Author Mark Munger (Cloquet River Press)

A judge says farewell…

Before I begin my remarks, I want to thank my two Irish friends, Judges Eric Hylden and Dale Harris for putting this splendid living wake together with my wife, Reneé. Thanks as well to Barb Harris and Hannah Hylden for being willing to act as money changers in the temple. Thanks also to my dear friend and folk musician supreme, Mark Rubin and his wife Nancy, someone I’ve known since grade school, for spending time with me in their cozy home, encouraging a neophyte John Prine wanna-be to stand up here before you folks and sing. If it went badly, you can blame them! And finally, thanks to the speakers who agreed to given their perspectives on my career in the law.

Tom Olsen of the DNT got it mostly right. Disgruntled with the private practice of law, tired of clawing and digging and fighting for clients, having come close to being appointed to the bench by Governor Arne Carlson in 1992, I took the advice of his advisor on judicial appointments, Paul Anderson (later, Justice Paul Anderson), who told me via the phone that “we liked you, Mark, but you need a little more seasoning.”  I went back to the practice of law, changing law firms and enlarging my scope of work from primarily plaintiff’s personal injury and municipal law to include insurance defense, admiralty, employment, and construction law. And then, I waited. For an opportunity. A chance. To become a judge.

When Galen Wilson let it be known that he was going to serve out his term, meaning his judicial seat would be filled through popular election and not by gubernatorial appointment, I thought, “I can do this.” My wife Rene’, a smart, poised, mental health therapist agreed. She’s my rock. She’s my North Star. She’s the one I owe any modicum of success I’ve had as a father and a husband. When she gave me the green light to run for Judge Wilson’s seat, that’s all the encouragement I needed.

1,200 lawn signs, 12 parades, countless dinners and fundraisers and appearances and interviews and speeches later, the people of St. Louis, Lake, Cook, and Carlton Counties elected me to my first six year term. That was November of 1998. I shared the ballot with my 88 year-old uncle, Rep. Willard Munger, and a former wrassler. They both won too. Yes, my uncle’s name recognition helped my cause. But it was the dogged persistence of my father, Harry, and a cadre of close friends and acquaintances, including my four sons (even Jack, barely a year old at the time, worked parades from his stroller), who did yeoman’s work in putting up those lawn signs and getting out the word. Thank you, guys and gals, for all the sweat and hard work you invested in a forty-three year-old lawyer who thought he could be a decent judge.

Three folks deserve special recognition for helping me during that first election. The late Bob Scott, long an icon of behind-the-scenes DFL politics, was my Iron Range campaign chairperson. He made sure that I attended every noteworthy event on the Range to solidify my support in the northern half of St. Louis County. His son John admirably performed that same role here in Duluth and, as my overall campaign manager, worked his tail off to see his fishing buddy and personal lawyer attain victory. And finally, my longtime friend, Bruce Larson, the CFO of Best Oil Company, kept the books and made sure that I didn’t violate any of the quirky finance rules attendant to running a judicial campaign.

As the DNT article said, I was a bit headstrong as a young judge, pretty sure of myself and my ability. I quickly learned, while serving half-time in Carlton and half-time in Duluth my first two years on the bench, I may have known the law but I knew nothing of justice. I thought, as Tom Olsen accurately reported, that becoming a trial judge was just another job opportunity. Within a month of hearing cases, I knew that assumption wasn’t true. Being a trial judge is finding yourself in the midst of people’s stories and lives. It entails far more nuance and fortitude and discretion than any other legal position I can think of. It took a while for this headstrong former litigator to get it. But I did, at least, I hope I did.

To all of the law enforcement officers and probation officers and social workers and Guardians who appeared in front of me, I hope, despite our occasional disagreements, you came away knowing that I took your testimony and opinions to heart. I hope I always treated you as professionals, doing hard jobs for little pay and scant appreciation. Thank you for your service.

To the myriad clerks who work all aspects of the courts: you are the foundation of what we as judges do. You are the public’s first interaction with the system of justice and are required to deal with folks who are angry, frustrated, scared and quite frankly, at some of the lowest points in their lives when they come to court. And to the supervisors and administrators and support staff who work behind the scenes to make the Sixth the best and most innovative district in the state, I thank you as well. Your patience in seeing justice done is much appreciated.

Our security staff and transport staff, from my first Bailiff, Cathy Brown, whom I called Betty for my first two weeks as a judge until she got up the gumption to correct me, to George and Jeff and Becky and all the others working in the sheriff’s office who provide protection and order during court: You folks are on the front lines, dealing with upset citizens whose lives are in turmoil, handling tumultuous court sessions with a fair but firm hand.

You know, judges have two important employees they hire and manage. Over the years, I’ve been blessed with 11 bright young men and women who worked for me as law clerks. These are young attorneys who’ve graduated from law school and are trying to find their professional niche. They provide legal research for the judge, prepare jury instructions and orders, and attend every contested hearing or trial, learning aspects of the law and lawyering you can’t learn in law school. My thanks to: Rebecca Eisenmenger, Megan Preblich, Heidi Murtonen, Stacy Johnston, Jen Claseman, Jon Holets, Ben Hanson, Rachel Bell, Kory Horn, Ellen Anderson, and Peter LaCourse for all your hard work and dedication in helping me make the right calls.

The other employee judges hire and confide in is their court reporter. Over twenty years of judging, I worked daily with two fine, young women who were my sounding boards and my other mental health therapists day in and day out. Their job is far more than keeping an accurate record of every court proceeding: they are, along with the law clerk, some of the only folks judges can confide in when weighing difficult decisions. But whereas law clerks come and go on a regular cycle—the position being an apprenticeship—court reporters are there for the long haul. Renata Skube was my first CR. She served our district for over twenty-five years, teaching this new judge, during our fourteen years together, what real justice should look like. Never shy about telling it like it is, this half-Finn, half-Slovenian firebrand made me a far better judge than I would have been on my own.

I finished my time on the bench presiding over two lengthy murder trials, one of which took me to Brainerd for the last month of my career. Deb Dreawves, my second court reporter, was by my side that entire month away from home. Much different in personality from Skube, but every bit as willing to share her thoughts when this judge was headed down the wrong path, I’ll miss our discussions of cases, families, life, and the Orange Headed One, Deb, that we shared these past 6 years. You are a blessing and the right person to work with me into retirement. And to all the other CRs who worked with me when my regular CR was off sick or on vacation, you too deserve appreciation for jobs well done, especially when reporting a motor mouth like me!

Finally, I want to acknowledge that, over my two decades of judging, I’ve had the good fortune of being able to count on a cadre of smart, dedicated, wise, and sometimes playfully weird brother and sister judges throughout the 6^th district. I’ve been able to call upon each of the judges I’ve served with, from my first chief judge, John Oswald, to my last chief, Sally Tarnowski, for support and guidance, both personal and professional, as the need arose. Judging is, as my friend Carol Person once warned me before I took the oath, a lonely job. Having colleagues willing to hash out issues in a confidential setting, whether they are case related or not, makes the job bearable. Without brother and sister judges willing to step in and take calendars during the last illness of my stepfather, or after the sudden death of my father, such tragic occurrences would have been magnified and intensified by the stressors of judging. You all pitched in and helped and for that, I am forever grateful.

You know, I once wrote in a DNT essay that there is no such thing as a self-made man or woman. Every person of prominence or success, in whatever field, stands on the shoulders of his or her family and friends, teachers, coaches, and other mentors. I’ve had so many folks, including my mother, Barbara, my father, Harry,  my brother Dave, my sister Ann, my wife Rene’, and my four sons: Matt, Dylan, Chris, and Jack gift me with their love and nurturing and guidance, I am who I am because of them all.

So, to those who helped tutor and instruct and mentor and mold me during this forty-year journey, from serving divorce papers my first year of law school to drunks in the bars of South St. Paul, to taking the verdict in the case of State v. Davenport, I thank you all from the bottom of my heart. As Warren Zevon, one of our greatest songwriters—about the only thing Jesse and I ever agreed on— said: “Make us be brave, and make us play nice. And let us be together tonight.”

God loves you. And so do I.

John Myers sort of stole my thunder. Now, before you get all upset with me, I’m not blaming a fellow scribe for pilfering a story idea. John came up with his storyline all on his own. Nothing nefarious. On that, I need to be clear. And damn, as I said in my post on Facebook, he did a marvelous job reporting the genesis and longevity of the Ski Hut’s annual trip to Bridger Bowl in Montana. Exceptional feature story, is what I’d say. But here’s the thing: I was thinking, while riding the chairlift at Bridger this year, my left knee bone on bone from 44 years of racing, moguls, too much Munger girth, and old age, my low back screaming from just below where I had a spinal fusion 30 years ago, Man I should write an essay about this trip. How family oriented, how friendly, how laid back, how multi generational the whole vibe is. I was pretty sure I’d sit down some morning after I returned from the fifteen hour car ride across Montana and North Dakota and Minnesota to tackle the story. Until.

Back home, catching up on my newspaper reading in my easy chair (after digging out from the big snows God “gifted” us while we were gone) I learned I was too late. “Damn it,” I muttered, loud enough for Rene’ to hear, “the DNT beat me to the punch.” My wife looked up from a stack of crossword puzzles (all clipped by yours truly from the same stack of newspapers I was wading through) and said, “Oh?” “John Myers wrote a nice article about the annual Ski Hut trip.” Not wanting to appear to be a whiner, I posted a link to the piece on FB and advised Rene’ that she “really needed to read it.” She did: she enjoyed it as much as I did. I also posted that I wouldn’t be writing anything about the trip because, well, because it had already been handled. But here’s the thing: after thinking it through, I figured maybe folks might appreciate an essay written by someone who’s been on 12 of the last 15 trips (that’s an estimate; don’t quote me on it). So here goes.

After a short stop in Williston, ND to see our son Dylan, his wife Shelly, and our two-year-old granddaughter, Saxon, we resume the long grind west in the Jeep. We left Duluth in sub-zero cold on Friday morning and arrive at the Comfort Inn in Bozeman, the hotel Wes Neustal and his son Scott (of Ski Hut fame) have reserved rooms for 150-200 Duluthians and their friends for over twenty years, late Sunday afternoon to the same Arctic freeze we left behind. Here’s the thing about the Comfort Inn. No, it’s not slopeside. It’s a half-hour drive to Bridger Bowl from the hotel. But it’s cheap (thanks to preferential rates Gene, the owner charges his friends from Minnesota), has a spectacular complimentary breakfast, is close to all of Bozeman’s shopping, eateries, and places of libation. Plus, it’s only an hour to Big Sky, if one is so inclined. But this is, in all respects, a family trip. That’s how Wes Neustal and his late wife Shirley conceived of the event; setting it during President’s Week so school-aged kids can join their parents and learn the joys of real mountain skiing. Scott and his wife, Kathleen, and the staffs of the Ski Hut and the Comfort Inn, have continued this tradition in spades.

We have four sons. One year, we convinced all four, (along with their wives and children) to make the trip. That was a highlight for Rene’ and I: having all four of our boys in the mountains, skiing as a family. This year, only Matt, our oldest, his wife Lisa (a non-skier but a trouper none-the-less) and their three kids; Adrien (6), Avery (3) and Ari (1) joined us. They got a late start thanks to the God-of-all-things in Minnesota: youth hockey. So Rene’ and I take to the hills at Bridger on Monday without them. It is, as I’ve said, below zero. But such weather can’t daunt rugged Duluthians, right?

Matt and Lisa and the kids arrive on Monday evening. My sister Ann, her husband Dave, and their two lively, lovely teenage daughters, Maddie and Em, have already skied a day by the time the rest of us arrive. The girls, who alternate between snowboarding and skiing, stick to skis in the high mountains. More control and with that, the possibility of outback treks to the very top of the mountain. The families take their time getting to the hill. But by noon, the main lodge at Bridger is full of Minnesotans recounting their downhill exploits, chattering away in faux Canadian to the amusement of the Montanans who’re also braving the cold.

Matt and Lisa’s boys take lessons, though Avery is a reluctant student and learns more from his Auntie Ann, his cousins Maddie and EM, and old Grandpa, than he does from the professionals. On the other hand, Adrien proves to be not only an adept student but a natural athlete. After one lesson, he’s ready for the blue runs: the steeper intermediate terrain. So I take him to the top of Pierre’s Knob.

Wednesday, we take a break from the cold and introduce Adrien to cross country skiing at the Cross Cut facility just up the road from Bridger. Again, he takes to it like a duck to water. We put in three plus miles on beautifully groomed trails and get in, as Rene’ likes to say, “our steps” for the day. Afterwards, we drive with Matt and the two boys to Chico Hot Springs in Paradise Valley, about an hour’s trip from Bozeman, to laze around in the naturally heated outdoor pools of the spa. We join a throng of other Duluthians-including my sister’s family and her friends-under an open blue sky. After a long soak we attempt a family picture outside the Chico Saloon. Avery is having none of it. “But Grandpa, I hate pictures,” he whines. Grandpa says: “Get in the picture or no skiing tomorrow for you.” So I guess what you see below is the Munger version of a compromise.

On the drive back to the Comfort Inn, as Matt’s Tahoe speeds along Highway 89, a memory-one that will never fade-is made. I’m looking at oodles of deer, some of which are standing on top of giant, round hay bales munching away. It’s an odd sight, to be sure, to see deer grazing ten feet above frozen ground. But that’s not the memory I’m talking about. A small stream, open due to the warm waters of the valley’s geothermal properties, follows the course of the highway. Or rather, the roadway follows the stream. In any event, out of the corner of my eye, I see something remarkable, astonishing, and, quite frankly, inexplicable. A deer has launched itself over that stream, soaring a full eight feet above water, attempting to leap from bank to bank. I see what I think is another deer trailing the lead animal. But then my brain recognizes the scene for what it is: prey and predator, a death struggle in mid-air. The second animal lashes out with its right paw. It’s then I note the long tail, the laid back ears, the feline face, the distinctive markings. “It’s a f_____ing cougar!” I blurt out, forgetting my two grandsons are with Rene’ in the back seat. I’ve never seen a mountain lion outside of a zoo. I’m beyond excited by the drama playing out in that stream bed as the Tahoe speeds past. I have no idea whether the deer made the leap or not. Matt’s attempt to stop the car and return to the scene is for naught.

My wife and I avoid injury. We eat well, drink a few adult beverages, laugh a lot, tell tall tales, and bond with family and friends on the hill, in the Bridger lodge, and during apres ski time; the Ski Hut hosting a banquet where “fabulous” prizes, including some Munger books, are awarded in a drawing. And then, it’s Saturday morning. We pack up the Grand Cherokee and head home.

As a teenager, I grew up traveling to the Rockies to ski. My mom and dad brought me with them on a number of trips sponsored by the Continental Ski Shop in Duluth to Colorado. Despite being an alpine racer, it was on those trips that I really learned the sport.

But the beauty, the joy, the family-oriented aspect of these Ski Hut sponsored trips, the brainchild of Wes Neustal-the 98 year old patriarch of this fine tradition-is that we all, related by blood or not, are family. It’s that simple. What a wonderful idea in this time of controversy, arguing, mean spiritedness, and discord.

So, with apologies to Mr. Myers, that’s my report from the road. Until our next visit to Bozeman…

Peace.

Mark

Duluth attorney Harry Munger passed away peacefully in his home in Port Charlotte, FL on 04/28/2018.

            The youngest of five children, Harry was born in Fergus Falls on October 29, 1927, attended the Fergus Falls schools, moved to Duluth at the beginning of WW II, and lived on Raleigh Street. A child of poverty and the Great Depression, Harry valued education and graduated from Denfeld in 1945.

After serving two years in the U.S. Army Air Corps as a weatherman, Harry was determined to go to college. Law school intrigued him. Harry enrolled in the University of Minnesota where he met his longtime partner and close friend, A. Blake MacDonald. But even using the GI Bill, Harry could not afford school. He returned to Duluth and worked on the railroad to earn money for college. He used his savings and the GI Bill to attend UMD. Too undersized to play sports at Denfeld, Harry grew enough during his military service to join the Bulldog football team.  While at UMD, Harry lettered in football (as a quarterback and punter) and student-taught at Lincoln Junior, intending to become a teacher. Harry also began courting Barbara Kobe. Harry proposed marriage but Barbara insisted that Harry earn his degree before she’d say “yes”, which meant that Harry was the first Munger to graduate from college!

After marrying Barbara in 1951, Harry entered the St. Paul College of Law. He worked fulltime as an insurance adjuster while attending night school. Son Mark was born in St. Paul and after Harry graduated with his JD in 1956, the Munger family returned to Duluth, settling in Piedmont Heights where son David and daughter Ann joined the family.

Harry was raised by parents who were members of the Farmer-Labor Party. He was steeped in politics from an early age. When Harry’s brother Willard was elected to the Minnesota House in 1954, he lived with Harry and Barbara in St. Paul during the legislative session. This interaction heightened Harry’s passion for Liberal politics. After returning to Duluth, Harry became the St. Louis County Chair of the DFL. He was a delegate to the 1968 National Convention in Chicago where he proudly supported Hubert Humphrey. He was also active in the Presidential Campaigns of ‘76, ‘80, and ’84, supporting his close friend and fishing buddy Walter “Fritz” Mondale as a Vice Presidential and Presidential candidate.

Harry established a personal injury and general practice law firm in Duluth, partnering with Blake MacDonald and Tim Downs and his son Mark to form MacDonald, Munger, Downs, and Munger. He also served as a Special Municipal Court Judge and as a judge on the Minnesota Tax Court. During his legal career, Harry also served as the President of the MTLA, and was active in ATLA, the ABA, the 11^th District Bar Assoc., and the DTLA.

An avid outdoorsman, Harry traveled to fish char in the arctic, salmon in Alaska, and saltwater fish in Florida. He hunted grouse, ducks, geese, sharptail, huns, and pheasants in South Dakota, North Dakota, Minnesota, Saskatchewan, and Manitoba. Harry fished the Knife in Minnesota, the Brule in Wisconsin, and the Betsy in Michigan for steelhead. He instilled in his children and grandchildren a respect for nature and a love of the outdoors. Harry worked tirelessly on conservation issues with his brother Willard, including a failed effort to block the expansion of the Miller Hill Mall because the shopping center’s runoff was degrading Miller Creek, an urban trout stream.

Harry coached youth sports and served as the President of the Skyline Little League. He was a devoted attendee of sporting events, cheering for his sons on the PSS gridiron (mostly for David, a starting offensive lineman), rooting for his kids when they skied competitively, and attending innumerable baseball and softball contests. He also took in many of his grandchildren’s baseball, basketball, softball, soccer, and hockey games.

Harry is survived by his sons Mark (Rene’) and David (Diane), daughter Ann (David) Sarvela, and grandchildren Matthew (Lisa), Dylan (Michelle), Christian (Rachel), Jack, Jonathan, Nichole (Chris) Howard, Crystal (Ryan) Hoyt, Melissa (Megan) Landon, Madeline and Emelia Sarvela, 11 great-grandchildren, his first wife—Barbara Tourville, his second wife—Mary Kay Munger, partner Pauline Liston, and many nieces and nephews including special niece and special nephew, Patricia Lehr and Will Munger.

As Harry’s partner for 12 years, I’ll leave you with two short stories about practicing law with Dad. As a brand new lawyer, freshly returned from US Army Reserve basic training in Ft. Dix, I stepped off the plane in Duluth and was handed my first court trial. The client, Duluth Ready Mix, was an important one to the office so Harry accompanied my to the trial as my “second chair”. Any one who knows Harry understands the impossibility of that label. In any event, we were in front of Judge David Bouchor and our client, Mike Robertson was on the stand. I was examining him but I was having a heck of a time because every time I’d ask Mike a question, Harry leaned over and barked in my ear. I was getting more and more flustered until Judge Bouchor straightened up and said: “Harry, why don’t you let the kid ask the questions? He’s doing a pretty good job without you …” Dad turned red, stood up, picked up his file, and stormed out of the courtroom. Turned out Judge Dave was right: He ruled in my client’s favor but it took weeks before Harry would talk to him again.

The second story involves the case of Minter versus Chrysler. Joey Minter was a young man injured in a motor vehicle crash. He sustained quadriplegia due to what Harry believed to be a defective shoulder harness in the back seat. The driver alleged that a dog or a deer had darted out, causing him to swerve, resulting in the catastrophic crash. But there was a problem. The main police reports didn’t say anything about a deer or a dog. Digging deep into the investigating officer’s notes, Harry discovered a comment about “a roll of sod being in the road”. He placed an ad in the DNT asking if anyone had witnessed a sod truck dropping its load on the day of the crash. A witness came forward and Godden’s Sod was added as a defendant.

As hard as Harry pushed his products case against Chrysler, the auto maker fought harder. Here was a four-person PI firm up against Bowman and Brooke and all its money and power and backing. The case seemingly stalled out on the issue of the design of the shoulder belt that our expert said was defective. Again, as Bob Falsani affectionately noted in a recent email, my pit bull father dug deeper. He found Chrysler literature that tied none other than Lee Iacocca, the head of Chrysler, to the design of the very shoulder harness that failed. This discovery emboldened the old man to do the unthinkable: He subpoened Iacocca for a deposition. Of course, Bowman and Brooke opposed. But they weren’t fighting in federal court: Because Godden Sod was in the case, the case was venued in state court in Duluth. When good old “Let it in” Charlie Barnes heard the motion to quash, he sided with Harry and said: “I’d like to hear what Mr. Iacocca has to say about all this.” Harry took that order, which was affirmed by the Supreme Court, and turned the case into his first seven-figure settlement. That was Harry: no one was too big or too important to fall beyond his scrutiny, including the president of Chrysler Motors or Harry’s son, even if he became a district court judge.

Mark