January 3, 2018–A Day of Constitutional Infamy in Minnesota Politics

January 3, 2018 might turn out to be one of the most important days in recent Minnesota history, both in terms of politics and constitutional law.  For it is on that date that Tina Smith takes over for Al Franken as US Senator, potentially triggering a major constitutional battle, and Rebecca Otto has oral arguments before the Minnesota Supreme Court in a case that will decide the power of the State Auditor.  These two events are part of a broader political battle in Minnesota politics that now engulfs the state constitution.
Minnesota is no longer your grandfather’s state where the Democratic Farmer Labor Party ruled.  While Minnesota remains the most loyal of Democratic states in terms of presidential politics by not having gone for a Republican since 1972 with Richard Nixon, it is otherwise a state that is partisanly divided.  Republicans control the legislature; the congressional delegation is split by parties, and Donald Trump nearly beat Hillary Clinton in 2016, coming within 50,000 votes of flipping the state.  Clinton won only nine counties in 2016, Dayton as governor won only 37 of the 87 counties in 2014, and in general the political geography points to a state hotly divided between  Hennepin, Ramsey, Olmsted, and St. Louis counties and the rest of the state.  Democrats have lost the farmers, and the dwindling density of the percentage of the state collectively bargaining means that it too may soon lose what is left of labor.
The partisan divide ha produced a polarization that has wrecked havoc on Minnesota.  It has included government shutdowns and repeated special legislative sessions that are no long special but the new normal.  But the intensity of the political divide has over the last decade, and especially in the last two years, taken the state to the level of constitutional fights.  When the Minnesota Constitution was significantly overhauled in 1972 it provisions were the product of the political consensus of the times, reflecting shared understandings about how the state and it various entities should work.  That shared consensus and understanding is gone, and with it the glue that held together state politics and the constitution.
Perhaps the first case in this new era of constitutional politics  was Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010), challenging the authority of the governor to use his unallotment powers to balance the budget when he simply disagreed with what the DFL Legislature wanted to do.  Then there were the 2011 Ramsey County Court decisions In re Temporary Funding of Core Functions in the Executive Branch of Minnesota and  In re Temporary Funding of Core Functions in the Judicial Branch of Minnesota that allowed for the funding of the state government even though there governor and the legislature had not agreed on a budget.  In 2012 the Republican Legislature was unsuccessful in its attempt to bypass the governor and amend the Constitution to change the law regarding voting and same-sex marriage. And last year the State Supreme Court failed to resolve the constitutionality of the governor’s use of the line-item veto to eliminate funding for the state legislature in response to their passage of budget bills he did not like.   While the Court did not officially rule in favor of Dayton in Ninetieth Minnesota State Senate v. Dayton, 903 N.W.2d 609 (Minn. 2017), it effectively acquiesced this use of the line-item veto because the legislature was not without resources to act.
All this brings us to January 3, 2018.  Most notably the date will be known as the one where Senator Al Franken was replaced as US Senator by Lieutenant-Governor Tina Smith who was nominated to that post by Governor Dayton.   This leaves a vacancy in the Lieutenant-Governor’s position and according to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michele L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution.   Except that Fischbach does not want to give up her Senate seat and she and Republicans are trotting out a Minnesota Supreme Court decision State ex rel. Marr v. Stearns, 72 Minn. 200 (1898) as precedent to allow her to retain both her senate and lieutenant-governor seats.  There are lots of good reasons to think that precedent is bad law,  including the fact that some of the constitutional provisions at play in that decision were repealed  by amendment in 1972.
But the validity of the precedent is immaterial, as is who really fills the lieutenant-governor vacancy.  The case is about politics.  Democrats hope that forcing Fischbach out might shift the balance of power in the Minnesota Senate slightly, which was controlled 34-33 by the Republicans after the  2016 elections and which now is 34-32, pending a special election to replace a DFLer who had to resign.  Assume Democrats win the seat, forcing Fischbach out shifts the Senate to 33-33.  Once Fischbach becomes Lieutenant-governor, look to see a lawsuit filed to challenge her ability to hold both positions.  With a Dayton-appointed majority on the Minnesota Supreme Court, she will lose.  But the timing of the litigation, when a decision is issued, and when a special election occurs may all impact the Senate balance of power.  And at the end of the day, forcing Fischbach and Republicans to spend money to litigate and run for her seat again (Fischbach has said if she is forced out of her Senate seat she will run for her Senate seat again in a special election and if she wins will then resign as Lieutenant-governor) is worth it to some DFLers.
The other major January 3, 2018 event is Otto v. Wright County.  Here oral arguments will be heard challenging the authority of the State Legislature to take some audit authority from the State  Auditor by allowing counties to hire their own private auditors.  The case raises important constitutional law questions about separation of powers (may the legislature remove some powers from a constitutional office without undermining its core functions) and perhaps the single-subject rule (since the provision that authorized this was snuck into a larger bill with a variety of assorted and arguably unrelated provisions).  Otto v. Wright County has looming and important constitutional questions that will affect the state, but this case too was rooted in petty partisan and possibly intra-party fights that were meant to damage Rebecca Otto’s political ambitions.
Look for more constitutional battles in 2018 and beyond.  These battles will take the form of litigation and constitutional amendment.  These battles are the product of a political consensus that has broken down, challenging the norms and shared understandings that held state politics together for the last 50 years.

Tina Smith, Michelle Fischbach, and Minnesota Constitutional Politics

The selection of Tina Smith by Governor Mark Dayton to replace Al Franken as US Senator is degenerating  into a political fight that ultimately may require the Minnesota Supreme Court to decide whether Senator Michele Fischbach gets to keep her seat in the Senate.
Here is the issue.  Al Franken’s resignation from the US Senate, triggering Minnesota Statutes  §204D.28, allowing Governor Dayton (DFL) to replace Franken.   Dayton picked his Lieutenant-Governor to replace Franken, thereby creating a vacancy in that office.  According to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michelle L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution. 
Except, does Fischbach have to vacate her Senate seat?  Democrats argue yes, pointing to two clauses in the State Constitution.  The first is Article III, Section 1 stating that:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

The second is Article IV, Section 5, declaring 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. If elected or appointed to another office, a legislator may resign from the legislature by tendering his resignation to the governor.

Taking a plain language reading of the Minnesota Constitution, DFLers contend that Fischbach  must  assume the position of Lieutenant-Governor and vacate her position as state senator.  It seems open and shut, except Republicans say it is not.  They contend first that the reason Dayton picked Smith was to force a Republican vacancy in the Senate, hoping in a special election to flip the 34-33 GOP majority into DFL control.  Republicans are conjuring up images of DFL political chicanery in hopes of repeating the Minnesota Massacre sweep of the 1978 two US Senate, governorship, and legislative races again in 2018. 
But Republicans also claim law is on their side, citing to the Minnesota Supreme Court’s State ex rel. Marr v. Stearns, 72 Minn. 200 (1898).  In that case the legal issue was a challenge to a decision by an Aitkin County auditor to tax three railroad-owned properties, pursuant to a state law.  In challenging their taxation, one argument was that the state senate did not adopt the legislation by the required majority vote as required by the State Constitution.  Specifically, Honorable Frank A. Day, who voted for the bill, and whose vote was necessary to pass it, was not then a senator, and his vote thereon was void.
  According to the Court, Day was elected as a senator from the Sixth senatorial district of this state for the term of four years, commencing January, 1895, and on January 25, 1895, became president pro tempore of the senate. Six days thereafter, Gov. Nelson resigned, and Lieut. Gov. Clough became governor; and thereafter, and until the close of the Twenty–Ninth session of the senate, Mr. Day performed the duties of, and acted as, lieutenant governor. He also, until the close of the session, continued to act and vote as senator, with the tacit approval, at least, of the Senate.
In rejecting the claim that he had left the Senate and became Lieutenant-Governor the Court rejected arguments that either Article III, Section 1 or Article IV, Section 5 forced Day out of the Senate.  The Court argued that in interpreting all of the state constitutional provisions as a whole, there was no explicit or clear language that said the senator must resign.  Additionally, the Court also noted how Article VIII which discusses impeachment excludes the lieutenant-governor from being impeached as an officer, suggesting that this person remains a senator.  Finally, the Court noted that the impeachment clause specifically excluded the Lieutenant-governor from serving or voting when the governor is impeached.  Providing for this specific exclusion is proof for the State ex rel. Marr v. Stearns that the Constitution, taken as a whole, means that the presiding officer of the senate of vacates that seat when becoming lieutenant-governor.
State ex rel. Marr v. Stearns is an interesting precedent, but is not convincing.  First, the Court’s real holding in the case was about taxation and not on the matter of whether the president pro tempore of the senate loses his senate seat when becoming Lieutenant-governor.  The latter issue was collateral to main issue.  Second, in the nineteenth century Minnesota and other states court applied the “enrolled bill” doctrine, a presumption that the judiciary would not second guess how the legislature did its business or count its votes.  That doctrine is mostly dead now.  Third, the decision in State ex rel. Marr v. Stearns was overturned by the US Supreme Court in Stearns v. State of Minnesota, 179 U.S. 223 (1900).  While the US Supreme Court cannot overturn the Minnesota Supreme Court’s own interpretation of our Constitution, the former’s decision clearly erodes the authority of State ex rel. Marr v. Stearns as precedent.
But the strongest reason to why State ex rel. Marr v. Stearns is not good law is that the Minnesota Constitution has been significantly amended since that decision.  For example, back in the original Constitution (Article V, Section 6), the Lieutenant-Governor was named ex-officio president of the senate.  This is no longer the case as a result of constitutional amendment.    Back in State ex rel. Marr v. Stearns one could argue that the specific language of the Constitution blended the Lieutenant-Governor into a position that stood as an exception to Article III, Section 1 or Article IV, Section 5.  That is no longer the rule or the case today.  Yes the current Constitution fails to subject the Lieutenant-Governor to impeachment, but that is an oversight in the amending process.
Thus, the current constitutional basis for the Court’s decision in State ex rel. Marr v. Stearns is questionable on many fronts.  If the GOP were to bring their case to the Minnesota Supreme Court there are many reasons to doubt the validity of this old decision.  Finally, given that a majority of the Minnesota Supreme Court is now Dayton appointees, and given how they ruled in the line-item veto case, the prospects of the Republicans winning and allowing Fischbach to stay in the Senate are bleak.