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A judge’s view: the separation of powers

What several examples vividly illustrate is that the line that separates our branches of government is dynamic; it isn’t set in stone.

It isn’t just the governor and the Legislature that can be at odds.
MinnPost photo by Briana Bierschbach

This is the eleventh in a series of occasional commentaries on the judicial system from the perspective of a District Court judge. 

Judge Mel Dickstein

Right now the issue of separation of powers is front and center in our state because of a dispute between the governor and some legislative leaders. The separation of powers issue arises when we have to define the limits of power of our executive, legislative or judicial branches of government.

This division of powers is fundamental to our system of government. But where we draw the line between the branches of our government involves not only constitutional mandates, but also complicated matters of politics, philosophy, and practicality.

It isn’t just the governor and the Legislature that can be at odds. Take, for example the separation between the executive branch of government and court initiatives — like Veterans Court, Homes Court, and DWI Court. These are all examples of initiatives begun by the courts to work with community and governmental organizations to address societal problems. These problem-solving courts help those who need treatment or services to obtain it rather than suffer punishment.

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We might say, of course, that the work of these courts should be carried out by the legislative and executive branches of government. The Legislature should decide on the form and content of programs to address problems of alcoholism, drug abuse and mental illness, and the executive branch should carry out those programs through the departments of Health and Welfare, Education, and Corrections.

Yet no one would reasonably take issue with the work of our courts in also addressing these societal problems. No one would reasonably say that our courts shouldn’t provide services to veterans who may be suffering from traumatic stress and whose conduct can be better addressed by treatment than by prosecution and possible incarceration. Nor would anyone reasonably say that the courts shouldn’t try to connect the mentally ill accused of a crime with resources so that they may obtain treatment and services rather than incarceration for their conduct — especially since incarceration may make their symptoms worse.

Examples abound

Examples of how the courts address issues that might have been addressed by the legislative and the executive branches of government abound. One Iraq veteran, for instance, had been chronically homeless. He was facing a serious felony criminal charge, had a history of domestic assault, and convictions for disorderly conduct and DWI offenses. On the surface, his plight didn’t attract sympathy, and certainly one alternative was to sentence him to traditional workhouse or prison time. But the Hennepin County Veterans Court worked with him over an 18-month period during which he obtained long-term housing, worked with a therapist to address his post- traumatic stress, completed anger management training, and finished chemical dependency treatment. As a result, he started a college program, remained sober, and engaged in a long-term nonviolent relationship. His success may not have occurred without the court initiatives that led to his resurrection.

Our Mental Health Court is another invaluable resource for our community. It recognizes that rotating the mentally ill through court again and again is time consuming and costly, but doesn’t help our community or solve problems. The mentally ill often need treatment, not fines and incarceration. While our social service and medical organizations work to help people with mental illness, the courts have become the place where those needing help may find the needed assistance.

In DWI Court, it’s not unusual for someone to go from a seemingly hopeless alcoholic to a sober, productive citizen. The transformation is not easy; it’s accomplished by careful oversight, which involves random home visits, rigorous court reviews, probation meetings and recovery support in the community. Under the court’s guidance, it’s not unusual for people to go from extreme depredation — living on the streets, stealing from family, child neglect — to a productive and healthy life.

Responsible and creative solutions

No one would reasonably say that these court initiatives are violating the separation of powers. The fact is that the courts have acted responsibly and creatively in order to try to address problems otherwise resulting in criminal cases that would clog our courts, or criminal prosecutions that do little to reform the individuals involved or protect the community.

What these examples vividly illustrate is that the line that separates our branches of government is dynamic; it isn’t set in stone. There was a time when our community couldn’t conceive of a role for the courts in addressing alcoholism, mental illness, or the problems engendered by the traumatic stresses impacting those who have served in our armed forces. Veterans returning from the horrors of the war in Vietnam, for example, didn’t benefit from the court initiatives now available to those who have served in the Gulf War, or Iraq or Afghanistan. 

Still, the question remains where the line should be drawn between our branches of government. The Minnesota Supreme Court addressed one of the more interesting separation of powers issues a few years ago when it decided that judges do not have the inherent authority to order expungement of a criminal conviction. The court held that only the Legislature can designate the circumstances under which a person’s conviction may be sealed.

Before the Supreme Court’s decision I had occasion to rule in a lengthy decision that a District Court has the inherent power to order expungement as a corollary to the court’s sentencing authority. The passage of time informs a court whether its sentence was successful — not only as punishment but also as a tool toward rehabilitation. Judges are in the best position to deliver the equity and justice individual cases demand.

Until the Supreme Court’s decision, the trial court’s expungement power was a long honored tradition. The case that was before me provides a good example why. A young woman had been convicted of the theft of small food items on three occasions. But it turned out these were not crimes of dishonesty but the result of the consequence of bulimia. I learned from a Ph’d expert in the case that bulimics tend to steal food items because they don’t want others seeing them purchase food. That was the case of the young woman who, but for her illness, would never have stolen anything. When she was caught she cried uncontrollably from the shame.

Since her conviction she had obtained treatment and counseling, and graduated from one of the most competitive universities in the country, where she excelled. She now wanted to come back to Minnesota to be with her family and practice her profession — something that her record prevented.

A one-size-fits-all statute fails to account for the myriad circumstances that may be presented to a judge for consideration. A District Court judge who has considered the factors that went into a conviction and sentence, and the facts that have developed since, is uniquely positioned to decide, as a part of the court’s time-honored sentencing function, whether  expungement is now appropriate — or so I thought.

Reasonable people can differ

The Supreme Court, of course, has the final say on separation of powers jurisprudence, and now we honor its decision and apply it. Indeed, one of the lessons learned is that reasonable people may differ on separation of powers issues. Litigants who think they know what the court’s decision will be may turn out to be wrong.

I take comfort in knowing that the state didn’t appeal my earlier order and the young woman is now practicing her profession and enjoying her life in Minnesota with her family, as she deserves. We are all better for it.

Separation of powers continues to be an important part of our system of government. The executive, legislative and judicial branches each have their individual functions. But exactly where the line is drawn between them is not always clear — nor should it be. Times change, and the functions of our government evolve. To be sure, there are constitutional limits to that evolution; but change is a constant, and only the most rigid fail to recognize that change will continue to affect how we view the function of the executive, legislative and court branches of government.

As for the current dispute between the governor and the legislators, I haven’t heard anyone say a constitutional crisis is a good thing. But if the parties can’t reasonably resolve their dispute, the courts will. That’s how our system works.

Mel Dickstein is a judge in Hennepin County District Court, where he handles a mix of civil and criminal cases. He is a former partner in the law firm Robins Kaplan.


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