ST. PAUL, Minn. - Ramsey County's chief judge has been asked to decide whether Lt. Gov. Michelle Fischbach can remain in the Minnesota Senate while serving in a post that is part of the executive branch.

Destiny Dusosky of Sauk Rapids has sued Fischbach, a Paynesville Republican, in an effort to force her from the Senate. Dusosky's lawsuit cites the Minnesota Constitution's ban on legislators holding other elected posts.

Dusosky has been active in DFL politics in Fischbach's senate district, but contends she's not motivated by partisan politics.

"I would be in the same position right now, whether this person was a Democrat or a Republican," Dusosky told reporters Tuesday. "It's not politically motivated. It's the right thing to do."

In court Tuesday, Fischbach's attorney, Kevin Magnuson, urged Judge John Guthmann to dismiss the lawsuit. Magnuson cited the Marr versus Stearns case from 1898, when the Minn. Supreme Court ruled it was legal for Lt. Gov. Frank Day to cast the deciding vote on a Senate bill that gave railroads a tax break.

But Dososky's attorney, Charlie Nauen, argued the constitution has been amended many times since then, in ways that remove the underpinnings of the Marr vs. Stearns decision. Back in 1898, for example, the lieutenant governor also served president pro tempore of the Senate, and could take part in votes.

Nauen said amendments from 1960, 1968 and 1972 put the lieutenant governor's position solely in the executive branch, and prohibit senators from holding other government offices.

"The Constitution does not allow her to do what she’s trying to do, stay in two offices at one time," Nauen told the judge.

"Your honor is not being asked to overrule anything, because things have changed. The Constitution has been amended."

But Fischbach's attorney, Magnuson, characterized those amendments as "tweaks to the Constitution" that had no bearing on the question in dispute.

Magnuson also cited another section of the Constitution provides that only the Senate can determine who is eligible to be a member of that body. And, based on that, he argued that the courts lack jurisdiction to intervene.

"The Constitution gives the Senate the sole power to judge the eligibility of it’s members, not this court, respectively, but that is the purview of the Senate."

Judge Guthmann, however, noted that the courts got involved in the Marr vs. Stearns lawsuit that forms the basis of Fischbach's defense.

Balance of power

Nauen asserted there's urgency because the legislative session opens Feb. 20. And, in theory, Fischbach could cast the deciding vote on major bills.

Currently Republicans hold a 34 to 32 seat advantage in the Senate, but there's a special election next week for the seat vacated when Democrat Danny Schoen resigned amid sexual harassment complaints.

If Democrat Karla Bigham were to win Schoen's seat, the margin would narrow to 34 to 33. If Fischbach were to be removed from the Senate, the body would be knotted at 33 to 33 until there's a special election for Fischbach's seat.

Judge Guthmann took the case under advisement, and will issue a ruling at later date.

How it started

The controversy stems from Al Franken's retirement from the US Senate, spurred by complaints of inappropriate conduct by several women. When Gov. Mark Dayton appointed then-Lt. Gov. Tina Smith to the US Senate, Fischbach, as president of the Minnesota Senate, automatically became lieutenant governor.

Almost immediately, Fischbach announced her intention to continue in her senate post while becoming Lt. Gov. She said she owed it to her senate constituents to stay put, rather than resigning and being replaced in a special election.

Fischbach has argued that the lieutenant governor has no official duties prescribed by the constitution, other than the role of replacing the governor in the event he or she resigns, becomes incapacitated or dies. Fischbach won't accept the higher pay that goes with the new position.