Herb Meschke: A Brilliant Mind in a Broken Body

They’ll bury Herb Meschke later this week. I don’t know if it will be in the North Dakota Bad Lands, where he was born and raised, or in Minot, where he spent most of his life. Wherever it is, his presence will enhance the stature of the cemetery.

Herb was a cowboy, a lawyer, a Legislator, a judge and a family man. He took all of those jobs seriously. And he was pretty good at them.

He died at home last Friday. There’ll be a Methodist funeral for him Wednesday. His death marks the end of a life at the center of some of North Dakota’s most interesting political stories. I’m going to tell a couple. First, some background. I like revisiting old political stories, and Herb’s death gives me the opportunity to do that. I think he’d approve.

Because most people who knew Herb in the last 65 or 70 years of his remarkable 89-year life never saw him wearing anything but a suit and tie or a judicial robe, they don’t know about his cowboy background. He was born on a ranch north of Medora and according to those who knew him, was a strapping young cowboy when he went off to college in the late 1940s.

It was sometime during his college or law school years, friends tell me, he was stricken with rheumatoid arthritis. Most of us who knew him as an adult never saw him stand erect. He walked hunched over, having to turn his head slightly to look up when he was having a standing conversation. That’s how we all remember him, short, hunched over, walking with a cane. All his adult life. Gary Williamson, his seatmate in the 1965 Legislature, said Herb kept a bottle of aspirin on his desk and would just pop a handful into his mouth from time to time to ease the pain of the arthritis.

That 1965 session was the beginning of one of the political stories of his life. In the 1964 election, the Johnson landslide, the last time a Democrat Presidential candidate carried North Dakota, Herb, Gary and three other Young Turk Democrats—Larry Erickson, Bob Schoenwald and Wayne Sanstead—rode that landslide into the Legislature, defeating all the Republican incumbents except the venerable (even then) Brynhild Haugland.

According to Williamson, they arrived in Bismarck as “Brynhild’s Boys.” She was in charge of the Minot delegation from Day 1, determined not to let Minot suffer because it was represented by 5 young freshmen (even though the Democrats were in the majority). She found them seats, got them committee assignments beneficial to Minot, and probably directed to some extent how they voted on the floor.

That was one of only two Legislative sessions Democrats were the majority party. It’s fun to look at the list of House members that session, whose names you might remember, in addition to Sanstead, who held statewide office longer than almost anyone in our state’s history (Can you say Ben Meier?), and Meschke, a Supreme Court Justice for almost 15 years, included Richard Backes, Lee Christensen, Oscar Solberg, Buckshot Hoffner, Treadwell Haugen, Tom Stallman, Clarence “Chief” Poling and Art Link, who was speaker of the House that session. Most of them were just getting their start on distinguished political careers in North Dakota.

An interesting side note: The only two years Democrats held the majority of seats in the North Dakota House, in 1965 and 1983, five men served in both those sessions: Sanstead, Backes, Hoffner, Solberg and Olaf Opedahl. The House was tied in the 1977 session, and Solberg served as Speaker by consensus of both parties, showing the respect he had from Republicans. In the days when Republicans and Democrats actually got along. Sigh.

But back to Herb Meschke. Herb served just that one term in the House (House terms were just two years back then) and the next year he ran for and was elected to the State Senate. Only four Democrats were elected to the Senate that year, and they joined holdover George Rait as the smallest Democratic-NPL caucus ever (although modern day Democrats are headed that way, to challenge them—there were just 9 this year).

Williamson and Sanstead were re-elected to the House, and after serving in the majority in 1965, were among just 14 Democratic-NPL House members out of 99 Representatives that session. Democrats eclipsed that record this past session with just 13 out of 94.

Herb’s other memorable role was in January of 1985, the time when North Dakota had two Governors. I wrote about that a few years ago, and you can go back and read it if you want to by clicking here. But let me summarize, and point out that I’ve actually learned (actually, remembered) a little more about that incident in the last few years since I wrote that post.

Sinner was elected Governor in the November 1984 election. In those days Governors legally took office on January 1, but traditionally waited until the first day of the Legislature, which was the first Tuesday after the first Monday of January. In 1985, that was January 8. After this crisis, the Legislature changed the date of the new term to December 15.

Between the tine of the election and January 1, two vacancies occurred on the North Dakota Supreme Court—a justice died and another announced he was about to resign. Which meant the Governor got to appoint two Supreme Court Justices, surely plum appointments for any Governor. Per North Dakota law, a Judicial Nominating Committee advertised for applicants, and receiving them, announced they would recommend candidates for the Governor to choose from, on January 4—whomever the Governor was that day.

So Olson, who had decided to stick around until the Legislature convened on January 8, as tradition held, was going to make two appointments before he left office. Sinner decided not to let that happen. Since legally he was entitled to take office on January 1, according to an opinion issued by Olson a few years earlier when he was Attorney General, he did just that.

Olson objected and hunkered down in his office and refused to leave, now claiming that he could, by tradition, remain in office until the Legislature came to town. Sinner set up shop in the Governor’s residence—remember, Olson had decided not to live there, remaining in his own house high atop a hill in North Bismarck, something a lot of people viewed as arrogance, probably contributing some to his defeat by Sinner.

So we had two Governors for a few days, until the new Attorney General, Nick Spaeth, convinced the Supreme Court to take the case immediately and decide who the Governor was, and in a matter of hours, the court decided Sinner was entitled to the office. Note that all of the sitting Justices except the Chief Justice recused themselves, and Chief Justice Ralph Erickstad appointed four District Court Judges and told them to get their tails to Bismarck and hear the case. So it was those four men—Maurice Hunke of Dickinson, A.C. Bakken of Grand Forks, Norman Backes of Fargo and  Benny Graf of Bismarck, who held the fate of the next two Supreme Court Justices in their hands.

Interestingly, Erickstad, a known Republican (he had served three sessions in the North Dakota Senate as a Republican before being elected to the Court) appointed three pretty well known Democrats—Bakken, Backes and Graf—to decide who the Governor was, and who would make the next two Supreme Court appointments. And they chose Sinner, the Democrat. It really was a question of law, though, not politics, so there was nothing untoward in their decision, that I can tell.

I think Olson really didn’t want that confrontation, or to have his term in office end that way, but there must have been tremendous pressure on him from some in the Republican Party to claim those two Supreme Court seats. Rumors have floated around for years, but I’ve never been able to confirm them, so I won’t repeat them. I’m sure Mark Andrews would appreciate that.

There were known Republicans—Ward Kirby of Dickinson, Vern Neff of Williston, and Rolf Sletten of Bismarck—on the Judicial Nominating Committee list submitted to Sinner, and some known Democrats—Herb Meschke and Jim Maxson of Minot and J. Philip Johnson of Fargo, and two suspected Democrats, Bill Neumann of Rugby and  Beryl Levine of Fargo.

Sinner chose Meschke and Levine. He, and most North Dakota Democrats, probably would have liked to appoint Meschke and Maxson, but he just couldn’t appoint two from the same town. And he just couldn’t pass up an opportunity to appoint the first woman ever to the North Dakota Supreme Court.

That he chose Meschke over Maxson probably had something to do with a little leaning from Meschke’s old colleagues in the 1965 Legislature, Richard Backes and Larry Erickson, both of whom were close to Sinner and had helped in the Minot area on his campaign, and the fact Sinner had served across the hall in the State Senate from Meschke, and his House colleagues that session, Erickson, Backes, Williamson, Schoenwald and Sanstead.

Maxson went on to his own political career, being elected to the State Senate in 1986 and again in 1990. He holds the distinction of being the only Democrat to serve four sessions in the North Dakota Legislature and never serve in the Minority. Democrats had a majority in the Senate in 1987, ‘89, ‘91 and ‘93 in 1994 (Yes, North Dakota Democrats, there once was a time, and a place called Camelot). In 1994 Maxson went back to Minot to resume his law practice full time.

Johnson and Neuman, by the way, did end up on the Supreme Court later, but no such luck for the three Republicans.

Herb’s appointment to the court in January was the subject of some controversy. Some Republicans dragged out old newspaper stories from the 1960s First Western Bank scandal, in which most of the Democratic-NPL crew from that 1965 Legislative session—Backes, Erickson, Williamson and Meschke—were indicted for some alleged banking and campaign practice crimes. Wanting to keep up with the Republicans in the financial world, they had started their own bank in Minot, and were accused by Nixon-era prosecutors of playing a little fast and loose with banking and campaign regulations. All, including Meschke, their lawyer, were either acquitted or had charges dropped, but it sullied Meschke’s entrance into the judiciary. First Western Bank, ironically, is now owned by North Dakota Republican Senator John Hoeven’s family.

Herb was elected to a four-year term on the Court in 1986 and a full ten-year term in 1990, and took early retirement in 1999, moving back to Minot and practicing law a little bit, and doing some writing. The last time I saw him was at Gov. Bill Guy’s funeral a few years ago. He was still this hunched over little man, a brilliant mind trapped in broken body.

I loved that little man, mostly from afar, because of what he accomplished in spite of his physical handicap, and the lifetime of pain he tolerated to be an active part of North Dakota history. And also partly because he was wise enough to marry a girl from my home town, Shirley McNeil from Hettinger, North Dakota. Shirley survives him.  She spent a lifetime taking care of Herb. God bless her. I wish her all the best in the rest of her years.


11 thoughts on “Herb Meschke: A Brilliant Mind in a Broken Body

  1. Why wasn’t anyone convicted in the First Western Bank scandal? Was it true that all the guilty parties were given immunity to testify before a grand jury and there was, thus, no one left to prosecute?


  2. Justice Meschke was a brilliant writer and the toughest questioner on the Supreme Court bench, and that is not to disrespect any justice who served with him. Any lawyer who showed up unprepared for oral arguments got undressed by Justice Meschke, but good.


  3. In 1965, I had a wonderful conversation with Herb Meschke at a Democratic function in Bismarck. I was 19 or 20 and met him there for the first time. Obviously I noticed first how he was bent over and had to turn his head, almost gnome-like, to talk, but, as we sat down and chatted, it soon became clear what a remarkable mind he possessed. He was interested and attentive to what a young man had to say, and he offered very good, insightful advice and counsel on my interest in becoming an attorney. My decision to go to the U of Michigan Law School was influenced in part by the fact that Herb had gone there. An extremely bright light has gone out in North Dakota.


  4. Thanks Jim, for the tribute to Justice Herb Meschke.– for your reminiscence of that historical event and for Jerome Lamb’s wonderful column. I was in my first two months as a new city editor at the Grand Forks Herald at the time, after spending 10-plus years in Pennsylvania. It was a unique and incredible reintroduction to North Dakota and its grassroots politics.
    Those were the days.


  5. Jim, your Herb Meschke piece brought back a flood of memories both good and bad. The good concern Herb. He and I came to like and respect each other as a result of a Burleigh County criminal case from 1970 or 1971 involving Minot State Senator Morrie Anderson and Rod Jacobson, a prominent Bismarck businessman. They had an unfortunate intersection auto collision in Bismarck that resulted in the pedestrian death of a young boy walking on a nearby sidewalk on his way to elementary school. The child was the son of a fairly well-known Bismarck schools administrator. The circumstances caused Tom Kelsch, Burleigh County States Attorney then to charge Herb and Morrie with either Negligent Homicide or Manslaughter (I don’t recall the exact charge but either were serious felonies). Herb represented Morrie and I represented Rod. Because of the prominence of the defendants and the circumstances of the accident the case was removed to Rugby. The trial was a bit tense as either defendant could have blamed the other but didn’t and both were acquitted. Thereafter, as I noted above, Herb and I personally knew, liked and respected each other.

    The bad memories concern the Governors’ Residence and the Supreme Court kerfuffle. Our children were in Bismarck kindergarten and elementary schools when I was elected in 1980. We had just moved into a new home north of Bismarck and Barb and I felt that the disruption of another move into the “glass” box of the Residence could be highly negative for our kids. Barb was an elementary teacher in the D.C. suburbs before we were married and she understood the potential problems. As you noted, we were criticised for that decision to the extent that Art Link felt compelled to defend our decision.

    The Supreme Court vacancies offered the opportunity to clarify an ambiguity in ND law at the time. I communicated with Bud either directly or through staff (again, I don’t recall which) the reason for my action and, as I recall, he understood. That’s probably the reason why we could maintain a friendly relationship and occasionally play golf together thereafter. And, yes, it was communicated to me that certain members of the Mark Andrews family were qualified for and happened to perhaps have an interest in the ND Supreme Court vacancies. You can believe me or not but it was only coincidental to my decsion to use the circumstances to clarify the law.


  6. Herb was a great friend of my father and our family. I thought of him as an intellectual with an ability to easily relate and converse with anyone. He was a true democrat, and a true Democrat.


  7. Thank you for the well done article on Herb Meschke. I got to know Herb first as a law clerk working at the North Dakota Supreme Court in 1987, and then as an attorney in the firm where he practiced, and resumed a limited practice after he stepped off the ND Supreme Court. Remembrances of Herb in legal circles have focused on his skills as an attorney and judge. But as I’ve learned over the past week, there is another community of his admirers who knew him as kind, compassionate man, who went out of his way to listen to, and help the less fortunate. Perhaps his body was broken. But his heart was every bit as impressive as his legal mind.


  8. Thank you so much for the fine article about Herb Meschke. I was proud to be a partner with Herb in Minot before he went on the ND Supreme Court. I was also proud to call him a friend for 40 years. Your well written story brought back many great memories and is the first time I learned of the timing of the onset of Herb’s severe arthritis. Herb never complained or dwelled on it. He was a remarkable person and I feel honored that I was able to practice law with him.

    Partners in Herb’s law firm were of both political persuasions and stood by him through the First Western Bank to do. I was amazed then and still marvel that Herb never displayed any animus toward the local attorney who had served as prosecutor in that matter even though most felt he was used by others in a politically motivated matter.

    It was also nice to see a comment from Governor Olson. He had many fine accomplishments while he was in office that should not be forgotten.


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