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2017 Op. Minn. Att'y Gen. 1 (2017)

handle is hein.sag/sagmn0086 and id is 1 raw text is: 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. TTY: (651) 296-1410 - Toll Free Lines: (800) 657-3787 (Voice), (800) 366-4812 (TTY) - www.ag. state.mn.us An Equal Opportunity Employer Who Values Diversity

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