[t]he governor may delegate to the lieutenant governor such powers, duties, responsibilities and functions as are prescribed by law to be performed by the governor" as long as they are not specifically imposed upon the governor by the Constitution. 1971 Minn. Laws ch. 949, § 1, at 1981 (codified as Minn. Stat. § 4.04, subd. 2).

Subsequent to these changes in Minnesota law, in 1976 Lieutenant Governor Rudy Perpich filled a vacancy in the office of the governor, and in turn, the then-presiding officer of the senate, Alec Olson, became lieutenant governor. In a memorandum dated December 17, 1976, the Minnesota Attorney General's Office advised Mr. Olson to resign from the Senate upon taking the oath of office as lieutenant governor, noting that the "rationale of [Marr] is sufficiently weak to raise serious doubts as to whether it would be adopted by the Court if the issue were presented to it again." Id. at 1 n.1. Mr. Olson then resigned from his position as a state senator upon becoming lieutenant governor.

The current responsibilities of the lieutenant governor are therefore materially different than they were in 1898 and involve powers exercised by the executive branch of government. Unlike in 1898 when Marr was decided, the lieutenant governor is now expressly charged by statute with executive branch functions, including service on the Executive Council, and may be delegated executive branch responsibilities directly by the governor. See also State v. Victorsen, 627 N.W.2d 655, 662-63 n.2 (Minn. App. 2001) (concluding that "changes in relevant statutes" warranted a different conclusion from the one rendered in the court's prior precedent). Under the current constitutional and statutory framework, potential conflicts exist if the same individual were to fulfill both executive and legislative responsibilities (e.g., if the lieutenant governor in a legislative capacity considers whether to vote in favor of legislation proposed by the governor or whether to override the governor's veto of legislation).

The simultaneous discharge of executive and legislative branch functions implicates the incompatibility doctrine, as well as principles of separation of powers. Any dispute regarding the lieutenant governor exercising these dual functions under current law can ultimately only be resolved by judicial decision. Having said that, for the reasons discussed above, a strong argument can be made that the 1898 decision of the Minnesota Supreme Court in Marr does not control the outcome of this dispute in light of the subsequent changes to the duties of the lieutenant governor.

Very truly yours,

ALAN I. GILBERT
Solicitor General
(651) 757-1450 (Voice)
(651) 282-5832 (Fax)

cc: The Honorable Paul Gazelka, Senate Majority Leader, via Email and US Mail
The Honorable Michelle Fischbach, President of the Senate, via Email and US Mail
The Honorable Thomas Bakk, Senate Minority Leader, via Email and US Mail