A lawsuit was filed last month against Lt. Gov. Michelle Fischbach, who intends to keep her seat in the Minnesota Senate as she serves as lieutenant governor.

This week Ramsey County District Judge John Guthmann dismissed the lawsuit on the grounds that she hasn’t tried to serve in the Senate yet. Legally, it’s hard to sue someone for something she hasn’t done. Guthmann did dismiss it with prejudice, which means the suit can be refiled

But this case is a little different. Fischbach has clearly indicated she wants to hold on to her Senate seat as she serves as lieutenant governor. Republicans hold a razor thin margin in the Minnesota Senate, and the risk of losing her seat is a big political consideration for the GOP.

If the court waits until the session starts and Fischbach does take her seat, she will likely be casting some votes before the judge can decide if she should be there. What will happen to those votes if she is unseated?

It’s not a question of whether Fischbach can do both jobs or not. After all, Gov. Tim Pawlenty appointed Lt. Gov. Carol Molnau as the state’s Transportation commissioner and she seemed to handle both well. It’s a question of whether the state’s constitution allows someone to serve as a senator and lieutenant governor at the same time.

In the interest of government that functions well, with the trust of the citizens, it is important for the courts to decide this question now, and not two weeks into the session.