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
Ms. Kimberly Slay Holmes
General Counsel to Governor Mark Dayton
December 21, 2017
Page 2


        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. 1 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 'don other grounds sub nom. Stearns v. State of Minn., l 79
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

     Minnesota      Senate    Republicans     (@mnsrc),   Twitter     (Dec.    14,   2017,     2:27    p.m.),
https://twitter.com/mnsrc/status/941434602614415361 (video of Senate Majority Leader Gazelka stating, "I
think Senator Fischbach has the right to do both just like it's been done in the past, but that's what we're
gonna have to wait and see. I did ask the Governor to get an opinion from the Attorney General, he agreed
that that's a good idea. We're waiting for that.")
Ms. Kimberly Slay Holmes
General Counsel to Governor Mark Dayton
December 21, 2017
Page 3


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,
https://www.leg.state.mn.us/docs/2012/mandated/120607.pdf (last visited December 21, 2017);
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, ·xcept that of postmaster or of notaTy public." This or a similar provision has been in
the . tale Constitution since its ratification by ongress in 1858. 2 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.


2
    In 1858, as well as at the time of the Marr decision, the Constitution stated in relevant pa11:

          No senator or representative shall, during the time for which he is elected, hold any office
          under the authority of the United States, or the state of Minnesota, except that of
          postmaster ....

Minn. Const. a1t. IV,§ 9 (1858); Marr, 75 N.W. at 211, 214.
Ms. Kimberly Slay Holmes
General Counsel to Governor Mark Dayton
December 21, 201 7
Page 4


        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. lndep. 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."
Minnesota Constitutional Study Commission, Executive Branch Committee Report at 3,
https://www.leg.state.mn.us/docs/2012/mandated/120607.pdf (last visited Dec. 21, 2017). 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, 3 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).


3
 The other members of the Executive Council are public officials in the executive branch of government: the
Governor, Attorney General, Secretary of State, and State Auditor. Minn . Stat. § 9.011, subd. 1.
Ms. Kimberly Slay Holmes
General Counsel to Governor Mark Dayton
December 21, 2017
Page 5


        Subsequent to these changes in Minnesota Jaw, 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. M i:nnesota LegislaLi ve R ·ference Library, Minnesota Lieulenanl Governors,
185 >-present, https://www.leg.state.mn. us/Jrl/mngo /ltgov (last visited Dec. 21, 2017)." 1

        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 supra at 4-5. 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


4
  Prior to the changes in the duties of the lieutenant governor, some state senators who filled a vacancy in the
office of lieutenant governor or took the title "acting lieutenant governor" continued to simultaneously serve
as a state senator, at least briefly. For example, President Pro Tempore of the Senate Charles Adams became
lieutenant governor in late June or early July 1929, when Lieutenant Governor William Nolan resigned after
being elected to the United States House of Representatives. Mr. Adams continued to serve as a state
senator, but the senate never met in session during Mr. Adams's term as lieutenant governor. Id.;
Minnesota Legislative Reference            Library,    Adams,     Charles     Edward      "Chas.,     Charlie,"
https://www.leg.state.rnn.us/legdb/fulldetail?ID=l 0842 (last visited Dec. 21, 2017).

President Pro Tempore of the Senate William Richardson served as "Acting Lieutenant Governor" from late
August 1936 to early January 1937, after Governor Floyd B. Olson died, and Lieutenant Governor Hjalmar
Petersen became governor. Mr. Richardson was never sworn in as lieutenant governor and voted as a
member of the senate throughout an extra session that was convened in December 1936. Minnesota
Lieutenant Governors, 1858-present; Sen. Journal, Extra Sessions 1936-193 7, December 17-23, 1936, at 4-
98.

President Pro Tempore of the Senate Archie Miller was sworn in as lieutenant governor on May 6, 1943,
after Governor Harold Stassen resigned, and Lieutenant Governor Edward Thye became governor. Mr.
Miller resigned from the senate four days after being sworn in as lieutenant governor. The senate was not in
session during this four-day period. Id.; Minnesota Legislative Reference Library, Sessions
of the Minnesota State       Legislature    and   the   Minnesota     Territorial   Legislature,   1849-present,
https://www.leg.state.mn.us/lrl/history/sessions (last visited Dec. 21, 2017).
Ms. Kimberly Slay Holmes
General Counsel to Governor Mark Dayton
December 21, 2017
Page 6


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). 5

        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. 6

                                                   Very truly yours,


                                                     ~/J--~
                                                   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




5
  I also note that the vacancy in the office of lieutenant governor in this particular situation is not
"temporary." See Marr, 75 N.W. at 214 (recognizing that vacancy in the office of lieutenant governor could
be "temporary"). It is publically repotied that Governor Dayton expects to appoint Lieutenant Governor
Smith to the United States Senate in early January 2018, at which time the vacancy in the office of lieutenant
governor would occur. Thus, the remaining term of the lieutenant governor's position will be for a time
period of approximately one year during which the entirety of the 2018 legislative session will take place.
Sen. Journal, May 22, 2017, at 6101; House Journal, May 22, 2017, at 7022 (providing that 2018 legislative
session commences on February 20, 2018).
6
  A similar conclusion was reached in an opinion that Senate Counsel provided to the then-President of the
Senate Alec Olson in November 1976. Senate Counsel recognized that subsequent to the Supreme Cou1i's
1898 decision, changes had been made to the lieutenant governor's duties. He therefore concluded that "[i]n
view of this change in the character of the lieutenant governor's duties, the Minnesota Supreme Cou1i, if
again faced with the question, would have some justification for ruling that the presiding officer of the
Senate can no longer retain his Senate seat upon the occurrence of a vacancy in the office of lieutenant
governor." Id. at 4.
