Minnesota Legislator Office after Resignation, Amendment 2 (1968)

Minnesota Amendment 2
Election date November 5, 1968
Topic State legislatures measures
Status a Approved
Type Constitutional amendment	Origin State legislature

The Minnesota Legislator Office after Resignation Measure, also known as Amendment 2, was on the November 5, 1968 ballot in Minnesota as a legislatively referred constitutional amendment, where it was approved.

The measure amended Article IV of the Minnesota Constitution to allow state legislators to assume a new office through election or appointment upon resigning from the legislature.

Aftermath

Does a state senator need to resign to become lieutenant governor?

On December 13, 2017, Gov. Mark Dayton (D) named Lt. Gov. Tina Smith (D) to fill a seat in the U.S. Senate following the announced resignation of Al Franken (D). Sen. Michelle Fischbach (R-13), as president of the state Senate, was set to fill the role of lieutenant governor, per the state constitution's requirement that "the last elected presiding officer of the senate shall become lieutenant governor." Sen. Fischbach said she was prepared to serve as lieutenant governor but did not plan to resign from the state Senate.

Gov. Dayton's legal counsel said that Sen. Fischbach would have to resign her seat in the state Senate to serve as lieutenant governor. The governor said, "I’m not a lawyer, I’m 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 she cannot hold two offices simultaneously." He asked Attorney General Lori Swanson (D) to issue a formal opinion on whether the lieutenant governor forfeits her seat in the state Senate due to Amendment 2 of 1968.

Sen. Fischbach cited an 1898 decision of the Minnesota Supreme Court, Marr vs. Stearns, that determine that a sitting Senate President could retain her seat and serve as lieutenant governor. Between 1929-1931 and 1936-1937, a sitting state senator served as lieutenant governor. Senate Minority Leader Tom Bakk (D-3) disagreed with Sen. Fischbach, saying the 1898 decision was made when lieutenant governor presided over the state Senate. Since 1971, the two positions have been separated.

On December 21, 2017, Attorney General Swanson interpreted Amendment 2, in conjunction with Amendment 3 of 1972, to require Sen. Fischbach to resign her seat in the state Senate to become lieutenant governor. Swanson noted that dispute can ultimately only be resolved in the judicial system. The attorney general's opinion stated:

“

A related and longstanding common law doctrine in Minnesota prohibits a public official from holding two offices that are factually “incompatible” with each other. … 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. … It is not the case today, as the Supreme Court fund it was in 1898, that the lieutenant governor performs no duties “belonging to the executive department.” … The simultaneous discharge of executive and legislative branch functions implicates the incompatibility doctrine, as well as principles of separation of powers.

”

On December 22, 2017, Senate Majority Leader Paul Gazelka (R-9) said he asked legislative leaders of both parties to hold a special session to temporarily select a Democrat as the chamber's president, who would then succeed Tina Smith as lieutenant governor when she takes a seat in the U.S. Senate on January 3, 2018. Sen. Gazelka said he was not optimistic, however. He stated, "Obviously by having a shot to take the majority, I can see where [Senate Minority Leader] Bakk would say ‘I’m not going to do that.’ But I do think Minnesota is best served if we have some sense of transition that works smoothly, and this will not be a smooth transition." On December 28, 2017, Minnesota Public Radio reported that no special session would be held.

Election results

Minnesota Amendment 2 (1971)
Result		Votes	Percentage
a Yes		1,012,235	73.81%
No		359,088	26.19%

Election results via: Minnesota Legislative Reference Library

Text of measure

Ballot title

The language appeared on the ballot as:

“

Shall the Constitution of the State of Minnesota be amended to permit a legislator, if he is elected or appointed to another office, to assume the new office if he resigns from the legislature or if his legislative term is completed?

”

Constitutional changes

See also: Article IV, Minnesota Constitution

The measure amended Sections 9 and 17 of Article IV of the Minnesota Constitution. The following underlined text was added:

Sec. 9. 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.

Sec. 17. The governor shall issue writs of election to fill such vacancies as may occur, by resignation or any other cause, in either house of the legislature. The legislature shall prescribe by law the manner in which evidence in cases of contested seats in either house shall be taken.

Path to the ballot

See also: Amending the Minnesota Constitution

In Minnesota, a constitutional amendment requires a simple majority of each chamber of the Minnesota State Legislature. The amendment was referred to the ballot on May 25, 1967.

See also

Suggest a link

• Minnesota 1968 ballot measures
• 1968 ballot measures
• List of Pennsylvania ballot measures
• Minnesota State Legislature

External links

• Minnesota Legislative Reference Library