Thursday, January 30, 2014

One Day at a Time

Many, many criminal cases involve the use and abuse of drugs.  Still today, alcohol is the most abused drug.

When a defendant pleads guilty, or is found guilty after trial, a presentence investigation is usually performed by the probation department to help the judge determine a fair penalty for the crime committed.  When drugs or alcohol are involved in the crime, a chemical dependency assessment is almost always a given.  When the finding is that the defendant is chemically dependent, treatment is a condition of probation, as well as a requirement that the defendant will not use or possess alcohol or controlled substances. 

Probation may be for a year (for a misdemeanor offense) to several years on probation (for a felony offense).   That means that the defendant cannot use alcohol for the entire term of probation.

I will often tell such defendants something like this:

Today, I have told you that you cannot have an alcoholic drink for the next three years.  I don’t know if you can do that.  Your probation officer doesn’t know if you can do that.  And you don’t know if you can do that.

But, there is one thing I think on which we can both agree:  Today, you don’t need to take a drink.  Get through today, and let tomorrow take care of itself.  You can make it for three years, if you do it one day at a time. 

Chemical dependency is a terrible, chronic disease.  If it were like, say, strep throat, and a shot of an antibiotic would cure it, so many lives would be so much better.  But, chemical dependency is a chronic disease.  Like diabetes, it requires constant monitoring and vigilance to keep it in check.  Like diabetes, there is no cure.  There is only remission.  No one is ever “cured” of alcoholism.  The disease is in remission – the person is in recovery. 

Even the most successful inpatient treatment programs have a “success rate” (the person is chemical free for 3 years) of less than 50%.  The disease is insidious. 

It is not hopeless, however.  I have had several folks tell me, with great and justified pride, that they have one, three, five or more years of sobriety. 

Those people, without exception, tell me that life is better sober.  I offer them my heartiest congratulations.  

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Next Week:  An Impressive Place to Work

Thursday, January 23, 2014

Drivers License Cases

Having a driver’s license is a privilege, not a right.  In order to obtain a license, a person must pass a written and behind the wheel test and pay the appropriate fees.  In order to keep the license, a driver must remain law-abiding.

There are several ways to lose a drivers license:  Too many moving traffic violations; one driving while impaired; failing to stay current on child support; failing to pay a fine for a traffic violation are just some of the ways a persons license may become suspended or revoked.

I routinely preside over cases where a person is charged with such a driver’s license violation.  Besides paying a fine, the person finds that his or her license is suspended, revoked or cancelled by the Minnesota Department of Public Safety for an additional period of time.  In rural Minnesota, without readily available public transportation, the result may be that a job will be lost because the person cannot drive to work.

Some years back, I started noting pleas of guilty on these cases and then setting sentencing out four to eight weeks.  I told the defendants that if they came back at sentencing with a valid driver’s license, I’d do my best to see that they would keep it.  If they were successful in having their driving privileges reinstated, I would not accept the guilty plea, assess costs (often in the approximate amount of the fine) and continue the case for one year.  If there were no further drivers license or insurance violations, the charges would be dismissed and the license would not be suspended for an additional time. 

For several months, I kept track to see what happened in those driver’s license cases.  I found that just about one-half of the defendants were able to get a valid drivers license and could therefore drive legally again.  I thought that was pretty good – one half of the people who had these kinds of tickets became legal again and were able to keep their jobs, provide transportation for their families and would not be tempted to drive illegally.  I thought that was a fair trade-off for not putting a conviction on their record. 

In time, many prosecutors came to adopt this practice.  The Sibley County Attorney’s office, in particular, makes agreements with defendants to help them get their licenses back even before they come into court.

In these cases, I believe second chances are well worth the effort! 

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Next week:  One Day at a Time

Thursday, January 16, 2014


I have written in this blog about using interactive television to conduct court hearings.  The story of how we came to have ITV in Sibley County is interesting.  It is also, very possibly, the beginning of the broadband internet connecting all Minnesota courthouses today.

Back in the olden days, when the internet was in its infancy, it was decided that the Extension Service in selected courthouses should install an internet connection to enable citizens to give this new tool a try.  Susan Englemann was the Sibley County Extension Agent at the time.  She and I would often have coffee or lunch and had collaborated on many county projects, both when I was county attorney and later as judge.

At  one of these conversations, I mentioned to her that the Courts were looking to install ITV in the County, but that the cost of a high speed T-1 line was daunting.  Sue said that perhaps we could piggy-back on the Extension Service internet project.  So, I made a call to the Court’s Chief Information Officer, Dale Good, and found not only was that possible, but that there were several other high-capacity telephone lines to county offices that could also share the T-1 line with plenty of capacity left over for ITV. 

The State had been operating MNet, a high capacity communications network that went to some, but not all, counties in Minnesota.  State agencies, and the Courts, contracted with MNet to ride along on that backbone, at a cost.  When Mr. Good approached MNet, he learned that several other agencies were interested in getting direct communications through the backbone.

Thus it happened that state and county agencies collaborated to combine multiple lines from Human Services, Public Health, County Auditor and perhaps one or to more on to one T-1 line, which enabled us to bring the cost of the data line for ITV to a more reasonable and affordable cost.  Statewide, the Courts cost went from about $900,000 to $250,000 – mainly because Sue Englemann and I had coffee one morning!  (I know it would have happened eventually, but I like to take a small amount of credit for this happening.)  The ITV was relatively inexpensive, as it rode on a part of the T-1 line that was excess capacity.

Since that first collaboration, all counties have combined their high-capacity telephone lines into T-1 lines and broadband internet service, which enables not only ITV but also the Court’s computerized case management system as well as other computerized communications among partners in the criminal justice system, known as CriMNet.

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Next Week:  Drivers License Cases

Thursday, January 9, 2014

The Mayor's Oath

Most of a judge’s work happens in the courthouse, but there are a couple of duties a judge performs outside of the courtroom that are quite notable.  Performing weddings are an obvious example, but I have also been called upon to administer the oath of office for the city council and the county board.

A most memorable swearing in ceremony for me happened on January 7, 2008, at the Convention and Entertainment Center in Duluth (DECC), Minnesota, where I administered the oath of office as Mayor of that city to my sister’s eldest son, Don Ness, Jr.

Don was born and raised in Duluth, graduating from Duluth Central High School, where he played on the State Tournament Basketball team.  He attended the University of Minnesota, Duluth, serving as its student body president in 1995-96 and served on the University-wide Senate in 1996-97.  Upon graduation, Don worked as the campaign manager for Congressman Jim Oberstar.  Don was elected to the Duluth City Council in 1999 and again in 2003. 

In November, 2007, Ness was elected Mayor of Duluth.  A couple of weeks later, he contacted me, asking if I would administer the oath of office.  I was honored to perform this important duty, and happily traveled north that January to perform the duty.

About noon that day, I went to the mayor-elect’s home to perform a private ceremony so that he could officially act as mayor for some issues that needed to be addressed that afternoon.  That evening, at the DECC, in front of hundreds of citizens, as well as many out of town family and friends, the oath of office was to be administered to the mayor and city councilors, which was televised live by one of the Duluth stations.  It was a memorable moment for me, standing with my back to the cameras, to raise my right hand and ask my nephew to repeat after me:

I, Donald Ness, do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Minnesota, and that I will discharge faithfully the duties of the office of Mayor in the City of Duluth, the State of Minnesota, to the best of my judgment and ability.

It was a proud moment for me, for Don’s mother, and for the City.  And, I am happy and proud to report that, in 2011, Don ran for reelection unopposed – the first time that has happened since Duluth was incorporated in 1887!

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Next Week:  The Internet

Wednesday, January 1, 2014


This week, we celebrate the New Year.  2014 is upon us.

At this time of year, resolutions are the norm.  I will, likely, make resolutions similar to many I have made in the past:  I will lose 10 pounds.  I will exercise on a regular basis.

The Minnesota Court System has “resolutions”, too, although, they are called “Court Performance Goals.”  As a system, we are asked to resolve certain types of cases (serious criminal, child protection, marriage dissolutions) in a certain length of time.  There are many factors that are not in the control of the judge or administration which may prevent us from attaining those goals, but they are the goal to which we all aspire. 

In 2007, the Minnesota Judicial Council established those court performance goals and a process for monitoring progress toward meeting those goals.  According to the 2014-2015 Priorities and Strategies for Minnesota’s Judicial Branch, performance goals are necessary to ensure accountability of the judicial branch, improve overall operations of the court and enhance the public’s trust and confidence in the judiciary. 

My professional resolutions should be to act so that I will contribute to meeting the State Court system goals.

This is a special New Year for me, as it is the last I will preside as a full time judge in Minnesota.  So, I will propose for myself a unique resolution.  I wish I could take credit for the original thought, but I heard it of a different profession at one of my annual spiritual retreats:

Judge today as if it were your first day on the bench.

Judge today as if it were your last day on the bench.

Judge today as if your reputation as a judge depends solely on how you judge this day.

To fulfill this resolution, I will have to be mindfully aware of what I am doing each day as a judge.  I cannot be distracted by the Lions meeting or Lodge meeting that night.  I cannot even daydream about what I may do in a few months when I no longer take the bench on a daily basis.

I know that I will not be able to maintain this concentration each and every minute of each and every day, but I will make an attempt to give my attention to the issue before me at all times.  And I pledge, each drive home after work, to review my day to see how close I came to meeting my resolution.

Happy New Year.

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Next Week:  An Oath for the Mayor