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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Reflections on the Cause of Justice: A retiring judge looks back at his time on the bench

Judge MEL DICKSTEIN (ret’d) was a Hennepin County District Court judge for 16 years. He retired in September, and is now the principal in Mel Dickstein ADR LLC.

Each year between the ages of 8 and 18, my son and I went on a ski trip out west during winter break. In the early years we skied together—until he started going down black diamond runs. In an act of self-preservation, I let him go it alone.

But it wasn’t the skiing that I enjoyed most—it was the opportunity to talk to him at dinner each evening. It was at one of those dinners, when he was about 10 years old, that he tried to tell me what he thought his mom and I did at work. My wife at the time was the executive director of an organization providing free legal advice to children in the foster care system. “Mom helps people,” he told me, “and you do the opposite.”

I didn’t try to change his mind. I took note, and after that exchange I started a book filled with articles (ones I wrote as well as those written about my cases), emails, letters, note cards, and other evidence of a life in the courts. The plan was to share the book with him one day. 

Now, retiring from the bench, I’ve returned to the book. It’s reminded me of events, some of which had been lost in the fog of time. The articles and notes remind me that it was the ability to act in the cause of justice that I found so satisfying during my judicial career. I couldn’t right the wrongs of the world in my decisions; judges are sworn to apply the law. But I could try to make a difference in the cause of justice when the opportunity presented itself. 

It was important to my concept of justice to rule in favor of a young woman who sought the expungement of her criminal records. It was a time when there was a raging debate in our courts over whether judges had the inherent power to order state agencies to seal records of a criminal conviction. I had waited for a case like hers to write my opinion. On the day she appeared, there were 16 petitions for expungement before me. Hers was the only one I granted. She had two petty misdemeanors and one misdemeanor conviction in three different municipalities, each involving the theft of food items. Now she wanted to pursue her health career but couldn’t in Minnesota because of a law that prevented her from doing so for seven years after her convictions. She placed her future in the hands of a judge.

She wasn’t a thief. She had suffered from bulimia, an eating disorder. I learned during the case that some bulimics take food items because they are ashamed to be seen making a food purchase. She was, in fact, a wonderful young woman. She had an impressive high school career and an even more impressive career at an Ivy League university. Her work record defined not just her intellect but also her fine character. 

I had hoped my decision granting her petition would make a difference in the development of the law as well as in her life—but my decision wasn’t appealed. It was just as well. Sometime later the Minnesota Supreme Court decided that judges don’t have the inherent right to expunge criminal records: The Court’s separation of powers analysis concluded that only the Legislature had the power to determine when a conviction may be expunged. 

I disagreed with the Court—expungement was a time-honored responsibility of the courts. Who better to decide on an individual basis whether a sentence has served its purpose than the court which issued the sentence in the first instance? The Legislature hadn’t occupied the field; it had always deferred to the courts. And the agency records ordered sealed contained information obtained from judicial branch records. Expungement had been the court’s inherent responsibility.

The young woman and her family were appreciative of my ruling. Her father wrote me a lovely note when the case was over. “I didn’t think a judge was capable of the humanity and tenderness you showed,” he said. The young woman wrote separately, “I appreciate that you went out of your way to learn about my background and listen to me. I left court that day feeling more confident in myself and having more faith in the people around me than I have in a very long time.” I appreciated their sentiments, but I knew that my colleagues exercise similar good judgment in the cause of justice—daily. What I also knew was that there is no one-size-fits-all statute that can substitute for judicial discretion rendered on a case by case basis.

Justice is in the details

My decision didn’t influence the course of the law. But it was exactly the type of decision that I thought so important during my tenure as a judge. Justice is rendered not so much by broad decree but by careful judgment, cautiously exercised by individual judges bringing their wisdom and experience to bear. In this case, I thought good public policy, supported by the historical acceptance of the courts’ powers, should have trumped any other factor in determining the breadth of the courts’ authority. Apparently I was wrong. 

District court judges handle cases of every imaginable sort—big and small. They are, of course, all of equal importance to the participants. But I reveled in the intellectually challenging civil cases. Civil cases help to define our responsibilities to one another in our personal and business relationships. In important respects, these cases define the contours of justice in our community.

I loved the intellectual challenge of deciding cases in which there was no clear answer, or cases of first impression: the extent of a Minnesota court’s jurisdiction over a Canadian company that hired away the employees of a Minnesota business; the proper application of the Minnesota Human Rights Law in a dispute between the parents of a disabled child and a religious high school; the application of a Banker’s Fidelity Bond to claims for insurance coverage involving a $25 million dollar fraud scheme; resolving competing statutory rights and obligations for siblings who could no longer function together in the family business; addressing issues of sovereign immunity that cropped up in a fraud trial; handling complex construction and class action cases; helping to settle commercial disputes; trying shareholder actions. The list is a long one.

The implications of civil case decisions for the cause of justice isn’t always obvious. In the last year, I was approached twice by lawyers who told me that a decision I rendered in a shareholder class action case had broad implications nationally. They told me I had been ahead of the curve. I didn’t know there was a curve. I had no idea that my decision would be attached to briefs, adopted by commercial courts in Delaware, and followed by an esteemed judge in the 2nd Circuit. 

I had refused to accept a settlement in a shareholder suit regarding a company’s prospectus. I could see no good reason to wipe out any future shareholder claims just because the defendant company was willing to pay hundreds of thousands of dollars to obtain dismissal of the lawsuit—especially where the only other “winner” was the counsel who brought the action. After carefully reviewing each of the changes to the prospectus the parties had agreed upon in return for dismissal of the suit and endorsement of a class action settlement, I called them “underwhelming.” The decision apparently helped set in motion a change in how courts nationwide handle certain class action settlements.

In other cases I knew exactly the implications of my decisions. I knew I was breaking new ground in a decision taking jurisdiction over a Canadian company with no business in Minnesota. I understood fully the implications of a decision over a Banker’s Fidelity Bond because there were only a handful of cases on the subject nationwide, and the decisions went off in different directions. I tried to set the policy for Minnesota, and perhaps, in the process, influence the law beyond our borders. The Minnesota Court of Appeals affirmed my decision—in an unreported case. (There are some things I never came to fully understand during my tenure as a district court judge, one being how the Court of Appeals decides whether or not to publish an opinion.) 

An involvement in the judicial process presents other opportunities to impact the law in the cause of justice. Early in my tenure I became concerned that in collection matters, attorneys were asking the court to award their contingent fees whether or not the amount bore a relationship to the time spent on an individual case. As a result we worked to establish a Hennepin County Rule on the award of attorney’s fees in default cases, a rule later adopted by the state. 

I drew upon that experience several years later when confronted with a sad case. The matter involved a young woman of diminished capacity from lead poisoning who lost most of her structured settlement to companies that purchase such settlements for pennies on the dollar. Now destitute, she petitioned to sell most of what was left of a settlement that had originally taken care of her for life. In the aftermath of the case, I proposed a change in how the law is implemented, requiring that district court judges be told when there had been prior applications for the sale of settlement assets. This would help deter a company from shopping the sale of a structured settlement from judge to judge and county to county in order to avoid an adverse ruling. It took four years to get the Legislature to act, but we succeeded in obtaining a change in the law.

Matters of the heart

The challenging cases were no more important to the cause of justice than the matters that called not for intellectual acumen, or dogged persistence, but a warm heart. There were decisions I made that I could never have conceived before I came to the bench. I never could have anticipated awarding parenting time to an imprisoned woman convicted of trying to kill herself and her children. But then I saw her in court, still in prison but free from the drugs and depression and other circumstances that had driven her to an act of unspeakable horror. She had improved immeasurably, both physically and mentally. She had taken virtually every vocational course she could in order to better prepare herself for when she got out of prison—a day that was coming. She looked bright and hopeful. She and her children both deserved the opportunity to reconnect. I hoped that it worked out well for all of them—especially her children.

I didn’t know the effect I had on a 12-year-old who appeared before me with his mother on a petition to approve a settlement in a minor car accident case. At the end of the proceeding I invited him up to the bench to see what it looked like. His mother used her cell phone to take a photo of us—the young man sitting in my chair while I stood next to him in my robe, both of us beaming. Two years later his mother was back in my courtroom to petition for the release of the funds. Her son had died, the apparent victim of an inflammation of his heart brought on by the flu. Through her tears, she showed me some photos, one of her son in traditional dress, and the other of the two of us in court. She had blown up the courtroom photo, framed it, and her son had hung it on his bedroom wall—he said he wanted to be a judge someday. I grieved along with his mother that day, honored to have had a small impact on his young life.

I don’t know if anyone will think these cases important. No one else is present when they occur. They don’t affect the development of the law. But they are among the numerous cases that district court judges handle every day, putting a human face on the cause of justice.

Decisions, of course, aren’t the only way judges impact the quality of justice; sometimes it’s simply how we treat people in court. The lesson was driven home to me most recently at the retirement ceremony in my courtroom, where I noticed a man seated in the back. His complexion was pallid, his eyes sunken. He remained on the perimeter as people came up to wish me well. Finally, I turned to him and said, “Hello sir, do I know you?” He reminded me that he had appeared in my courtroom and I had ruled against him. Uh oh, I thought to myself. 

Then he said he just wanted me to know how much he appreciated that I heard him out, that I didn’t just blow him off, and that I explained clearly why I ruled as I did. As he spoke, I remembered he was the caretaker for his mother, the defendant in an enforcement action regarding the condition of the property in which they resided. His mother was wheelchair-bound and apparently suffering from diminished capacity. I hadn’t done anything special; I had just treated him as a human being worthy of respect. 

Now, as I look back after 16 years, I have an overwhelming appreciation for having been a part of a justice system for which I have a deep regard. Certainly the process can be made better in many different ways. But if I am ever on the verge of despair, I think of my colleagues whose wise counsel and dedication to the cause of justice I so often found uplifting. We have so many people on the court of immense ability, who care about the process and work to better it every day. Our community is better for their work.

I’ve turned in my keys, turned out the lights in my chambers, and put the final items of remembrance into my book. It’s been the most satisfying period of my professional life. As I perused the pages of my book, I couldn’t help but wonder whether my son, now 20 and a college junior, would describe my work in the same way as he did when he was 10. I received the answer in a card he sent me on my birthday, my last day as a judge. “Dad,” he wrote, “I’m very proud of you.”

Perhaps everyone should keep a book of remembrance.

 

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